Bava Batra 78a (עח.) — the Talmud in English

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

And if you would say: The Rabbis do not hold that the sale is annulled:

The Rabbis do not hold that the sale is annulled when there is a discrepancy of more than one-sixth.

In any event, they certainly agree that the seller must return the amount of the overcharge. The language of the Mishna is therefore difficult: It says, “If one sold the tzemed, he did not sell the cattle,” implying that the sale of the tzemed is a fully valid sale—the tzemed belongs to the buyer and the money belongs to the seller. And why should we not at least obligate him to return the amount of the overcharge? Perhaps you will say that the Rabbis disagree and hold that although it is a Torah prohibition to overcharge another in a sale, if one transgressed and overcharged him, the sale remains valid, and he is not even legally obligated to return the amount of the overcharge.

Is that so!?

Can this really be said!?

But didn’t we learn:

The Mishna in Bava Metzia [56b] proves that even according to the Rabbis, who disagree with Rabbi Yehuda, the one who overcharged is obligated to return the amount of the overcharge.

For we learned: “These are matters to which the laws of overcharging do not apply: Slaves, land, and consecrated property, etc.”

Rabbi Yehuda says:

Even

one who sells a Torah scroll, an animal, or a pearl is not subject to the laws of overcharging.

They said to him: They said

that the laws of overcharging do not apply

only to these—

slaves, land, and consecrated property; but in the case of a Torah scroll, an animal, or a pearl, the laws of overcharging do apply, and the seller must return the overcharge to the buyer. And we answer:

What is the meaning of “the money does not provide evidence,” which it also teaches?

The money does not provide evidence that the cattle were included in the purchase; and indeed

the sale is annulled,

since he sold only the tzemed, and selling a tzemed for two hundred dinars constitutes an overcharge of more than one-sixth, so the sale is annulled.

And if you wish, say instead:

He sold the tzemed but did not sell the cattle, but he did acquire the tzemed, even if he gave him a large amount of money. The sale is not annulled because

when

the Rabbis

said that the laws of

overcharging and annulment of a sale

apply, they meant specifically an overcharge that is

within

the measure

at which a person can err: The buyer believes in his heart that the item is indeed worth that amount—for example, he bought an item worth five for seven, or one worth six for eight. Therefore the sale is annulled, as it is a mistaken transaction,

and the buyer believes that the item is indeed worth that amount—for example, he bought something worth five for seven, or something worth six for eight. Therefore, the sale is void, because it is a mistaken transaction.

But when it is beyond the point at which a person can err,

as in our Mishna, where no one would buy a tzemed worth a peruta for a maneh or two hundred dinars,

no,

the sale is not annulled, because

perhaps

we say:

It was a gift

in general

that he gave him.

Mishna:

A person

who sells a donkey

to another

does not sell its accessories,

the donkey’s accessories; and the Gemara will explain which accessories are meant: whether the implements designated for carrying loads, or even the implements used for riding the donkey.

Naḥum the Mede

disagrees and

says:

One who sells a donkey

sells

its

accessories.

Rabbi Yehuda says:

At

times—

when one sells a donkey with its accessories upon it, its accessories are

sold;

and at

times its accessories are not

the donkey’s

sold with it, even though they are on its back at the time of the sale.

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

How so?

If

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

on the donkey,

and he said to him—

the buyer to the seller:

“Sell me this donkey; behold, its accessories are

the donkey’s

sold,”

because the meaning of his words is: “Sell me this donkey as it is—with the accessories upon it.”

And if he said to him:

“It is your donkey; its accessories are not sold,”

because the meaning of his words is: “If this donkey is yours, sell it to me.” Thus, this is like selling a donkey without specification, and its accessories are not sold even while they remain upon it.

Gemara:

Ulla said: The dispute

between the first tanna and Naḥum the Mede over whether one who sells a donkey sells its accessories is

with regard to a sack and a diska [

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

and a kumni [

an implement for women to sit upon the donkey].

For the first tanna holds: An ordinary donkey

is designated for riding

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

The normal manner of riding is with one’s legs astride: one leg on one side of the donkey and the other leg on the donkey’s other side.

Since it is not customary for a woman to ride in this manner, because of modesty [Pesaḥim 3a], a woman sits in a kumni, and this is considered a load for the donkey. Therefore, a sack and a diska, in which loads are placed, are requirements for carrying loads and not requirements for riding, and they are not included in the sale.

Likewise, the kumni is not included in the sale, since it is considered a load; and requirements for carrying loads are not included in the sale according to the first tanna.

And Naḥum the Mede,

who says that one who sells a donkey sells the sack, the diska, and the kumni,

holds: An ordinary donkey is designated for carrying loads,

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

But with regard to

the

a saddle and a pack saddle, with regard to

the

a belly strap and a breast strap [

with which the saddle is tied ], which are implements serving the donkey both when one rides it and when one transports loads upon it, the tannaim did not disagree, and

according to everyone they are sold

with it.

The Gemara raises an objection

from a beraita against Ulla, who said that there is no dispute concerning a saddle and a pack saddle, and that according to everyone they are sold to the buyer:

One who says to another:

“I am selling you a donkey and its accessories”—this is a sale

with the donkey, also

of the saddle, the pack saddle, the kilkeli, and the ḥavak.

But he did not sell

with the donkey

the sack and

the

diska and

the

kumni.

And when he said to him:

“I am selling you

it,”

the donkey,

“and everything that is upon it”—all of them,

including the sack, the diska, and the kumni,

are sold.

