Bava Batra 63a — the Talmud in English

It is not so!

It is not so.

For Rav Yemar bar Shelemya said: For me, it was explained to me by Abaye,

I received this explanation from Abaye,

whether it is a field-boundary from which half is divided, or whether it is a field-boundary 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 is selling: on the eastern side, my field, from which this field is divided, or from which this field is cut off; and on the western side, so-and-so’s field, and likewise to the north and south; and afterward he added to write, “And these are its boundaries,” meaning, these are its boundaries—which is an excess of wording, and he intended to improve his power—therefore he acquires

half,

half the field.

But if

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

nine kav.

He acquires only nine kav, for this is the lesser measure of a field, since the wording “division” does not specifically indicate half.

It is obvious:

this is obvious: if a dangerously ill person, or any person distributing his property according to his word,

said: “So-and-so shall divide my property!”—

the recipient takes

half,

half of the property.

But if he said:

“Give a ‘portion’ to so-and-so from my property,”

there is uncertainty:

what

is the meaning of the wording “portion” that he said? Is it the wording of “division,” and the recipient will take half of the property? Or perhaps his intention is to give only a portion fit to be given, and the court must assess how much is the portion fit to be given to that person?

Ravina bar Kisi said: Come and hear,

to resolve the uncertainty from a beraita:

For it was taught: One who says: “Give a portion to so-and-so in my pit,”

the water of mine—

Sumakhos says:

since there is uncertainty about the intention of the giver, whether he intended to divide among the recipient half of the water of the pit, or whether he intended to give only some portion [such as: a quarter of a log because of the uncertainty

there is not

for the recipient of the gift from the pit

less than a quarter.

For according to Sumakhos, property subject to uncertainty is divided, and he receives the average between the two sides of the uncertainty.

And likewise

for a jug,

if the giver said: “Give a portion to so-and-so in the pit in order to fill a jug for watering his animals”—

there is not

for the recipient

less than one-eighth

of the pit, because for the jug he needs half of the pit; and when he said “a portion,” there is uncertainty whether his intention was half the jug, namely a quarter of the pit, or whether his intention was only some portion. Therefore, because of the uncertainty, the recipient has at least half of a quarter of the pit, namely one-eighth.

And if the giver said: “Give a portion to so-and-so from the pit

for a pot,

in order to prepare his food”—

there is not

for the recipient

less than one-twelfth,

because the measure of water for a pot is one-third of a pit, and there is uncertainty whether his intention was to give a portion of half of what is fit for a pot, namely one-sixth, or only some portion. Therefore, because of the uncertainty, he receives at least a quarter of the measure fit for a pot, namely half of one-sixth, which is one-twelfth of the pit.

And if the giver said that he gives a portion of the water of the pit

for a small flask,

that is, a small vessel intended for drinking—since the measure of water suitable for a small flask is a quarter of a pit, because of the uncertainty

there is not

for the recipient

less than one-sixteenth

of the pit, namely, a quarter of the measure suitable for a small flask.

And from this beraita the uncertainty of the Gemara can be resolved: when the giver said, “Give a ‘portion’ from my property,” the recipient takes, because of the uncertainty, at least a 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 to the Israelite: I stipulate with you regarding the sale of the field

on condition that the first tithe

of this field remains

mine—

his first tithe

belongs to him, to the Levite. And the explanation of this is clarified below: because a person cannot acquire something that has not yet come into the world, we say that the seller retained and did not sell the place of the tithe. 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, and stipulated at the time of the sale that the first tithe of this field would remain

for me and for my sons—

if

the Levite dies,

the Levite,

he shall give

the purchaser the first tithe

to his sons

of the Levite.

And if he said to him

the Levite, and stipulated with him that the first tithe is 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 purchased it

back from the second purchaser—

he has nothing against him

the Levite has nothing against the first purchaser,

at all;

he has no right whatsoever to receive the tithe. For when the purchaser sold the field to another, this right of the Levite, who had retained the place of the tithe for himself, lapsed, and the second purchaser acquired it. And when the first purchaser returned and purchased the field from the second purchaser, he also acquired the place of the tithe, for the second purchaser sold the first purchaser every right that had come into his possession. This concludes the words of 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 is his? But

a person cannot transfer something that has not yet come into the world!

If so, how can the purchaser transfer to the seller the first tithe of the field? After all, the tithe has not yet grown and has not yet come into the world.

And the Gemara explains:

Since he said to him

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

on condition

that the first tithe is mine,

and this was a conditional sale, if so, the seller wants the condition to be fulfilled, for a person does not make a condition for nothing. Therefore, so as not to render his words void, we interpret his words in a manner in which the condition will be fulfilled, and we interpret his words as though he had said that he was selling the field except for the place of the first tithe, namely,

he retained it completely;

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 tenancy, on condition that you take nine parts from it, and I will take the tenth part , and therefore it is his tithe .

Reish Lakish said: This is to say:

from this beraita, which holds that any condition that applies in a sale only if he retains it in the sale, we say that he retained a portion of the sale for himself, it can be proven that

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

that is, the roof that has a surrounding parapet ten handbreadths high will be mine—

his upper story

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