Wimpfheimer_ Is it not so.pdf

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Toward a Poetics of Legal Narrative in the Talmud ❙ 53 drink of water'' (so that it constitutes a loan together with the owner's service).⁶ But if [the lender] is wise, he should answer [the borrower], ``First borrow it⁷ (and then I will give you a drink).''⁸ Rava said: A teacher of children,⁹ (a gardener),¹⁰ a butcher, a cupper,¹¹ and a town¹² scribe¹³Ðall [if they lend something] while at work constitute a loan in the owner's presence. The scholars¹⁴ said to Rava:¹⁵ ``You, Master, are in our service.''¹⁶ He was enraged:¹⁷ ``You wish to deprive me of my money!'' [he exclaimed]. `Òn the contrary, you are in my service! For I can change you over from one tractate to another, while you cannot!'' But it is not so. He is in their service during the Kallah days, while they are in his service on other days.¹⁸ Rava's initial protagonistÐthe one who wishes to borrow without liabilityÐ seizes an opportunity o²ered by the tannaitic rede®nition of presence. Aware of the contractual nature of presence, the borrower attempts to achieve blanket liability protection by cunningly contracting for the services of the bailment's unaware owner. ``Pour me a glass of water''Ðan everyday statement is here employed as a subtle, even magical,¹⁹ means of achieving exoneration. By contracting with the bailment's owner, the wily borrower attempts to meet the threshold of presence. Fortunately, the object's owner has also studied rabbinic law and knows that presence is complicated by priority. By ®rst lending the object, the lender successfully rejects the borrower's attempt while maintaining appearances. Sure, I'll pour you your water, after you borrow my object. The thrust is easily parried, as control of the legal material allows for law's metamorphosis into comedy. By opening his treatment of the mishnah with this light-hearted application,²⁰ Rava highlights the opportunity that legal mastery presents for abuse. Both borrower and lender are potential masters of talmudic law. Though the scheming borrower begins the statement, the hero of the statement is the wily lender, whose familiarity with the law prevents his ®nancial demise. The schematic of combatants in the legal arena as well as the playfulness of the initial attempt to achieve blanket exoneration will shortly reappear in the narrative. Before arriving there, we encounter Rava's analysis and development of the rabbinic law.
54 ❙ Barry Wimpfheimer Rava said: A teacher of children, (a gardener), a butcher, a cupper, and a town scribeÐall [if they lend something] while at work constitute a loan in the owner's presence. Rava is not merely being coy or staging a scene. Despite his initial playfulness and the outburst yet to come, there is signi®cant substance in his remark. The terse form of his legal comment is standard for Talmud, as is the subtlety of his lesson. A number of innovations emerge from Rava's statement. According to tannaitic law, `òwner presence'' occurs if the owner is hired either simultaneously with the animal or prior to its hiring. Rava's groupÐthe teacher, butcher, and so onÐstretches the law to include laborers who are in constant service.²¹ Their labor is not contracted discretely; it is under continuous contract. The most radical case of owner presence in tannaitic sources is one in which owner and animal are both hired for agricultural purposes but work in di²erent ®elds. Rava's group includes workers in di²erent industries altogether. Perhaps most signi®cantly, Rava's remark implicates an entirely new legal concept of employmentÐpublic service.²² For this group, no individual contract is necessary. The butcher need not be slaughtering my animal to be considered in my employ; slaughtering anyone's animal renders him or her in everyone's service. But Rava's employees are not entirely disadvantaged by his legal innovation and their status as public servants. Rava's statement limits the exoneration of the borrower to the time when these servants are actually serving.²³ Unlike tannaitic law's discretely contracted owner, for whom the exoneration of the borrower knows no time limits,²⁴ the borrower from the public servant reverts to a position of liability when the lender is not performing a service role. Whereas the contracted, discretely hired lender exonerates the borrower even at night, Rava's continuously employed public servants are only considered in service when they are at work. Rava nuances the law by treating a new category of employee to a new interpretation on the notion of exonerationÐan interpretation that is at once more lax and more stringent. Rava's genius as a legal thinker is evidenced here in his ability to nuance the interstices of law, expanding the legal scope in moderation. The combination of Rava's account of intellectual gamesmanship and the aptness of his lecture elicits a personi®cation of the lecture that is not at all
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