Talmud - Bava Metzia 104b בבא מציעא ק״ד ב׳

The Gemara answers: The writing of this statement in the document is effective for depreciation. If the collateral depreciates in value, the creditor may claim the remainder of the debt from the debtor’s property.

§ The Gemara continues: Rabbi Yosei would also expound common language, as it is taught in a baraita that Rabbi Yosei says: In a location where they were accustomed to formulate the terms of a marriage contract as one would formulate the terms of a loan, i.e., the precise value of her dowry is written in the marriage contract, then upon the termination of the marriage due to divorce or the husband’s death, the wife collects the sum of her dowry as a creditor would collect payment of a loan. In other words, she receives the entire sum recorded as her dowry. Conversely, in a place where the custom is to double the written sum of the dowry in the marriage contract to honor the bride, so that it should appear as though her father is providing her husband with a considerable dowry, she collects only half of the sum written in the marriage contract.

The Gemara relates: The Sages of Neharbela collected, i.e., allowed the wife to collect, one-third of the stated sum, as the custom in their location was to write three times the actual amount of the dowry in the marriage contract. Mareimar would allow the wife to collect even the added value of those sums that the father of the bride had written in the marriage contract in honor of his daughter.

Ravina said to Mareimar: But isn’t it taught in the baraita that in a location where the custom is to record double the amount, she collects only half? The Gemara answers: This is not difficult; in this case, where Mareimar allowed the wife to collect the full sum, the husband performed an act of acquisition for the entire written amount with the father of the bride; whereas in that case, where the baraita rules that she collects only a portion of the sum written for the dowry, the husband did not perform an act of acquisition for the entire written amount with the father of the bride. Therefore, the wife would collect the sum of her dowry only in accordance with the regular custom.

The Gemara relates: Ravina wrote an enhancement of the value of the dowry for his daughter in her marriage contract, in keeping with the accepted custom. The groom’s family said to Ravina: Let us perform an act of acquisition with the Master, so that he would be required to give that entire sum as the dowry. Ravina said to them: If you wish to perform an act of acquisition, I will not double the sum of the dowry, but will record the actual sum I intend to provide; if you prefer that I record double the sum of the dowry in the marriage contract, I will not allow you to perform an act of acquisition.

The Gemara cites a related incident: There was a certain man who said to his inheritors before his death: Give four hundred dinars to my daughter in her marriage contract. Rav Aḥa, son of Rav Avya, sent the following question to be asked before Rav Ashi: What was that man’s intention? Did he mean an actual dowry of four hundred dinars, which are written as eight hundred, or four hundred dinars written in the marriage contract, which are actually a dowry of two hundred dinars? Rav Ashi said: We examine the matter. If he said: Give her, then he meant to give her four hundred dinars, which are written as eight hundred. But if he said: Write for her, then he meant to write four hundred dinars, which are two hundred in practice.

There are those who say a different version of Rav Ashi’s ruling. Rav Ashi said: We examine the matter. If he said: For her marriage contract [likhtubatah], he meant four hundred dinars, which are written as eight hundred, because he indicated that this is the sum he wants to give for her dowry. But if he said: In her marriage contract [bikhtubatah], he was clearly referring to the written amount, and it is assumed that he meant to write four hundred dinars, which are two hundred in practice.

The Gemara comments: And that is not so. There is no difference whether he said: For her marriage contract, and there is no difference whether he said: In her marriage contract. In either case her dowry is written as four hundred dinars, which are two hundred in practice, unless he simply said: Give her, without specification, i.e., without mentioning the marriage contract. In that case the full sum is given as a dowry.

§ The Gemara relates another incident: There was a certain man who received land from another to cultivate. He said: If I fail to work the land and instead let it lie fallow, I will give you one thousand dinars. He let one-third of it lie fallow. The Sages of Neharde’a said: The halakha is that he gives him 333⅓ dinars, one-third of the stipulated amount, as compensation for neglecting one-third of the field. Rava said: This kind of agreement is a transaction with inconclusive consent [asmakhta]. And since an asmakhta does not effect acquisition, he need not pay.

The Gemara asks: And according to Rava, in what way is it different from that which we learned in the mishna concerning one who wrote: If I let the field lie fallow and do not cultivate it, I will pay with best-quality produce? The Gemara answers: There he did not exaggerate, but simply said he will pay for the owner’s losses from best-quality produce; whereas here, since he said something extra, i.e., he promised to give an excessively large sum of money, he is merely exaggerating. It is therefore not viewed as an actual monetary obligation but an asmakhta.

§ The Gemara relates: There was a certain man acting as a sharecropper who received land for planting sesame, which typically weakens the land but yields larger short-term profits, but he planted it with wheat instead. That year, the field produced wheat at a value similar to that of sesame. Rav Kahana thought to say that the owner must deduct the usual amount of the deterioration of the land from planting sesame from his own share, since by planting wheat the sharecropper had spared the owner the damage to his field, while the owner had received the same profit.

Rav Ashi said to Rav Kahana: People say the following proverb: Let the land be weakened, but do not weaken its owner. People prefer a quick profit and discount the damage to their land. Therefore, the sharecropper is not entitled to a larger share of the yield for having spared the owner from the weakening of his field.

The Gemara relates another incident: There was a certain man who received land for planting sesame and he planted it with wheat. Ultimately, it produced more wheat than the usual value of sesame. Ravina thought to say that the owner must give the cultivator the added value that is the difference between this, the actual value of the wheat, and that, the expected value of the sesame. Rav Aḥa of Difti said to Ravina: Is that to say that the cultivator alone enhanced its value, but the land did not help to enhance it? Rather, they should divide the extra sum between them.

§ A common type of business venture was one where the capital or merchandise was supplied by one person and managed by another, who would receive a share, commonly half of the profits, for his efforts. This arrangement can also be viewed as one where the investor is lending half of the invested capital or merchandise to the manager, with the manager agreeing to supervise the venture in exchange for receiving the loan. In order to avoid violating the prohibition of interest, the investor agrees to accept a greater share of the possible loss, e.g., two-thirds, than of the profits, e.g., one-half. The Sages of Neharde’a said: With regard to its halakhic status, this joint venture is considered a half-loan and half-deposit, as the Sages formulated an enactment that would be satisfactory for the borrower, i.e., the manager, and equally satisfactory for the lender, i.e., the investor.

Now that we have said that half of the capital is viewed as a loan, it would appear that the manager may use the money in any way he chooses: If he wants to drink alcohol with it, he may well do so, regardless of any objection on the part of the investor. Rava disagreed and said: It is for this reason that it is called a joint venture, as the investor can say to the manager: When I gave the money to you it was to use it for business and not to drink alcohol with it.

Rav Idi bar Avin said: And according to this reasoning, if the manager died, it becomes movable property in the possession of his children. Therefore, it may not be taken from them, as movable property inherited by orphans is liened for the payment of their father’s debts. Rava disagreed and said: It is for this reason that it is called a joint venture, so that if he died it does not become movable property in the possession of his children, as it is considered a partnership, not a loan.

Rava says: If two people conducted one joint venture and drafted it as separate ventures of equal value in two separate documents, and they suffered a heavy loss from the venture recorded in one of the documents and had a slight gain from the other, the halakha is as follows: The two documents are treated as two separate agreements, and one does not calculate the profits and losses from the two ventures together. Therefore, this will be to the detriment of the lender. According to the common arrangement, he will gain half of the profits from one venture and suffer two-thirds of the loss of the other.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bava Metzia 104b explores how loan-document wording affects debt collateral claims and how marriage contract customs determine a wife's dowry collection rights.