Bava Kamma 8b (ח:) — the Talmud in English

If so,

if this is indeed the reason,

let us say the same with regard to damages as well!

Why, with regard to collecting damages, does the injured party collect from superior-quality land? Let the purchaser say to him: If you wish to collect from intermediate-quality land, take it; and if not, I will return the deed to the inferior-quality land, and so on—and then you will collect only from the inferior-quality land. The Gemara continues its objection:

Rather,

it must be that

here we are dealing with what

a case in which the purchaser cannot say this—for example, the seller died and left

orphans

—

who are not subject to payment:

orphans whose father left them no real estate, only movable property, are not required to repay debts from that property. Even if they acquire real estate after his death, they are not required to repay creditors from it. Therefore, even if he returns the deed to the inferior-quality land, this is considered land acquired after their father’s death, and they will not repay the debt from it.

And

consequently,

his lien rests upon his own property,

the claimants’ liens remain upon the purchaser’s lands.

Therefore, it is impossible to say this,

and the purchaser cannot say, “I will return the deed.” The question thus returns: Why should they not all collect from the last superior-quality land?

The Gemara offers another answer:

Rather,

the reason they do not collect from the superior-quality land that he acquired last, but only according to their legal entitlement, is

because he says to them

the creditors:

“What is the reason the Sages said: ‘One does not collect from encumbered property when there is unencumbered property’?”

Your right to claim the superior-quality land derives from the Sages’ enactment that one does not collect from encumbered property, and so forth; consequently, the basic rule of collection remains applicable to the last-acquired land. However, the reason the Sages enacted this was only

for my benefit,

for the benefit of purchasers like me, so that they would not collect from them. Since the enactment was made for my benefit and advantage, I say:

“I do not want this enactment.”

I do not want an enactment that is not beneficial to me! Since he does not desire it, the enactment is negated in this case. Consequently, the claimants have no right to collect from the last field, and retain the right to collect only according to their legal entitlement.

We find that he has the power to say this:

as in Rava’s statement,

as Rava articulated such a principle,

for Rava said: Anyone who says, “I cannot accept a rabbinic enactment”

that was enacted for his benefit,

in a case such as this,

like that enactment then being discussed in the beit-midrash,

is heeded,

and he has the power to say this and nullify the rabbinic enactment.

The Gemara asks:

What is meant by “in a case such as this”?

Which rabbinic enactment was being discussed in the beit-midrash, to which Rava’s statement applied?

The Gemara answers:

As in Rav Huna’s statement,

the matter was said with regard to Rav Huna’s ruling,

for Rav Huna said: A woman may say to her husband, “I will not be sustained by you, and I will not work.”

The Sages enacted that a husband is obligated to provide his wife’s sustenance in exchange for the proceeds of her labor, because they were concerned that her earnings might not suffice for her sustenance; and, so that this would not lead to discord, they enacted that her earnings belong to her husband. If she says to her husband, “I will not be sustained from your resources”—that is, “I waive my right to sustenance, and in return I will not work or give you the proceeds of my labor”—she may say this. The reason is as Rava stated: Since the enactment was made for her benefit, she may say that she does not want this enactment.

The Gemara continues to discuss the law of collection from a purchaser who bought all three fields, with the superior-quality field acquired last:

This is obvious [

it is obvious that this is the law]:

If the purchaser sold the intermediate-quality and inferior-quality fields,

if this purchaser, who bought all three fields and acquired the superior-quality field last, subsequently sold the intermediate-quality and inferior-quality fields to another,

and retained

the

superior-quality field

for himself, the law is:

Let them all come and collect from the superior-quality field,

all the claimants—the injured party, the creditor, and the woman—will collect from the superior-quality field remaining in his possession,

since it was acquired last,

because the superior-quality field remained last as unencumbered property in the hands of the seller. The fundamental law of their collection therefore remains applicable to this land. Even though when all three fields were in the purchaser’s possession the creditor and the woman would not collect from the superior-quality field, as explained, once the purchaser sold the intermediate-quality and inferior-quality fields, the law changed, as the Gemara proceeds to explain:

“And the intermediate-quality and inferior-quality fields are not with him,”

for the intermediate-quality and inferior-quality fields are no longer in his possession,

since he can say to her—

so that he can say to them—

“Collect from the intermediate-quality and inferior-quality fields”

because

“I do not want the rabbinic enactment,”

the reason that when all three fields are in the purchaser’s possession each claimant collects according to his legal entitlement, even though the superior-quality field was acquired last, is that the purchaser can say: “I do not want the rabbinic enactment made for my benefit, that one does not collect from encumbered property when there is unencumbered property.” Consequently, that enactment is negated, and each claimant collects according to the essence of his lien. But when he sold the intermediate-quality and inferior-quality fields, he cannot say, “I do not want the rabbinic enactment,” because the person who purchased them from him does want the benefit of the rabbinic enactment.

In this case the Gemara found it obvious that this was the law; it considers only the reverse case:

But

if the purchaser

sold

only the

superior-quality field, and retained

for himself the

intermediate-quality and inferior-quality fields,

the matter is uncertain:

What

is the law? Will they all go and collect from the superior-quality field in the possession of the second purchaser, and will they not collect from the first purchaser, who claims that he wants the benefit of the rabbinic enactment requiring collection only from unencumbered property, and that since the superior-quality field remained last as unencumbered property in the seller’s possession, the fundamental law of your collection applies to that field?

Abaye thought to say

that this was indeed the case, and

they would all come and collect from the superior-quality field,

all of them would take from the superior-quality field in the possession of the second purchaser, because it had remained last as unencumbered property in the seller’s possession.

Rava said to him,

to Abaye:

“What did the first purchaser sell to the second? Every right that would come into his possession!”

