This Week's Article

Common Practice

Bava Metzia (9:1) | Yisrael Bankier | 6 days ago

The ninth perek discusses field work arrangements and the responsibilities of each party. The arrangement can be one of arisut, where the other party gives the owner a percentage of the yield, or chakirut, where the worker give the owner a fixed amount of that yield.

The first Mishnah teaches that in either of these arrangements, if the practice is to harvest the crop by cutting the stalks or by uprooting the produce, then that practice must be preserved. Similarly, if the practice is to plough through the field after the harvest, then that also must be done. The Gemara explains that this is even if the worker careful weeded so that ploughing would not be necessary, which was not normally done, nonetheless he would be required to plough the field. The Mishnah explains that "everything goes according to the region's practice".

The Gemara (103a) explains the either party can object to any change because he can argue that the standard practice benefits him. Where the practice is to cut the stalks, the owner can argue he prefers it, since what remains can fertilise the soil. Similarly, the worker can argue that he wants to keep to the current practice becuase it requires less effort on his part. If the practice is to uproot the produce, the owner can demand that that be done since he can argue he wants his field cleaned. Similarly, the worker can demand that the common practice be preserved since he wants the straw to feed to his animals.

The Tosfot Yom Tov cites the Nemukei Yosef, who questions the need from the Gemara to provide the justification for each party to demand that the common practice be maintained. The Gemara regularly reasons that business agreements go according to the common practice without any further explanation. Why then does the Gemara spend time explaining the justification for each position?

The Tosfot Yom Tov answers that a local practice that lacks any rationale would not be binding. Instead, he compares those practices to minhagei Sedom. He suggests that the Gemara here spent time explaining the reason as opposed to elsewhere, because it was not as obvious as other cases in the Gemara.

The Tosfot Yom Tov brings a proof from the later Mishnah (9:6). There the Chachamim maintain that if the person took the field agreeing to plant barley, then he cannot plant wheat. The Bartenura explains that that is because wheat draws more from the soil. If, however they agreed to plant wheat, he could plant barley. R' Shimon ben Gamliel however disagrees. The Gemara explains that the reason why he disagrees is not because it appears dishonest (she'erit Yisrael lo yeasu avala...) but rather because it is bad for the soil to switch between the products that are planted in it. The fact that the Gemara probed to find a rational explanation rather than just relying on minhag, means that one a logical reason necessary.

The Chidushei Mahariach however provides a different explanation. After learning the Gemara, we understand that each position, harvesting or uprooting, are on equal footing. Without the Gemara we might have thought that, for example, uprooting is more difficult and explained that Mishnah as follows. If the practice is to uproot, he must uproot. However, if the practice is to harvest, then he can harvest. If he however wants to uproot the product, then all the better. Consequently, the Gemara was necessary to teach that neither practice is objectively preferable to the other.

This explanation fits with the Raavad (Shitah Mekubetz 103a). The Raavad notes that the Mishnah adds that each party can prevent the another from changing the practice. The addition of these words explains why the practice cannot be changed, since there is a reason why each party might want to prevent a change in practice. Importantly, he adds that therefore one cannot change even if the other party has not (yet) objected. One is simply not allowed to do so and say he is sure the other party would not mind.

Download

Calendar