Bava Batra 78a — the Talmud in English

The sugya is explained here according to the commentary of Rashbam.

And if you would say: The Rabbis do not hold of cancellation of the sale:

The Sages do not hold that the sale is annulled when there is overcharging greater than one-sixth.

In any event, they certainly agree that he must return the amount of his overcharge. And the language of the Mishna will be difficult, for it says: “He sold the yoke; he did not sell the cattle,” and it implies that the sale of the yoke is a complete sale—the yoke belongs to the buyer and the money to the seller. And why should we not obligate him at the very least to return the amount of his overcharge!? Perhaps you will say that the Sages disagree and hold that although it is indeed a Torah prohibition to overcharge one’s fellow in a sale and purchase, if he transgressed and overcharged him, the sale remains valid, and he is not even legally obligated to return the amount of his overcharge.

Is that so!?

Can this be said!?

But we learned:

For it can be proved from the Mishna in Bava Metzia [56b] that even according to the Sages, who disagree with Rabbi Yehuda, the one who overcharged is obligated to return the amount of his overcharge.

For we learned: “These are the matters for which there is no overcharging: slaves, land, and consecrated property, etc.”

Rabbi Yehuda says:

Even

one who sells a Torah scroll, an animal, or a pearl has no overcharging.

They said to him: They said

that they have no overcharging

only concerning these—

slaves, land, and consecrated property; but in the case of a Torah scroll, an animal, or a pearl, there is overcharging, and the seller must return the buyer’s overcharge. And we answer:

What is the meaning of “the money is not proof,” which it also teaches?

The money is not proof for acquiring the cattle, and indeed

there is cancellation of the sale,

since he sold only the yoke, and the sale of a yoke for two hundred dinars is overcharging by more than one-sixth, and the sale is annulled.

And if you wish, say:

He sold the yoke; he did not sell the cattle, but he did acquire the yoke, even if he gave him a large amount of money. There is no cancellation of the sale because

when

the Sages

said the law of

overcharging and cancellation of the sale,

they meant specifically overcharging that is

of an amount

that is

an amount concerning which the mind errs,

and he thinks in his heart that this is indeed what the object is worth—for example, he bought an object worth five for seven, or one worth six for eight. Therefore the sale is annulled, as it is a mistaken sale,

But when it is an amount concerning which the mind does not err,

as in our Mishna, where one does not buy a yoke worth one peruta for a maneh or two hundred,

no,

the sale is not annulled, because

perhaps,

we say:

a gift

he simply

gave him.

Mishna:

A person

who sells the donkey

to his fellow

does not sell its equipment,

the donkey’s equipment; and the Gemara will explain which equipment is under discussion—whether equipment designated for carrying loads, or even equipment used for riding the donkey.

Nahum the Mede

disagrees and

says:

One who sells the donkey

has sold

its

equipment.

Rabbi Yehuda says:

At

times

when one sells a donkey with its equipment upon it, its equipment is

sold,

and at

times its equipment is not

the donkey’s

sold

with it, even though it is upon its back at the time of the sale.

How so?

If

there was a donkey before him, with its equipment upon it,

on the donkey,

and he said to him,

the buyer to the seller:

Sell me this donkey; behold, its equipment is

the donkey’s

sold,

for the meaning of his words is: Sell me this donkey as it is—with the equipment upon it.

And if he said to him:

It is your donkey; its equipment is not sold,

for the meaning of his words is: If this donkey is your donkey, sell it to me. If so, this is like one who sells the donkey without specification, and its equipment is not sold even while it remains upon it.

Gemara:

Ulla said: The disagreement

between the first tanna and Nahum the Mede, whether one who sells the donkey has sold its equipment, is

with regard to sacks and panniers [

a large leather container ] in which objects for the donkey’s load are placed,

and the women’s riding seat [

a device for women to sit upon the donkey ].

For the first tanna holds: An ordinary donkey—

stands for riding,

a donkey is intended for a person to ride, and not for carrying loads. Therefore, one who sells an ordinary donkey sells only those implements made for riding, as will be explained below; but those implements made for carrying loads he does not sell.

