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Bava Metzia, 93

1) A GUARD'S RIGHT TO EAT

QUESTION: The Mishnah states that laborers working as guards for fruit may eat from the fruit only because it is the customary practice of that place ("Hilchos Medinah"), but not because the Torah entitles them to eat. Rav and Shmuel argue about what type of guard the Mishnah is discussing. Rav says that the Mishnah is referring to a guard who is watching gardens and orchards (in which the produce is still attached to the ground); a guard who is watching a winepress or stacks of grain may eat mid'Oraisa. Shmuel argues and says that the Mishnah is referring to a guard of a winepress or stacks of grain. A guard of gardens or orchards may not eat *at all*, not mid'Oraisa nor on account of custom.

The Gemara explains Rav and Shmuel are arguing whether guarding is like doing an action (Rav), or whether guarding is not like doing an action (Shmuel).

The verses in the Torah that discuss a laborer's entitlement to eat, however, make no mention of any requirement that the laborer must be doing an action. What difference does it make, then, if a guard is not considered to be doing an action? Regarding other Halachos, a guard has the same status as a normal laborer (for example, with regard to the Isur of withholding a worker's wages). Why does he not have the same status with regard to a worker's entitlement to eat from the fruit with which he is working?

ANSWERS:

(a) The MA'AYANEI HA'CHOCHMAH and AYELES HA'SHACHAR answer that regarding the Halachah of a worker's entitlement to eat, there is a logical reason to say that a guard is *not* like a normal worker. It is obvious that if a normal worker happens to be working in a vineyard but his work has nothing to do with the vineyard itself (for example, he is fixing an object in the vineyard), that worker may not eat from the fruits of the vineyard. Only one who is working with the fruits themselves, or with the ground from which they grow, may eat from them. Similarly, a guard is not considered to be working with the fruits themselves, and thus he does not have the right to eat them.

(b) The DARCHEI DAVID answers that Shmuel maintains that a guard is not entitled to eat from the fruits he is guarding because we have a Hekesh that links the "Chosem" (the one who muzzles) to the "Nechsam" (the animal which is muzzled). The laborer is the "Chosem" who muzzles the ox, and the ox is that which is muzzled. The Halachah regarding muzzling an ox is that it is prohibited to muzzle the ox while it is threshing in the field. The threshing is an action. We learn from there that the requirement to allow a laborer to eat applies only when he is doing an action. (I. Alsheich)

QUESTION: Shmuel says that the Mishnah, which says that a guard who is watching fruit may eat from the fruit only because that is the customary practice of the place ("Hilchos Medinah"), is referring to a guard of a winepress or stacks of grain. A guard of gardens or orchards may not eat *at all*, not mid'Oraisa nor on account of custom. The Gemara explains that Shmuel holds that guarding is not like doing an action, and therefore a guard may not eat mid'Oraisa (see previous Insight).

The RA'AVAD (cited by the Shitah Mekubetzes) asks why the Chachamim differentiated between a guard of gardens or orchards, and a guard of winepresses or stacks of grain, such that a guard of winepresses or stacks of grain may eat from the produce due to "Hilchos Medinah," even though he is not considered to be doing an action, while a guard of gardens or orchards may not eat at all, even on account of "Hilchos Medinah?" Neither guard is doing an action!

The RASHBA also asks this question, but he leaves out the words "why did the Chachamim differentiate." Rather, he seems to be asking why the Minhag ha'Medinah is such that it differentiates between the two guards. (It seems that the Ra'avad understands the Minhag ha'Medinah to be a result of an enactment of the Chachamim to allow this particular type of guard to eat (as the TOSFOS RID writes explicitly). The Rashba, on the other hand, seems to hold that there is no enactment of the Chachamim, but rather it is the customary practice alone which entitles the guard to eat, as is implied by RASHI (DH m'Hilchos Medinah) and as the ME'IRI writes.)

ANSWERS:

(a) The RA'AVAD answers that "occasionally, a guard has to do an action." He seems to be saying that the reason why the Chachamim instituted that only a guard of winepresses or stacks of wheat may eat from the produce is because a situation *might* arise in which he has to do an action with the produce (in which case he will certainly be entitled to eat mid'Oraisa). Since such a situation might arise, the Chachamim instituted that he may eat even before he does an action (and even if, later, it turns out that he did not need to do any action). In contrast, if a guard of gardens or orchards needs to do an action with the fruit that he is guarding, his right to eat the fruit will be only due to "Hilchos Medinah" (since the fruit is still attached to the ground), and thus the Chachamim did not institute that he may eat even when he has not yet done any action.

