Bava Kamma 9a (ט.) — the Talmud in English

The Gemara cites another statement of Abaye concerning a purchaser, regarding a different matter:

And Abaye said: If Reuven sold a field to Shimon without a guarantee,

meaning that the seller explicitly informed the purchaser that he was selling him the field without assuming any guarantee on his behalf—that if another person were to come and take the land from him for any reason, he would not be obligated to return the money paid for the land,

and claimants arose concerning it,

people who were “protesters” came and challenged the ownership of the seller, Reuven, claiming that the field belonged to them, and because they had raised this challenge, Shimon wished to retract from the sale. The law is as follows:

Before he takes possession of it

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

he can

he

retract

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

However,

once he has taken possession of it

Shimon, the purchaser, has taken possession of this field and acquired it through an act of ḥazaka, he can

no

longer

can

Shimon

retract

from the sale. Even if he has not yet paid for the field, he has acquired it and is obligated to pay its value, as though it were a loan that he owes the seller. He cannot claim that the sale was mistaken, saying: “I had not intended to purchase a field concerning which there were claimants.”

What is the reason [

what is the reason? ] It is because

he said to him

Reuven, the seller, said to Shimon: “

You thought you were accepting a tied-up sack, and you accepted it!”

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

In other words, you resemble someone who purchased a tied sack and did not examine its contents, who cannot claim that the sale was mistaken. Since the purchaser did not examine the sack’s contents, he accepted whatever was inside it. So too you: Since you purchased a field without my accepting responsibility for it toward you, you thereby accepted this loss upon yourself; if claimants arise, you will not be able to annul the sale.

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

From when is it considered ḥazaka?

How is the ḥazaka that effects acquisition performed, such that once the purchaser has performed it, he can no longer retract?

From when he walks along the boundaries,

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

And

this law applies

specifically

when the sale was made

without a guarantee.

However,

if the sale was

with a guarantee, this

law does not apply, because the purchaser can claim that he did not purchase “a sack full of air,” nor a field concerning which there were claimants; rather, he purchased a field with a guarantee. Therefore, the purchaser can retract from the sale and need not pay the money even after taking possession of the field, despite the fact that the claimants have not yet seized it from him. The mere fact that claimants arose concerning it is sufficient reason to retract from the sale and not pay its value.

The Gemara cites another version of Abaye’s statement:

Some say:

There are those who say that Abaye said as follows:

Even

if Reuven sold the field to Shimon

with a guarantee, too,

Shimon cannot retract from the sale if he has already taken possession of the field. Even though he has not yet given the money, he cannot claim: Since you will ultimately return the money to me [after the claimants’ challenge is accepted], therefore, even now, while the money 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 tirpa, and I will pay you!”

When you show me the tirpa document for the field, after the claimants have lawfully seized the field from you and the court has written you a tirpa document stating that the claimants prevailed in court concerning this field and seized it from you lawfully because it belongs to them, then I will pay you under the guarantee. But as long as they have not done so, you cannot annul the purchase, because the field belonged to me, and they certainly will not prevail in court. You are not permitted to retain my money in your possession because of this concern; you must give it to me.

Now the Gemara returns to resolve the contradiction between the verses that Abaye raised above [7a]: In one verse it is stated, “He shall pay from the best of his field,” while in another verse it is stated, “He shall return money to its owner.” The word “return” is expounded to include payment with an item of monetary value, even bran. The Gemara offers another answer to this contradiction:

Rav Huna said:

The one who caused the damage must pay

either money or “the best.”

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

Rav Naḥman raised an objection to him

[he challenged him]

Rav Huna:

How could you have said that the one who caused the damage must pay specifically money or the best? Did we not learn in a beraita: “

He shall return,”

to include

payment for damages even by means of something that is

of monetary value, even bran,

and not specifically money?!

Rav Huna explains his answer:

What are we dealing with here?

The Torah’s inclusion of the possibility for the one who caused the damage to pay with something of monetary value, even bran, refers to a case

where he does not have it,

where the one who caused the damage has neither money nor the best land. Thus the contradiction between the verses is resolved: Indeed, ideally the one who caused the damage pays either the best, as derived from “the best of his field,” or money, as derived from “he shall return money to its owner.” However, the Torah included, by stating “he shall return,” that if the one who caused the damage has neither money nor land, he may pay even with something of monetary value, even bran.

But the Gemara asks:

If he does not have it,

if the case concerns one who has neither money nor the best land,

it is obvious

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

The Gemara answers: It is not obvious, because

what might you say

that

we might have said that

we tell him: Go, exert yourself, sell it, and bring him money!