The manner of riding is with one’s legs spread apart: one leg on one side of the donkey and the second leg on the other side of the donkey.

Since a woman does not ride in this manner, because of modesty [Pesahim 3a], she sits in the women’s riding seat, and this is considered a load for the donkey. Therefore, sacks and panniers, in which loads are placed, are needs of carrying a load and not needs of riding, and are not included in the sale.

Likewise, the women’s riding seat is not included in the sale, since it is considered a load; and the needs of carrying a load are not included in the sale according to the first tanna.

And Nahum the Mede,

who says: One who sells a donkey has sold the sack, the pannier, and the women’s riding seat,

holds: An ordinary donkey stands for carrying a load,

and therefore the buyer acquires all the implements used for transporting loads.

But with regard to

the

saddle and blanket,

the

under-strap and breast-strap [

with which the saddle is tied ] which are implements that serve the donkey, whether when one rides upon it or when one transports loads upon it, the tannaim did not disagree about them, and

according to everyone they are sold

with it.

He raised an objection

from a beraita against Ulla’s statement that there is no disagreement concerning the saddle and blanket, and according to everyone they are sold to the buyer:

One who says to his fellow:

I am selling you a donkey and its equipment—this is the sale

with the donkey, also

the saddle, the blanket, the under-strap, and the breast-strap.

But he did not sell

with the donkey

the sack and

the

pannier and

the

women’s riding seat.

And when he said to him:

I am selling you

her,

the donkey,

and everything that is upon her, they are all

including the sack, the pannier, and the women’s riding seat,

sold.

And we infer this from what we learned in the first clause: the saddle and the saddlecloth are sold together with the donkey when he said to him, “I am selling you a donkey and its accessories.” This implies:

the reason is

specifically because

he said to him, “a donkey and its accessories”; only then does he acquire the saddle and the saddlecloth.

But

if

he did not say this to him,

but merely sold him an unspecified donkey,

he does not

acquire even the saddle and the saddlecloth; and all the more so, he does not acquire the sack, the packsaddle, or the women’s saddle.

Granted, if you say that the tannaitic authorities disagree even about the saddle and the saddlecloth, one can say that this beraita—a tannaitic source not included in the Mishna—follows the opinion of the Sages.

But if you say that according to everyone the saddle and the saddlecloth are sold, and that they disagree only about the sack and the packsaddle, as Ulla said, then you have a difficulty: who taught this beraita, which says that he did not sell even the saddle and the saddlecloth!? And we answer:

No,

it is not as you said.

Rather,

the same law applies: even though he did not say to him, “a donkey and its accessories,” the saddle and the saddlecloth are nevertheless sold,

as Ulla said.

And

the reason this beraita was formulated as a case in which he said to him, “a donkey and its accessories,” is that

it teaches us this: even though he said to him, “a donkey and its accessories,”

he does not acquire the sack, the packsaddle, or the women’s saddle ,

in accordance with the opinion of the first tanna, until he says to him, “it and everything upon it.”

And we explain:

What is the meaning of “women’s saddle”?

Rav Pappa bar Shmuel said: A women’s carriage,

a carriage placed on the donkey, on which women sit, because women do not ordinarily ride a donkey as men do, with their legs straddling it, for reasons of modesty.

The scholars raised a question:

The members of the academy were uncertain: Is it the case that

when they are still upon it,

when the donkey’s accessories are resting on the donkey,

that there is a disagreement

between the first tanna and Nahum the Mede?

According to Nahum the Mede, when he sold him a donkey with its accessories upon it, his intention was to sell all its accessories, including the equipment used for carrying loads.

And according to the Sages, even when the sack, the packsaddle, and the women’s saddle are upon the donkey, the seller did not have them in mind unless he explicitly says, “it and everything upon it.”

But when they are not upon it, Nahum the Mede agrees with them,

the Sages, that the donkey’s accessories are not sold; the seller did not intend to sell even the saddle and the saddlecloth.

Or perhaps,

specifically

when they are not upon it,

upon the donkey,

there is a disagreement

between the Sages and Nahum the Mede.

The Sages say: Since the donkey’s accessories are not upon it, he is not selling equipment for carrying loads, but only equipment for riding.

