May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel ben Harav Yoel David Balk, a”h.
This week we learned Bava Metzia 40 and 42. Here are some highlights.
Bava Metzia 40: Who must pay when mice damage?
Reuven went to the local grocer to buy some food items in the evening. After paying for his groceries, he asked that the grocer deliver them to him the next morning. The proprietor put the food in a box. He locked up his store. When he came the next morning, he saw that mice had eaten from the box of foodstuffs. Did the store owner have to replace the food that the mice had eaten?
Rav Zilberstein suggested that our Gemara seems to indicate that the store owner would not be liable. The mishnah taught that if Reuven gave Shimon wheat to watch and Shimon mixed his friend’s wheat with his own and then mice ate from the pile, when Reuven would come to reclaim his deposit Shimon must give him what he had deposited with him but he may subtract from it the normal amount of wheat that the mice eat. The Gemara added that if Reuven and Shimon had agreed that Shimon would store Reuven’s wheat in a corner, if Shimon had not touched the wheat and now that Reuven came to reclaim his item some of the wheat was missing because mice had eaten from the pile, Shimon could tell Reuven, “Herei shelcha lifanecha—Behold your item is before you.” Shimon could return the wheat as it is. He would not be responsible to reimburse for the damage caused by the mice. It emerges from these sources that our Sages felt that it was impossible to protect from some amount of loss from mice. A watchman would be exempt from paying if mice ate from the food he was watching. In our case, the grocer was an unpaid watchman. He was not getting compensated to store the food over the night. The customer therefore should have to bear the loss that the mice caused.
Rav Zilberstein mentioned that perhaps our times differ from those of the Talmud. In the days of the Talmud they did not have mouse traps, glue pads and poisons that would clear an area of mice. In those days it was impossible to stop the mice entirely. Perhaps, our days have a different law. If a store owner did not utilize the services of an exterminator and try his best to keep the mice from his store, he was negligent. Maybe he would be responsible for the damage to the food that his negligence allowed. Therefore, perhaps only if the store owner had done all that is normally done in our time to keep the mice away, and the rodents still ate the food from the box, would he be exempt. However, if the store owner did not make a total effort he would be responsible for the food damage.
Furthermore, if the normal custom is that the grocer reimburses the customer when the mice eat the food the man bought but left in the store, then the grocer would have to reimburse the buyer. Our mishnah may have taught a law about what is considered negligence. However, in all monetary matters, hakol k’minhag hamedina, everything follows the custom of the country. If the custom is that the grocer pays, he must pay (Chashukei Chemed).
May pharmaceutical companies charge exorbitant prices for lifesaving medications?
In the early 1970s, a major pharmaceutical company introduced a drug, Levamisole, to deworm sheep. The National Cancer Institute sponsored a study by Dr. Charles Moertel. He studied combining Levamisole with a chemotherapy drug as a treatment for cancer. The study proved that the combination could help patients with advanced colon cancer. It cut deaths by a third. The FDA quickly approved Levamisole for human use.
The pharmaceutical company started to sell the drug under the name Ergamisol. Ergamisol cost $1,500 for a year’s supply. The same drug cost $14.95 for use on sheep. Would Halacha allow for such pricing?
Our Gemara taught that the sages made an enactment. They wanted to ensure access to basic food. They wanted all to be able to live. As per the Biblical mandate of “And your brother shall live with you,” the Sages legislated that basic foods could not be sold for a profit in excess of one sixth. The Gemara related a story of Rav Yehuda, who purchased a barrel of wine that contained 48 portions for six zuz. He was careful not to get too much profit from the barrel because of the Rabbinic enactment enjoining too much profit from basic food necessities. Wine was a basic food in the days of the Talmud. Rav Aaron Levine, zt”l, argued that pharmaceutical drugs that can save lives would be included in this enactment.
The Sages would want all to have access to life-saving drugs. It was wrong for the pharmaceutical company to charge such high prices. A company would be entitled to demand reimbursement for its costs. However, the costs of the drug research in this case had been borne by the U.S. government. Halacha would not have allowed the company to charge an exorbitant fee to derive profits far in excess of one sixth from a life-saving commodity (Case Studies In Jewish Business Ethics).
Bava Metzia 42: Financial Advice
Our Gemara teaches about the degree of watching expected of an unpaid custodian, shomer chinam. If the watchman bundled money he was given to watch in a scarf and carried it over his shoulder on his back, or if he gave the coins to his children who were minors to watch, or if he locked the coins behind a wall that could not withstand a normal wind, he had been negligent. If the coins would be stolen he would be responsible to replace them. These laws led to lessons about responsible financial stewardship.
The Gemara taught that blessings are found in money that is not counted. The verse stated, “Yitzav Hashem itcha et habracha be’asamecha—Hashem will command a blessing with you in your insides.” The Hebrew word for innards, asamecha, shares a resemblance with the Hebrew words for hidden from sight, samuy min ha’ayin. The verse can be read to impart that Hashem will command His blessing to that of yours which is hidden. Rabbeinu Bechaye taught that the reason for this Divine practice is that Hashem wants us to know that He is taking care of us in a hidden way. We are surrounded with hidden miracles. Therefore, when money is not counted and the blessing is not apparent, Hashem sends blessings to the money and increases it, to teach us that His guidance is hidden and supportive.
Rav Chaim Kanievsky gave surprising advice based on this Gemara. He was asked if a pregnant woman should undergo an ultrasound exam. He advised against it. He said when the state of the fetus is hidden from the eye there will be more blessings. Hashem sends blessings to what is hidden. If the parents would do an ultrasound on their fetus, a problem might be discovered; once a problem is identified, it will be harder for the Almighty to fix it, for that would be an open miracle, and Rabbeinu Bechaye taught that the Almighty prefers to guide and bless in the shadows.
The Gemara also teaches that a person should divide his assets. A third should be in land, a third in merchandise and a third in cash. An investment manager once went bankrupt. His investors lost all the money they had given him to invest. There were young men who lost all their assets with his collapse. When Rav Moshe Feinstein heard what happened he was doubly upset. He was upset with the behavior of the manager. He was also upset with the investors. “Our Torah contains guidance for life. In Bava Metzia 42 the Gemara taught that a person should divide his money into thirds. A third should be in cash. A third in land. A third in merchandise. How could religious Jews ignore this advice and put all their money in investments? A Jew should always keep a third of his wealth in cash.” (Daf al hadaf and Daf Yomi Digest)
By Rabbi Zev Reichman
Rabbi Zev Reichman teaches Daf Yomi in his shul, East Hill Synagogue.