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Bava Metzia, 104

104b

OPINIONS: The Gemara discusses a case in which a person makes a sharecropping agreement with a field owner. In the agreement, he promises to pay 1000 Zuz if he leaves the land fallow. He ended up leaving a third of the land fallow. Neherda'i rule that he is obligated to pay a third of the 1000 Zuz for the third of the land that he left fallow. Rava rules that his promise was an "Asmachta," and therefore it is not binding.

The Gemara asks that Rava's ruling is contradicted by the Mishnah. The Mishnah states that when the sharecropper promises that he will pay for what the field would have produced in the event that he leaves it fallow and does not work it, his commitment is binding. Rava answers that when his commitment is not exaggerated, it is not an Asmachta and is binding, but when it is exaggerated (such as having to pay 1000 Zuz), it is an Asmachta and is not binding.

The concept of "Asmachta" is mentioned a number of times throughout the Gemara. What is the definition of "Asmachta?" Three different descriptions of "Asmachta" are offered by the Rishonim, and they are not necessarily mutually exclusive of each other.

(a) Our Gemara defines an Asmachta as an agreement with exaggerated terms ("Guzma," "Milsa Yeseira").

(b) The SEFER HA'CHINUCH (Mitzvah #343) defines an Asmachta as any stipulation that is phrased as a penalty, even if it is not stated in exaggerated terms. The Chinuch agrees that an *exaggerated* commitment is also considered an Asmachta, even when it is not stated in terms of a penalty, as is evident from our Gemara.

This description of Asmachta is derived from a statement of Rabah earlier (66b). Rabah states that "any [statement of] 'if' is not binding" ("Kol 'd'Iy' Lo Kani"). This means that a statement such as, "If I do not [do a particular action, then I will have to do such and such]," is a form of a penalty and is deemed an Asmachta, and it is not binding.

(c) A third possible type of Asmachta is defined by the Gemara earlier (73b-74a) as a case in which the condition that a person agrees to is not in his control. The case there involves a Shali'ach who agreed to pay the profits that would be earned by his buying wine for the person who appointed him. In that case, it is not fully in his control ("b'Yado") to buy the wine, because the sale is subject to the consent of the seller who might not agree to sell. The Gemara there states that this is an Asmachta because it is "not in his control." TOSFOS there explains that there are three levels of something that is beyond a person's control. The first level involves something which is completely out of a person's control (such as gambling with dice). Tosfos says that such a case is *not* considered to be an Asmachta; since he knew to begin with that he has no control over the matter, he consented from the outset to lose his money. (This level is called "Ein b'Yado Klal, Gamar u'Makni.")

At the other extreme is the fulfillment of a condition which is completely within a person's control. Such a condition, too, is not considered to be an Asmachta.

The only case that is considered an Asmachta, Tosfos says, is a case in which the condition is not completely beyond the person's control, but it is also not completely within his control. An example of such a case is the Gemara's case earlier, concerning a Shali'ach who says that he will buy wine. The act of buying wine is within his control ("b'Yado"), but not entirely within his control, since it also depends on the consent of the seller. (Y. Marcus)

OPINIONS: The Gemara discusses a case in which a person makes a sharecropping agreement with a field owner. In the agreement, he promises to pay an exaggerated fine of 1000 Zuz if he neglects to work the field. Rava rules that his promise was an "Asmachta," and therefore it is not binding and he does not have to pay the exaggerated penalty.

Although he does not have to pay the exaggerated penalty, does he have to pay the owner for the amount of produce that the field would have produced had he worked it?

(a) The RIF maintains that although he is not obligated to pay the exaggerated penalty, he is not exempt from paying the value of the fruit that the field would have produced had he worked the field. The Rif proves this from logic, saying that when the sharecropper promised to pay 1000 Zuz as a penalty, included in that promise was an agreement to pay the amount of the loss of potential profit that his lack of work would cause (this is because that amount certainly is included within the 1000 Zuz, and "Bichlal Ma'asayim Manah"). The Mishnah teaches that a promise to pay such an amount is binding, since it is not an exaggerated promise.

The Rif cites further proof to his opinion from the Gemara later (109a) which states that if a sharecropper (who normally receives half of the profits) agrees that if he is negligent in his work and causes a loss, he will not be entitled to receive anything, even a share of the profit which was produced. This, Rava says, is an Asmachta and is not binding, and therefore the sharecropper receives a share in the profit which was produced. However, Rava there adds that the exact amount lost as a result of his negligence is deducted from his wages. From this, the Rif concludes that although we do not penalize him with the exaggerated amount, we do penalize him the reasonable amount. Similarly, in the case of our Gemara, although he is exempt from the exaggerated fine of 1000 Zuz, he is obligated to pay the reasonable amount of potential profit that was lost.

(b) The ROSH (9:7) disagrees with the Rif. He maintains that once the exaggerated condition of 1000 Zuz is not valid, the sharecropper no longer is obligated to pay *anything*. The Rosh refutes the Rif's two proofs as follows. Regarding the proof from our Mishnah, the Rosh asserts that only in the Mishnah's case -- where he explicitly agreed to pay the reasonable amount (i.e. the amount of potential profit that was lost) -- is he obligated to pay. In our case, though, in which he mentioned only an exaggerated sum, we cannot "divide" his words, and thus his commitment is not binding at all. Regarding the Rif's second proof from the Gemara later (109a), the Rosh asserts that only in that case -- where the sharecropper is in the midst of working the field and is gaining the profits -- do we deduct from his pay the value of the loss caused by his negligence, even without a specific commitment from him. In the case of our Gemara, in contrast, in which the sharecropper did not do any work at all on the field, we cannot penalize him without a commitment from him to that effect.

HALACHAH: The SHULCHAN ARUCH (CM 228:2) prefers the Rif's opinion. The VILNA GA'ON there (#3) mentions that the Rosh disagrees. (Y. Marcus)