(b) The RASHBA answers in a slightly different manner, as does the RITVA. They do not say that the right of a guard to eat is due to the possibility that he might do an action. Rather, since a guard of winepresses -- *had* he been doing an action -- would have been entitled to eat mid'Oraisa, he is therefore entitled to eat without doing any action, due to "Hilchos Medinah." A guard of gardens or orchards, though, would not have been entitled to eat mid'Oraisa even if he had been doing an action, and therefore, since he is not doing any action, he may not eat even due to "Hilchos Medinah." (I. Alsheich)

93b

QUESTION: Rabah rules (93a) that if a shepherd was grazing animals on the bank of the river and one fell into the water, the shepherd is exempt, because he guarded the animals normally. Abaye questions this ruling from a Beraisa which states that if a shepherd leaves his herd to come into the city, and a wolf or lion comes and attacks the herd, we evaluate whether he would have been able to protect the herd had he been there. If he would have been able to protect the herd, then he is Chayav, even though he guarded the herd in the normal manner, as he went into the city when people normally go. Rabah answers that the Beraisa is referring to a case where the shepherd went into the city when people normally do not go, and therefore he is Chayav. Abaye asks that if he went into the city when people do not go, then why is the shepherd exempt if our evaluation shows that he would not have been able to protect the herd? It is a case of "Techilaso b'Peshi'ah v'Sofo b'Ones," and he should be Chayav! (The Gemara answers that the shepherd heard the ferocious roar of a lion approaching and therefore fled to the city, and thus he is exempt because there was nothing he could do.)

This Gemara poses a question to the view of a number of Rishonim. The RIF, TOSFOS, and other Rishonim maintain that the Chiyuv of "Techilaso b'Peshi'ah v'Sofo b'Ones" applies only when the eventual Ones occurs as a result of the initial Peshi'ah, such as where the Ones would not have occurred had the Shomer not committed the Peshi'ah in the first place. The Gemara (42a) records an incident in which a person deposited some money with a Shomer. The Shomer placed the money inside of a hunter's hut for safekeeping, where it would be protected from thieves, but not protected from a fire. Thieves then stole the money. In that case, when the Shomer placed the money in the hut, it was an appropriate act of Shemirah to prevent thieves from taking it, but it was an act of negligence (Peshi'ah) with regard to a fire. In the end, thieves stole it from there (an Ones). Had the Shomer not put the money in the hut in the first place, the Ones would not have happened. Only in such a case -- where the Ones occurs as a result of the Peshi'ah -- is the Shomer Chayav because of "Techilaso b'Peshi'ah v'Sofo b'Ones."

The Rishonim ask that our Gemara is a clear contradiction to this opinion. In the case of our Gemara, the eventual Ones -- the lion's ravaging of the herd -- would have occurred even if the shepherd had not been Poshe'a and left the herd in order to come into the city! The Gemara says that the shepherd would be Chayav because of "Techilaso b'Peshi'ah v'Sofo b'Ones" even though the Ones is unrelated to the Peshi'ah and would have happened regardless of the Peshi'ah! (RIF and ROSH to 36b, TOSFOS 78a, DH Huchmah)

ANSWERS:

(a) The RIF answers that, indeed, this is the point of the Machlokes between Abaye and Rava earlier (36b). Rava maintains that the Shomer is Chayav because of "Techilaso b'Peshi'ah v'Sofo b'Ones" only when the Ones occurs as a result of the Peshi'ah having been done. Abaye holds that one is Chayav for "Techilaso b'Peshi'ah v'Sofo b'Ones" even when the eventual Ones is unrelated to the initial Peshi'ah. Abaye here is consistent with his view earlier (36b).

(b) TOSFOS earlier answers that here, too, the Ones can be viewed as related to the Peshi'ah, in one of the following ways.

1. Perhaps if the shepherd would have been with the herd, he would have brought it to a different grazing area before the danger arose in the present place, for it is the normal manner of shepherds to move to different grazing areas.

2. Alternatively, perhaps if the shepherd would have been with the herd the lion itself would have been afraid to approach it. Hence, the Peshi'ah of the shepherd leaving the herd resulted in the Ones of the herd being attacked by a lion.

3. Tosfos answers further, as does the ROSH and the RA'AVAD (cited by the Shitah Mekubetzes), that perhaps if the shepherd would have stayed with the herd, the blessing of the verse, "Even the lion and the bear has your servant defeated" (Shmuel I 17:36), would have applied to him, and he indeed would have been successful in fighting off the lion. The Ra'avad adds that perhaps the blessing in the verse, "Fear of you and dread of you shall be upon all of the wild beasts of the earth" (Bereishis 9:2), would have applied to him and the lion itself would have been afraid.

4. The TOSFOS RABEINU PERETZ cited by the Ritva answers that had the shepherd stayed with the herd, he would have been able to gather together other shepherds to save the herd.

5. The RAMBAN (36b, and as cited by the Ritva here) explains that the claim against the shepherd is that since he went into the city when people do not normally go, he could have brought the entire flock into the city with him, and he should not have left them in the fields where they were vulnerable to attack. Hence, his initial Peshi'ah resulted in the Ones that the flock was attacked by a lion that, had the shepherd been there, he would not have been able to fight off. (I. Alsheich)