Bava Metzia 100a (ק.) — the Talmud in English

MISHNA:

This Mishna deals with buying and selling, and contains laws similar to those 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, thereby acquiring the cow for the owner of the donkey through an exchange, wherever the cow may be,

and it gave birth.

When the owner of the donkey came to take the pregnant cow, they discovered that the cow had given birth. They do not know whether, at the time of the acquisition, the cow was still pregnant and was acquired by the owner of the donkey as it was, after which it gave birth, in which case the offspring belongs to the owner of the donkey; or perhaps it had given birth before the acquisition, in which case the owner of the donkey acquired only the cow and not its offspring, since no act of acquisition was performed with regard to the offspring. The matter is therefore uncertain.

And similarly, one who sells his Canaanite maidservant

for money,

and she gave birth.

This one says: “Before I sold her”

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

And this one says: “After I purchased her”

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

The law is:

They divide

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

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

If he had

the seller

two slaves, one large and one small,

and he sold one of them,

and similarly, two fields, one large and one small,

and he sold one of them, and the seller and the buyer disagreed in their claims as to which field he sold.

Four different laws are stated in the Mishna.

a.

The buyer says: “I purchased the large one,” and the other says: “I do not know”

which one I sold.

He acquires

the buyer

the large one,

because “when one party makes a definite claim and the other is uncertain, the definite claim prevails.”

b.

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

says:

“I do not know”

what I purchased.

He has

the buyer

only the small one,

because the seller makes a definite claim.

c.

This one says: “The large one”

I purchased,

and this one says: “The small one”

I sold—

the seller must take an oath that he sold the small one,

because the buyer claims the large one, while the seller partially admits the claim and says that he is required to give him the small one; and one who partially admits a claim is obligated to take an oath.

The Gemara raises several objections concerning the obligation to take an oath, and establishes the law as referring to a particular case.

d.

This one says: “I do not know”

what I sold,

and this one says: “I do not know”

what I purchased—

they divide

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

The Gemara will explain why, when both parties make definite claims, the law follows the seller, who must merely take an oath, whereas when both make uncertain claims, they divide the value.

GEMARA:

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

And we ask:

Why

[why] do they divide?

Let us see in whose possession it stands

[let us see in whose possession the cow and its offspring are] when they come to court: Is it still together with its offspring in the seller’s possession, or has the buyer already taken it together with the fetus?

And let the other be

[and let the other]

subject to the principle: “The burden of proof rests upon the one who seeks to take property from his fellow”!

Rav Ḥiyya bar Avin said that Shmuel said

the answer: The Mishna is speaking

of a cow standing

the cow

in a pasture

[a grazing area], where neither of them has presumptive possession of the offspring, and therefore they divide.

And

the maidservant

mentioned in the Mishna

also

[also] is referring to a case such as

where she is standing in an alleyway,

and not in the private domain of either of them.

And we ask: If, as you say, the case is one in which neither of them has presumptive possession of the cow and its offspring, the following objection arises:

Let us establish it according to the presumptive ownership of the first owner

[let us establish it as being in the seller’s presumptive possession, since he was the first owner, the original master, and it was certainly in his ownership], because whenever there is uncertainty as to whether an object left the possession of its former owner, it is placed in the presumptive possession of the original owner! And we answer:

Whose opinion is this? It is the opinion of Sumakhos

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

who says: “Property subject to uncertainty”—

they divide it without an oath,

even when one of the litigants has presumptive possession.

And the Gemara discusses this:

When did Sumakhos say

[when did Sumakhos say] that we do not follow the party with presumptive possession?

In

claims of

“uncertain and uncertain,”

because since the possessor does not claim with certainty that the object belongs to him, his presumptive possession is weak; therefore, Sumakhos maintains that they divide. But

“definite and definite”—who says so?!

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

The Gemara answers according to the dispute among the amoraim concerning Sumakhos’s view:

Rabba bar Rav Huna said: Indeed,

it is indeed so that

Sumakhos

said

that

even in a case of “definite and definite,”

they divide, and we do not follow the party with presumptive possession.

Rava said: Actually, when Sumakhos said

that they divide, he said so only when the claims are

“uncertain and uncertain. But he did not say so in a case of ‘definite and definite,’

rather, Sumakhos agrees that in a case of “definite and definite,” the burden of proof rests upon the one who seeks to take property from his fellow.

And teach

[and the Mishna should be taught] as follows:

“This one says: ‘Perhaps before I sold it,’ and this one says: ‘Perhaps after I purchased it.’”

And the Gemara raises an objection to 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 purchased—

they divide.

This law follows the view of Sumakhos, since according to the Rabbis the law follows the party with presumptive possession , and if the slaves are in an alleyway, the law follows the seller, as explained above.

The Gemara now raises its objection:

Granted, according to Rava,

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

since the latter clause

speaks of

“uncertain and uncertain,” the first clause likewise

speaks of

“uncertain and uncertain.”

