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Bava Metzia, 118

1) THE REQUIREMENT TO PAY A WORKER WITH CASH

QUESTION: The Gemara teaches that although debts such as loans and compensation for damages need not be paid with cash but may be paid with objects equal in value to the debt ("Shaveh Kesef k'Kesef"), this is not true in the case of a worker's wage. A worker is entitled to insist that he be paid in cash.

Why does a worker have this special right to demand payment in cash?

ANSWERS:

(a) RASHI on the Mishnah (DH Ein Shom'in Lo) explains that this special right is derived from the verse that teaches the Isur of withholding a worker's wages -- "Lo Salin Pe'ulas Sachir" (Vayikra 19:13). The verse implies that the employer must pay the worker the exact wage -- both in terms of the amount of payment and the *form* of payment -- that was initially stipulated.

The RASHBA questions Rashi's explanation. First, he argues that there is no indication from the wording of the verse that the employer must pay only with cash. Second, we have learned (112a) that if the employer has no funds with which to pay his worker at the time that the payment is due, then the Isur of "Bal Talin" does not apply. According to Rashi, who says that the obligation to pay cash is derived from the verse of "Lo Salin," if the employer has no cash with which to pay at the time that the payment is due, then just as the Isur of "Bal Talin" does not apply, the requirement to pay with cash will not apply, and one may pay with other objects. The Gemara, though, implies that the employer always must pay with cash, regardless of whether the Isur of "Bal Talin" applies or not (see TOSFOS to Bava Kama 46b, DH Hachi Garsinan).

(b) The RASHBA, therefore, gives a different reason for why an employer must pay his worker with cash. He explains that there is an "Umdena," an unspoken but obvious assumption, that the worker does not toil and labor only to receive as his payment an object which he then must go out and find someone to whom to sell the object in order for him to have cash to buy food.

The PISCHEI TESHUVAH (CM 336:1) writes that a practical difference between the explanations of Rashi and the Rashba is in a case in which the employer hired the worker through a Shali'ach. In such a case, the Isur of "Bal Talin" does not apply, as the Gemara earlier (110b) teaches. According to Rashi, since the verse of "Lo Salin" does not apply in such a case, the employer is not obligated to pay his worker with cash. According to the Rashba's reasoning, though, the employer is still obligated to pay with cash.

The S'MA (CM 336:3) and Pischei Teshuvah there cite the opinion of the MORDECHAI who says that the employer may pay his worker with edible objects, such as wheat or barley. This view is consistent with the reasoning of the Rashba, who says that the reason why cash must be paid is in order for the worker to be able to buy food easily. The Rashba's reasoning would seem to permit paying with food items as well as with cash. The SHACH (CM 336:2), however, disagrees, and maintains that the worker may refuse to accept wheat and barley as his payment and may demand cash. The RASHASH explains that the Shach is referring only to wheat and barley -- items which are not yet fit to be eaten, but he would agree that if the employer wants to pay with a loaf of bread, then the worker must accept it. (Y. Marcus)

QUESTION: The Gemara cites a Mishnah in Shekalim (4:1) in which the Tana Kama maintains that those who guard produce that grows wildly during the Shevi'is year (such as wheat, which must be guarded in order to bring it for the Shtei ha'Lechem, or barley, which must be guarded in order to bring the Minchas ha'Omer) are paid from the funds of the Terumas ha'Lishkah. Rebbi Yosi there maintains that the guards do not need to be paid.

TOSFOS earlier (58a, DH Lishmor) questions how it could be possible to bring a Korban, such as the Shtei ha'Lechem or the Minchas ha'Omer, from such produce. Once the grain in the field has been guarded during Shevi'is, it becomes prohibited to be eaten because of the law of "Shamur" -- produce that was guarded during Shevi'is is prohibited to be eaten. There is another law (Pesachim 48a) which states that anything that may not be eaten by people may not be brought as a Korban. How, then, can the grain that was guarded be offered for the Shtei ha'Lechem or the Minchas ha'Omer?

