Bava Batra 70a (ע.) — the Talmud in English

And the judges of the Diaspora

Samuel and Karna, who were the judges of the Diaspora,

said:

they say that these trees are considered trees:

Any

tree

that the yoke

on the oxen plowing

bends [

bends it] during plowing, and the tree does not withstand the ox—

is not considered an exclusion;

it is not included among the trees that the seller retained for himself, since it is not considered a tree.

Any

tree

that the yoke does not bend

that is sufficiently strong and withstands the ox—is

considered an exclusion;

it is included among the trees that the seller retained for himself, since it is considered a tree.

However, if there are no other trees apart from these small trees, he certainly retained these trees, as in a case where there are only palm trees, in which case we say that he retained the palm trees, even though ordinarily they are not called trees.

And we explain:

And they do not disagree:

Rav and Shmuel do not disagree concerning the measure at which a tree is considered a tree; rather, they were speaking about different types of trees.

This

statement of Rav, who gave as the measure for a tree any tree that one ascends with a rope in order to gather its fruit, was stated

with regard to palms,

a palm tree;

this

statement of Shmuel, who gave as the measure for a tree any tree that is not bent by the plowing ox, was stated

with regard to other trees:

the measure of ascending with a rope to gather the fruit applies only to a palm tree, since with regard to all other trees one ascends to gather the fruit by means of the branches that spread in every direction, without a rope. Likewise, it may be said that the measure of a tree being bent by the plowing ox does not apply to a palm tree, since even if a palm tree is bent by the ox, if it is tall enough to require a rope to ascend it and gather its fruit, it is considered a tree.

Rav Aḥa bar Huna raised a question before Rav Sheshet:

If the seller said to the buyer: My field is sold to you

except for a certain grafted carob tree,

a grafted carob tree,

so-and-so,

or he said to him:

except for a certain trunk

of a sycamore

so-and-so,

and there were many grafted carob trees and sycamore trunks in the field,

what is the halakha?

Does the fact that, had he remained silent, none of them would have been sold with the field mean that now, when the seller retained only one for himself, we say that only

that carob tree is not acquired

by the buyer, while

the other carob trees are acquired

by the buyer?

Or perhaps

or maybe

the other carob trees are also not acquired?

Because by retaining one, he did not weaken his position relative to the case where he did not retain one, and the other carob trees are likewise retained for the seller.

For by enhancing the seller’s position and explicitly specifying that he was retaining a particular carob tree, we should not weaken his position with regard to the other carob trees, concerning which he did not explicitly state that he was retaining them.

On the contrary, we say that his intention was to enhance his position. For example, if one needs a path in order to reach the carob tree that he retained, then by explicitly retaining the carob tree, we say that he also retained the path to the carob tree, and he need not purchase from the buyer the path to the carob tree. And as explained in the Mishna above [64a], Rabbi Akiva concedes that when he said to him, “except for these,” he need not purchase a path for himself. Therefore, we interpret the seller’s intention in retaining a particular carob tree as intending to retain the path to that tree as well.

And even according to the Rabbis, who hold that in every case he retains a path for himself and need not enhance his position, one can explain the seller’s intention as follows: He specified, “except for a certain carob tree,” even though none of the grafted carob trees is included in the sale of the field, because he had a greater interest in that particular carob tree and did not want the buyer to summon him to court. He wanted this particular carob tree also to be specified in the deed, but he was not concerned that the other carob trees be specified in the deed, relying with regard to them on the ruling cited in the Mishna, that a grafted carob tree is not sold as part of the field.

This was Rav Aḥa bar Huna’s uncertainty.

He said to him

Rav Sheshet:

The buyer did not acquire

even the other carob trees, since even if he had not specified that he was retaining them, they would be retained for the seller. The seller’s specification with regard to certain carob trees that he was retaining them was intended to inform the buyer that all the carob trees in the field have the same status as these and were not sold with the field.

He raised an objection

Rav Aḥa challenged him from what we learned in a beraita: One who says, “My field is sold to you

except for a certain carob tree,”

or says to him, “My field is sold to you

except for a certain trunk”—

the buyer did not acquire it.

Is it not

the intention of the beraita that

it is only that carob tree that he did not acquire, whereas the other carob trees

with regard to which the seller did not specify that he was retaining them

he acquired

the buyer?

He said to him: No:

That is not the intention of the beraita. Rather,

even the other carob trees he did not acquire

the buyer.

Know

that the buyer did not acquire the other carob trees as well:

For if he had said to him, “My field is sold to you except for a certain field,”

adjacent to the field being sold, would we say that only

that

field that he explicitly stated he was retaining from the sale

is what he did not acquire

the buyer,

whereas

the

other

field belonging to the seller

he acquired?

Certainly, that is not the law.

Rather,

certainly,

he did not acquire

the other fields. For when the seller sold one field, he did not sell all his fields as part of that field. And because he uttered this absurd statement, that he was not including the adjacent field in the sale of the field, we cannot say that he intended to exclude only the field he specified, while including all his other fields in the sale, since he certainly intended to sell only one field and no more.

