Bava Batra 70a — the Talmud in English

And the judges of the exile,

Shmuel and Karna, who were the judges of the exile,

said:

these are the trees considered a tree:

Any

tree

that the yoke

on the oxen that plow

bends it [

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

is not considered excluded;

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

because the tree is strong enough to withstand the ox—

is considered excluded;

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 besides these small trees, the seller certainly retained these trees, just as when there are only palm trees: we say that he retained the palm trees, even though ordinarily they are not called a tree.

And we explain:

And they do not disagree:

Rav and Shmuel do not disagree about the measurement for determining what is considered a tree. Rather, they were speaking about different types of trees.

The

words of Rav, who gave as the measurement for a tree one that requires a rope to climb it in order to pick its fruit, were stated

with regard to palm trees,

a palm tree.

The

words of Shmuel, who gave as the measurement for a tree one that is not bent by the plowing ox, were stated

with regard to other trees.

With regard to other trees, the measurement of requiring a rope to climb and pick the fruit applies only to a palm tree, since with all other trees one climbs among the branches, which spread in every direction, without a rope. Similarly, the measurement of the tree being bent by the plowing ox may be said not to apply to a palm tree, since even if the palm is bent by the ox, if it is so tall that one needs a rope to climb it and pick its fruit, it is considered a tree.

Rav Aḥa bar Huna asked Rav Sheshet:

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

except for a certain carob tree

that was grafted

[namely, this one,]

or if he said to him:

except for a certain sycamore trunk

of a sycamore tree

[namely, this one,]

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

what is the ruling?

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

that carob tree is not acquired by

the buyer,

whereas the other carob trees are acquired by

the buyer?

Or perhaps

perhaps

the other carob trees are also not acquired

because by explicitly retaining one, the seller’s position is no weaker than if he had not explicitly retained one, and the other carob trees are also retained for the seller.

Since the seller strengthened his position by explicitly stating that he was retaining a particular carob tree, we should not weaken his position with regard to the other carob trees, which he did not explicitly state that he was retaining.

On the contrary, we say that his intention was to strengthen his position. For example, if a path is needed to reach the carob tree he retained, then by explicitly retaining the carob tree, we say that he also retained the path to that carob tree, and he does not need to purchase the path to it from the buyer. As explained in the Mishna above [64a], Rabbi Akiva agrees that when the seller says, “except for these,” he does not need to purchase a path for himself. Therefore, we interpret the seller’s intention in retaining a particular carob tree as also retaining the path to that tree.

Even according to the Rabbis, who hold that in every case he retains a path for himself and therefore does not need to strengthen his position, the seller’s intention can be explained as follows: He specified, “except for this particular carob tree,” even though none of the grafted carob trees are included in the sale of the field, because he valued that carob tree more and did not want the buyer to bring a legal claim against him. He wanted this particular carob tree also to be explicitly protected in the deed, but he was not concerned that the other carob trees should be protected in the deed, relying in their case on the rule stated in the Mishna that a grafted carob tree is not sold together with the field.

This was the uncertainty raised by Rav Aḥa bar Huna.

Rav Sheshet said to him:

Sheshet:

The buyer did not acquire

even the other carob trees, since even had he not explicitly stated that he was retaining them, they would be retained for the seller. The reason the seller specified that he was retaining certain carob trees was 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.

Rav Aḥa raised an objection

to this from what we learned in a beraita, a tannaitic source not included in the Mishna: One who says, “My field is sold to you,”

“except for this particular carob tree,”

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

“except for this particular sycamore trunk”—

the buyer did not acquire it.

Is it not

the intention of the beraita that

only that carob tree is not acquired, whereas the other carob trees

which the seller did not explicitly retain

are acquired

by the buyer?!

He said to him: No,

that is not the intention of the beraita. Rather,

even the other carob trees are also not acquired

by the buyer.

Know

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

for if the seller had said to him, “My field is sold to you, except for this particular field,”

which is adjacent to the field being sold—would we say that only

that

field that he explicitly said he was excluding from the sale

is not acquired

by the buyer,

whereas this

field

other

field belonging to the seller

is acquired?

Certainly, that is not the law.

Rather,

certainly

the buyer did not acquire

the other fields, since a person who sells one field does not sell all his fields together with it. Because he made this unnecessary statement that the adjacent field was not included in the sale, we cannot say that he intended to exclude only the field he specified and to include all his other fields in the sale. Surely, he intended to sell only one field and no more.

