[bm40b: We begin on the sixth line of the page, with a further analysis of the mishna.]
[Our mishna:] If the oil was refined, he (the custodian) does not deduct for the sediment [or the absorbtion, even if the casks were old].
[The gemara asks:] But it is impossible that there not be _some_ absorbtion [so the 1.5% deduction for leakage should still apply]?
[The gemara answers:] Rav Nachman said: They were lined with pitch [so that there really is no absorbtion at all].
Abbaye said: Even if they are not lined with pitch, once it is saturated, it is saturated [and there is no additional absorbtion].
[Our mishna is cited:] R. Yehuda says: Even if he sells refined oil to his fellow throughout the year [i.e., the seller sets aside a barrel, and delivers oil from that barrel to the buyer periodically], he (the buyer) accepts 1.5 logs of sediment for every 100 logs (of oil). [The Rabbis cited in the mishna disagree.]
[Abbaye now embarks on a lengthy analysis of the rationale behind the dispute between R. Yehuda and the Rabbis.]
Abbaye said: If you carefully analyze the text (you must conclude that), according to R. Yehuda, he (the seller) is permitted to mix the sediment back in [even after it has settled, because (in his opinion) the buyer must accept it]; according to the Rabbis, he is forbidden to mix the sediment back in.
According to R. Yehuda, he can mix the sediment back in, and the reason he (the buyer) accepts (the lesser amount) it is that he (the seller) could say, "If I wanted to mix it back in, I could have done so." Now that I have not done so, accept it [the reduced quantity of refined oil].
[This is questioned:] But the buyer could say "If you had mixed (the sediment with the oil), I could have sold it. But now [that you have delivered 98.5 logs of refined oil], what can I do with the (1.5 logs of sediment)? I cannot sell it separately!"
[Abbaye replies:] We are dealing with a private person [rather than one who plans to resell the oil], who prefers refined oil [and cannot object to the fact that the sediment is not marketable].
[The questioner:] So let him (the buyer) say: "Since you didn't mix it, you gave up your right to do so!".
[|Abbaye:] R. Yehuda follows his own principle, for he does not assume (implicit) relinquishment (of rights).
[There a general halakhic dispute that appears in many places in the talmud about whether a person can implicitly give up certain rights, or whether relinquishment of rights must be explicit. The core of the dispute appears in the mishna that that will now be cited.]
As we learned in a mishna [Baba Batra 77b]: If one sold a yoke, one did not sell the cattle [one which the yoke was used]; if he sold the cattle, he did not sell the yoke.
[The term for yoke in Hebrew is "tzemed", which can mean either "a pair" or a "yoke". In order for the sale of a "tzemed" to be recognized as the sale of a pair of oxen, "tzemed baqar" (`pair of oxen' or `yoke of oxen') has to be explicitly stated.].
R. Yehuda says: The price tells us (what was sold). How so? If he (the buyer) said "Sell me your yoke for 200 zuz," it is known that a yoke alone is not sold for 200 zuz. [R. Yehuda does not accept the reasoning that we might assume that the buyer is relinquishing the overpayment as a gift.]
The Rabbis say: the price is not evidence (of the buyer's intent). [Thus, the Rabbis accept implicit relinquishment of rights, and rule that the buyer implicitly made a gift of the overpayment. But R. Yehuda does not accept the validity of such implicit giving up of rights. If the buyer wants to make a gift, he must make his intent known explicitly. And, in our gemara's case, R. Yehuda holds that when the seller did not mix the sediment in, we cannot accept that as implicitly giving up his right to include the sediment in the sale.]
[Having argued that R. Yehuda's requirement of a 1.5% allowance for sediment implies that the seller is permitted to mix it back in, he briefly summarizes the opinion of the Rabbis, who accept the principle of implicit relinquishment of rights.]
(One may deduce that) according to the rabbis, (the seller) is not allowed to mix the sediment [back into the oil before delivery], and that is the reason why he (the buyer) is not required to accept [the sediment that remains]. For he (the buyer) can say to him (the seller): If you had wanted to mix it back in, would you have been allowed to? [Certainly not!] Now too [that you did not mix it in] I will not accept it.