Here too,

with regard to one who retains a particular carob tree,

the buyer did not acquire

the other carob trees, because a grafted carob tree, being an important tree, is considered a field in its own right. The seller certainly did not intend to sell more than one field, and not two. Therefore, because he unnecessarily retained only one carob tree, we do not say that he sold the other carob trees.

Some say

that the question was stated in a different version, as follows:

Rav Aḥa bar Huna raised a question before Rav Sheshet:

If the seller said to the buyer: My field is sold to you

except for half of a certain carob tree,

or he said to him:

except for half of a certain trunk, what is the halakha?

Did the seller retain the entire trunk for himself, or did he retain only the half that he specified?

For it is obvious that the fact that he retained only a certain trunk is not a reason to say that he did not retain the other carob trees; rather,

the buyer certainly did not acquire the other carob trees, but with regard to this particular trunk, the fact that he retained only half of it raises the question whether

but with regard to this particular sycamore trunk, when he retained only half of it, the question is whether

that which he retained

half of it

in that carob tree is acquired

by the buyer. Perhaps the seller said that he was retaining half of it so that we would infer that he was selling the other half together with the field.

Or perhaps

or maybe

even that which he retained in that carob tree is also not acquired

by the buyer. The buyer acquired nothing even of this carob tree, since the seller’s position is no weaker than it would have been had he not specified at all that he was retaining it.

He said to him

Rav Sheshet:

The buyer did not acquire

even the half that the seller did not explicitly retain for himself.

He raised an objection:

Rav Aḥa challenged him from what we learned in a beraita: One who says, “My field is sold to you

except for half of a certain carob tree,”

or says to him, “My field is sold to you

except for half of a certain trunk”—

he did not acquire the other carob trees.

Is it not

the intention of the beraita that it is specifically

the other carob trees that he did not acquire, whereas that which he retained

the seller

in that carob tree,

which he specified,

he acquired

the buyer?

He said to him: No:

That is not the intention of the beraita. Rather,

even that which he retained

the seller

in that carob tree,

which he specified that he was retaining half of,

he also did not acquire

the buyer.

Know

that the buyer did not acquire even the portion of that carob tree which the seller specified that he was retaining half of:

For if he had said to him, “My field is sold to you except for half of a certain field,”

adjacent to the field that he is selling, would we say that only

that

half that he specified he was retaining

is what he did not acquire

the buyer,

whereas the other

half

he acquired?

Certainly, that is not the law.

Rather,

certainly,

he did not acquire

the other half of that field. For when the seller sold one field, he did not sell an additional field together with it.

Here too,

with regard to one who retains half a carob tree,

the buyer did not acquire

the other half, since it is considered a field in its own right. The seller did not intend to sell the carob tree together with the field, or even half of it.

Rav Amram raised a question before Rav Ḥisda:

If a person

deposits with another

money or objects

in writing,

having witnesses sign a deed of deposit, and he did so so that the depositary would not be able to deny the deposit,

and

afterward, when the depositor demanded that the depositary return them,

he said to him

the depositary:

“I returned them to you!”

What is the halakha?

Is he deemed credible in making this claim, despite the fact that the deed is in the depositor’s possession? Or is he unable to claim that he returned it, just as a borrower is not deemed credible when he claims that he repaid the loan while the deed is in the lender’s possession?

The sides of the uncertainty are:

Do we say

that the depositary’s claim should be accepted, because

since, had he wished, he could have said, “It was taken by force,” and he would have been deemed credible,

for had he claimed that the objects had been taken by force and that he was exempt from returning them, he would have been deemed credible under oath, as a bailee, who may take the bailee’s oath and thereby be exempt. Therefore,

now too,

now that he is not claiming that they were taken by force, but is claiming that he returned them,

he is deemed credible

to make this claim [under oath, as will be explained below]. For what reason would he lie? If he wished to exempt himself through a lie, he could have claimed that they were taken by force, taken the bailee’s oath, and been exempt from payment.

Or perhaps, he can say to him

the depositor can say to the depositary:

“Your deed is in my possession; what is it doing here?!”

If you returned the deposit, why is the deed of deposit in my possession? You should have insisted that the deed not remain in my possession, so that I would not return and sue you on the basis of this deed!

The meaning is that since the deed is in the depositor’s possession, it is as though he has witnesses in his possession testifying that the depositary did not return the deposit. The depositary’s migo claim is therefore a migo in the presence of witnesses, which is not accepted.

He said to him,

Rav Ḥisda answered Rav Amram and resolved his uncertainty:

He is deemed credible

the depositary, in saying, “I returned it” [by means of the migo of “It was taken by force”].

And Rav Amram returned and asked:

And should he not say to him,

the depositor should claim to the depositary:

“Your deed is in my possession; what is it doing here?!”

If so, the migo of “It was taken by force” is contradicted by witnesses!

He said to him,

Rav Ḥisda answered Rav Amram:

According to your reasoning,

according to your view, that the depositor can claim, “Your deed is in my possession; what is it doing here?”

and when he said to him,

if the depositary had claimed to the depositor,

“It was taken by force,” could he say to him

the depositor could say to the depositary,

“Your deed is in my possession; what is it doing here?!”

If so, by virtue of the migo of the claim “It was taken by force,” the depositary should be deemed credible even against the deed in the depositor’s possession.