Bava Kamma 9a — the Talmud in English

The Gemara brings another statement of Abaye concerning the law of a purchaser, regarding a different matter:

And Abaye said: Reuven who sold a field to Shimon without responsibility,

that is, the seller explicitly informed the purchaser that he was selling him the field without responsibility on his part, so that if another person were to come and take the land from him for any reason, he would not be obligated to return to him the money of the field,

and claimants arose against it,

people came as “claimants” and challenged the ownership of Reuven, the seller, over it, asserting that the field belonged to them, and because they were making this claim, Shimon wishes to retract from the sale; the law is as follows:

Before he took possession of it

Shimon had taken possession of this field, and had not yet given money for it to the seller,

he can

he

retract

from the sale, and the sale is nullified, and he does not pay the seller for the field.

But,

once he took possession of it

Shimon the purchaser took possession of this field and acquired it through an act of possession, again

is not

he

able

Shimon

to retract

from the sale. And even if he had not yet paid the money of the field, he acquired the field and is obligated to pay its value as though it were a loan that he owes the seller. And he cannot claim: “It is a mistaken transaction; it was not my intention to purchase a field against which there are claimants.”

What is the reason [

what is the reason]? Because

he said to him

Reuven the seller said to Shimon: “

You reasoned and accepted ‘a tied-up sack’!”

You agreed to accept and purchase a tied-up sack full of air.

That is to say, you are comparable to a person who purchased a tied-up sack and did not examine its contents, who cannot claim that it is a mistaken transaction. Since the purchaser did not examine the sack’s contents, he reasoned and accepted upon himself everything that was in it. You too are so: since you purchased a field without my accepting responsibility for it toward you, by this you accepted upon yourself this loss, that if claimants should arise, you would not be able to annul the sale.

And the Gemara explains the meaning of “once he took possession of it, he cannot retract”:

From when is it possession?

How is the possession that is effective for acquisition performed, so that once the purchaser has performed it he can no longer retract?

From when he tramples the boundaries,

from the time that the purchaser repairs the boundaries of the field and raises them.

And

this law applies

specifically

if the sale was made

without responsibility.

But,

if the sale was

with responsibility, it is not

said that this law applies, since the purchaser can claim that he did not purchase “a sack full of air,” nor a field against which there are claimants; rather, he purchased a field with responsibility. Therefore, the purchaser can retract from the sale and not pay the money even after he took possession of the field, despite the fact that the claimants have not yet taken it from him. For the very fact that claimants arose against it is a reason to retract from the sale and not pay its value.

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

And some say,

there are those who say that Abaye said as follows:

Even

if Reuven sold the field to Shimon

with responsibility, as well,

Shimon cannot retract from the sale if he has already taken possession of the field. And although he has not yet given the money, he cannot claim: Since ultimately you will return the money to me [after the claim of the claimants is accepted], therefore even now, when it is in my possession, I will withhold it from giving it to you until the claim is clarified.

Because

he said to him

Reuven said to Shimon:

Show me your writ of seizure, and I will pay you!

When you show me the “writ of seizure” for the field, after the claimants seize the field from you through judgment, and the court writes you a “writ of seizure” that the claimants have prevailed in judgment concerning this field and have lawfully seized it from you, since it belongs to them, then I will pay you under the responsibility. But as long as they have not done so, you cannot annul the purchase, because the field was mine, and they will certainly not prevail in judgment; and you are not permitted to withhold my money in your possession because of this concern, and you must give it to me.

And now the Gemara returns to resolve the contradiction between the verses that Abaye raised earlier [7a]: in one verse it says, “He shall pay from the best of his field,” while in another verse it says, “He shall return money to its owner”; and from “he shall return” they expound that it includes payment with something of monetary value, even bran. And concerning this the Gemara brings another resolution:

Rav Huna said:

The one who causes damage must pay

either money or “the best.”

