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Bava Metzia, 77

1) AN AGREEMENT WITH UNSPECIFIED TERMS

QUESTION: The Gemara discusses cases in which the standard wage of workers changed after a workers had been hired. In one case, workers were hired for the standard wage, and then the standard wage of workers increased. The workers quit without finishing the job. The employer persuaded them to continue working. The Gemara teaches that when they finish the job, the employer is obligated to pay them only the wage that they originally agreed upon, and not the new, higher wage. We do not assume that when the employer persuaded them to continue working that he had in mind to pay them the higher wage.

The RAMBAN asks the following question. The Tosefta in Kidushin (2:11) discusses a case in which a seller wants 200 Zuz for a certain object, and a buyer is willing to pay only 100 Zuz for it. They part company without coming to an agreement. They later meet again and conduct the sale without explicit agreement on a price. The Halachah is that the price that the buyer must pay depends on who approached the other and initiated the final transaction. The one who initiated the final transaction is assumed to have acquiesced to the price of the other party.

This contradicts the Halachah of our Gemara. In the case of our Gemara, the employer approached the workers and asked them to remain in his employ, and yet we do *not* assume that the employer acquiesced to pay the new, higher wage of workers! According to the ruling of the Tosefta, the employer should be obligated to pay the higher wage, for we assume that since he approached the workers, he acceded to their terms. Why, then, does the employer have to pay only the original wage?

ANSWERS:

(a) The RAMBAN answers that in the case of our Gemara, the workers did not make any mention of the higher wage when they quit the job. Since only one wage was mentioned between the workers and the employer (i.e. the original (lower) wage that was agreed upon), we do not assume that the employer was agreeing to pay them the higher wage when he approached them and asked them to continue working for him. In contrast, in the case of the Tosefta, two prices were explicitly mentioned in the original negotiations, and thus we assume that the one who initiated the ultimate transaction acquiesced to the price of the other.

(b) In his second answer, the RAMBAN explains that even if the workers *did* mention the new, higher wage at the time that they quit, they are still not entitled to receive that wage from their employer when he persuades them to continue working for him. The reason for this is as follows. If the workers quit before completing the job, breaching their agreement, the employer is entitled to have complaints ("Ta'arumos") against them. Thus, when the employer approached them and persuaded them to continue working, we may assume that they agreed to continue working for the lower wage in order to avoid being the subject of "Ta'arumos." In contrast, in the case of the Tosefta the seller and buyer never entered into any agreement previously and thus neither is entitled to have "Ta'arumos" against the other. (This answer is cited by the REMA in Shulchan Aruch 221.) (Y. Marcus)

77b

QUESTION: The Gemara quotes a Beraisa which discusses the Halachah in a case where a person sells his field to a buyer for 1000 Zuz, and the buyer gives him 200 Zuz as a down payment, and then one of them retracts. Raban Shimon ben Gamliel states that we instruct the buyer and seller to conduct the transaction in such a way that neither will be able to retract. When the buyer gives the seller 200 Zuz as a down payment for the field, they should draw up a contract in which the seller writes that he has sold his field to the buyer for 1000 Zuz, and he has received 200 Zuz, and the remaining 800 Zuz is a *loan* that the buyer owes to him. Neither party can retract from the purchase, since the entire purchase was consummated, and now there is merely an outstanding debt that the buyer (the borrower) owes to the seller (the lender).

The Gemara infers that only when the outstanding amount was explicitly converted into a loan is the sale final, but when it was not explicitly converted into a loan, the sale is not final. The Gemara asks that this contradicts a different Beraisa in which Raban Shimon ben Gamliel states that the outstanding amount becomes a loan -- and the sale is final -- even without an explicit stipulation to that effect!

The Gemara answers that when the seller is not pressing the buyer for payment, we assume that he agreed for the outstanding amount to be converted to a loan, and the sale is final. When, however, he is pressing the buyer for payment, it is clear that he was in need of cash and he wanted the sale to take effect only if he received all of the money. If he received only a partial payment, then the sale is not valid since he had no intention for the sale to take effect if he did not receive all of the money.

This answer of the Gemara contradicts a ruling in Kidushin. The Gemara in Kidushin (26a) teaches that the giving of a bill of sale for the purchase of a field does not effect the Kinyan until the buyer pays the full amount that was agreed upon. The Gemara there refers even to a case in which the seller is not pressing the buyer for payment. If the seller is not demanding payment, then why does the buyer not acquire the field (and owe the money to the seller as a loan), as our Gemara rules?

ANSWER: The RAN in Kidushin (10b of the pages of the Rif) explains that the buyer does not acquire the field until he pays the full amount only when the Kinyan being used is a Kinyan other than Kinyan Kesef, such as a Kinyan Shtar. When the giving of money is not the means of the Kinyan, but rather it is just restitution for the field, full payment is necessary in order to ensure the absolute agreement of the seller. In contrast, when the money *is* being used as the means of the Kinyan (such as in the case of our Gemara), if the seller agrees to accept partial payment, the Kinyan is complete with partial payment, and the outstanding amount is considered a loan that is owed. (Y. Marcus)