And we derive this from what we learned in the first clause: The saddle and pack saddle are sold with the donkey when he says to him, “I am selling you a donkey and its equipment.” This implies

the reason

is specifically because

he said to him: “A donkey and its equipment”; it is then that he acquires the saddle and the pack saddle.

But

if

he did not say this to him

but merely sold him an unspecified donkey,

he did not

acquire even a saddle and a pack saddle; and all the more so, he did not acquire a sack, a diskaia, or a kumni.

Granted, if you say that the tanna’im disagree even with regard to a saddle and a pack saddle, one can say that this beraita follows the opinion of the Rabbis.

But if you say that according to everyone a saddle and a pack saddle are sold with the donkey, and that they disagree only with regard to a sack and a diskaia, as Ulla says, this is difficult for you: Who taught this beraita, which says that he did not sell even a saddle and a pack saddle!? 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 equipment,” a saddle and a pack saddle are also sold with it,

as Ulla says.

And

the fact that this beraita was taught in a case where he said to him, “A donkey and its equipment,”

teaches us this: Even though he said to him, “A donkey and its equipment,”

he does not acquire a sack, a diskaia, or a kumni ,

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

And we explain:

What is a “kumni”?

Rav Pappa bar Shemuel said: A women’s riding contraption

—a contraption placed upon the donkey, upon which women sit, since, for reasons of modesty, women do not normally ride a donkey astride as men do.

They raised a dilemma

The members of the academy were uncertain: Is

when they are still upon it,

when the donkey’s equipment is lying upon the donkey,

the subject of the dispute

between the first tanna and Nahum the Mede?

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

According to the Rabbis, even when the sack, the diskaia, and the kumni are upon the donkey, the seller had no intention of selling them, unless he explicitly says: “It and everything upon it.”

But when they are not upon it, Nahum the Mede concedes to them

the Rabbis, that the donkey’s equipment is not sold, and the seller did not intend to sell even the saddle and the pack saddle.

Or perhaps

specifically

when they are not upon it,

upon the donkey,

is the subject of the dispute

between the Rabbis and Nahum the Mede.

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

Nahum the Mede says: Even a sack, a diskaia, and a kumni, which are used only for carrying loads, are sold with the donkey.

But when they are still upon it, the Rabbis concede to Nahum

the Mede that he sold him the donkey and all its implements of use, including the sack, the diskaia, and the kumni.

Ta shma,

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

We learned: “I am selling you a donkey and its equipment”—he has sold the saddle, the pack saddle, the kilkeli, and the hevek, but he has not sold the sack, the diskaia, or the kumni.

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

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 equipment is lying upon the donkey. If so, the first clause is also speaking when they are still upon it, and nevertheless he acquired only the saddle and the pack saddle, but not the sack or the diskaia.

From here it may be proved that the dispute between the Rabbis and Nahum the Mede is when they are still upon it:

For

granted, if you say that when they are still upon it there is a dispute,

it is possible to understand this beraita and say:

This

beraita

is in accordance with whose opinion

[who taught it]?

It is in accordance with the Rabbis.

For even when they are still upon it, the Rabbis hold that the buyer acquired only the saddle and the pack saddle, but not the sack or the diskaia.

But if you say that the dispute is when they are not still upon it, whereas when they are still upon it—

according to

everyone,

the sack, the diskaia, and the kumni

are sold

—this is difficult for you:

Whose opinion is it,

according to whose view was this beraita taught!?

For it is impossible to establish this beraita as following the opinion of the Rabbis, since the beraita is speaking when they are still upon it, and when they are still upon it the Rabbis agree that the sack and the diskaia are sold as well.

It is all the more impossible to establish the beraita as following 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 diskaia, and the kumni; all the more so when the equipment is upon the donkey.

You are therefore compelled to say: The dispute is when they are still upon it, and this beraita was taught according to the opinion of the Rabbis.

And we refute this:

Actually,

I can say to you:

The dispute is when they are not still upon it,

and this beraita is speaking of a case in which the donkey’s equipment is not lying upon it,

and

according to the view of

the Rabbis it was taught

.

And

one cannot infer from the wording of the beraita that it is speaking when the donkey’s equipment is lying upon it, because regarding what we learned, “And when he said to him, ‘It and everything upon it,’”

say,

state and interpret the intention of the tanna 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 diskaia, and the kumni are also fit to be upon the donkey.”

Ta shma,

from Rabbi Yehuda’s statement in our Mishna, that the Rabbis and Nahum the Mede disagree when the equipment is lying upon the donkey:

We learned:

Rabbi Yehuda says: Sometimes

the donkey’s equipment

is sold,

and

sometimes it is not sold.

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

Is it not

stated that

Rabbi Yehuda is addressing what the first tanna said

—that he did not sell its equipment—

and Rabbi Yehuda stands

and says: Sometimes it is sold and sometimes it is not sold?

But Rabbi Yehuda spoke of a case in which they are still upon it, as we explicitly learned: “There was a donkey with its equipment upon it.” If so, conclude from here that when they are still upon it, there is a dispute.

Rabbi Yehuda heard the statements of the Rabbis and Nahum the Mede, who disagree when the equipment is still upon it: According to the Rabbis, he did not sell the equipment; according to Nahum the Mede, he did sell the equipment. Rabbi Yehuda then came to reconcile their views and said: Sometimes it is sold, and sometimes it is not sold.