Bava Batra 94b (צד:) — the Talmud in English

And we raised an objection to this:

If so,

he should have to remove it only because of the stringency,

Consider the end

of the Mishna in tractate Kilayim:

Rabbi Yosei says: He must sift it out,

that is, he must separate from the mixture the entire quarter-kav of the other species.

Granted, if you say

that the quarter-kav in the context of Kilayim

is considered like more than a quarter-kav of refuse

in a sale,

it is comparable,

and he is required by law to remove it, then it is possible to say that

this is the point of their dispute

between the first tanna and Rabbi Yosei:

The first tanna holds: We do not penalize the permitted on account of the prohibited,

meaning, we do not penalize him by requiring him to remove even the quarter-kav that is permitted, on account of the more-than-a-quarter-kav that is prohibited.

And Rabbi Yosei holds: We do penalize

the permitted on account of the prohibited, meaning that we penalize him by requiring him to remove the quarter-kav as well, despite the fact that it is permitted.

But if you say

that the quarter-kav in the context of Kilayim

is considered

like a quarter-kav of refuse

and is comparable,

and by law there is no need to remove it, then

why

did Rabbi Yosei say that

he must sift it out?

Since this is merely a stringency, why should another stringency be added, requiring him to remove it all?

And we answer:

There, this is the reason for Rabbi Yosei’s opinion: because it appears as though he is maintaining Kilayim.

Once he has already begun removing some of the other species, if he leaves a little of it and sows it together with the second species, it appears as though he intentionally wishes to sow Kilayim.

Come and hear

from that which we learned in Bava Metzia [37a]:

If two people deposited funds with

one person,

one

deposited with him

one hundred dinars, and the other

deposited with him

two hundred.

And when they came to collect their deposits:

This one says:

The

two hundred

dinars

are mine;

I deposited them.

And the other says:

The

two hundred

dinars

are mine;

I deposited them.

The bailee

gives one hundred dinars to this one and one hundred dinars to that one, and the remainder is left until Elijah comes,

and says who is the owner of the two hundred dinars.

Thus, the liar among them is not penalized by losing the one hundred dinars as well. Why, then, here is the seller penalized by having to pay for the quarter-kav as well?

And we answer:

Can the matters be compared!?

What is the comparison!? The cases are not at all similar, because

there, certainly

there is

one hundred dinars for one person and one hundred dinars for the other

with the bailee, and the liar did not lie concerning that one hundred dinars; why should he be penalized with regard to it? But

here,

in the mixture of refuse with the grain,

who can say that he did not mix all of it?

There is circumstantial evidence that he deliberately mixed refuse, since there is more than a quarter-kav. If so, perhaps he mixed all the refuse, and by law he should be penalized with regard to all of it.

Come and hear from the latter clause

of the Mishna in Bava Metzia:

Rabbi Yosei said: If so,

if you give one hundred dinars to each one,

what has the liar lost?

He has received everything that he deposited, and he will never admit the truth.

Rather, the entire sum shall remain until Elijah comes.

For then the liar will lose the one hundred dinars that he has, and ultimately he will admit.

Here, then, is proof of the opinion of those who say that the quarter-kav is also penalized, just as the liar here is penalized with regard to the one hundred dinars.

And we reject this:

Can the matters be compared!? There, certainly there is a liar.

One of them is certainly a liar and is deserving of punishment.

Here, who can say that he mixed anything?

Perhaps the seller did not mix any refuse at all, and therefore, because of the uncertainty, we do not penalize him.

Come and hear

from that which is taught in a beraita in tractate Bava Metzia [72b]:

With regard to a document that contains interest,

in which it is written that so-and-so borrowed one hundred dinars from so-and-so for two hundred,

we penalize him

the lender,

and he may collect neither the principal nor the interest; this is the statement of Rabbi Meir.

Thus, the permitted is also penalized on account of the prohibited, providing support for the view that the seller is penalized by having to pay for the quarter-kav as well.

And we reject this:

Can the matters be compared!? There, from the time of writing, he imposed a charge of usury upon him.

From the time the document was written, the lender imposed interest upon the borrower and thereby transgressed the prohibition of “You shall not place upon him interest”; therefore, he should be penalized. But

here, who can say that he mixed anything?

And one may not penalize the seller on the basis of uncertainty.

Come and hear from the latter clause

of that same beraita:

And the Sages say: He collects the principal, but he does not collect the interest.

This is the opposite: the permitted is not penalized on account of the prohibited. If so, this is a difficulty for the one who says that the seller is penalized by having to pay for the quarter-kav as well.

And we answer:

Can the matters be compared!? There, certainly the principal is permitted.

The lender committed no prohibition with regard to the principal, and therefore it is not appropriate to penalize him by causing him to lose the principal as well. But

here, who can say that he did not mix all of it?

Perhaps he acted wrongfully with regard to all the refuse that he deliberately mixed; therefore, it is appropriate to penalize him for all of it.

Come and hear:

We learned below [103b]: If one sells a field to another and says to him at the time of the sale, in these words, “I am selling you a beit kor of land [a field fit for sowing a kor, namely, thirty se’a of grain], whether it is less or whether it is more,” meaning, with an imprecise measurement, then even if there was more or less land by an amount fit for sowing a quarter-kav in relation to an area fit for sowing a se’a—that is, thirty quarter-kav measures in relation to a beit kor [one twenty-fourth]—the sale stands, and the buyer need not return anything or deduct from the payment. But if there was more than the measure of a quarter-kav per se’a, the buyer or seller returns the difference.

For Ravin bar Rav Naḥman taught: He returns not only the excess

over a quarter-kav per se’a

alone, but all the quarter-kav measures,

he returns all thirty quarter-kav measures of a beit kor.

Apparently, wherever one is required to return

in a case where something must be returned,

he returns all of it.

Everything is returned.

This is proof for Rav Huna, who said that if more than a quarter-kav of refuse is found, the seller pays for all of it.