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

But according to Rabba bar Rav Huna, who said: Indeed, Sumakhos said even in a case of “definite and definite,”

and according to him the first clause of the Mishna speaks of “definite and definite,” following Sumakhos, who maintains that they divide even in a case of “definite and definite,” the following objection arises:

Now

in a case of

“definite and definite,”

where the power of presumptive possession is greater,

Sumakhos said

that

“they divide,”

in a case of

“uncertain and uncertain,”

where the presumption is weaker,

is it necessary to state this?!

Would it have to be taught? And if so, why did we state the law of the latter clause at all—that they divide in a case of “uncertain and uncertain”?!

And we answer:

If that is the reason, it is not a valid objection.

[If the claim is that the latter clause is superfluous, that is not a reason to establish the first clause as referring to “uncertain and uncertain”], because one can explain that

the tanna stated the latter clause in order to clarify the first clause.

The Mishna stated 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 ‘definite and definite,’

as Rava maintains; therefore

the tanna stated the latter clause as ‘uncertain and uncertain,’

and

from this

you learn

that the first clause

speaks of

“definite and definite.”

For otherwise, why state the same law twice,

and even so, they divide,

in accordance with the view of Rabba bar Rav Huna?

The Gemara raises another objection to Rabba bar Rav Huna from the latter clause of the Mishna:

We learned: “This one says: ‘The large one”

I purchased,

and this one says: “The small one”

I sold. The law is that the slave is established as being in the seller’s presumptive possession; only

the seller must take an oath that he sold the small one

as one who partially admits a claim.

And we ask:

Granted, according to Rava, who said: “When Sumakhos said so, it was in a case of ‘uncertain and uncertain,’ but he did not say so in a case of ‘definite and definite,’”

and in a case of “definite and definite” we follow the presumption,

for this reason he must take an oath,

and the money is established according to its presumption even according to Sumakhos, whose view the Mishna follows.

Rather, according to Rabbah bar Rav Huna, who said: Yes, Sumkhus says even when both parties are certain, why does the seller take an oath?

and gain the larger one,

he should say: They divide it! [The ruling should be that they divide it equally!] And we answer:

The law should be that they divide it equally!] And we answer:

Sumkhus concedes

that no division is made

where there is a Torah-mandated oath

imposed upon the party in possession; in that case, we must have him take the oath and establish the money in its presumptive ownership. The latter clause of the Mishna is speaking of a case in which the seller is liable to take an oath of partial admission,

as we will say below [as will be explained below] in the following discussion. And the first clause is speaking of a case in which there is no oath of partial admission, for a reason that will be explained in the following discussion.

as will be explained below, in the following discussion. The first clause is speaking of a case in which there is no oath for partial admission, for the reason that will be explained in the following discussion].

We learned in our Mishna:

If one had two slaves, one large and one small,

and likewise, two fields, one large and one small: The purchaser says, “I purchased the large one,” and the other says, “I do not know”—the purchaser gains the large one. If this one says, “The large one,” and that one says, “The small one,” the seller takes an oath that he sold the small one.

And we raise an objection:

Why does he take an oath,

as is the law in a case of partial admission? After all, there are three reasons why he should be exempt from the oath!

a.

What he claimed, he did not admit, and what he admitted, he was not claimed:

for the claim concerns the large slave, and concerning him the defendant says, “It never happened”; whereas the admission concerns the small slave. The law of partial admission applies when the claimant claims one hundred, and the defendant admits fifty, thereby essentially admitting part of the claim!

b.

Moreover, it is a case of “Here it is”:

There are amoraim who hold that if the person making the admission has the money in his possession and is prepared to give immediately the portion that he admits, saying, “Here it is,” he is not considered to have made a partial admission. And in this case, the seller says, “Take the small slave for yourself,” which is considered as though he were saying, “Here it is.”

c.

Moreover, one does not take an oath concerning slaves

or land, and this law was derived through the principle of generalization, specification, and generalization in the chapter “The Golden Dinar.” [Bava Metzia 57b.]

Rav said

by way of resolution: The Mishna is speaking

of one who claims money,

that is, money, and the dispute here does not concern the slaves themselves.

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

the price of a large slave,

but you did not purchase one for me; return the money to me.” And the agent says: “You gave me twenty dinars,

the price of a small slave,

”.

The same applies to the field: The claimant

claims the price of a large field,

and he admits to him

the price of a small field.

This resolution answers all three difficulties at once.

a. The case concerns a claim and an admission involving money, and not something resembling the case in which one claims wheat and admits to barley; this resolves the first difficulty.

b. Since the defendant admits to a monetary amount, it is not necessary to say that he means, “Here it is,” because the admission does not concern specific money. It is only one who admits to an object that was sold who is considered as though he were saying, “Here it is.” This resolves the second difficulty.

c. The third difficulty is likewise resolved, based on the law that one does not take an oath concerning slaves.

And Shmuel said

another resolution: The Mishna is speaking

of one who claims the clothing of a large slave

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

the clothing of a small slave.

With this, the third difficulty—that one does not take an oath concerning slaves—is removed.

The same applies to the field, where the claimant says:

You sold me the sheaves of a large field,

and the defendant admits that he sold him

the sheaves of a small field.

It follows that the oath concerns the sheaves and not the field, and the third difficulty is removed. The first difficulty is also removed, since he admitted what was claimed from him; the only difference between the claim and the admission is the number of sheaves.