Bava Kamma 102b (קב:) — the Talmud in English

The Sages taught: If one gives money to his agent

in order to

purchase for him

with it

wheat

and after he sells it they will divide the profits,

but he purchased barley with it

without the sender’s knowledge,

or he gave him money with which to purchase

barley, but he purchased wheat.

One beraita teaches

that we learned in one beraita:

If they depreciated

—the barley that he purchased became cheaper and declined in value—

they depreciated for him

—the loss is borne by the agent—, and the owner of the money may claim all his money from the agent.

And if they appreciated

—the barley or wheat that he purchased became more expensive—

they appreciated for him

—the agent profits from this, and the owner of the money has no share in the profit.

And another beraita teaches,

whereas in another beraita we learned:

If they depreciated, they depreciated for him

—the loss belongs to the agent alone—

and if they appreciated

—if what he purchased became more expensive—

they appreciated for the middle

—the owner of the money shares in the profits.

And it follows that this beraita contradicts what was stated in the previous beraita, that the profits belong to the agent alone. And we answer:

Rabbi Yohanan said: It is not difficult; this

first beraita follows the opinion of

Rabbi Meir, whereas this

other beraita follows the opinion of

Rabbi Yehuda.

And we explain:

this

beraita, which said that if they appreciated, they appreciated for the agent, follows the opinion of

Rabbi Meir, who says that a change effects acquisition

and therefore, when he purchased with the money something to which the owner of the money did not consent, it is like theft in his possession, and he acquired it through the change; whatever appreciated belongs to him.

Whereas this

beraita, which said that if they appreciated, they appreciated for the middle, follows the approach of

Rabbi Yehuda, who says that a change does not effect acquisition.

What he purchased belongs to the owner of the money. Therefore, if it appreciated, the profit is divided between them, as they had stipulated initially. But if it depreciated, the owner of the money does not share in the loss, because he can say to the agent: Since you deviated from my instructions, you are not my agent in this matter, and the entire loss is yours.

Rabbi Elazar raised an objection against this: From where

do we know this assumption that according to Rabbi Meir, who maintains that a change effects acquisition, the profit belongs to the agent?

Perhaps Rabbi Meir stated

that a change effects acquisition

only with regard to an item suitable for his body

—when he was sent to purchase an object with money in order to use it, in which case he becomes a robber with regard to the money, since it was not given to him to purchase merchandise and profit from it. The purchase of the object constitutes a change that effects acquisition, and therefore whatever appreciated belongs to him.

But

when he purchased wheat or barley

for commerce,

although he deviated from the owner’s instructions, this is not theft, since he did not take the items for himself.

Rabbi Meir did not say

that the agent acquires them, since there is no change here. If so, it is difficult: Why, if they appreciated, are they divided equally?

And we answer:

Rather, Rabbi Elazar said: Both this and that

the two beraitot follow the opinion of

Rabbi Meir, and it is not difficult.

Here

the beraita in which it was stated that if they appreciated, they appreciated for him, concerns a case in which the agent purchased barley with the money

for eating.

Since he deviated from the owner of the money’s instructions, this is theft, and the object he purchased is different and is acquired by the agent; therefore, the profit belongs to him.

Here,

the beraita in which it was written that if they appreciated, they appreciated for the middle, concerns a case in which he purchased barley with the money

for commerce,

and there is no change in the nature of the purchase. Therefore, if it appreciated, they divide the profits.

The scholars of the West mocked this

—the amoraim in Eretz Yisrael raised an objection.

To Rabbi Yohanan,

who resolved the contradiction between the beraitot by saying that they disagree in the dispute between Rabbi Yehuda and Rabbi Meir, according to his view

in accordance with Rabbi Yehuda,

who says that a change does not effect acquisition, whatever appreciated is divided between the owner of the money and the agent. This is difficult:

But did the seller of the wheat know that he was purchasing wheat for the owner of the money

and not for the agent? He thought that the agent was the owner of the money, and intended to transfer ownership to him alone. Since according to Rabbi Yohanan there is no agency here, the owner of the money has no right to claim a share in the profit?

