Bava Metzia 100b (ק:) — the Talmud in English

And we ask: The first objection concerning

garments has still not been resolved,

since

what he claimed, he did not admit to him, and what he admitted to him, he did not claim,

for a small garment is not part of a large garment.

And we answer:

As Rav Pappa said below to resolve a similar objection,

that the case is one of

joined pieces.

Here too,

the same answer can be given here: The case is one of

joined pieces.

The version written in the Gemara is “bedayleifei,” and the Bach corrected it to “bedaleifei” based on the Gemara in tractate Shevuot. The meaning of the word “bedaleifei” is “joined together.” Rashi explains that there was a complete garment for a small person, which was sewn into a large garment. The Ritva and the Nimukei Yosef explain that the claim is: “I purchased three cubits of fabric suitable for making a garment for a large slave,” while he admits that he sold him two cubits of fabric suitable for a small slave. (See the Bach’s emendations, note 3.)

Sometimes two complete small garments are taken, sewn together, and made into one large garment. When he claims the large garment, the other admits partially, saying that he sold him only part of the garment—that is, the small garment—and this is an admission of the same type as the claim.

However,

Rabbi Hoshaya objects

to Shmuel’s answer:

Does the Mishna teach anything about garments? It teaches about a slave! [Does it say “garment”? It says “slave!”]

Therefore, the case cannot be explained as referring to a garment.

Rather, Rabbi Hoshaya said:

the Mishna is referring to a case

where he claimed from him a slave together with his garment, and a field together with its sheaves,

and the Mishna stated the primary claim—the claim concerning the slave. Since, in addition, there is a claim and a partial admission concerning the garment, and one takes an oath concerning a garment, the seller must also take an oath concerning the slave, by means of gilgul shevu'a.

And we ask:

And still [still,]

concerning

the garment, what he claimed, he did not admit to him, and what he admitted to him, he did not claim!

Rav Pappa said: “Joined pieces.”

This answer, according to Rabbi Hoshaya, is the same as the answer according to Shmuel.

Rav Sheshet objects

to Rabbi Hoshaya’s answer: Why does the Mishna speak of slaves and fields, when the oath is due only through the garments and sheaves? Is it coming to teach us the law of

binding mentioned in another Mishna

that is stated in another Mishna

once again [did the tanna come to teach us]?

And indeed,

we learned in the chapter “A Woman Is Acquired” [Kiddushin 26a]

in the chapter “The Woman Is Acquired” [Kiddushin 26a] that

bind

property without responsibility to property with responsibility, so that one must take an oath concerning the latter!

One who lends money to another, and the borrower has no ability to repay, may collect his debt from the borrower’s land that he sold after the loan, but not from movable property that he sold. Therefore, land is called “property with responsibility,” while movable property is called “property without responsibility.”

The meaning of the word “bind” is “to join,” from the expression zikim: movable property joins the land, requiring one to take an oath concerning it. (Tiferet Yisrael on the Mishna in tractate Kiddushin.) Rather, Rav Sheshet said: Whose opinion is this?

It is the opinion of Rabbi Meir, who says: A slave is considered like movable property.

The Mishna follows Rabbi Meir, who holds that a slave has the status of movable property, and that one takes an oath concerning slaves. This resolves the third objection.

And we ask:

And still, what he claimed, he did not admit to him, and what he admitted to him, he did not claim!

The first objection thus remains.

And we answer:

The tanna of our Mishna holds

that

the ruling is in accordance with Rabban Gamliel,

who disputes this law.

As we learned: [Shevuot 38b]

[Shevuot 38b]

If he claimed wheat from him, and the other admitted to barley—

he is exempt

from the oath.

Rabban Gamliel obligates him.

And we ask:

Still, this is a case of “Here it is,”

and the second objection has not been resolved.

Rava said, offering an answer according to Rav Sheshet:

The Mishna is referring to a case in which the seller cannot say “Here it is,” such as

a slave whose hand was severed,

and the seller must pay the buyer the value of the hand.

The same applies to a

field in which

the seller

dug pits, channels, and caves,

thereby damaging the field.