[We are 30 lines from the top of the page. Our mishna had discussed the case of a seller who delivers oil to the buyer over the course of the year; is the buyer obligated to accept the sediment if the deliveries were of refined oil (and the sediment had settled to the bottom). According to Abbaye's analysis of R. Yehuda's position, the failure of the seller to mix the sediment in before delivery does not imply that he has relinquished his rights, and the buyer must accept the sediment, a 1.5% deduction of the volume of refined oil. It follows that the Rabbis, who do _not_ require the buyer to accept the sediment, forbid the seller to mix it in.]
Rav Pappa said to Abbaye: On the contrary, the opposite is more logical. According to the Rabbis, you _are_ allowed to mix the sediment back in. And the reason that the buyer does not have to accept [the reduction attributed to the sedimentation] is that he (the buyer) can say to him (the seller): Since you didn't mix [the sediment back in], you have relinquished your right to do so.
According to R. Yehuda, you can't mix it in, and the reason that he (the buyer) must accept it is because he (the seller) can say: If I wanted to mix it in, I would not have been allowed to do so -- and now you won't accept it [the reduction or the sediment]?! [If the seller cannot mix the sediment or adjust the delivered volume to take sedimentation into account, he will have no profit. This leads to the absurdity:] Can one buy and sell [with no profit] and be called a merchant?
[In addition to the sediment, there is the scum floating on the oil. Rashi explains it as bits of of olive seed that float to the surface of a container of oil. Rambam regards it as the turbid upper layer itself. In either case, it differs from the sediment in that it has floated to the top rather than having settled at the bottom. What is the status of this scum?]
A b'raita: Regarding the scum, the law is the same for a buyer and a depositor.
What does "regarding the scum" mean?" If it means that just as a buyer doesn't have to accept the scum, so a depositor [who left the oil with a custodian and now is getting his oil back again] does not have to accept the scum -- [this cannot be the case, because] he (the custodian) can say: What am I supposed to to do with _your_ scum?!
Instead, just as the depositor must accept the scum, so the buyer must accept the scum. [Rashi: This refers to an otherwise unspecified purchase of oil. Unless the buyer specified refined oil, the scum is included.]
[The gemara asks:] But must the buyer really accept the scum? We learned in a b'raita: [The loss of value] of cloudy oil is the seller's loss, since the buyer accepts 1.5 logs of sediment [per 100 logs of oil] without the scum [i.e., the buyer does not, by default, have to accept the scum]. [Thus, the two b'raitot appear contradictory!]
[The gemara resolves the matter:] This (the first b'raita) is where the buyer paid in Tishri [Rashi: when the oil is inexpensive but clouded with the scum] and took delivery in Nissan at Tishri prices [in which case, the buyer must accept the scum]. There (the second b'raita) is where he paid in Nissan [when the oil is clear], and took delivery in Nissan according to the prices in Nissan [since Nissan prices assume clear oil, the buyer can insist that the oil be clear, and need not accept the scum].
[We are at the mishna near the bottom of the page.]
Mishna: If one deposited an (earthernware) barrel and the owner did not specify a place for its storage, and he (the custodian) moved it and it broke [not through the custodian's negligence, but because of an unavoidable accident]:
If it broke out of his hand (i.e. while being moved), if he moved it for his own benefit [Rashi: to use it], he is liable. But if he moved it for _it's_ benefit [Rashi: to protect it from impending damage], he is not liable. If it broke after he put it down, he is not liable, regardless of whether he moved it for his own benefit or for it's benefit.
If the owner had designated a place [for storage], and he (the custodian) moved it and it broke, whether it broke out of his hand or after he put it down, if it was for his benefit, he is liable, but if it was for it's benefit, he is not liable.