Text missing—perhaps this note is note 5, and all the notes shifted backward because of it, until the next place where we wrote that

text is missing.)

Rav Shmuel bar Sasarti raised an objection against this.

If so,

if we require the owner of the wheat to intend to transfer ownership to the owner of the money, and without such intention the owner of the money does not acquire it, then

even if he sent him to purchase

wheat and he purchased

wheat,

and purchased

wheat as well,

the acquisition should not be effective, and the entire profit should belong to the agent. For the beraita implies that only when he purchased wheat instead of barley does the owner of the money have no share in the profit; but when he did not deviate from his agency, he must divide the profit with the owner of the money?

Rabbi Abbahu said: It is different when he was sent to purchase

wheat

wheat and he purchased

wheat,

wheat,

since the seller’s intention to transfer ownership to the agent is sufficient, because

he is acting as his agent,

and therefore the agent

is considered like the householder.

This is unlike the case in which he purchased barley: Since he is not the agent of the owner of the money, the owner of the money does not acquire the item unless the owner of the wheat intends to transfer ownership to him.

Know

as proof that when a purchase is made through the agency of the purchaser, the seller need not intend to transfer ownership to the principal,

as we learned

in Arakhin 24a:

One who consecrates all

all

his property,

and likewise

one who assesses himself

—who said, “My valuation is upon me”—and the Temple treasurer comes to seize his property, since all his assets are encumbered for this debt,

the treasurer has no

right of collection

from his wife’s clothing or from his children’s clothing,

since these are not included in his property. The same applies to one who consecrates his property: These garments are not included in his property.

Nor from the dyed fabric that

the craftsman

dyed for the sake

of his wife and children,

nor from new sandals that he purchased for their sake,

which they had not yet used, since neither the dyed fabric nor the sandals are included among his property for purposes of his valuation or consecration.

And why

are they not included in his property?

Let us say here as well: Did the dyer know that he was purchasing the dyed fabric for the woman?

Since he did not intend this, the dyed fabric should not belong to his wife and children; why, then, should consecration not take effect upon the dyed fabric?

Rather, is it not

necessarily the case that the dyed fabric is acquired for his wife and children

because we say that when the husband gives the money,

he

acts as her agent and is considered like his wife’s hand,

and the dyer, who intends to transfer ownership to the husband, is considered to intend to transfer ownership to the wife as well.

Here too,

the agent who purchases wheat on behalf of the owner of the money

acts as his agent and is considered like the householder’s hand,

and it is unnecessary for the owner of the wheat to intend to transfer ownership to the owner of the money; it is sufficient that he transfers ownership to the agent.

And we reject this:

Rabbi Abba said: No,

this is not proof, because

when one consecrates his property, his intention is not

at the time of consecration

directed toward his wife’s and children’s clothing.

They are entirely excluded from the consecration, even though they are included in his property. It is possible that with agency as well, the purchase is acquired by the principal only when the seller intends this.

Rabbi Zeira raised an objection against him

based on the premise that whatever a person does not intend to include in consecration is not consecrated, even when he did not explicitly exclude it from the consecration.

But is a person’s intention directed toward his phylacteries?

Certainly he needs to use them and put them on.

And we learned

in Arakhin 23b:

One who consecrates his property has his phylacteries assessed for him,

meaning that the phylacteries are appraised to determine the amount for which he may redeem them, because the consecration takes effect upon them as well, despite the fact that a person does not intend to consecrate his phylacteries, which he needs to use. It follows that even with regard to an item that he does not intend to consecrate, if he did not explicitly exclude it from the consecration, the consecration takes effect upon it, contrary to Rabbi Abba?

Abaye said to him: Yes

—indeed so—

a person’s intention,

when he consecrates his property, is directed even

toward phylacteries,

because

one who consecrates his property thinks: I am performing a mitzva.