And we ask: How could Rav Sheshet have established the Mishna in accordance with Rabbi Meir, who says that a slave has the status of movable property?

But we have heard the opposite from Rabbi Meir! [Rabbi Meir says the opposite: A slave does not have the status of movable property with regard to the laws of robbery.]

[Rabbi Meir says the opposite:] A slave does not have the status of movable property with regard to the laws of robbery.

One who robs movable property, and it undergoes a change, acquires it, because a robber acquires an item through a change.

For example: If one robbed wood and made vessels from it, the vessels belong to the robber, and the robber must pay the robbed party the value of the wood. [Bava Kamma 93b]

This law does not apply to land or slaves, because this is derived by means of a generalization, specification, and generalization [Bava Kamma 117b], in the same manner in which it is expounded from the verses that one does not take an oath concerning land or slaves, for there is no robbery with regard to land or slaves, and a change does not effect acquisition of them.

However, the tanna who disputes that ruling and holds that there is robbery with regard to slaves also holds that one takes an oath concerning them.

As we learned in tractate Bava Kamma [96b]:

in Tractate Bava Kamma [96b]:

If one robbed an animal and it grew old, or slaves and they grew old—

he pays according to the value at the time of the robbery,

since he acquired the animal and the slave through the change, and he must pay the value of the item he robbed, according to what it was worth at the time of the robbery.

Rabbi Meir says: With regard to slaves, he says to him: “Here is your property before you,”

because slaves cannot be robbed, and he did not acquire them through a change.

From here it follows that according to Rabbi Meir, slaves do not have the status of movable property, contrary to Rav Sheshet’s statement! The Gemara explains:

This is not difficult,

because Rav Sheshet reads the Mishna

in accordance with the version that Rabba bar Avuha exchanged, and teaches it

as follows:

Rabbi Meir says: He pays according to the value at the time of the robbery.

And the Sages say: With regard to slaves, he says to him: “Here is your property before you.”

According to this version, Rabbi Meir holds that a slave has the status of movable property.

Rather,

the difficulty is this: Even if we say that Rabbi Meir holds that a slave has the status of movable property,

from where do we know that Rabbi Meir holds that land is equated with a slave [Where does Rav Sheshet know that Rabbi Meir equates land with a slave?],

just as

one takes an oath concerning a slave

concerning it,

so too, one takes an oath concerning land

concerning it? Perhaps it is only concerning a slave that one takes an oath,

but concerning land one does not,

according to Rabbi Meir; and it is impossible to establish the Mishna, which says that one also takes an oath concerning land, in accordance with Rabbi Meir.

And we answer:

This should not enter your mind,

for there is a beraita from which it appears that Rabbi Meir holds that land too has the status of movable property.

As it was taught: If one exchanges a cow for a donkey and it gave birth, and likewise, if one sells his maidservant and she gave birth

one says: “It gave birth while in my domain,”

that it gave birth,

and the other remains silent—

the one who says that it gave birth in his domain acquires it,

whether the seller or the buyer, because the other remains silent, and silence is tantamount to admission.

One says: “I do not know,” and the other says: “I do not know”—

they divide it,

in accordance with the opinion of Sumakhos.

If one says: “It gave birth in my domain,” and the other says: “It gave birth in my domain,”

the seller is partially admitting, since he admits that the cow belongs to the buyer. Therefore,

the seller takes an oath that it gave birth in his domain, because

all those who take oaths mandated by the Torah take oaths and do not pay—these are the words of Rabbi

Meir.

One should not understand the wording of the beraita, “because all those who take oaths prescribed by the Torah swear but do not pay,” to mean that without this rule the seller would not have to swear. The seller must swear because he partially admits, and the rule concerning “all those who take oaths” teaches that the person taking the item does not have to swear; it does not teach that the person being exempted from payment must swear. The meaning of the phrase “because all those who take oaths” is: Since the seller is included among those who swear and are exempted from payment, even though he was not claimed against for payment of money, but rather for giving the object in his possession.