And Nahum the Mede says: Even the sack, the packsaddle, and the women’s saddle, which are used only for carrying loads, are sold together with the donkey.

But when they are still upon it, the Sages agree with Nahum

the Mede that he sold him the donkey and all its accessories, including the sack, the packsaddle, and the women’s saddle.

Come and hear a proof,

from the beraita cited above, that when they are still upon it, the Sages and Nahum the Mede disagree:

We learned: “I am selling you a donkey and its accessories”—he has sold the saddle, the saddlecloth, the kilkeli, and the ḥavek, but he has not sold the sack, the packsaddle, or the women’s saddle.

And when he said to him, “it and everything upon it,” everything is sold.

And from what we learned in the latter clause, “it and everything upon it,” it follows that the beraita is speaking of a case in which the accessories are resting on the donkey. If so, the first clause is also speaking of a case in which they are still upon it, and nevertheless he acquires only the saddle and the saddlecloth, but not the sack or the packsaddle.

And from here there is a proof that the disagreement between the Sages and Nahum the Mede concerns a case in which they are still upon it:

For

granted, if you say that the disagreement concerns a case in which they are still upon it,

it is possible to understand this beraita and say:

This

beraita

follows whose opinion?

[Whose teaching is it?]

It is the opinion of the Sages.

For the Sages hold that even when they are still upon it, the buyer acquires only the saddle and the saddlecloth, but not the sack or the packsaddle.

But if you say that the disagreement concerns a case in which they are not still upon it, while when they are still upon it—

according to

everyone,

the sack, the packsaddle, and the women’s saddle

are sold,

then you have a difficulty:

whose opinion is it,

according to whose view was this beraita taught!?

For it is impossible to establish this beraita as the opinion of the Sages, since the beraita is speaking of a case in which they are still upon it, and when they are still upon it, the Sages agree that the sack and the packsaddle are also sold.

All the more so, it is impossible to establish this beraita as the opinion of Nahum the Mede, since Nahum the Mede holds that even when they are not still upon it, one who sells a donkey sells the sack, the packsaddle, and the women’s saddle; all the more so when the accessories are upon the donkey.

You are therefore forced to say that the disagreement concerns a case in which they are still upon it, and that this beraita was taught according to the opinion of the Sages.

And we reject this:

In fact,

I can say to you:

the disagreement concerns a case in which they are not still upon it,

and this beraita is speaking of a case in which the donkey’s accessories are not resting upon it,

and

according to the opinion of

the Sages it was

taught.

And

one cannot infer from the wording of the beraita that it is speaking of a case in which the donkey’s accessories are resting upon it. For what we learned—“And when he said to him, ‘It and everything upon it’”—

say

and explain the tanna’s intention as follows:

“And when he said to him, ‘It and everything that is fit to be upon it,’

everything is sold,” since the sack, the packsaddle, and the women’s saddle are also fit to be upon the donkey.

Come and hear a proof,

from Rabbi Yehuda’s statement in our Mishna, that the Sages and Nahum the Mede disagree when the accessories are resting upon the donkey:

We learned:

Rabbi Yehuda says: Sometimes

the donkey’s accessories

are sold,

and

sometimes they are not sold.

How so? If a donkey was standing before him with its accessories upon it, and he said to him, “Sell me this donkey,” its accessories are sold; if he said, “It is your donkey,” its accessories are not sold.

Is it not

being said that

Rabbi Yehuda is addressing what the first tanna said,

“He did not sell its accessories,”

and says

that sometimes they are sold and sometimes they are not sold?

But Rabbi Yehuda spoke of a case in which they are still upon it, as we explicitly learned: “A donkey with its accessories upon it.” If so, conclude from here that the disagreement concerns a case in which they are still upon it.

Rabbi Yehuda heard the statements of the Sages and Nahum the Mede, who disagree in a case in which the accessories are still upon the donkey: according to the Sages, he did not sell the accessories, while according to Nahum the Mede, he did sell them. Rabbi Yehuda then came to reconcile their views and said: Sometimes they are sold, and sometimes they are not sold.