Selling a Right to Eat

Bava Metzia (7:6) | Yisrael Bankier | 2 months ago

In the seventh perek we learn that, in certain situations, a worker is permitted to eat from the produce or fruit that he is working with. The Mishnah (7:2) teaches that this right is biblical in origin. While the Mishnah (7:5) debates whether there is a limit (or whether a work should limit) the volume he consumes, the Mishnah (7:6) teaches that a worker can forgo this right in exchange for an increased pay. One might ask, how can one negotiate conditions that are contrary to Torah law?

Indeed, the Meiri asks this question. He however suggests that since the stipulation is purely monetary, it is permitted. We have however learnt of the debate regarding this very point. While R' Yehuda maintains this position, R' Meir disagrees and argues that even if the condition is monetary, one can not negotiate it if it runs counter to Torah law. For this reason, the Minchat Chinnuch (576:9) finds this answer difficult, since our Mishnah is "stam" (without explicit authorship) and a stam Mishnah is generally the opinion of R' Meir.

The Minchat Chinnuch raises further difficulties. For example, this stipulation relies on mechila (forgoing). The workers right to the food only arise at the time of eating. Consequently, it should be defined as a davar she'lo ba le'olam – a matter that is not yet at hand. The difficulty is that mechila is not applicable for a davar she'lo ba le'olam. (ChM 209:4). The Minchat Chinnuch ultimately leaves the matter unresolved, requiring further analysis.

The Darkei David (92b, cited by the Yalkut Bi'urim 93a) suggests that this case is not considered as if it is a stipulation against Torah law. He explains that there is no mitzvah for the worker to eat, nor is there a mitzvah for the owner to leave the worker food. Instead the mitzvah is that if the worker wishes to eat, the owner must allow him to do so. The stipulation then is not that the worker will not eat, but that the worker will not want to eat while working. If the worker never wants to eat, then there is no mitzvah to allow him to eat the food, and the condition will never conflict with the Torah law.

One might suggest that this direction can also be found in the Tifferet Yisrael. The Tifferet Yisrael find this Mishnah difficult when considering the ruling of the Magen Avraham (OC 169:1) that one cannot stipulate regarding food as it causes anguish. The Tifferet Yisrael answers that the Magen Avraham was only referring to a condition made at the beginning of the year that would endure, and perhaps the worker would regret the arrangement. However, regarding a day worker, as is the case in our Mishnah, had he not estimated that he would be able to uphold the condition he would not have made it.

The Darkei David may shed light on the Tifferet Yisrael. When considering a long-term arrangement, one runs into the risk that the work would not be able to live by the stipulation. In other words, the worker may get hungry and by Torah law now have the right to take food. The risk then is the stipulation would now run counter to Torah law and be invalid. However a day worker, who, e.g. could have a large breakfast, could safely estimate that he could live up to the condition of not wanting to eat, and thereby not contradict the Torah law.

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