We could have told the one who caused the damage: Go and trouble yourself to sell the item of monetary value, 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 caused the damage may pay even with the bran itself.

The Gemara cites a statement of Rav Asi and discusses whether it can be interpreted in accordance with Rav Huna:

Rav Asi said: Money—

is like land!

The Gemara asks:

For what halakhic purpose,

for which halakha did Rav Asi intend this general principle when he said that “money is like land”?

If you say it is concerning the best,

if Rav Asi’s statement was made concerning payment with the best, meaning that even if the one who caused the damage possesses idit, he is not obligated to pay with land that is idit, but may also pay with money, then

this is the statement of Rav Huna!

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

Rather,

perhaps Rav Asi said this

concerning

a

case of two brothers who divided

their father’s inheritance,

and one took

the

land, while the other

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

to repay the debt. Concerning this case Rav Asi said: “Money is like land”—the brother who took the money is like one who took the land. That is, it is not said that only the brother who possessed the land suffers from the creditor’s collection; rather,

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

the 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 teach. For

it is obvious

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

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

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

The Gemara cites others who rejected this interpretation for the opposite reason:

Some say: On the contrary, from the opposite perspective,

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

for he said to him

the brother who took the money said to his brother who took the land: We both took our portions of the inheritance with the risk of loss, since on the one hand money is subject to the risk of being stolen, while land is not subject to that risk. On the other hand, land is subject to the risk that a creditor will come and take it to repay the debt, while money is not subject to that risk, since orphans’ property is collected only from land.

That is why I took money,

and took my portion of the inheritance only in money, taking nothing from the land, on the basis of our agreement

that if it is stolen, I will not receive payment from you,

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

And

you too,

that is why you took land,

and took your portion of the inheritance only in land, on the basis of our agreement

that if it is seized, you will receive nothing from me.

If a creditor comes and seizes the field, you will not return to demand that I share in the loss. Since we knew at the time of the division that each of us was assuming a risk, and we agreed to divide the inheritance in this manner, we thereby accepted that each would bear his own loss alone.

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

The Gemara attempts to explain Rav Asi’s statement in another manner:

Rather,

when Rav Asi said, “Money is like land,” he was speaking

concerning

a

case of two brothers who divided

the land that their father had left them,

and their father’s creditor came

and

and took

in repayment

the portion of one of them,

the law is that the other brother pays his brother half of his portion. Concerning this Rav Asi said, “Money is like land”—meaning that this brother, who must give half of his portion, may give it either in land or pay its value in money.

But the Gemara also rejects this explanation:

But

already

Rav Asi said it once,

Rav Asi already stated this ruling elsewhere, and therefore it is unlikely that this is what he intended here.

As it was stated: The brothers who divided

land that their father had left them,

and a creditor

of their father

came and took

the

share of one of them

to collect the debt.

Rav said: The division is nullified,

the division made between them is void, and the brothers divide the remaining portion anew equally.

And Shmuel said: He waived his rights!

The division remains valid, because that brother whose share the creditor took waived, at the time of the division, the possibility of returning and demanding his share, as will be explained below; therefore, he forfeited his share, and the other brother 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 who has the land 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 either in land or in money.

And the Gemara explains the basis of their dispute:

Rav said: The division is nullified, as he holds: Brothers who divided are considered heirs.

That is, even after their division, they are still considered heirs, and both of them are responsible for repaying their father's debt; therefore, the other brother returns half of his share to him.

And Shmuel said: He waived his rights, as he holds: Brothers who divided are considered purchasers.

In their division, they are like purchasers who purchased 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, that brother cannot 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

brothers who divided

are considered heirs,

in which case his law is that he takes half,

or whether they are considered 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 between the parties. Consequently,

he takes

the brother

one-quarter,

and his brother may give it to him

in land, or

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 had already stated the law concerning brothers who divided land, it is certain that when he said, “Money is considered like land,” he was not referring to this law.

The question therefore returns:

Rather,

with regard to

what

did Rav Asi say that money

is considered like land?

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

with regard to the best

property, meaning that he may pay with money or with land. However, if so, the question arises again:

If so, this is the statement of Rav Huna,

for this is what Rav Huna said, whereas the wording taught in the beit-midrash, “Rav Asi said,” indicates that this is a new and separate statement.

The Gemara answers: Indeed,

say

that this teaching should be stated in the wording

“And so said Rav Asi,”

meaning that he said the same as Rav Huna.

The Gemara now cites another ruling stated by Rav Huna on a different matter:

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

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

The Gemara immediately asks what this means:

What is meant by one-third?

What is meant by the requirement that he spend one-third?