Bava Batra 77b (עז:) — the Talmud in English

And the witnesses are permitted to write a deed for the seller stating in it, “My field is sold to you,” even before the buyer has taken possession of the land.

As in that which we learned:

One writes a deed for the seller, even though the buyer is not with him,

And although this appears to be a falsehood, since the field has not yet been sold, nevertheless it is permitted to write this deed for the seller, since no one suffers a loss here except the seller himself—if the deed is lost, the buyer finds it, and claims that he already purchased the field from the seller. And if the seller is not concerned about this, we need not be concerned on his behalf and prevent the writing of this deed.

And in this manner, in which the seller preceded and wrote the deed before the buyer acquired the field through possession,

once this one took possession—

the buyer—

of the land,

even though he had not taken possession of the deed,

the deed

was

acquired

by the buyer

wherever it is,

through its attachment to the field.

And this is what we learned:

Movable property that has no security—

movable objects—

is acquired together with

land,

property that has security—

land—

through money, a deed, or possession;

through the acquisition of the land, whether by money, by a deed, or by possession, the movable objects are also acquired by the buyer.

And so too in our case: when the buyer takes possession of the land, the deed is acquired together with the land.

This concludes the words of Rav Hiyya bar Avin in the name of Rav Huna, and from here the Gemara raises a difficulty against the words of Rav Ashi, who said: “Words are not acquired through words.”

It might have entered our minds that the deed is acquired by the buyer through mere words, namely, that the seller consented to transfer it to the buyer even though the deed had not come into his possession.

And if the deed is acquired through “mere words,” all the more so one should say that a deed is acquired through the “words” written in the deed. This presents a difficulty to Rav Ashi, who says that a deed cannot be acquired through the “words” written in it, from the words of Rav Huna, who says that a deed is acquired through “mere words”!

In Kiddushin 26a, they derived that movable objects are acquired through attachment to land from the verse [II Chronicles 21:3]: “And their father gave them many gifts of silver, gold, and delicacies, together with fortified cities in Judah.”

And we answer:

Attachment is different.

“Acquisition through attachment” is not mere consent, in which the seller agreed to transfer the deed; rather, it is a significant act, like the other forms of acquisition. After all, the basis of this acquisition is derived from verses, and it is not merely an inference or an assessment that the seller intended to transfer the deed to him without an act of acquisition.

And the Gemara proves that “acquisition through attachment” is an act of acquisition possessing great force:

for

with regard to

coin,

we hold in Bava Metzia [46a]

that it is not acquired through

an acquisition of

exchange;

it is impossible to acquire a coin by giving an object in exchange for it.

But

through the acquisition of

attachment to land, a coin is acquired,

a coin.

If a guardian who was entrusted with a deposit gives the deposit to an agent and the deposit is lost on the way, the guardian is liable for the deposit. Therefore, the guardian is not required to give the deposit to the depositor’s agent, lest the deposit be lost and the guardian suffer the loss.

If the depositor transferred the deposit to the agent and gave him authorization to claim the deposit on his behalf, the guardian may give the deposit to the agent, and if the deposit is lost, the guardian bears no liability for it.

As in this case,

as in the incident that occurred:

Rav Pappa had twelve thousand dinars

that were deposited in

Bei Ḥozai

—a place name.

He transferred them to him,

Rav Pappa transferred his deposit

to Rav Shmuel bar Aḥa,

through an acquisition of

attachment to the threshold of his house,

the entrance to his house, so that he could go and collect the debt from the people of Bei Ḥozai.

Rav Shmuel bar Abba went and collected the deposit that was in Bei Ḥozai, and

when he arrived,

when Rav Shmuel bar Abba returned, Rav Pappa rejoiced over the money and

went out

Rav Pappa

to meet him,

to greet him,

as far as

a place called

Toʿakh.

We learned in the Mishna: “One who sells a ship has sold the mast, and so on,”

but he has not sold either the slaves, the sacks, or the cargo,

and when he says to him: “It, and everything inside it,” they are all sold.

And the Gemara analyzes:

What is the cargo

that we learned?

He said,

he explained,

Rav Pappa: “Cargo” means

that “cargo” means

merchandise inside it,

that is, merchandise found inside the ship, which is not included in the sale of the ship unless he says to him: “My ship is sold to you, it and everything inside it.”

Mishna:

a. One does not transfer a wagon from place to place except with animals that pull it; the usual practice is for mules to pull a wagon. b. When one wishes to plow with two oxen together, he connects them with a single yoke; this yoke is called a “team.”

c. Rambam wrote [Sale 26:8]: This is a fundamental principle: In every business transaction, one follows the language used by the people of that place and the local custom. But in a place where there is no known custom and no specific names, rather, some call it this and others call it that, one follows the interpretation given by the Sages.

a. If a person

sold

his fellow

the wagon

—a carriage—

he did not sell

with it

the mules

that pull the wagon.

And although the usual practice is for mules to pull a wagon, nevertheless, since the mules are not firmly attached and tied to the wagon at the time of the sale, as the Gemara explains, the mules are not sold together with the wagon.

b. Likewise, when he

sold

his fellow

the mules,

and said to him: “I am selling you mules,”

he did not sell

him

the wagon

with them.

c. If a person

sold

his fellow

the team

and said to him: “I am selling you a team,”

he did not sell

with it

the oxen.

d. Likewise, if he

sold

his fellow

the oxen,

and said to him: “I am selling you oxen,”

he did not sell

him

the team,

and although one who plows with oxen needs a “team” to connect the oxen together, the team is not included in the sale of the oxen.