The CHAZON ISH (Shevi'is 10:5) adds that even if the grain would not become prohibited to be eaten as a result of being guarded it during Shevi'is, there is still an Isur d'Oraisa against guarding produce of Shevi'is!

ANSWERS:

(a) The TOSFOS HA'ROSH here answers that the Isur of eating produce of Shevi'is that was guarded is only an Isur d'Rabanan (instituted in order to prevent one from guarding the produce in the first place, which is an Isur d'Oraisa, and the verse quoted by the Toras Kohanim (Vayikra 25:5) to prohibit eating such produce is only an Asmachta), and in cases of necessity -- such as for the sake of bringing a Korban -- the Rabanan waived their enactment.

(b) The Tosfos ha'Rosh suggests further that even if the Isur to eat produce of Shevi'is that was guarded is an Isur d'Oraisa, the Isur does not apply to produce that belongs to Hekdesh. This also seems to be the answer of TOSFOS in Menachos (84a, DH Shomrei)

(c) The Tosfos ha'Rosh offers a third answer. Those who guarded the produce of Shevi'is on behalf of Hekdesh did not actually prevent anyone from taking the produce. Rather, they merely notified the public that the produce was intended to be used for Hekdesh, and people -- out of their own sense of decency -- refrained from taking it. Therefore, the grain was not actually *guarded* during Shevi'is. This is also the answer of Tosfos (58a) and other Rishonim.

Similarly, the TOSFOS SHANTZ (cited by the Shitah Mekubetzes on 58a), the TOSFOS RABEINU PERETZ (58a), the RITVA there, and TOSFOS in Rosh Hashanah (9a) answer that the guards did not stop people from taking the produce. Rather, they guarded the produce from birds and animals.

(d) The RASHASH and CHAZON ISH answer that guarding produce of Shevi'is is prohibited only when one is guarding his own produce. There is no Isur involved when one guards the produce of someone else, or of Hekdesh. Since there is no Isur against guarding it, the grain that is guarded does not become prohibited to eat. The Chazon Ish asserts that this is the intention of TOSFOS in Menachos (84a, DH Shomrei). (Y. Marcus)

118b

OPINIONS: The Tana'im in the Mishnah argue concerning who is entitled to take the vegetables that grow on the incline between two gardens, an upper garden and a lower garden. Rebbi Meir says that the owner of the upper garden may take them, since they are growing from the ground beneath his property. Rebbi Yehudah says that the owner of the lower garden may take them, since they are growing in his air-space, and if he wanted, he could fill up the space with dirt and prevent them from growing. Rebbi Shimon says that the owner of the upper garden may take the vegetables growing on the precipice for as far as his arm can reach, but the rest belong to the owner of the lower garden.

Both Rebbi Meir and Rebbi Yehudah give logical reasoning for their rulings. What reasoning is the reasoning of Rebbi Shimon?

(a) RASHI explains that Rebbi Shimon essentially agrees with Rebbi Meir, that the vegetables growing on the incline belong to the owner of the upper garden since they are growing from ground below his property. That is why he may take the vegetables which his arm can reach. However, he may not take the vegetables beyond the point that his arm can reach, because we assume that he was Mafkir them and that he had no intention to take them, since it is disgraceful for him to climb into the garden of his neighbor. Therefore, the owner of the lower garden may take those vegetables. This is also the ex planation of TOSFOS earlier (107a, DH Ilan).

(b) The RAMBAN explains that Rebbi Shimon essentially holds like Rebbi Yehudah, that all of the vegetables belong to the owner of the lower garden. However, the owner of the lower garden is Mafkir the vegetables growing higher up on the embankment (as far as the arm of his neighbor can reach) for the good of his neighbor. He does this favor for the upper neighbor because he wants to remain on good terms with him so that the upper neighbor will not remove his dirt from there and cause the vegetables to stop growing. This is also the way the LECHEM MISHNEH explains the ruling of the RAMBAM (Hilchos Shechenim 4:9).