Bava Batra 92b — the Talmud in English

If there is no possibility of being paid from him,

that the money which the seller received from the buyer is no longer found in his possession [and he also has no other money with which to pay the buyer], it is difficult: why did Rav say that it is a mistaken transaction and that the buyer returns the ox to the seller, while the seller returns his money to him? Since the seller has no money with which to pay him,

let him retain the ox in place of his money!

Let the buyer take the ox itself in place of the money which the seller owes him, for the ox is worth exactly the price which he paid for it?

This

is what

people say: From the owner of your debt,

from your debtor to whom you have lent, do not wait until he has money with which to repay your debt; rather, even

bran,

bran,

I will be repaid;

accept the bran from him at the value of the debt, as payment. If so, here too, even if you say that it is a mistaken transaction, the seller is merely a debtor to the buyer; why should the buyer not be able to take his ox for himself as a means of payment?

And we answer:

It is necessary

here; this is speaking in a case

where there is a possibility of being paid from him,

where the seller has money with which to pay the buyer, in which case he cannot give him the ox in place of the money which he owes him.

And Rav and Shmuel disagreed about this:

Rav said: This is a mistaken transaction,

for according to Rav, even with regard to money,

we follow the majority,

we proceed according to the majority,

and

indeed

the majority buy for plowing.

Most people buy oxen for plowing. Therefore, when it is discovered that the ox is goring, this is a mistaken transaction. And the buyer returns the ox, while the seller is obligated to return the money to him.

And Shmuel could say to you: When we follow the majority,

when do we proceed according to the majority? Only

in matters of prohibition,

but

in monetary matters, no.

For the majority does not determine monetary law. Since there is a minority of people who buy oxen for slaughter, it is as though this were an even doubt. And in every doubt concerning monetary law, the one who seeks to extract from the other bears the proof. Therefore, the buyer cannot extract his money from the seller; rather, the sale remains valid, the ox remains in the buyer’s possession, and the money remains in the seller’s possession.

(Mnemonic: a woman, a slave, an ox, oxen, and produce) [

These are the mnemonic signs for the matters from which the Gemara seeks to prove one of the sides in the dispute between Rav and Shmuel].

Meitivi

an objection to Rav, who holds that in monetary matters one follows the majority, from what we learned in tractate Ketubot [15b]: for we learned:

a woman who was widowed

or who

was divorced,

and came to claim her ketubah from her husband or from his heirs, but her ketubah document was lost, and it is not known how much was written in it.

And she says: “I married as a virgin,”

and my ketubah is two hundred zuz,

and he says: “No,

that is not so,

but a widow

I married you,

and your ketubah is only one hundred zuz. [And likewise, if she was widowed, the heirs say: Our father married you as a widow and not as a virgin].

If there are witnesses that she went out

from her father’s house at the time of the marriage

with a hinuma,

a veil on her head, with it thrown over her eyes,

and her head uncovered,

the hair of her head lying upon her shoulder, as they would customarily bring out virgins from their fathers’ houses to the wedding house, then the payment of

her ketubah

is

two hundred

zuz, in accordance with the ketubah of a woman who marries as a virgin.

And the Gemara proves:

The reason is that there are witnesses,

only then does she collect two hundred in her ketubah,

but

if

there are no witnesses, no.

She is not believed; rather, she collects only one hundred zuz, like one who married as a widow.

And why?

Let us say: follow the majority, and the majority of women

in the world

marry as virgins,

and even without witnesses she should collect two hundred in her ketubah by virtue of

the majority?

And it is proven from here that in monetary matters one does not follow the majority; rather, one leaves the money in the possession of the one who possesses it so long as there is no clear proof to extract it from him. And this is difficult for Rav!

And we answer:

Ravina said:

There, in the matter of the ketubah, the law is different,

because it may be said,

we have this to say: indeed,

the majority of women marry as virgins, and

only

a minority

of women marry

as widows.

But on the other hand,

every woman who marries as a virgin has a public report.

Many people remember whether she went out with a hinuma or not.

And this one, since she has no public report

that she went out with a hinuma,

her majority was undermined.

The majority of “the majority of women marry as virgins” was thereby nullified, and therefore she is not believed to say that she married as a virgin.

And we object:

If so,

if it is as you say, that

every woman who marries as a virgin has a public report,

then

when there are witnesses

that she went out with a hinuma,

what does that accomplish!?

For even if witnesses testify that this woman went out with a hinuma, since no public report emerged about her having gone out with a hinuma, we should not believe them, since

because she has no public report,

since this woman has no public report that she went out with a hinuma, necessarily these witnesses

are false witnesses;

they are false witnesses, for if she had indeed been a virgin, many people would have remembered that she went out with a hinuma, since you said that every woman who marries as a virgin has a public report!?

And we answer:

Rather,

Ravina did not say this: that every woman who marries as a virgin has a public report. Rather, only

the majority of women who marry as virgins have a public report. And this one, since she has no public report, her majority was undermined,

for the majority of “women who marry as virgins have a public report” contradicts and weakens the majority of “the majority of women marry as virgins,” and the matter is balanced, whether she married as a virgin or as a widow, and the one who extracts from his fellow bears the burden of proof. But if witnesses come, we believe them that she was a virgin, since there is a minority of virgins who have no public report, and presumably this one is among the minority.

Ta shma

a proof against Shmuel, from that which was taught in a beraita [Kiddushin 11]:

One who sells a slave to his fellow, and it is found

that the slave is

a kidnapper or a kubiostos,

one who kidnaps persons,

it has reached him

the buyer. That is, he is his, and the sale is not void on account of this, because ordinary slaves are thieves, and one who buys a slave knows that presumably he is a thief.

But if the slave is found to be

an armed bandit,

and this is not common among slaves, and the buyer did not purchase him with this in mind,

or

if this slave was

“listed for the government,”

having sinned against the government, so that the king ordered that anyone who finds him should kill him,

he says to him

the buyer to the seller:

“Here is yours before you.”

For this is a mistaken transaction.