Rabbi Yehuda says:

The oxen are not excluded from the sale of the team in every case. Sometimes, when he sells him a “team,” the oxen are sold with it, and

the money

the money paid by the buyer

provides clarification

as to what they intended.

How so?

If

he said to him—

the buyer—:

“Sell me your team for two hundred dinars,”

and

it is known that a team

is not sold

for two hundred dinars,

then certainly, when the buyer said “team,” his intention was oxen joined by a team.

The seller, too, consented to sell him oxen together with the team, for if he had intended to sell only the team, it would have been incumbent upon him to say to the buyer: “I am not selling you a team together with oxen; I am selling you only a team.” Since the seller remained silent and did not specify, we say that the seller certainly consented to sell everything. In this case, the money provides clarification: although he said only “team,” nevertheless the oxen are included in the sale.

But if they did not agree on the price, or if the price that the buyer said he would pay was close to the value of a team, then this is a sale of the team alone, and not a sale of the oxen.

And the Sages

disagree and

say:

The oxen are not included in the sale, even though he paid him a substantial sum, because

the money

that he paid him

is not proof

concerning the transaction, and the Gemara will explain their dispute.

Gemara:

Rav Taḥlifa of the West taught

a beraita

before Rabbi Abbahu: “One who sells the wagon sells the mules.”

Rabbi Abbahu said to him:

But we

learned: “One who sells the wagon

does not sell

the mules”

!? How can this be reconciled with the beraita, which says that he sells the mules?

—

He said,

he asked

him,

Rav Taḥlifa:

“Shall I remove it?”

Should I remove this beraita from the beraitot in my possession, since it is corrupt, as it contradicts the Mishna?

He said to him,

Rabbi Abbahu:

No,

do not remove this beraita; rather,

interpret your Mishna,

you must interpret the beraita in your possession

as referring to

mules that

are attached to it,

the wagon—that is, the mules were tied to the wagon at the time of the sale; therefore, he sold everything. But the Mishna speaks of a case in which they are not attached to it; therefore, the mules are not included in the sale.

We learned in the Mishna:

“If one sold the yoke”—

“he did not sell the cattle”,

if he sold the cattle, he did not sell the yoke. Rabbi Yehuda says: The money indicates the seller’s intent, etc., while the Sages say: The money is no proof.

And the Gemara asks:

What are the circumstances—

in what manner did Rabbi Yehuda and the Sages disagree?

If you say [that is, if it is said]: The Mishna is referring to a place

where they call

the yoke

“tzimda”

alone, and they do not call the cattle “yoke.”

And

they likewise call

the cattle “cattle”

alone, and they do not call the cattle “yoke.”

What room for doubt is there here, and over what did Rabbi Yehuda and the Sages disagree!?

Is it not

obvious

that if he said to him: “I am selling you a yoke”—

he has sold him a yoke,

as he said, but

he has not sold him cattle,

since people do not call cattle by the name “yoke”?

And if so, why did Rabbi Yehuda say that if he gave him a large sum of money, the price of cattle, the cattle are also included in the sale? After all, he sold him a “yoke,” and cattle are not called a “yoke”!?

Rather,

if you say that the Mishna is referring to a place

where they also call the cattle “tzimda”,

all the inhabitants of the place call the cattle by the name “yoke.”

If so, it is obvious that

all of it,

both the yoke and the cattle,

he has sold him. And why did the Sages say: The money is no proof? For when all the inhabitants of the place call the cattle “yoke,” and the money also indicates this,

it is incumbent upon the seller to make his intention known, if indeed he intends to sell only the yoke; and since he remained silent and did not specify, we may infer that his intention was to sell everything.

And we explain:

It is necessary

to teach us the law of the Mishna only

in a place where they call the yoke “tzimda,” and the cattle

they call

“cattle,” while there are also those who call

it

“tzimda.”

And now we are uncertain about this person: Is he among those who call the cattle “yoke,” or not?

Rabbi Yehuda holds: The money indicates,

that if he gave him the price of cattle, the money indicates that he is among those who call the cattle “yoke,” and he sold him the cattle together with the yoke.

And the Rabbis hold: The money is no proof,

since there are those who call the cattle “cattle” and do not call them “yoke”; and because of the uncertainty—perhaps he is among those who do not call the cattle “yoke”—the buyer suffers the loss, for we maintain the money in its presumptive status, and the burden of proof rests with the buyer.

But when all

the inhabitants of the city call the cattle “yoke,” it is obvious to us that this person is accustomed to calling the cattle “yoke” as well, and if he gave a large sum of money, he sold him everything.

A. It is stated in the Torah [Leviticus 25:14]: “When you sell anything to your fellow, or acquire from your fellow’s hand, do not wrong one another.” And we have established [Bava Metzia 50b]: If the measure of the overcharge is less than one-sixth, the transaction stands and he need not return the overcharge; when the overcharge is greater than one-sixth, the transaction is void, and the seller returns the money while the buyer returns the object; when the overcharge is exactly one-sixth, the transaction stands, and the one who overcharged must return the amount of the overcharge to the one who was overcharged.

B. A yoke is worth only a small amount. If he sold him a yoke for two hundred zuz, this is “an overcharge greater than one-sixth.”

And

we ask: According to the Sages,

if the money is no proof

that his intention was to sell cattle,

the transaction should be void [that is, the transaction should be nullified],

the seller should return his money and take back his yoke, as is the law in every case of an overcharge greater than one-sixth!?