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Week 107 - Tuesday - 11 December 2001

BAVA BATRA: CHAPTER 4: MISHNAH 9

But he has not sold the stones which are not necessary for it, and not the reeds in the vineyard which are unnecessary for it, and not the grain which is detached from the soil. If he said to him: It and all that is within it - all of these are sold. This way or that way he has not sold a reed thicket which is a bet rova, and not the guard hut that is made with clay, and not the grafted carob tree, and not the full-grown sycamore tree, and not the cistern, nor any wine press, or dovecote, whether these are abandoned or functioning. And he must buy for himself a right of way; these are the words of R. Akiva. But the Sages say: He need not. And R. Akiva agrees, if he said to him: Except for these, that he need not buy for himself a right of way. If he sold them to another, R. Akiva says: He need not buy for himself a right of way, but the Sages say: He must buy for himself a right of way. When is this so? With a seller; but with one who gives as a gift, he gives everything. Brothers who divided, if they took possession of a field, they took possession of everything. One who takes possession of a convert's property, if he took possession of the field - he takes possession of everything. One who dedicates a field, dedicated everything. R. Shimon says: One who dedicates a field, dedicated only the grafted carob tree and the mature sycamore tree.

Kehati

This mishnah is a continuation of the previous one (in the Talmud they are treated as a single mishnah), and teaches us what is included in the sale of a field.

But he - The seller of a field, has not sold the stones which are not necessary for it - I.e., those stones not ramped as a fence, or which have not been placed on sheaves, even if he had prepared them for these purposes, and not the reeds in the vineyard which are unnecessary for it - which do not support vines, even if they have been sharpened and readied for that purpose, and not the grain which is detached from the soil - even though it is necessary for the grain to remain in the field in order to dry out. If he - the seller - said to him - the buyer: It and all that is within it - that he is selling the field and its contents, all of these are sold - The sale then even includes stones and reeds that are unnecessary for the field or vineyard as well as harvested grain.

This way or that way - Even if he sold him the field and all its contents, he has not sold a reed thicket - [Kehati has here interpreted the mishnah not in uniformity with our reading but with the reading in the Gemara. See commentary, previous mishnah.] Even if the reeds are all thin and small, which is a bet rova - an area the size of that needed to plant a quarter-kab of grain, and not the guard hut that is made with clay - whose walls have been coated with clay, even if the hut is attached to the ground. According to Rabbeinu Hananel and Rambam, who have a different version of the text in the previous mishnah, the version in this mishnah reads and not the guard hut which is not made with clay, meaning that its walls are not plastered with clay, even though it is attached to the ground, and not the grafted carob tree - which is therefore considered to be an independent entity and not part of the field, and not the full-grown sycamore tree - As mentioned in the previous mishnah, this refers to a tree whose branches have been trimmed. Even if the carob and the sycamore are still puny-looking, once they have been grafted and trimmed respectively, they are considered important in their own right, and not part of the field, and not the cistern - Even if one sold a field and all its contents, that does not include a cistern in the field, nor any wine press or dovecote - in it, whether these are abandoned - whether the cistern, wine press or dovecote are no longer in use, or functioning - i.e., if the cistern is full of water, the wine press of grapes, and the dovecote of doves. Another version of the text reads instead of the word "functioning," the word "complete," i.e., in full repair.

And he must buy for himself a right of way - The seller must purchase from the buyer a right of way to reach his cistern, wine press, or dovecote which is located in a field now belonging to the buyer; as to trees still belonging to the seller, there are those who hold that he does not have to purchase a right of way, and others who hold he must do so (Maggid Mishneh to Hil. Mekhirah 26:4); these are the words of R. Akiva - His reason, as we explained in mishnah 2, above, is that anyone who sells something is normally generous, so that he presumably left no passage for himself. But the Sages say, He need not - buy himself a right of way, for the Sages hold that a seller is customarily grudging, and certainly left himself a right of way to his cistern, wine press, or dovecote. And R. Akiva agrees, if he said to him - When the seller said to the buyer, Except for these - if he made a specific condition that he was not selling him his cistern, wine press, or dovecote, that he need not buy for himself a right of way - The reason being that since the entire condition was unnecessary - these items would in any event not be sold – the condition must have been stated by the seller in order to assure himself a right of way.

If he sold them to another - If someone sold his cistern, wine press, or dovecote to another person but kept his field for himself, R. Akiva says, He need not buy for himself a right of way - the buyer does not need to purchase a right of way to gain access to his new possession, for according to R. Akiva someone who sells a thing is generous, and would automatically include the right of way in the purchase, but the Sages say, He must buy for himself a right of way - The buyer must purchase a right of way, the reason being, as we mentioned earlier, that a seller is grudging, and would presumably not include a right of way with the sale. The halakhah follows R. Akiva.

