Torah Community Connections

Week 107 - Wednesday - 12 December 2001

BAVA BATRA: CHAPTER 5: MISHNAH 2

One who sells an ass did not sell its equipment. Nahum the Mede says, He has sold its equipment. R. Yehudah says, Sometimes it is sold and sometimes it is not sold. How so? If the ass was before him and its equipment on it, and he said to him: "Sell me this ass of yours" - its equipment is sold; is that ass yours - its equipment is not sold.

Kehati

One who sells an ass, did not sell its equipment - The Gemara explains that this refers to equipment used for carrying loads on the ass, such as a large sack into which goods are placed; but those parts of equipment needed for riding the animal, such as the saddle and pack-saddle, are included in the sale; Nahum the Mede says, He has sold its equipment - The sale includes both the equipment used for riding and that used for carrying loads. The Gemara explains that the First Tanna holds that asses are ordinarily used for riding purposes and not for transporting goods, thus when no conditions are specified as to what is to be included, only the riding equipment is part of the sale. Nahum the Mede, on the other hand, holds that an ass is generally used for transporting goods. As the saddle can also be used for this purpose, both the riding equipment and that used for transporting goods are included in the sale. The halakhah follows the First Tanna. The commentators explain that according to the First Tanna, even if equipment used for transporting goods was on the ass at the time of sale, it is not included, whereas that used for riding is included even if not actually on the donkey at the time of sale (See Bartenura and Tosefot Yom Tov).

R. Yehudah says, Sometimes it is sold and sometimes it is not sold – Sometimes the equipment on the ass is included in the sale, while at other times it is not. How so? If the ass was before him and its equipment on it, and he said to him - the buyer said to the seller: "Sell me this ass of yours" - its equipment is sold - since he stressed this ass, he implied the ass and the equipment on it; but if the buyer asked, is that ass yours - if it is yours, sell it to me, its equipment is not sold - since he puts it as a question, the presumption is that he was only interested in the donkey itself. Thus the equipment is not included in the sale, even if it is on the donkey at the time of sale. The halakhah does not follow R. Yehudah.

BAVA BATRA: CHAPTER 5: MISHNAH 3

One who sells an ass, has sold the foal. One who sold the cow, did not sell its young. One who sold a dung heap, has sold its manure. One who sold a cistern, sold its waters. One who sold a beehive, sold the bees. One who sold a dovecote, sold the doves. One who buys the fruits of a dovecote from his fellow, shoos away the first pair. The fruits of a beehive, he takes three swarms and alternates. Honeycombs, he leaves two honeycombs. Olives for cutting down, he leaves two shoots.

Kehati

One who sells an ass - In this case, a female, has sold the foal - the foal is included in the sale of its mother. One who sold the cow, did not sell its young - its calf is not included. The Gemara explains that the seller had told the buyer he was selling a nursing ass or cow. As nobody buys an ass for its milk, the assumption is that by the seller's statement he meant to include the foal. With a cow, on the other hand, where the animal is indeed bought for its milk, the seller's statement may simply have been an indication that the cow is at present producing milk, and thus its calf is not included in the sale.

One who sold a dung heap, has sold its manure - The sale of a dung heap includes the sale of any manure in it. One who sold a cistern, sold its waters - The Gemara states that this mishnah is an individual opinion, but the Sages differ (in a baraita) and state that the sale of a cistern does not automatically include the sale of its waters. The halakhah follows the Sages. Others, however, decide the halakhah as in our mishnah (Rashbam; Tur).

One who sold a beehive, sold the bees. One who sold a dovecote, sold the doves - For the important part of a beehive are its bees and of a dovecote its doves. One who buys the fruits of a dovecote from his fellow - If one paid a sum for the doves that will be born during the following year, shoos away the first pair - i.e., he must let the seller keep the first pair of doves that are born after the sale, as company for the parent doves who would otherwise fly away, for the seller, not having sold the dovecote, ordinarily retains the first pair with it thereby ensuring its preservation. (Rashbam) The fruits of a beehive - If one bought the bees that will be hatched in a beehive in the coming year, he takes three swarms - The buyer receives the first three swarms that emerge from the beehive and places them in his own beehive, and alternates - from that point on the buyer alternates swarms with the seller, so that the beehive will remain populated (Gemara; Ramban; Bartenura).

Another interpretation in the Gemara is that the seller of the bees must render them incapable of laying eggs, so that the bees will devote themselves to making honey. Rambam writes: "One who sells the fruits of a dovecote or of a beehive to his fellow - that is a valid sale, and this is not considered to be the sale of a yet non-existing object, for the sale is not of the doves that will yet be born or the honey that will yet be made, but of the dovecote for its fruit or the beehive for its honey, and this is like a person who rents a water canal from his fellow, in which case the renter owns all the fish he catches in it. And selling a dovecote for its fruits is no different from one who sells his tree for its fruit ...” (Hil. Mekhirah 23:9); Kesef Mishneh explains that since the dovecote or beehive are secondary to their products, for they are presumably not worth that much in themselves, this is as if one sold a dovecote or a beehive for its fruits. But in the case of the produce of a field, the produce is secondary to the field itself, and he is not as one selling a tree for its fruit unless that is specified.

Honeycombs - If a person buys the honeycombs in a beehive, he leaves two honeycombs - The buyer leaves two honeycombs in the hive to supply nourishment for the bees during the rainy season. Olives for cutting down - If one buys olive trees from his fellow in order to cut them down, he leaves two shoots - The buyer leaves over two branches on each tree, so that the trees will re-grow. Some interpret this to mean that one must leave two fists, i.e., two handbreadths in height from the ground, and may cut off everything above that height (see Tosefot Yom Tov).

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives