Tractate Bava Metzia – “The Middle Gate” – is the second portion Seder Nezikin, which deals with issues of civil law. In ancient arrangements, the longer Massekhet Nezikin was eventually divided into three bavot – “gates” – or sections, as a clarification point between sub-topics of civil law and fiscal responsibilities.
The main topic of this bavot involves business interactions between people that are informed by Torah laws that define and limit them. Thus, the discussion does not cover all areas of business and possessions, rather it is limited to those areas where the Torah adds unique commandments or prohibitions beyond the normal laws that apply to business interactions. Because of this, we find the laws of Massekhet Bava Metzia codified not only in Shulḥan Aruk Hoshen Mishpat (which deals with business relationships) but in Yoreh De’ah (whose focus is ritual law), as well. The topics covered include responsibilities towards lost and found objects, assisting in loading and unloading animals, taking advantage of others in business, taking interest and usury, permitting a field worker to eat while working, the four types of shomerim (guards), the obligation to pay wages on time, among others.
On a certain level, Massekhet Bava Metzia illustrates one of the most unique facets of the Torah in general – the idea that civil law and business interactions are not subject merely to free agreements between people or even to community legislation that reflects the interests of society. The Torah does not distinguish between ben adam le-havero (between a man and his fellow man) and ben adam la-Makom (between man and God), inasmuch as human relationships are connected with Godly ones, as well. While we do find divisions between different types of Torah laws, in general these rules and regulations are connected, as can be seen in Parashat Mishpatim (Shemot 21-23), Parashat Kedoshim (Vayikra 19) and Parashat Ki Tetze ( 21-25). The Torah includes ritual laws together with business laws, ethical commandments with the laws of ritual purity, etc.
Not only are ordinary business and personal interactions defined by the Torah based on ethical considerations (e.g. theft and dishonesty), but there are also a number of such relationships that fall into the category of hukim – of Torah laws that do not, at first glance, have a logical basis – that help establish normative behavior in the Jewish community that differs radically from normal society values. These laws – e.g. the prohibition from charging interest on loans or returning an article used as a guarantee on a loan to a poor person who needs it – contain value-laden significance in-and-of themselves. The concept that sensitivity, charity and good deeds are not simply personal additions to the rules of civil law, but are part-and-parcel of the law itself, creates a situation where lifnim mi-shurat ha-din – “beyond the letter of the law” – becomes part of the law itself.
Understanding this can help explain some of the differences between the rules of the Torah that are applied to all people in all places, and those that are specific to interactions between Jewish people. Rules that apply the general logic of the law are applicable to all; those whose basis is in lifnim mi-shurat ha-din may very well be applied only to Jews – “to ahikah, your brother” – with whom a special relationship exists. The laws of returning lost objects or of refraining from collecting interest are not part of a legal system based on “fairness,” rather they are particular to the “inner circle” of the Jewish People.
From this perspective we can view the laws discussed in Massekhet Bava Metzia on four different levels of relationships:
- Basic laws governing transfer of ownership that apply in all cases;
- Laws unique to the Jewish community whose source is lifnim mi-shurat ha-din;
- Rules that cannot be enforced by the courts, but whose abrogation is seen as inappropriate;
- Rules that are entirely in the realm of upstanding, ethical behavior, based on the moral code of the prophets (see Mishlei 2:20).
Purely from a legal, rational perspective, the subject that is central to all of the laws of Massekhet Bava Metzia is the issue of kinyan – ownership. A kinyan is the basic right of ownership that a person has vis-à-vis an object that belongs to him. When we discuss negotiations in a business transaction, what we are really discussing is the transfer of kinyan or of some of the rights of kinyan from one person to another. The kinyan relationship between the owner and the object can become undone in one of two ways – with the death of the owner, or the removal of the kinyan by the owner by means of transferring the object to another (or declaring the object ownerless).
Ordinarily the object is in the possession of the person who has a kinyan on it, but it is not unusual to find the object in the hands of another, either with the agreement of the owner (e.g. if it is lent or rented to someone, or given to him to watch), or against his will (e.g. if the object was lost or stolen). In all of these cases, we must examine the level of kinyan that the owner retains, and whether, under certain circumstances, the object may transfer to the possession of another, leaving instead a situation where the new owner is obligated to the original owner in a variety of different ways.