Bava Metzia 100a — the Talmud in English

Mishna:

This Mishna deals with a sale and purchase, and it contains laws similar to the laws of the Mishna preceding the previous Mishna.

One who exchanges a cow

that is pregnant

for a donkey ,

and the owner of the cow pulled the donkey, and through this the cow was acquired by the owner of the donkey through an exchange acquisition, wherever the cow is located,

and it gave birth.

When the owner of the donkey came to take the pregnant cow for himself, they realized that the cow had given birth, and it is not known whether at the time of the acquisition the cow was still pregnant, in which case the cow was acquired as it was by the owner of the donkey and it subsequently gave birth, and the offspring that was born belongs to the owner of the donkey; or perhaps it gave birth even before the acquisition, in which case the owner of the donkey acquired only the cow and not its offspring, because no act of acquisition was performed with regard to the offspring; and the matter is uncertain.

And likewise, one who sells his maidservant

the Canaanite maidservant with money,

and she gave birth.

This one says: Before I sold [

before I sold her,] the cow or the maidservant gave birth, and the offspring belongs to me.

And this one says: After I bought [

after I bought her,] the birth occurred, and the offspring is mine.

The law is:

They divide

the seller and the buyer the value of the offspring, because of the uncertainty.

And the Mishna presents another case in which uncertainty arose in a sale.

If he had

the seller

two slaves, one large and one small,

and he sold one of them,

and likewise, two fields, one large and one small,

and he sold one of them, and the seller and the buyer disputed in their claims which field he had sold.

And four divisions of laws were stated in the Mishna.

a.

The buyer says: I bought the large one, and the other says: I do not know

which one I sold.

He acquires

the buyer

the large one,

because “certain and uncertain—the certain claim is superior.”

b.

The seller says: I sold the small one, and the other

says:

I do not know

what I bought.

He has

the buyer

only the small one,

because the seller makes a certain claim.

c.

This one says: The large one

I bought,

and this one says: The small one

I sold—

the seller must swear that he sold the small one,

because the buyer claims the large one, and the seller admits part of the claim, saying that he must give the small one; and one who admits part of the claim is obligated to swear.

The Gemara raises several difficulties concerning the obligation to swear, and establishes the law in a particular case.

d.

This one says: I do not know

what I sold,

and this one says: I do not know

what I bought—

they divide

the value of the difference between the price of the large slave and the small slave.

The Gemara will explain why, when both parties make certain claims, the law is with the seller, who nevertheless must swear, whereas when both make uncertain claims, the law is that they divide.

Gemara:

We learned in our Mishna: One who exchanges a cow for a donkey and it gave birth—this one says, “Before I sold,” and this one says, “After I bought”—they divide.

And we ask:

Why

should they divide?

Let us see in whose domain it stands

[let us see in whose domain the cow and its offspring are located] when they come to court: whether it remained together with its offspring still in the seller’s domain, or whether the buyer had already taken it together with the fetus.

And let the other be

[and let the other have]

the law of: “One who extracts from his fellow—in his possession is the proof”!

Rav Ḥiyya bar Avin said that Shmuel said

The answer: The Mishna is speaking

of one standing

the cow

in the meadow [

a grazing place], and neither of them is in possession of the offspring; therefore, they divide.

And likewise,

the maidservant

mentioned in the Mishna

also [

also,] is speaking of a case such as

that she stands in an alley,

and not in the private domain of one of them.

And we ask: If it is as you say, that the case is one in which neither of them is in possession of the cow and the offspring, the difficulty is:

Let us establish it according to the presumption of the first master

[let us establish it according to the presumption of the seller, who is the first master, the first owner, in whose ownership it unquestionably was], since wherever there is uncertainty whether an object left the hands of its previous owner, it is established according to the presumption of the original owners! And we answer:

Whose opinion is this? It is the opinion of Sumakhos

[this Mishna was taught according to the opinion of Sumakhos],

who says: Money that is subject to uncertainty—

they divide without an oath ,

even where one of the litigants is in possession.

And the Gemara discusses:

I can say that Sumakhos said [

When did Sumakhos say] that one does not follow the person in possession?

With

claims

uncertain and uncertain,

because since the one in possession does not claim with certainty that the object is his, his possession is defective; therefore Sumakhos holds that they divide. But

with certain and certain, who said so!? [

Sumakhos did not say that they divide when both make certain claims!] Whereas the Mishna here speaks of a case in which both make certain claims: this one says that it is so, and that one says that it is so.

The Gemara answers according to the dispute of the amoraim concerning the opinion of Sumakhos:

Rabba bar Rav Huna said: No,

indeed

said

Sumakhos,

that

even with certain and certain,

they divide, and one does not follow the person in possession.

Rava said: Actually, when Sumakhos said

his statement that they divide, he said it only with claims

of uncertain and uncertain. But he did not say it with certain and certain,

rather Sumakhos agrees that with certain and certain, “one who extracts from his fellow—in his possession is the proof.”

And teach [

and it should be taught] in the Mishna as follows:

This one says: Perhaps before I sold, and this one says: Perhaps after I bought.

And the Gemara challenges Rabba bar Rav Huna from the latter clause of the Mishna:

We learned: This one says: I do not know

whether I sold my large slave or the small one.

And this one says: I do not know

which slave I bought—

they divide.

This law follows Sumakhos, since according to the Rabbis the law follows the person in possession , and if the slaves are in the alley, the law follows the seller, as was explained above.