By consecrating the phylacteries, I am performing a mitzva; therefore, the consecration takes effect upon the phylacteries.

But a person’s intention

when he consecrates his property is not directed

toward his wife’s and children’s clothing,

even though he would also fulfill a mitzva through this,

because of enmity

—they would have a grievance against him.

Rav Oshaya raised an objection against this: But here they taught the laws of those liable for valuations

in this Mishna, as it says in it, “and likewise one who assesses himself”; according to Rabbi Abba’s explanation, the application of the valuation too depends on the intention of the one who made the assessment.

And we learned

in Arakhin 21a:

Those liable for valuations are compelled to provide collateral,

if they do not wish to pay. If we say that consecration and valuations depend on one’s intention, this is astonishing:

But is a person’s intention directed toward himself

at the time of making the valuation,

that he should be taken as collateral?

Certainly this is not his intention, and it follows that his intention does not determine the matter, contrary to Rabbi Abba.

Rather, Rabbi Abba said:

When one consecrates his property, he is considered as having transferred ownership of his wife’s and children’s clothing to them from the outset,

for the Sages assessed the intention of the one consecrating: He wishes to transfer ownership of their clothing to his wife and children. Since he formed a clear and final intention to transfer ownership to them, his thought is effective, and the clothing is theirs even though they performed no act of acquisition; consequently, the consecration does not take effect upon it.

The Sages taught: One who purchases a field

for himself, but tells the seller that he is purchasing it

in the name of another, they do not compel him to sell it.

And if he said to him

—to the seller—

on the condition, they compel him to sell it.

And the Gemara explains:

What is it saying?

Rav Sheshet said: This is what it is saying: One who purchases a field from another

for himself, but in order to prevent people from challenging the sale, tells the seller that he is purchasing it for the Resh Galuta, an important person whom people fear. The seller writes the deed

in the name of the Resh Galuta.

They do not compel the Resh Galuta to sell it,

and to write a deed of sale stating that he sold it to the purchaser. [The Gemara will explain below to whom the field belongs.]

And if he said

—the purchaser said to the seller—

on the condition

that the Resh Galuta would subsequently write him a deed stating that he was selling it to him,

they compel the Resh Galuta to sell it,

and to write him a deed to that effect.

And we explain:

The Master said: One who purchases a field in the name of the Resh

Galuta, they do not compel the Resh Galuta to sell it.

By inference,

from the fact that they do not compel the Resh Galuta to sell it, it follows that

he acquires it for him

the field for the purchaser; it is only that this does not obligate the Resh Galuta to write a deed to that effect.

Shall we say that it disagrees

Can it be proven from here that the beraita disputes the reasoning

of the people of the West, who say: “Who informed the owner of the wheat that he should acquire wheat for the owner of the house?”

The same would apply here: The owner of the field intended to transfer ownership to the Exilarch, and he did not know that the purchaser intended to acquire it for himself. If so, the acquisition does not take effect for the owner of the money, and it would appear that the beraita disagrees and holds that even without the seller’s intention, the purchase is acquired by the owner of the money?

And we answered:

This is not difficult on account of that,

as the beraita can be established

in a case where the purchaser informed

the

owner of the field

that he intended to acquire it for himself,

and informed

also

the witnesses [

for the witnesses to the sale] that the acquisition was for the purchaser, and the Exilarch served only as a cover, in order to intimidate those who might challenge the transaction. But if the purchaser did not inform the seller of his intention, he indeed does not acquire the field, in accordance with the reasoning of the people of the West.

And we raise an objection:

Rather, say the latter clause:

If the purchaser said to the seller

on the condition

that the Exilarch sell it to him,

the Exilarch is compelled to sell it.

Why

is he compelled?

Let the Exilarch say: “I do not want your honors” [

I have no desire for the honor with which you honor me],

“and I do not want our disgrace” [

nor the disgrace resulting from it, as though I had become a dealer in real estate]. How, then, does the stipulation obligate the Exilarch to write him a deed of sale for the field?