Bava Metzia 104

Common language.

Four years into the Daf Yomi cycle, you may have noticed that the rabbis often speak as if their rulings are definitive and followed by everyone. On today’s daf, however, the sages consider several cases of agreements which don’t conform to rabbinic standards and yet are still considered valid. Here’s the mishnah that kicks off the discussion:

One who receives a field from another and lets it lie fallow, (the court) appraises it by how much it was able to produce, and he gives (his share of this amount) to the owner. This is what (a cultivator) writes to the owner: If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce.

On Bava Metzia 94, we learned that the rabbis ruled that in order for stipulations in a contract to be valid, the condition must be stated prior to the action. Here, a contractor writes an agreement with the action (letting the land lie fallow) stated before the condition (paying what the field should have yielded with best quality produce). We would expect then that the rabbis would consider this contract invalid, but that’s not what happens. The rabbis rule that the stipulation is valid and require the contractor to pay what the field would have produced had it been cultivated.

Rabbi Meir would expound (in) common language. As it is taught: Rabbi Meir says (he is liable to pay, as the document states): If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce.

Curiously, Rabbi Meir says here that the contract is valid, even though previously he ruled otherwise. Why is that? 

To explain, the Gemara employs the term lashon hedyot, common language or layman’s terms. Rather than throw out the contract, Rabbi Meir lets it stand because he recognizes that this is how regular people do business. And in fact, the definitive medieval law code the Shulchan Aruch (Choshen Mishpat 42:15) spells this out, noting: “We follow any language that is often in used documents, even if it was not an institution of the rabbis but a language that the common-folk use in that locale.”

Several other cases are then brought in which a rabbi expounds in common language. Here’s one example: 

Hillel the Elder would expound common language, as it is taught: The inhabitants of Alexandria would betroth their wives (a great deal of time before the wedding), and at the time of their entry to the wedding canopy, others would come and snatch the women. The sages consequently sought to establish the children as mamzerim

As we’ve learned previously, the rabbis consider betrothal tantamount to marriage. If a betrothed woman conceives a child with someone other than her fiancé, that child should be considered a mamzer, a child born of an adulterous union, with consequences not only for the child, but for all generations to follow. In Alexandria, brides would be kidnapped just before the marriage ceremony and the rabbis assumed rape would follow. If this isn’t terrible enough, the sages also ruled that the children born afterwards should be considered mamzerim. 

The sage Hillel seeks to mitigate this ruling:

Hillel the Elder said to (the children): Bring me your mother’s marriage contract. They brought him their mother’s marriage contract, and he found this was written in it: When you will enter the wedding canopy, be for me a wife. And therefore, these women did not cause their children to be mamzerim.

Faced with the children whose status is in question, Hillel asks them to bring their mother’s ketubah. Because the language of the contract states that the marriage is effected only after the woman enters the wedding canopy, which never happened, Hillel declares that the woman was not married at the time the children were conceived and therefore they are not the product of an adulterous relationship. Why would he rule this way? 

Consider that for much of his life, Hillel was himself an impoverished commoner. He first began to study Torah only at the age of 40. Once, lacking tuition money, he lay on the roof of the study hall to hear the lecture. As a man who spoke the language of rabbis and commoners alike, Hillel brought his whole self to the law. 

I like to think that he and the other rabbis who expounded in common language understood that while the rabbinic ideal might be preferable, a society is most fully served by supporting the practices of the common people without levying undue hardship. And isn’t that the very definition of justice? 

Read all of Bava Metzia 104 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 11, 2024. If you are interested in receiving the newsletter, sign up here.

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