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Week 107 - Friday - 14 December 2001

BAVA BATRA: CHAPTER 5: MISHNAH 6

There are four rules regarding sellers: if he sold him good grain and it was found to be bad, the buyer can retract. Bad and it was found good, the seller can retract; bad and it was found bad, good and it was found good, neither one can retract; dark colored and it was found white, white and it was found dark colored, olive wood and it was found to be sycamore, sycamore and it was found to be olive, wine and it was found to be vinegar, vinegar and it was found to be wine - both can retract.

Kehati

This mishnah deals with a sale involving overreaching or an error, whereupon one is able to cancel the sale.

There are four rules regarding sellers - There are four different rules regarding sales: if he sold him good grain - if a seller assured the buyer that he was buying good grain, and it was found to be bad - The buyer found that he had been given an inferior grade of grain, the buyer can retract - Because he was wronged; but the seller, who was not wronged, cannot retract, even if the price of grain went up meanwhile. Bad - If the seller specified that the grain was bad, and it was found good - where the buyer cheated the seller by claiming that the seller's wheat was bad, and afterwards it was found that the grain was indeed good (Nimukei Yosef), the seller can retract - because he was wronged, but not the buyer, and even if wheat went down in price in the interim, bad and it was found bad, good and it was found good - where the claims were correct, neither one can retract - should the price of grain fall, and should the buyer wish to back out of the sale, claiming that he had indeed thought the grain was good, but had said it was bad as a bargaining tool, he cannot undo the sale. Similarly, vice versa if the price of grain went up and the seller wishes to retract, claiming that he had meant to say the grain was bad, but had said it was good as a bargaining point, he cannot undo the sale (Rashbam; Bartenura).

Others interpret this as follows: bad and it was found bad - that the seller had claimed the grain was bad, but it had been found to be the worst of the worst, or good and it was found good - where the seller said the grain was good, and it was found to be the best of the best, neither one can retract for "bad" includes all grades of bad and "good" includes all grades of good (Nimukei Yosef). Rambam writes: bad and it was found bad, good and it was found good, even though they were not the very best or the very worst, and there was overcharging of a sixth, neither can retract, but the sale is valid and he returns amount overcharged.

Dark colored and it was found white - If one sold what he claimed was dark colored grain, which was found to be white or vice versa, white and it was found dark colored and these are two distinct types of grain, the latter yielding more flour and the former less but of a finer grade, olive wood and it was found to be sycamore, sycamore and it was found to be olive - Where the seller claimed he was selling a specific kind of wood, and it was found to be a different kind; or where a person sold wine and it was found to be vinegar, vinegar and it was found to be wine - and a person buying the one does so because he needs that particular product, and the one selling finds it better for him to sell the one rather than the other. The same is true for the other items listed or any similar type of case, both can retract - Because this is an erroneous sale on both their parts, for this is not the product he had planned to sell, and there are occasions when a buyer is interested only in the particular product, or the seller wishes to sell only a specific product.

BAVA BATRA: CHAPTER 5: MISHNAH 7

One who sells produce to his fellow, if he drew it but did not measure it he has acquired it; if he measured but did not draw it - he has not acquired. If he is clever, he rents its place. One who buys flax from his fellow, has not acquired it until he moves it from place to place; and if it was attached to the ground and he detached any of it - he acquired it.

Kehati

This mishnah deals with laws governing the purchase of movable goods. In Kidd.1:4 we explained that one can acquire ownership of movable goods in one of three ways: a) by raising the object; b) by drawing it; c) by transferring it. There are clear differences between the three methods of acquisition, as, for example, objects that are acquired by raising cannot be acquired by either of the other methods, whereas those normally acquired by drawing can also be acquired by transfer. Some objects cannot be drawn easily, such as a boat or a large crate, and these are acquired by transfer. There are also differences between the three methods of acquisition related to where the act takes place: for "raising" the act may take place anywhere, even in the domain of the seller; for "drawing", one can only use either an alley off a public thoroughfare or property owned jointly by the seller and buyer; for "transfer" to be effective, it must take place in either a public thoroughfare or in a courtyard which does not belong to either. None of these methods is effective unless the seller and buyer had agreed in advance of the act the price to be paid, for until such time neither has definitely decided to transact. Others hold that if the price of the particular object is standard and commonly known, the act of acquisition is as valid as when the price was stipulated.

