Bava Batra 63a (סג.) — the Talmud in English

That is not so!

It is not so.

For Rav Yemar bar Shelamya said: Abaye himself explained it to me,

I received this explanation from Abaye:

whether the boundary is a field from which it is divided, or a field from which it is cut off,

both are equal:

If he said to him, “These are its boundaries,”

if he wrote for him the boundaries of the field that he was selling—on the east, my field, from which this field is divided, or from which this field is cut off; and on the west, so-and-so’s field, and likewise on the north and south—and then added the words, “And these are its boundaries,” meaning, these are its boundaries, which is superfluous wording intended to strengthen the recipient’s rights, therefore he acquires

half

of the field.

But if

he did not say to him, “These are its boundaries”—

nine kav.

He acquires only nine kav, which is the lesser measurement of a field, since the expression “division” does not necessarily indicate half.

It is obvious:

It is obvious that if a shekhiv mera, or anyone distributing his assets at his instruction,

said: “Let so-and-so have a share in my property!”—

the recipient takes

half,

half of the property.

But if he said:

“Give so-and-so a ‘share’ of my property,”

there is a doubt:

What

is the meaning of the expression “share” that he used? Is it an expression indicating division, in which case the recipient takes half of the property? Or perhaps he intended to give only a portion suitable for giving, and the court must assess how large a portion is suitable for giving to that person?

Ravina bar Kisi said: Come and hear,

to resolve the doubt from a beraita:

As it is taught: One who says: “Give so-and-so a share in the pit”

the water of which is mine—

Sumakhos says:

Since there is a doubt regarding the donor’s intention, whether he intended to divide among the recipient half of the water in the pit, or intended to give only some portion [for example, a quarter-log], because of the doubt

the recipient does not receive

from the pit

less than a quarter.

For according to Sumakhos, money whose ownership is in doubt is divided, and the recipient receives the average between the two sides of the doubt.

And likewise,

for a barrel,

if the donor said: “Give so-and-so a share in the pit, in order to fill a barrel to water his animals”—

the recipient does not receive

less than

one-eighth

of the pit, because filling the barrel requires half of the pit. When he said “a share,” it is uncertain whether he intended half of the amount required for the barrel, namely, a quarter of the pit, or perhaps he intended only some portion. Therefore, because of the doubt, the recipient receives at least half of a quarter of the pit, namely, one-eighth.

And if the donor said: “Give so-and-so a share of the pit”

for a pot,

in order to prepare his food—

the recipient does not receive

less than

one-twelfth,

because the quantity of water for a pot is one-third of a pit. It is uncertain whether he intended to give a share consisting of half the amount appropriate for a pot, namely, one-sixth, or only some portion. Therefore, because of the doubt, the recipient receives at least one-quarter of the amount appropriate for a pot, namely, half of one-sixth, which is one-twelfth of the pit.

And if the donor said that he was giving a share of the water in the pit

for a small vessel,

that is, a small vessel intended for drinking—since the quantity of water appropriate for such a vessel is one-quarter of the pit, because of the doubt

the recipient does not receive

less than

one-sixteenth

of the pit, namely, one-quarter of the amount appropriate for the vessel.

This beraita therefore resolves the Gemara’s doubt: when the donor said, “Give so-and-so a ‘share’ of my property,” because of the doubt the recipient receives at least one-quarter of the property.

The Sages taught

in a beraita:

A Levite who sold a field to an Israelite and said to him

the Levite said to the Israelite: I make the sale of the field conditional upon

the First Tithe

of this field remaining

mine—

the First Tithe is his,

it belongs to him, the Levite. The explanation is given below: since a person cannot acquire an object that has not yet come into existence, we say that the seller retained the place of the tithe and did not sell it. Therefore, the First Tithe belongs to him. Even if the purchaser sells the field to another, the First Tithe remains the property of the Levite seller, because the purchaser cannot sell to another the Levite’s right.

And if he said

the Levite stipulated at the time of the sale that the First Tithe of this field would remain

mine and my sons’—

if

the Levite dies,

the Levite,

the purchaser shall give

the First Tithe

to his sons,

the sons of the Levite.

And if he said to him

the Levite stipulated with him that the First Tithe was mine

as long as this field is in your possession—

if

he sold it

the purchaser to a second purchaser,

and the purchaser returned

the purchaser

and repurchased it

from the second purchaser—

he has no claim against him

the Levite has no claim against the first purchaser

at all;

he has no right whatsoever to receive the tithe. For when the purchaser sold the field to another, the Levite’s right, by which he had retained the place of the tithe for himself, lapsed, and the second purchaser acquired it. When the first purchaser subsequently returned and purchased the field from the second purchaser, he also acquired the place of the tithe, since the second purchaser sold the first purchaser every right that had come into his possession. This concludes the beraita.

The Gemara explains the words of the beraita:

Why?

Why does the First Tithe belong to the seller when he stipulated with the purchaser that the First Tithe was his? But

a person cannot transfer ownership of an object that has not yet come into existence!

If so, how can the purchaser transfer ownership of the First Tithe of the field to the seller? The tithe has not yet grown and has not yet come into existence.

The Gemara explains:

Since he said to him

the seller said to the purchaser: I am selling you the field

on the condition

that the First Tithe is mine,

and this was a conditional sale, so the seller wants the condition to take effect, for a person does not make a condition for no purpose. Therefore, so as not to render his words meaningless, we interpret his words in a manner that allows the condition to take effect, and interpret them as though he said that he was selling the field except for the place of the First Tithe, namely,

he certainly retained it;

he retained in the sale of the field the right

to the place of the tithe ,

and it is considered as though he said to the purchaser: I am selling you the field for sharecropping, on the condition that you take nine parts of it and I take the tenth part , and therefore the tithe is his .

Reish Lakish said: This is to say:

From this beraita, which holds that whenever a condition cannot take effect in a sale unless the seller retains something in the sale, we say that he retained a portion for himself, we can prove that

one who sells a house to another and says to him, “On the condition that the upper story is mine,”

meaning, the roof enclosed by a parapet ten handbreadths high will be mine—

the upper story is his,

since we say that he retained the roof for himself in the sale of the house.