The Torah states concerning the oath of bailees: “Its owner shall take it, and he shall not pay” (Exodus 22:10). The Sages derive from here that the one who would otherwise have to pay takes an oath, but not the one who collects.

For example: If one claims one hundred dinars from another, and one witness testifies in his favor, the defendant is obligated by Torah law to take an oath denying the witness, and is exempt from payment, since the claimant has neither a document nor two witnesses.

However, if one claims one hundred dinars from another and has a promissory note, while the defendant claims, “I paid,” and brings one witness who testifies that he paid, the claimant is not required by Torah law to take an oath that he was not paid; he collects the debt because he has a document.

In the case of one who exchanges a cow for a donkey and it gives birth, the seller is claimed against to give the offspring, and he is included among those obligated by Torah law to take an oath and thereby become exempt.

And the Sages say: One does not take an oath concerning either slaves or land,

and therefore, in the case of one who exchanges a cow for a donkey, the owner of the cow takes an oath, but in the case of one who sells his maidservant, the seller does not take an oath.

And we infer:

Is this not to say that Rabbi Meir holds that one does take an oath

concerning land, and because the Sages knew that Rabbi Meir held this, they had to state that one does not take an oath concerning it?

And we reject this inference:

From where [How do you know]

that the Sages said that one does not take an oath concerning land because, according to Rabbi Meir, one does take an oath concerning it?

Perhaps this is what they said to him: Just as you admit to us with regard to land [just as you agree with us concerning land],

[just as you agree with us concerning land,]

so too, admit to us with regard to slaves,

because slaves are equated with land, as it is stated: “And you shall take them as an inheritance for your children after you, to inherit as a possession” (Leviticus 25:46); Scripture equates them with an ancestral field. [Kiddushin 22b]

The Gemara now brings proof that according to Rabbi Meir one does not take an oath concerning land, and the statement of the Sages in the above beraita must be explained in accordance with the Gemara’s rejection.

He claimed, as we learned: [Shevuot 42b]

[Shevuot 42b]

Rabbi Meir says: There are things that have the status of land

because they are attached to the land,

but

in truth

they do not have the status of land

as land.

And the Sages do not agree with him,

as in their view these things have the status of land.

The Mishna explains:

How so?

One who claims from another and says:

“Ten grapevines laden

with grapes

I entrusted to you

for safekeeping, and the grapes were damaged because you were negligent with them.”

And the other says:

Those grapevines

are only five.

Rabbi Meir obligates

an oath.

And the Sages say: Anything attached to the land has the status of land,

and one does not take an oath concerning land.

And Rabbi Yosei bar Ḥanina said

in explaining this Mishna:

The difference between them concerns grapes that are ready to be harvested [The tannaim dispute the status of grapes ready to be harvested]

[the tannaitic Sages disagree concerning grapes that are ready to be picked],

For one master holds [Rabbi Meir holds]:

These grapes are

considered as though they had been harvested,

since they no longer require the land and have the status of movable property.

And the other holds: They are not considered as though they had been harvested,

since they are attached and have the status of land.

It is evident from here that Rabbi Meir holds that one does not take an oath concerning land, since the entire dispute concerns only whether one takes an oath concerning produce ready to be detached; but concerning the land itself, all agree that one does not take an oath.

This refutes Rav Sheshet’s answer, which establishes the Mishna in accordance with Rabbi Meir, since Rabbi Meir too agrees that one does not take an oath concerning land.

And we conclude:

Rather, ultimately

the Mishna must be explained

in accordance with Rabbi Hoshaya,

as referring to a case in which there is an additional claim concerning the slave’s garment, and because of that claim the seller takes an oath concerning the slave as well.

And as for your difficulty [

and what was difficult] that there is no need to introduce the law that

movable property obligates

the person who claims the movable property together with the real estate to take an oath concerning them, as this is a Mishna in tractate Kiddushin.

The answer is:

It was necessary [

our Mishna needs to teach] that one takes an oath concerning a slave’s garment and bundles of produce in a field. For

it might enter your mind to say [

there would be room to say]:

A slave’s garment

is subordinate to the slave, and

is considered like the slave,

concerning whom one does not take an oath; and likewise,

bundles of produce in a field are considered like the field.