And now the Gemara asks:

Granted, according to Rava,

who established the latter clause according to Sumakhos as referring to uncertain and uncertain, it is well that we can explain and say that

since the latter clause

speaks of

uncertain and uncertain, the first clause also

speaks of

uncertain and uncertain.

And according to Rava, the Mishna stated the same law in different cases.

But according to Rabba bar Rav Huna, who said: No, Sumakhos said even with certain and certain,

and according to him the first clause of the Mishna speaks of certain and certain, and it follows the opinion of Sumakhos, who holds that they divide even with certain and certain, there is a difficulty:

Now

with

certain and certain,

when the force of the person in possession is stronger,

Sumakhos

said

“They divide,”

with

uncertain and uncertain,

where the presumption is weaker,

is it necessary?!

Is it necessary to teach this? And if so, why did we learn the law of the latter clause at all, that they divide with uncertain and uncertain!?

And we answer:

If because of this, it is not a matter. [

If because the latter clause is superfluous, that is not a reason to establish the first clause as referring to uncertain and uncertain,] for it can be explained and said that

the teacher taught the latter clause in order to reveal the first clause.

The Mishna wrote the latter clause, which is superfluous in itself, in order to reveal the correct interpretation of the first clause.

Lest you say: The first clause

speaks specifically of

uncertain and uncertain, but not certain and certain,

and this is the opinion of Rava. Therefore,

the teacher taught the latter clause: uncertain and uncertain,

and

by inference

you learn from this

that the first clause

speaks of

certain and certain.

For if not, why write the same law twice,

and even so, they divide,

as Rabba bar Rav Huna holds.

The Gemara further challenges Rabba bar Rav Huna from the latter clause of the Mishna:

We learned: This one says: The large one

I bought,

and this one says: The small one

I sold. The law is that the slave is established according to the seller’s presumption, but

the seller must swear that he sold the small one

as the law of one who admits part of the claim.

And we ask:

Granted, according to Rava, who says: When Sumakhos said [that they divide, he said it] with uncertain and uncertain, but he did not say it with certain and certain,

and with certain and certain one follows the presumption,

for this reason he must swear,

and the money is established according to its presumption even according to Sumakhos, according to whose opinion the Mishna was taught.

Rather, according to Rabbah bar Rav Huna, who said: Yes, Somchos says even when both are certain, why must the seller swear

and acquire the larger one,

“They should divide” is required of him! [

It should be that the law is that they divide!] And we answer:

Somchos concedes

that no division is made

where there is a Torah oath

imposed upon the one in possession, for then we must make him swear and establish the money upon its presumption . And in the latter part of the Mishna, it is speaking of a case in which the seller is obligated to take the oath of one who admits part of the claim

as we shall say below [

as will be explained below] in the following discussion. And in the first part, it is speaking of a case in which there is no oath of one who admits part of the claim, for a reason that will be explained in the following discussion.

We learned in our Mishna:

“He had two slaves, one large and one small,”

and likewise two fields, one large and one small. The buyer says: “I bought the large one,” and the other says: “I do not know”—he acquires the large one. This one says “large,” and that one says “small”—the seller must swear that he sold the small one.

And we raise an objection:

Why must he swear

as the law of one who admits part of the claim? Behold, there are three reasons that he should be exempt from the oath!

a.

That which he claimed, he did not admit to him, and that which he admitted to him, he did not claim

for the claim is concerning the large one, and concerning it the defendant says: “These things never occurred,” while the admission is concerning the small slave. And the law of one who admits part of the claim applies when the claimant claims one hundred, and the defendant admits fifty, so that he essentially admits part of the claim!

b.

Furthermore, it is hilekh,

there are amoraim who hold that if the one who admits has money in his possession and is prepared to give immediately the part that he admits, and says hilekh, he is not one who admits part of the claim. And in this case, the seller says: “Take the small slave for yourself,” and this is considered as though he said hilekh.

c.

Furthermore, oaths are not taken concerning slaves

and lands , and they learned this law by means of the general-and-particular-and-general principle in the chapter “The Golden Dinar.” [Bava Metzia 57b]

Rav said

as a resolution: The Mishna is speaking

when he claims its money,

money, and there is here no legal dispute concerning the slaves.

And the Gemara explains: It is speaking of a case in which the claimant says: “I sent you to purchase a large slave for me, and I gave you twenty-five dinars,”

the money for a large slave,

and you did not purchase one for me, so return them to me. And the agent says: “Twenty dinars,”

the money for a small slave,

you gave me .

And the same was the matter with the field, where he claims

the money for a large field,

and he admits to him

the money for a small field.

And this resolution resolves the three difficulties together.

a. It is speaking of a claim of money and an admission of money, and not of something resembling “He claimed wheat from him and admitted barley to him”; and by this the first difficulty is resolved.

b. Since the defendant admits money, it is not certain that he is saying hilekh, for there is no admission of specified money; only one who admits a sold object is like one who says hilekh. By this the second difficulty is resolved.

c. Likewise, the third difficulty, from the law that oaths are not taken concerning slaves, is resolved.

And Shmuel said

another resolution: The Mishna is speaking

when he claims the garment of a large slave

that you sold me, and he admits that he sold him

the garment of a small slave.

And through this the third difficulty, from the fact that oaths are not taken concerning slaves, is removed.

And the same is the matter with the field, where the claimant says:

“The sheaves of a large field

you sold me,” and the defendant admits that he sold him

the sheaves of a small field.

It follows that the oath is concerning sheaves and not concerning a field, and the third difficulty is removed. And the first difficulty is also removed, since concerning that which he claimed, he admitted to him; the only difference between the claimant and the one who admits is in the number of the sheaves.