One who sells produce to his fellow - where they had agreed upon the price, or where there was a fixed market price, as mentioned in the introduction above, if he drew it - if the produce was located in an alley or in a courtyard belonging to both and the buyer drew it towards himself, but did not measure it - even though the produce had not yet been measured, he has acquired it - the produce now belongs to the buyer, provided that it was packed in such a way as to make it difficult to lift, such as produce in large sacks. If it could be lifted, one would need to raise up the produce to acquire it; if he measured and did not draw it - if the seller measured the produce but the buyer did not draw it, he has not acquired - the buyer does not acquire the produce. If, on the other hand, the buyer measured the produce, he acquires the produce by the act of raising it (most commentators, but Ravad disagrees; see Shitah Mekubetzet). The same applies if the seller measured the produce out into the buyer's vessels, the buyer acquires it, for if his vessels are located in an alley or in their jointly owned courtyard, the vessels acquire the produce on his behalf. This mishnah, however, refers to a case where either the seller measured it unto the floor of an alley or he measured out the produce into his own vessels, and therefore the buyer cannot acquire it until he draws it. Others explain the mishnah as referring to produce that was in a public thoroughfare, and the mishnah teaches that if the buyer pulls the produce into either his own property or into an alley, even though it has not yet been measured, he acquires it. If, however, the seller measured it, even if he did so into the buyer's vessels, as long as the buyer does not draw the produce he does not acquire it, because a person's vessels cannot acquire anything on his behalf if they are located in a public thoroughfare, as the person has no right to leave the vessels there. If, on the other hand, the buyer himself measured the produce, even if this was in a public thoroughfare, he acquires it by the act of raising the produce (Rambam; Bartenura; see Tosefot R. Akiva Eiger).

If he is clever - If the buyer wishes to acquire produce he has not drawn so as to prevent the seller from changing his mind, if it was lying in the seller's domain, he rents its place - he rents the place where the produce lies, and that place, which is now his courtyard, then acquires the produce on his behalf. One who buys flax from his fellow - where the quantity is such that it can be raised, has not acquired it until he moves it from place to place - As mentioned in the introduction to this mishnah, objects which can be raised cannot be acquired by drawing. As to the fact that the mishnah states from place to place, that is not meant literally, and even if the object is put back in the same place, it is a valid act of acquisition. The reason for the expression from place to place in the mishnah is that when a person picks something up, he normally puts it down elsewhere, either placing it in his own property or in a special place within the present property.

And if it - the flax was attached to the ground and he detached any of it - he acquired it - the buyer acquires it by that act. The Gemara explains that this refers to a seller who said to the buyer: "Make some act of improvement (i.e., possession) in the land, so that it becomes lent to you and in this way you will acquire whatever is on it" (Tosafot), therefore, when the buyer detached some of the flax in order to improve the land, he acquired all the flax on it. Others interpret this to mean that when the buyer detaches some of the flax to improve the land, he acquires the land by hazakah, and the flax becomes his as it is attached to the land. And even though the seller only gave possession of the land to the buyer for the purpose of having the latter acquire the flax, such an act of possession is valid, because whatever is attached to the land is considered to be part of it (Rashbam; Hameiri).

The Gemara quotes another version of the text, which states, improve this land for me in any way, which it explains to refer to flax which has already dried out and is ready to be cut. Anything ready to be cut down is considered as if it is already cut down, so that when the buyer cuts down any quantity, he acquires possession of the land as payment for the fact that he improved it, and as a consequence he acquires the flax on it (Rambam; Maggid Mishneh; Bartenura; and see Tosefot Yom Tov).

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