But before Rav Huna finished his words to explain how the contradiction between the verses is resolved through this,

he challenged him [

he asked]

Rav Nahman challenged Rav Huna:

How could you say that the one who causes damage must pay specifically money or the best? But we learned in a beraita: “

He shall return,”

to include

payment of damages also by means of something that is

worth money, even bran,

and not specifically money?!

And Rav Huna explains his resolution:

What are we dealing with here,

this that the Torah included that the one who causes damage can pay something worth money, even bran, refers to

when he does not have it,

when the one who causes damage has neither money nor the best. Through this the contradiction between the verses is resolved, for indeed initially the one who causes damage pays either the best, as learned from “the best of his field,” or money, as learned from “he shall return money to its owner.” However, the Torah included, by saying “he shall return,” that if the one who causes damage has neither money nor land, he can pay even with something worth money, and even with bran.

But the Gemara wonders:

If he does not have it,

if this concerns a situation in which he has neither money nor the best,

it is obvious

that he will pay with whatever he has! Is it preferable for the injured party that he not pay him anything at all?

And the Gemara answers: This is not obvious. For

what might you say,

that it should be said, we might have been able to say that

he is told:

Go, exert yourself, sell, and bring him money!

We might have said to the one who caused damage: Go and trouble yourself to sell the item worth money, and pay the injured party specifically with money.

Therefore, it teaches us

“he shall return,” that we do not say this to him; rather, the one who causes damage may discharge the debt even from the bran itself.

And the Gemara brings a statement of Rav Asi, and discusses whether it can be explained in accordance with the words of Rav Huna:

Rav Asi said: Money—

behold, it is like land!

And the Gemara discusses:

For what halakhic matter,

for which halakha did Rav Asi intend by saying this general principle, that “money is like land”?

If you say, concerning the best,

if we say that Rav Asi’s words were stated concerning payment of the best, so that even if the one who causes damage has choice land, he is not obligated to pay from land that is the best, but may also pay with money, then

this is the same as Rav Huna!

These are the words of Rav Huna, who says that he may give either money or the best. If so, the Gemara should have stated this in the wording, “And Rav Asi likewise said.”

Rather,

perhaps you will say that Rav Asi said this

concerning

a matter of

two brothers who divided

their father’s inheritance,

and one took

the

land, and one

took the

money.

And

after they divided the inheritance between them,

a creditor came

to whom their father had owed money,

and took

the

land

for repayment of the debt. And concerning this case Rav Asi said: “Money is like land,” for the one who took the money is like one who took the land; that is, it should not be said that only the brother who owned the land suffered through the creditor’s collection, but rather

this one goes and takes half in money together with him,

this brother who took the land now goes to his brother who received the money and divides the money with him.

It is not reasonable that this is what Rav Asi came to say. For

it is obvious

that the brother who took the money must also participate in repaying his father’s debt, and

is this one a son, and that one is not a son!?

Is only the brother who owns the land a son, whereas the brother who owns the money is not a son, so that he too should participate in repaying the father’s debt?!

And the Gemara brings that others rejected this interpretation for the opposite reason:

Some say: on the contrary, in the opposite direction,

there are those who say that this explanation should be refuted in precisely the opposite way, since it is not reasonable to obligate the brother who owns the money;

for he said to him

the owner of the money said to his brother, the owner of the land: Behold, we both took our shares in the inheritance with a risk of loss, since on the one hand money has a risk, that it may be stolen, while land does not have such a risk. But on the other hand, land has the risk that a creditor will come and take it for payment of his debt, whereas money does not have this risk, because one collects from orphans only from land.

And for this reason I took money,

therefore I took my share of the inheritance only in money, and took nothing from the land, based on our agreement,

that if it is stolen, I will not be paid by you,

that if the money is stolen, that is my loss, and I will not demand that you participate in my loss.

And

you too,

for this reason you took land,

therefore you took your share in the inheritance only from the land, based on the agreement

that if it is seized, I will not be paid anything by you.

