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Week 108 - Friday - 21 December 2001

BAVA BATRA: CHAPTER 7: MISHNAH 1

If one says to his fellow: A kor's area of soil I am selling you - if there were there clefts ten tefahim deep, or rocks ten tefahim high, they are not measured with it. Less than that, they are measured with it. And if he said to him: About a kor's area of soil - even if there were clefts deeper than ten tefahim, or rocks higher than ten tefahim - they are measured with it.

Kehati

If one says to his fellow: A kor's area of soil I am selling you - An area in which one can sow a kor (30 se'ahs) of grain, which is equivalent to a square with sides of approximately 274 amot (about 75,000 square amot). The commentators explain that the mishnah mentions "soil" to indicate that the sale is of an area of land fit for planting without specifying a specific field (Rashbam), and when the time comes to measure it, if there were there clefts ten tefahim deep, or rocks ten tefahim high - provided they were at least four amot by four amot in size, which makes them important entities in themselves (Rashbam), they are not measured with it - The seller must give the buyer the area of a kor of level ground (Rashbam), for a person does not wish to pay for a property that looks as if it is broken up into two or three different plots (Gemara). Less than that - If the clefts are less deep than ten tefahim or the rocks are lower than ten tefahim, they are measured with it - for every field has some clefts or rocks (Tosefot Yom Tov).

And if he said to him: About a kor's area of soil - which implies that this does not have to be exactly the area of a kor (Rashbam), even if there were clefts deeper than ten tefahim, or rocks higher than ten tefahim - they are measured with it - for when the seller said "about a kor's area of soil," he implied that it would not be a single, level piece of land, but that it would have clefts and rocks. If the seller left out the words "of soil" from his proposal, he has the right to give the buyer land which is totally filled with rocks, and he can claim that he thought the land was to be used for building a house rather than for farming (Rashbam). Others argue with this and hold that the rule of the mishnah applies even if the seller left out the words "of soil," and the reason the mishnah mentions the words "of soil" is to teach us that even when soil was specified, clefts less deep than ten tefahim or rocks less high than ten tefahim are included in the measurement (Tosafot).

BAVA BATRA: CHAPTER 7: MISHNAH 2

A kor's area of soil I am selling you, measurement by the rope - if he decreased a fraction, he deducts; if he added a fraction, he gives back. If he said, whether less or more - even if he decreased a quarter on a se'ah or added a quarter on a se'ah, he has attained it; more than that, he makes a reckoning. What does he give him back? Money; and if he wishes, he gives him land. And why did they say, He gives him back money? To enhance the power of the seller; for if he left in the field an area of nine kabs, and in a garden an area of a half a kab - and according to R. Akiva, an area of a quarter - he gives back land. And not only does he return the quarter, but all the balance.

Kehati

A kor's area of soil I am selling you, measurement by the rope - If a seller offered a plot of land to a buyer, "measurement by the rope," i.e., by exact measurement. If he decreased a fraction - if the land was less than a kor's area, he deducts - The seller lowers the price charged proportionately; if he added a fraction - if the land was more than a kor's area, he gives back - The buyer returns the area above the amount contracted for, or pays an additional amount to keep it, as explained below. Even though the rules governing overcharging do not apply to the sale of land that is so only when the land was sold for a high or low price; here, where there was an error in measurement, the error must be rectified (Rashbam; and see Tosefot Yom Tov).

If he said - If the seller said to the buyer, whether less or more - i.e., that he is selling an approximate area, even if he decreased a quarter on a se'ah or added a quarter on a se'ah - even if the area varied by as much as a quarter of a kab in a se'ah, where there are six kabs in a se'ah, so that the actual area was up to 1/24 more or 1/24 less than the agreement called for, he has attained it - The sale is valid and no rectification is needed in the price or the land involved. The reason the mishnah used the se'ah as the unit of measurement rather than using the kor, which is thirty se'ahs, is to teach us that no matter how small the land transaction is, the same variance of up to 1/24 applies (Rashbam).

More than that - If the variance exceeded 1/24 either way, he makes a reckoning - either subtracting from or adding to the price as the case may be (Nimukei Yosef; Rambam). What does he give him back? - What does the buyer return to the seller if the land was more than 1/24 more than the specified area? Money - the buyer pays for the additional land he received beyond the area contracted for, according to the price of the area of the kor. And if he wishes - and if the seller prefers to receive back part of the land, he gives him land - The buyer returns the excess land to the seller.

And why did they say, He gives him back money? To enhance the power of the seller - As the seller would only be getting back a small area of land with which he can do nothing, the Sages allow him the option of choosing whether he wishes to be paid extra for the excess land or whether he wishes to take the land back; for if he left in the field an area of nine kabs - if the excess amount that the seller had given was enough to sow nine kabs in a kor (and not 7 1/2 kabs, which is one quarter of a se'ah), this is large enough to be worthwhile to the seller since such is considered a field in its own right (see above 1:6), and in a garden - if a person sold a garden, an area of a half a kab - if there is enough space over to plant a half of a kab, it is considered a garden, and according to R. Akiva - who, as we saw above (1:6), holds that an area of a quarter - even an area sufficient to plant a quarter of a kab is considered to be a garden, he gives him back land - the excess land, and he need not return any money. The mishnah thus teaches us that if the variance is seven and a half kabs to a kor's area, i.e., one quarter of a kab to each se'ah (1/24), either way, the contract is valid, the difference waived, and neither party has to make restitution. If the variance is an area from seven and a half kabs up to (but excluding) nine kabs, he makes a reckoning; if, in excess of this the land must be returned.

And not only does he return the quarter, but all the balance - The Gemara explains that the words of the mishnah should be inverted, to read not only does he return the balance, but all the quarters, meaning that when the seller said to the buyer, "whether less or more," and the excess was more than 1/24 - for which we said they must make a reckoning or the land is returned - the buyer does not merely return the excess land above the 1/24 variance that was allowed for under the terms of the contract, but he must return the total amount of land in excess of the amount specified in the agreement. I.e., for example, if the excess was eight kabs to a kor we do not say that he must give back only half a kab, which is the excess over seven and a half kabs normally waived, but he must give him back all eight kabs.

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