Bava Batra 106b (קו:) — the Talmud in English

He said to him

the seller said to Rav Pappa,

“Its measurement is twenty kor.”

The area of the land is twenty se'a.

And

when it was measured,

it was only fifteen

fifteen se'a.

He came before Abaye, and he said to him

Abaye said to Rav Pappa: You have no claim against him, for

you saw it and accepted it.

You saw the field before the sale and agreed to purchase it.

Rav Pappa said to him:

But

behold,

we learned: “If it is less than a sixth, they have no claim against one another; up to a sixth, he deducts,”

whereas here he is lacking a quarter, so why should he not deduct from the price?

Abaye said to him:

This applies only where he is not familiar

the purchaser is not familiar

with it

he is not knowledgeable about the measurements of the field;

but where he is familiar with it, he saw it and accepted it.

Rav Pappa said to him:

But he told me “twenty,”

and he told me this with the intention that he would make up the deficiency from another field or deduct it from the price?

He said to him

Abaye said to him: That was not his intention. Rather, he meant to tell you

that this field is superior

better than another field

as twenty.

Since

our Mishna deals with one who sells land to another by a specified measure, and more than the specified measure is found in it, and we rule that he returns the excess but does not nullify the sale, we also learned the statement cited below: “Two brothers who divided their inheritance, and a brother came to them from overseas,” concerning which Shmuel said: “They reduce their shares,” meaning that they return the excess and do not nullify the division.

Incidentally

as an ancillary matter, at the beginning we learned the beraita cited here, which deals with the laws governing the division of brothers’ property by lot. Rashbam.

It was taught

in a beraita:

Rabbi Yosei says: When brothers divided

their father’s estate—and the same is true of partners who divided—and they selected two or three equal portions for themselves and cast lots among themselves,

once the lot has fallen to one of them, they have all acquired their portions.

That is, if there were two, they both acquired their portions. And if there were three or more, this one acquired the portion that fell to him by lot, while the others acquired the remaining portions to divide among themselves in whatever manner they wished .

What is the reason?

Through what did they acquire their portions? The lot had not yet fallen, and each one had not yet taken possession of his own portion.

Rabbi Elazar said: It is like the initial

division of

the Land of Israel

among the tribes.

Just as initially,

it was divided among the tribes

by lot,

and each one acquired his portion through it ,

so too here

the heirs acquire

their

portions through

a lot.

And the Gemara raises an objection:

If

so, let us derive additional laws from the division of the Land:

Just as there, it was done with a lottery urn and the Urim Ve-Tummim, so too here, should it be done with a lottery urn and the Urim Ve-Tummim?

Rav Ashi said

Here there is no need for the Urim Ve-Tummim, because they completed the process and acquired the portions immediately, with wholehearted consent,

because of the benefit that they complied with one another

the benefit they derived from agreeing with one another to divide by lot;

they fully resolved to acquire from one another .

We further learned the following concerning the laws of dividing an inheritance among brothers:

It was stated: Two brothers who divided

their father’s real estate in the presence of a court ,

and

afterward

a brother came to them from overseas.

Rav said,

since each one mistakenly took more than his share,

the division is nullified.

They must divide the property anew into three portions and cast lots among themselves.

And Shmuel said: They reduce their shares,

each one reducing a third of his portion and giving it to the third brother .

Rava said to Rav Naḥman: According to Rav, who says “the division is nullified,” it follows

that two partners who divided the property without the knowledge of the third partner,

the law reverts

their division is nullified.

If that is so, these three

three brothers or partners

who are standing, and two of them went and divided

in the presence of a court, without the knowledge of the third, into three equal portions,

is it likewise the case that the division is nullified

when the third comes and protests their division?!

The Gemara rejects this:

Is that comparable?!

What is the comparison? There is a distinction:

There, they proceeded from the outset with the intention of dividing among three

they divided the land into three portions from the outset; therefore, they need not be concerned with the opinion of the third brother .

But

here,

with regard to two brothers who divided their inheritance and a brother came to them from overseas,

they did not proceed from the outset with the intention of dividing among three.

They divided the property into only two portions, and it follows that each one took more than was due to him, making it a mistaken division.

Rav Pappa said to Abaye: According to Shmuel, who says “they reduce their shares,” does this mean that the original ruling stands?

That is, if one took something that was properly due to him, but took either less or more than the proper amount, what he seized he retains, and he returns the excess.

And

there is a difficulty:

Rav and Shmuel both say: “If one says to another:

‘A

kor

of wheat

for thirty

sela,

I am selling it to you,’

and he began measuring the wheat for him,

he may retract even with regard to the final se'a.”

Even if the purchaser has taken possession of twenty-nine se'a, the sale is not completed until the seller gives him thirty se'a.

But if he said to him,

“A kor for thirty, a se'a for a sela; I am selling it to you,” the purchaser acquires each one individually.

Since he said to him, “a se'a for a sela,” each se'a constitutes a separate sale, and taking possession of each one effects its acquisition.

And there is a difficulty: Why, if he said to him “a kor for thirty,” may he retract even with regard to the final se'a and take back from the purchaser the twenty-nine se'a that the purchaser had already acquired? After all, according to Shmuel, if one takes possession of what is properly due to him, his taking possession is effective even if he did not take possession of the full amount due to him.