When is this so? - When do we say that all the items enumerated above - a reed thicket, guard hut, grafted carob, trimmed sycamore, cistern, etc. - are not included in the purchase? With a seller - for in such a case the buyer should specify what he wants included in the sales contract, and if he does not, it is his loss, but with one who gives as a gift - Where a person is given a gift, he is embarrassed to ask him to specify everything which is included with the field, and the fact that he did not do so does not prejudice the case against him. On the contrary; we say that when one gives his friend a field as a gift, he gives everything - he includes everything in the gift, including those items enumerated above that would not normally be included in a sale, because one who gives a gift is generous in his gesture. The same principle applies if a person gives a house, a courtyard, an olive press, or a bath house as a gift, where all the items enumerated as not automatically part of a sale are nevertheless part of a gift (Tur).

Similarly, Brothers who divided - their inheritance, if they took possession of a field, they took possession of everything - whoever takes possession of a specific field takes possession of everything in that field, including any cistern, wine press, or dovecote in it. Also, one who takes possession of a convert's property - if a convert died leaving no heirs, the first person to take possession of his property owns it, for it was ownerless, and if he took possession of the field - he takes possession of everything - everything in the field becomes his.

One who dedicates a field - for the Temple upkeep, without specifying what is included in this dedication, dedicated everything - Everything in the field is dedicated, because a person is presumed to be generous when he dedicates anything to the Divine service.

R. Shimon says: One who dedicates a field, dedicated only the grafted carob tree and the mature sycamore tree - The trees are dedicated, because their nutrition is derived from a dedicated field (Gemara), but all the other items enumerated above are excluded from the dedication, because the intention of one who dedicates is the same as that of one selling that thing. The Gemara explains that R. Shimon holds that a person who dedicates anything is grudging in his outlook, and he does not even include a carob or sycamore tree in his dedication. His statement that these two trees are to be included in the dedication is in accord with the view of the Sages who, in his opinion, agree that a person who dedicates a field includes nothing in it except a grafted carob and a trimmed sycamore tree, since these derive their nurture from the consecrated field (see Bartenura, who explains the mishnah in accordance with the simple meaning of the words, and not in accordance with the Gemara's conclusion; and see Tosefot Yom Tov).

BAVA BATRA: CHAPTER 5: MISHNAH 1

One who sells a ship, has sold the mast and the sail and the anchor and the steering instruments; but he has not sold the slaves, and not the packing sacks, or the cargo. And if he said to him, It and everything that is within it all of these are sold. If he sold the wagon, he did not sell the mules; if he sold the mules, he did not sell the wagon; if he sold the yoke, he did not sell the oxen; if he sold the oxen, he did not sell the yoke. R.Yehudah says: The money informs. How so? If he said to him: Sell me your yoke for two hundred zuz - it is known that a yoke is not two hundred zuz. But the Sages say, The money is no proof.

Kehati

The first five mishnayot of this chapter are a continuation of the previous chapter, and teach us what is included when one buys certain portable objects.

One who sells a ship - without specifying anything more, has sold the mast, sail, and anchor, and the steering instruments - This refers to the oars (Gemara); but he has not sold the slaves - who work on the ship nor did he include the packing sacks - large sacks used for storing cargo, or the cargo - contained in the ship. And if he - the seller - said to him - the buyer, It and everything that is within it - If he sold the ship and all its contents, all of these are sold - the sale includes the slaves, packing sacks, and cargo.

If he sold the wagon, he did not sell the mules - which draw the wagon; the Gemara explains that that is only where they are not attached to the wagon at the time of the sale, but if they are attached, they are included in the sale; if he sold the mules, he did not sell the wagon - even if the mules were attached to the wagon (Tur), since one can ride on them and use them without the wagon (Sema). If he sold the yoke - used to bind a team of oxen together, he did not sell the oxen - because the oxen are not considered to be part of the yoke; similarly, if he sold the oxen, he did not sell the yoke - The Gemara explains that even in those places where some people refer to oxen as "a yoke" and to a yoke as "oxen," since most people mean a yoke when they say so and oxen when they say so, oxen are not included in "a yoke" and a yoke is not included in "oxen." This is only if the sale was made without any further specification, but if he specified that the oxen were being sold for ploughing, then selling the oxen includes the yoke (Tur).

R. Yehudah says, The money informs - The sum of money involved in the sale informs us of what was sold. How so? If he said to him – If A said to B, Sell me your yoke for two hundred zuz - it is known that a yoke is not two hundred zuz - And the price certainly includes the oxen.

But the Sages say: The money is no proof - that the oxen were included in the price, for A may simply have been giving B a gift by paying so large a sum for the yoke. The Gemara asks: If the amount of money paid is no proof, why is not the sale annulled on the grounds of the extortionate sum charged, for the halakhah is that whenever a person overcharges by more than 1/6 of the market price of an item, the sale is voided (see B.M. 4:3,4)? It answers that it is only considered extortion where the error is of such a magnitude that a normal person might be misled, as, for example, charging eight zuz for an item worth six, where the buyer really believed the correct price was indeed eight zuz. If, however, the price is so outrageously high that a person would not normally make a mistake, such as paying two hundred zuz for a yoke, that is not extortion, and we assume that the buyer certainly gave the seller the balance as a gift.

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