[Reading the mishna literally, we can summarize it as follows:
1. If the barrel was moved for its own benefit, the custodian is not liable under any circumstances.
2. If it was moved for the custodian's benefit, then: a) if it broke while it was being moved, he is liable under all circumstances. b) If it broke after it had been put down, the first and second clauses differ, and may be in contradiction with one another. First clause: The custodian is not liable. Second clause: If a specific place had been designated for storage of the barrel, the custodian is liable even after he put it down. (The mishna does not state explicitly that it was put down in its original place, but this is assumed in the ensuing discussion.)
Gemara [referring to the first clause, which relieves the custodian of liability when the item has been put back in its place]: Whose view is this? R. Yishmael, who holds that we do not require the owner's knowledge (when a stolen item is returned) [In his view, the return of stolen goods, even without the owner's knowledge, nullifies the theft.]
As we learned in a b'raita (B. Kama 112b): If one stole a sheep from a flock or a coin from a purse, he should return it to the place from which he stole it [but need not inform the owners]. These are the words of R. Yishmael; R. Akiva says that it requires the owner's knowledge [without which the item, even though it has been returned, is still regarded as stolen].
[In making this comparison, the gemara puts the custodian who has taken the barrel from its appointed place for his own benefit in the category of a thief, at least with respect to liability. Whereas a custodian is not held responsible for unavoidable loss or damage to a deposited item, a thief is responsible for _any_ loss or damage to a stolen item while it is in his possession.]
[The gemara asks:] But if this is R. Yishmael's position, why did it (the mishna) specify (in the second clause) that the owner (is relieved of liability only if he) did not specify a place (for storage)? Even if he did specify a place [the custodian should be relieved of his extra liability as soon as he replaces the item]?
[The gemara answers:] The mishna is written in the "we need not ask" style [that is, the mishna explicitly teaches the most extreme case, from which we can infer less extreme instances by implication.]: We need not ask about the case in which the owner specified a place, because that is its (specified) place [and returning it to that place would certainly absolve the custodian of further responsibility]. But even if the owner did _not_ specify a place, so that (when the barrel was set down elsewhere) it is not _its place_, the owner's knowledge is not required.
But what about the latter clause? If the owner designated a place (for storage), and he (the custodian) moved it and it broke, whether it broke because of his action or after he put it down, if it was for his benefit, he is liable, but if it was for it's benefit, he is not liable. [If the mishna is according to R. Yishmael, why is the custodian liable if he moved it for his own benefit? He had already replaced the item!]
[The gemara answers:] This (second clause) is according to R. Akiva, who says that the owner's knowledge is required. [The gemara asks:] But if it is according to R. Akiva, why limit it to the case in which the owner specified a place? Even if the owner did not specify a place (the custodian should be liable).
[The gemara answers:] The mishna is written in the "we need not ask" style. We need not ask about the case in which the owners did not specify a place [so that the item has not been returned to "its" place, and the owner's knowledge would certainly be required in order toi relieve the custodian of his liability]. (The mishna tells us that) even if the owner _did_ specify a place, so that the item has been returned to "its" place, the owner's knowledge is _still_ required.
[According to the analysis so far, our earlier, literal reading of the mishna has to be modified as follows:
2. b) If it broke after it had been put down, it is irrelevant whether or not a place had been designated for storage of the barrel. R. Yishmael (First clause): The custodian is not liable. R. Akiva (Second clause): The custodian is liable.]
[The gemara objects:] The first clause (of the mishna) is according to R. Yishmael, and the latter clause is according to R. Akiva?! [It is rare for the gemara to accept the possibility that two clauses in a single anonymous mishna can reflect two opposing views.]
[The gemara answers:] Yes. As R. Yohanan said: If anyone can explain to me how (to understand) the mishna about the barrel (i.e., this mishna) as the view of a one Tanna [either R. Yishmael or Rabbi Akiva] I will carry his clothing behind him to the bath-house [i.e., I will defer to him as a student defers to his teacher].
[R. Yohanan has raised a an important halakhic point: According to the priority rules, in disputes between R. Akiva and any one of his colleagues, his opinion prevails.]
[We end 15 lines from the top of 41a.]
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