When one sells an item to another, the sale includes all the rights and claims that the seller possesses with regard to that item. Consequently, here the first purchaser sold the second purchaser the right to prevent them from collecting from the superior-quality field, as Rava continues to explain:

“And since, if they had come

if the claimants had come

to the first purchaser

while he still held all three fields, including the superior-quality field,

he could have collected for them from the intermediate-quality and inferior-quality fields,

he would have had the power to give the creditor intermediate-quality land and the woman inferior-quality land,

even though when he purchased the intermediate-quality and inferior-quality fields, the superior-quality field was still unencumbered property,

even though when this purchaser bought the intermediate-quality and inferior-quality fields, the superior-quality field remained in the seller’s possession as unencumbered land,

and

the rule is that

one does not collect from encumbered property as long as there is unencumbered property,

so it should have been the case that all of them collect from the superior-quality field, which was last to be unencumbered. Nevertheless, this is not the law, because

he can say to them

the purchaser:

“I do not want this enactment,”

and therefore take according to your legal entitlement. Accordingly, the

purchaser

the

second

purchaser, who acquired from him even the rights and claims that he possessed,

can likewise say to them, “Collect from the intermediate-quality and inferior-quality fields,”

and he too can prevent the creditor and the woman from collecting from the superior-quality field and tell them to take according to their legal entitlement from the intermediate-quality and inferior-quality fields,

because when he purchased [

since when he purchased

the second purchaser

the superior-quality field,

he purchased it with the understanding that he would acquire every right that the first purchaser had with regard to it,

he acquired it on the understanding that he would possess all the rights the seller had with regard to this land. Since the seller had the power to prevent them from collecting from the superior-quality field, he too has that power.

The Gemara brings another law concerning collection from a purchaser who sold to a second purchaser:

Rava said: If Reuven sold

the

all his fields

to Shimon, and Shimon went and sold one field

of them

to Levi,

and

now

the creditor of Reuven came

to collect his debt from these fields, which are encumbered to secure his debt, the law is:

“If he wishes, he collects from this one; if he wishes, he collects from that one.”

That is, he may collect, if he wishes, from the fields that remained with Shimon, or, if he wishes, from the field purchased by Levi. However, from Shimon he may collect even if only the superior-quality field remained in his possession. This is because he can say to him: Since you took all the fields from Reuven, you entered in Reuven’s place and became encumbered for his debt.

But

from Levi,

we said this only when he purchased intermediate-quality land,

for he can collect from him only when Levi purchased the intermediate-quality field, since he can say to him: You took the intermediate-quality land that is encumbered to me.

But

if Levi

purchased

superior-quality and inferior-quality land, he cannot.

The creditor does not collect from him, because

Levi can say to him,

to the creditor:

“That is why I was particular when I purchased,

and therefore I specifically bought the

superior-quality and inferior-quality land,

which are

land that is unfit for you,

for your essential lien does not apply to these lands, so that you should not collect from me—from these lands.”

And the Gemara adds an additional condition:

even if he bought the בינונית

even if Levi bought the בינונית,

we said

that the creditor can collect from him

only

in a case

where he did not leave another בינונית of the same kind,

meaning, Levi bought all the בינונית properties and did not leave a comparable בינונית in Shimon’s possession,

so that he cannot say to him,

for then Levi could not say to the creditor:

I left you a place with regard to Shimon

from which to collect. Rather, the creditor can say to Levi: “You took my collateral, namely, the בינונית, and I have the right to collect from it.”

But,

if Levi did not buy all the בינונית properties, but

left another בינונית of the same kind

[of the same kind]

by

[in the possession of]

Shimon, he may not collect from him.

In this case, the creditor cannot collect from the בינונית that is in Levi’s possession,

as he can say to him,

for Levi can say to him:

I left you a place

with Shimon

from which to collect!

Incidentally to the law of collection from purchasers, the Gemara cites another law concerning a creditor who comes to collect from a purchaser:

Abaye said: If Reuven sold a field to Shimon with a guarantee

that if the field is seized from him because of his debt, he will reimburse him for its value,

and there came

[and]

Reuven’s creditor and seized

[and seeks to seize the field]

from Shimon—

it is the law that Reuven may go and litigate with him.

This is the law: Reuven may go and stand in judgment with that creditor in order to remove him from the field by any claim available to him [for example, if he says to him, “I paid you,” or if he has a counterclaim against him concerning another debt and withholds payment of this debt in exchange for that debt, and the like ].

And he cannot say to him

the creditor cannot say to Reuven:

You are not a party to my case!

You are not a party to my case, because the field has left your possession, and I am claiming nothing from you, but only from Shimon. Rather, Reuven too is considered a party to the case, because

he can say to him,

as Reuven can say to the creditor: Behold,

if you take it from him, he will come back against me!

If you take the field from Shimon, Shimon will come back to me and demand the value of the field from me, because I accepted responsibility for this sale. Since Reuven will suffer a loss as a result, he too is considered a “party to the case,” and he may stand and argue against the creditor in this proceeding.

And the Gemara brings another version of Abaye’s statement:

Some say,

there are those who say that Abaye said as follows:

Even

when Reuven sold the field to Shimon

without a guarantee, nevertheless,

even then Reuven may stand in judgment with the creditor who has come to seize the field from Shimon. This is so even though Reuven did not accept responsibility for the sale of the field, and Shimon cannot return to him and demand the value of the field from him if it is seized from him. Nevertheless, Reuven is considered a party to the case, because

he can say to him

Reuven can say to the creditor:

I do not want Shimon to have a grievance against me!

I do not want Shimon to have a grievance against me because I sold him a field and it was taken from him on account of my debt. Since this concerns me with regard to the grievance, I am considered a party to the case, and I may stand and present arguments in court.