It teaches us

that this is not so.

The Gemara above cited a beraita that details the laws that apply when one exchanges a cow for a donkey and it gives birth.

And we learned in the beraita:

This one says: I do not know, and that one says: I do not know—

they divide.

And the Gemara explains:

Who is the author of this?

It is the opinion of Sumakhos,

who says: In a case of property subject to uncertainty—

they divide it.

But the Gemara raises a difficulty:

Come and hear the latter clause,

and see whether it can accord with the opinion of Sumakhos.

For we learned in the latter clause:

This one says: It was in my possession, and that one says: It was in my possession—

the seller must take an oath that it gave birth while in his possession.

Indeed, according to Rava, the latter clause can accord with the opinion of Sumakhos, because Sumakhos concedes in a case where both parties make a definite claim that the burden of proof rests upon the claimant ,

but there is a difficulty

for Rabba bar Rav Huna, who said: Yes, Sumakhos said this even when both parties make definite claims;

if so,

why must the seller take an oath?

After all,

“they divide” is what it should have said!

And we answer:

Sumakhos concedes that wherever there is a Torah-mandated oath

imposed upon the one in possession, no division is made.

And

the beraita is speaking of a case

in which the seller severed

the hand of

the maidservant,

and he cannot say, “Here it is,”

as in Rava’s explanation,

who resolved the Mishna in this manner.

Mishna:

The previous Mishna discussed cases in which there is uncertainty concerning the property, and the law is that they divide it.

This Mishna discusses two cases in which the law is division, but the reason for the division is not uncertainty.

One who sells his olive trees for wood,

Reuben sold Simeon olive trees on the condition that Simeon would cut them down and use them for firewood.

Simeon left them in the ground,

and

in the meantime

they produced

fruit.

If the trees produced inferior olives that yield

less than a revi’it

of oil

per se’a

of olives,

they belong to

Simeon,

the owner of the olives.

But if

they produced a revi’it per se’a, this one says: My olives, [

the olive trees of mine] that I purchased

grew

the fruit.

And that one says: My land grew

the fruit—

they divide,

because both of them have a share in this fruit.

The Gemara explains why the law is not the same in a case where they produced less than a revi’it.

Simeon had olive trees in his field, and

a river swept away his olive trees,

uprooting them with their roots,

and it placed them

the river

in the field of

Reuben,

his fellow,

where they took root and produced fruit.

This one says: My olives,

that were uprooted,

grew

the fruit.

And that one says: My land grew

it—

they divide,

because both of them have a share in the improvement .

Gemara:

We learned in our Mishna: One who sells his olive trees for wood, and they produce less than a revi’it per se’a, they belong to the owner of the olives. If they produce a revi’it per se’a, they divide it.

And the Gemara discusses:

What are the circumstances? [

how is the Mishna speaking]?

If the seller said to him,

the seller to the purchaser when he sold them

Cut down

the trees

immediately,

then

even

if the olives produced

less than a revi’it as well,

they belong

only to the owner of the land

, because even the trees were not sold to the purchaser except for the right to cut them down, and the improvement of the trees does not belong to him!

If he said to him

the seller to the purchaser:

Whenever you wish, cut them down, [

whenever you want, cut them down] then

even

if the trees produced

a revi’it as well,

the law is that they belong

to the owner of the olives,

since he explicitly granted permission to leave the olives, and certainly the sale includes the improvement that came from the land!

And the Gemara establishes the Mishna as follows:

It is necessary

only

that he said to him,

the seller

without specification,

and did not explicitly say that he was granting him permission to leave the trees; nevertheless, he does have permission to leave them.

Therefore, if the trees produced

less than a revi’it,

the seller certainly already waived his rights to them, because with regard to less than a revi’it

people are not particular.

But if they produced

a revi’it, people are particular

about them, and since the seller can claim, “My land produced the fruit, and I did not sell you the power of the improvement that came from the land,” the law is that they divide it.