ו׳ באלול ה׳תשע״ו (September 9, 2016)

Bava Kamma 102a-b: When an Agent Deviates From the Terms

As we learned in the Mishna above (daf 100), Rabbi Me’ir and Rabbi Yehuda differ regarding how to treat a worker who diverged from the instructions that he received from the owner and chose to dye wool red instead of black or vice versa. Rabbi Me’ir believes that the worker takes possession of the object that he misused, while Rabbi Yehuda believes that the owner retains possession of the object, but will pay either the worker’s expenses or the increased value of the object – whichever is less. Our Gemara suggests that the same argument can be applied to other cases, as well.

The Gemara presents two baraitot that discuss a single case:

Someone gives money to an agent and asks him to purchase wheat as an investment, and the agent purchases barley – or he instructs him to purchase barley and the agent purchases wheat. We find that one baraita says that whatever loss or profit comes from this transaction will belong to the agent; another baraita rules that the agent will suffer any losses that come from this transaction, but if there is a profit then the investor and the agent will share equally. Rabbi Yohanan suggests that we should not see these rulings as contradictory, since they simply reflect two different opinions. According to Rabbi Me’ir, once the agent chose to ignore the investor’s instructions, the investment becomes his own; according to Rabbi Yehuda, the owner retains his interest in the investment and will share in the profits, but not in the losses.

Most of the commentaries follow Rashi’s approach to this case, and understand that the original agreement offered the agent some level of partnership in the investment. Rashi suggests that this is the case because of the ruling that the owner and the agent will share any profits, indicating that there was some profit-sharing agreement between them. The Me’iri argues that even if the agent were not originally a partner, he would still receive a share of the profits in special circumstances, e.g. if he was instructed to purchase something at a set price and he succeeded in purchasing it for less.

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