So too

with regard to one who retains a particular carob tree,

the buyer did not acquire

the other carob trees. Since a grafted carob tree is an important tree, it is considered like a field in its own right. Surely, the seller intended to sell only 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.

And some say

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

Rav Aḥa bar Huna asked Rav Sheshet:

If the seller said to the buyer, “My field is sold to you,”

“except for half of this particular carob tree,”

or if he said to him:

“except for half of this particular sycamore trunk,” what is the ruling?

Did the seller retain the entire sycamore trunk for himself, or only the half that he explicitly said he was retaining?

For it is obvious that when he retained only a particular sycamore trunk, this 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 sycamore trunk, when he retained only half of it, the question is whether

the part that he retained

half of it

of that carob tree is acquired

by the buyer, and the seller said that he was retaining half of it so that we could infer that he was selling the other half together with the field,

or perhaps

perhaps

even the part that he retained in that carob tree is also not acquired

by the buyer, and the buyer acquired nothing even in 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 something.

Rav Sheshet 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 this particular carob tree,”

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

“except for half of this particular sycamore trunk”—

the buyer did not acquire the other carob trees.

Is it not

the intention of the beraita that specifically

the other carob trees are not acquired, whereas what

the seller

in that carob tree

that he explicitly retained

is acquired

by the buyer?!

He said to him: No,

that is not the intention of the beraita. Rather,

even what

the seller

in that carob tree

which he explicitly said he was retaining as half

is also not acquired

by the buyer.

Know

that the buyer did not acquire anything even in that carob tree, in which the seller explicitly said he was retaining half:

for if he had said to him, “My field is sold to you, except for half of this particular field,”

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

that

half that he explicitly said he was retaining

is not acquired

by the buyer,

whereas the other

half

is acquired?

Certainly, that is not the law.

Rather,

certainly

the buyer did not acquire

the other half of the other field, since the seller sold one field and did not sell an additional field together with it.

So too

with regard to one who retains half of a carob tree,

the buyer did not acquire

the other half, since it is considered like a field in its own right. The seller did not intend to sell the carob tree together with the field, nor even half of it.

Rav Amram asked Rav Ḥisda:

A person

who deposits with another person

money or objects

in writing,

having witnesses sign the deposit document, doing so so that the depositor would not be able to deny the deposit,

and

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

the depositary said to him:

the depositary:

“I returned them to you!”

what is the ruling?

Is he trusted to make this claim even though the document is in the depositor’s possession? Or can he not claim that he returned the deposit, just as a borrower is not trusted to claim that he repaid the loan when the document 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, if he wished, he could have said, “They were taken by force of circumstances,” and he would be trusted,

because if he claimed that the objects had been lost through circumstances beyond his control and that he was exempt from returning them, he would be trusted under oath, as is the law with regard to a guardian, who can take the oath of guardians and thereby be exempt. Therefore,

now too,

even though he is not claiming that they were lost through circumstances beyond his control, but rather claims that he returned them,

he is trusted

to make this claim [under oath, as will be explained below]. For why would he lie? If he wished to escape payment through a false claim, he could have claimed that the objects were lost through circumstances beyond his control, taken the oath of guardians, and been exempt from payment.

Or perhaps the depositor can say to him

the depositary:

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

“If you returned the deposit, why is the deposit document in my possession? You should have made sure that the document did not remain with me, so that I would not later sue you on the basis of this document!”

That is, since the document 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 claim of a migo in the presence of witnesses, which is not accepted.

He said to him,

Rav Ḥisda answered Rav Amram, resolving his uncertainty:

The depositary is trusted

to say, “I returned them” [based on the migo that he could have claimed that they were lost through circumstances beyond his control].

Rav Amram then asked again:

And let the depositor say to him,

let the depositor claim to the depositary:

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

And if so, the migo based on the claim that the objects were lost through circumstances beyond his control is opposed by witnesses!

He said to him,

Rav Ḥisda answered Rav Amram:

But according to your reasoning,

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

when the depositary says to him,

if the depositary were to claim to the depositor,

“They were lost through circumstances beyond my control,” could he say to him

the depositor to the depositary:

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

If so, by virtue of the migo based on the claim that the objects were lost through circumstances beyond his control, the depositary should be trusted even against the document in the depositor’s possession.