If a creditor comes and seizes the field, you will not return to demand that I participate in the loss. Since at the time of the division we knew that each one was taking a risk upon himself, and we agreed to the division in this manner, we thereby accepted upon ourselves that each one would bear his own loss alone.

Therefore, it is not reasonable to say that this is the interpretation of Rav Asi’s words.

And the Gemara attempts to explain Rav Asi’s words in another manner:

Rather,

what Rav Asi said, “Money is like land,” refers

to

the matter of

two brothers who divided

the lands that their father left them,

and a creditor came

of their father,

and took

for repayment

the share of one of them,

the law is that the other brother pays his brother half of his share. And concerning this Rav Asi said, “Money is like land,” meaning that this brother who must give half of his share may give it either in land or by paying its value in money.

But the Gemara also rejects this explanation:

And

already

Rav Asi said it once,

Rav Asi already stated this law elsewhere, and therefore it is not reasonable to say that this is his intention here.

For it was stated: The brothers who divided

land that their father left them,

and a creditor came

of their father,

and took

the

share of one of them

for repayment of the debt.

Rav said: The division is nullified,

the division that was made between them is nullified, and the brothers again divide equally the portion that remains.

And Shmuel said: He relinquished it!

The division stands, because that brother from whom the creditor took his share relinquished, at the time of the division, the possibility of returning and claiming his share, as will be explained below; therefore he lost his share, and the other need not participate with him.

And Rav Asi said: He takes one-quarter in land and one-quarter in money.

The brother who suffered the loss receives one-quarter of his brother’s share. That is, the brother in whose possession the land is gives his brother who suffered the loss only one-quarter [and not half of his share] of the field in his possession, and he may give him this quarter in land or in money.

And the Gemara explains the reason for their dispute:

Rav said, “The division is nullified,” because he holds: The brothers who divided are like heirs.

That is, even after their division, they are like heirs, upon both of whom lies the obligation to repay their father’s debt; therefore the other brother returns to him half of his share.

And Shmuel said, “He relinquished it,” because he holds: The brothers who divided are like purchasers.

In their division they are like purchasers who bought from one another,

and like a purchaser without a guarantee,

who does not turn to the seller when the property is collected from him. Therefore, when a creditor collected from one brother, this brother does not turn to the other brother.

And Rav Asi said: He takes one-quarter in land and one-quarter in money,

because

it is uncertain to him whether

the brothers who divided

are like heirs,

in which case his law is that he takes one-half,

or whether they are like purchasers,

in which case his law is that he takes nothing.

Therefore,

half of the share is money of uncertain ownership, and all money of uncertain ownership is divided. Accordingly,

he takes

the brother

one-quarter,

and his brother may give him this

in land, and

likewise, if he wishes, he may give him

one-quarter in money.

That is, either one-quarter in land or one-quarter in money. And since Rav Asi already stated the law of brothers who divided land, certainly the intention of what he said, “money is like land,” is not this law.

And the question therefore returns:

Rather,

with regard to

what

did Rav Asi say that money

is like land?

And the Gemara concludes: Necessarily, the intention is as we initially said, that Rav Asi said this

with regard to the best,

that he may repay with money or with land. But if so, the question arises again:

If so, this is Rav Huna’s statement,

for this is what Rav Huna said, whereas from the wording repeated in the house of study, “Rav Asi said,” it emerges that this is a new and separate statement.

And the Gemara answers: Indeed,

say

that this dictum should be taught in the wording

“And so said Rav Asi,”

meaning that he said it like Rav Huna.

And now the Gemara brings another law that Rav Huna said on another matter:

Rabbi Zeira said that Rav Huna said: With regard to a mitzva, up to one-third!

A person must spend from his money for the fulfillment of a mitzva up to one-third.

The Gemara immediately discusses what this means:

What is “one-third”?

What is meant by saying that he must spend one-third?