Talmud - Bava Metzia 69a בבא מציעא ס״ט א׳

or it must have been that the other party accepted one-half of the loss and that Rav Ilish was entitled to two-thirds of the profit. Either way, the disparity in the terms served as payment to Rav Ilish for his effort, removing any concern about violation of the prohibition of interest.

Rav Kahana said: I said this halakha before Rav Zevid of Neharde’a and he said to me: Why is it certain that the document included all the details of the transaction? Perhaps Rav Ilish immersed his bread in brine together with the other party? According to the opinion of Rabbi Yehuda, this would suffice to avoid the prohibition of interest, and Rav Naḥman says: The halakha is in accordance with the opinion of Rabbi Yehuda. Rav Kahana said to Rav Zevid: It was not stated by Rav Naḥman that the halakha is in accordance with the opinion of Rabbi Yehuda, but rather it was stated that a single opinion is common to three Sages: Rabbi Yehuda; Rabban Shimon ben Gamliel; and Rabbi Yosei, son of Rabbi Yehuda. This does not establish the halakha in accordance with their statements, but on the contrary, they all hold one common opinion that is not accepted as the halakha.

The Gemara comments: This too stands to reason, as, if you do not say so, why did Rav Naḥman list them individually and say: The halakha is in accordance with the opinion of so-and-so, and the halakha is in accordance with the opinion of so-and-so? Instead let Rav Naḥman say simply: The halakha is in accordance with the opinion of Rabbi Yehuda, as he is the most lenient of all of them, and their rulings can be derived from his. Since Rav Naḥman did not state this, it is reasonable to say that he was not issuing a ruling in accordance with their opinion, but simply clarifying that these three opinions are actually one.

§ Rav says: If one says to another: I am giving you a calf to fatten, and let us divide the profit between us when it is sold, and the surplus over one-third of its current value is your wages, meaning that they will split the profits up to one-third of the value of the calf, and any additional profits will belong exclusively to the one who fattened the animal and serve as his wages, this arrangement is permitted, because the one fattening the calf is compensated for his efforts, and there is therefore no interest on the part that is a loan. And Shmuel says: It is not permitted, because if there is no surplus over one-third and he goes home empty-handed, he will have worked for free, and this is considered interest. Rather, Shmuel says: The owner of the calf must set aside a dinar for the other, to compensate him for his efforts in the event that there is no surplus over one-third.

The Gemara asks: And does Rav hold that he is not required to set aside a dinar for him? But doesn’t Rav say a different way to structure such an arrangement, that the head of the calf is given to the fattener, i.e., they may divide most of the profits evenly, but the head of the calf is given as a supplement to the one who does the fattening? What, is it not that he said to him: The surplus over one-third is your wages, and according to Rav the calf’s owner must nevertheless also give him the head in case there is no surplus?

The Gemara refutes this: No, Rav was referring to a case where the owner of the calf said to him: Either he will receive the surplus over one-third, or the head of the calf will serve as wages to the fattener. Or if you wish, say instead: When Rav says that if the owner said to him: The surplus over one-third is your wages it is permitted, this was a case where the one fattening the calf already had his own animal to fatten, as people say in a common adage: Mix food for an ox, mix for oxen, meaning that since he already has to prepare food for one ox, it is not a big inconvenience and expense for him to add food for an additional ox, so the surplus over one-third is sufficient to compensate him.

The Gemara relates: Rav Elazar of Hagronya purchased an animal, and gave it to his sharecropper to fatten it, and gave him the head as his wages and gave him one-half of the profits. The sharecropper’s wife said to him: If you would have participated with him in the purchase of the animal he would have given you the tail also. The next time, the sharecropper went and purchased the calf with Rabbi Elazar, and Rabbi Elazar gave him one-half of the tail and then said to him: Let’s divide the head. The sharecropper said to him: Now will you not also give me as you did initially? Before, when I was not a partner in the animal but accepted it only in order to fatten it, you gave me the entire head. Now that I am a partner with you, are you going to give me only one-half of the head?

Rabbi Elazar said to him: Until now the money was mine, and had I not given you a little more value as compensation for your efforts, it would have appeared to be like interest. But now that we are partners, what can you say? That you must exert a little more effort than I do to take the animal in and out of the pasture? As people say in a common adage: An ordinary sharecropper subjugates himself to the owner to bring him pasture. Sharecroppers are accustomed to expending extra effort on behalf of the owner of the field. Therefore we are equal partners and divide everything.

The Sages taught: With regard to one who appraises an animal for another to raise, how long is the other obligated to care for it if they did not stipulate this explicitly? Sumakhos says: For female donkeys, eighteen months; for flocks of sheep or goats, twenty-four months. And if one of them comes to divide, i.e., if he wishes to sell the animal and divide the profits, within the time, i.e., before the time for taking care of it has ended, the other can prevent him from doing so, but the effort involved in the care of the animal for this year is not comparable to the care of another year.

The Gemara asks: With regard to the word but that was said here, what is it saying? It does not seem to belong in the statement. Rather, the text must be corrected as follows: Because the care of this year is not comparable to the care of another year. The profits are not necessarily divided evenly during the entire time of the animal’s growth, and therefore either party can insist that the contract be carried through to the end of the specified period.

It is taught in another baraita: With regard to one who appraises an animal for another to raise, for how long is the latter obligated to care for the offspring that are born to it? For a species of small animals, he is obligated to care for the offspring for thirty days, and for a species of large animals, fifty days. Rabbi Yosei says: For a species of small animals, he is obligated to care for the offspring for three months, as it requires a lot of care. The Gemara asks: What is the meaning of: A lot of care? It means that due to the fact that its teeth are thin, its food has to be cut up for it, which is not necessary for a species of large animals. From this point forward, the one raising the animal takes one-half of the offspring as his share, since one-half of the animal is his, and he takes one-half of one-half of the other’s share of the offspring, i.e., one-fourth of the total, as wages for caring for the animal and raising it.

The Gemara relates: Rav Menashya bar Gadda accepted an animal to raise, and of the offspring he took his one-half and one-half of the other’s one-half. This matter came before Abaye. Abaye said to Rav Menashya bar Gadda: Who divided it for you? Since he did this on his own, there is a concern that he may not have divided it fairly. And furthermore, this place is a place where it is customary for the one raising the animal to raise the offspring, and we learned in a mishna (69b): In a place where it is customary to raise the offspring, they should be raised by the one raising the mother, and not divided between them.

The Gemara relates: There were these two Samaritans who entered into a joint venture with each other. One of them went and divided the money without the knowledge of the other. They came for judgment before Rav Pappa. Rav Pappa said to the plaintiff: What difference is there, meaning: What did you lose? This is what Rav Naḥman said: Money is considered as though it were already divided. It is not viewed as a single sum.

The next year these same two purchased wine together, and the other one arose and divided the wine without the knowledge of the other. And again, they came for judgment before Rav Pappa. Rav Pappa said to the defendant: Who divided it for you? You did not act properly since you did not get your partner’s permission to divide the wine. The Samaritan said to him: I see that the Master pursues me in order to harass me, since last year, when we came with what appears to be essentially the same case, you gave a different ruling in favor of the other. Rav Pappa said:

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

BavaMetzia 69a examines profit-sharing arrangements and unequal loss terms as a way to avoid the biblical ban on charging interest.