Bava Metzia 102b (קב:) — the Talmud in English

And this incident

occurred

came before Rabban Shimon ben Gamliel

and before Rabbi Yosei, and they said: They shall divide the intercalated month, since he uttered two contradictory expressions, and it is uncertain whether to adopt and accept the first expression or the last one. Therefore, they shall divide it, and he shall pay him for half of the intercalated month.

Gemara:

In the first clause, the Mishna says that at times the intercalated month belongs to the renter, and at times it belongs to the landlord. In the latter clause, the Mishna cites an incident in which Rabban Shimon ben Gamliel and Rabbi Yosei ruled that they should divide the intercalated month.

And we challenge this: Are they bringing

an incident to contradict

the ruling stated at the outset? And we answer:

The Mishna is incomplete, and this is what it teaches [

a section is missing from the Mishna, and this is how it should read]:

And if he said to him: For twelve gold dinars per year, at one gold dinar per month—

they shall divide it.

And there was also an incident [

and so it happened]

in Tzippori, involving one who rented a bathhouse from another for twelve gold dinars per year, at one gold dinar per month. And the incident came before Rabban Shimon ben Gamliel and before Rabbi Yosei, and they said: They shall divide the intercalated month.

According to Rabban Shimon ben Gamliel and Rabbi Yosei, if two expressions that contradict one another were uttered, it is uncertain whether to adopt the latter expression and say that he retracted the first, or to adopt the first expression, since he did not explicitly retract it .

Because of the uncertainty, the law is that they divide it.

The Gemara cites a dispute between amoraim as to whether the halakha is in accordance with Rabban Shimon ben Gamliel, or whether the halakha is not in accordance with him, for various reasons.

Rav said: If I had been there, [

had I been in Tzippori] and they had asked me,

I would have given all of it to the landlord, [

I would have given the landlord the entire intercalated month], because I rule in accordance with ben Nannes, who says: Adopt the latter expression, in the chapter “A Kor of Land” , [ Bava Batra 105a]. Since at the end of his words he said that the rental was by the month, the landlord acquired the intercalated month.

And we challenge this:

What does this teach us [

what new point is Rav teaching]? If he is teaching that the halakha is

adopt the latter expression, Rav already said this once! [

for Rav already stated this principle!]

As Rav Huna said in the name of the scholars of Rav [

Rav’s students said in his name]: If one sells an article to another and says: I am selling it for

an as terah [

a sela medina]

one hundred ma’ah [

one hundred perutot], and the buyer agrees and acquires the article, he must pay

one hundred ma’ah,

even though initially he said as terah, which is a coin worth ninety-six perutot ; we adopt the latter expression. Similarly, if he sold it to him for

one hundred ma’ah, an as terah,

he owes him

an as terah

for this reason.

And we answer: These words of Rav do not prove that one adopts the latter expression when the expressions contradict one another, since

if it were only from there, I would have said [

I would have thought] that the latter expression

is merely an explanation

of the first expression. When he said, “An as terah, one hundred ma’ah,” he meant a large sela worth one hundred perutot, and not the ordinary sela. Similarly, when he said, “One hundred ma’ah, an as terah,” he meant one hundred inferior perutot that were worth only an as terah.

Rav teaches us

that the ruling is with the landlord in the case of the bathhouse in Tzippori because one adopts the latter expression .

And Shmuel said:

The halakha is in accordance with Rabban Shimon ben Gamliel, as it is uncertain whether to adopt the first expression or the latter expression; and in a monetary uncertainty, the law is that the claimant must bring proof.

In the Mishna, where the ruling is that they divide it,

it

is referring

to a case in the middle of the month

the thirteenth

we are dealing,

as the uncertainty gives rise to two questions:

a. Does the renter have the right to live in the house during half of the following month?

b. Is the renter obligated to pay for the half of the month during which he lived there?

The answer to the first question is that the landlord may evict the renter from the house due to the uncertainty, because he is in possession of the house, as land remains in the possession of its owners and not in the possession of the one dwelling in it.

By contrast, the answer to the second question is that the renter is not obligated to pay for the half of the month during which he already lived in the house, because he is in possession of the money .

Therefore, the ruling is that they divide it: for the half of the month during which he already lived in the house, he does not pay; and for the half of the month that is yet to come, he must pay, since the landlord may evict him from the house from that point onward if he does not pay him.

But if he comes

to court

at the beginning of the month, the entire month belongs to the landlord,

since the landlord may remove him from the house if he does not pay him.

And if he

comes

to court

at the end of the month, the entire month belongs to the renter,

and the landlord cannot claim rent for the time during which the renter already lived in the house.

The Gemara raises a contradiction between Shmuel’s statements:

Did Shmuel say: We do not say, adopt the latter expression,

but rather the matter remains uncertain?

But Rav and Shmuel both said:

If one sells grain to another and says to him:

A kor [

thirty se’a]

for thirty

sela

I am selling you, the seller may

the seller

retract even with regard to the final se’a,

because since the buyer has not yet performed meshikha on the final se’a, he has not yet acquired anything, as the entire kor constitutes a single sale , and he cannot acquire only part of it .

And if the seller said:

A kor for thirty

sela,

I am selling you each se’a for one sela,

and the buyer performed meshikha on some of the grain,

he acquires each one as he takes possession of it,

and the seller may not retract with regard to those se’a that the buyer had already taken, because at the end of his statement the seller said that each se’a would be sold separately.

And from these words of Shmuel it is evident that he holds that one adopts the latter expression, as he said, “Each se’a for one sela,” and we should not adopt the first expression, “A kor for thirty.” This contradicts Shmuel’s ruling in our Mishna, which is in accordance with Rabban Shimon ben Gamliel! And we answer: Shmuel holds that one adopts the latter expression only because of the uncertainty, and all that he said must be explained accordingly.

There,

in our Mishna,

what is the reason [

why do they divide it]?

Because he is in possession,

the renter is in possession of the money, while the landlord is in possession of the house; and because it is uncertain which expression should be adopted, we leave the money in the possession of its presumptive holder.

Here,

in the case of the seller of grain,

he too is in possession,

the buyer is in possession of the se’a on which he performed meshikha. Because it is uncertain whether one says to adopt the latter expression, we leave them in his possession, since with regard to movable property, the one in possession of it is considered its holder, unlike land. But we never adopt the latter expression as a matter of certainty .

And Rav Naḥman said:

The halakha is not in accordance with Rabban Shimon ben Gamliel and Rabbi Yosei. Rather,

the land remains in the possession of its owners,

and the landlord acquires the intercalated month even if he comes to court at the end of the month.

The Gemara wonders:

What does Rav Naḥman teach us

that we say

adopt the latter expression

as a matter of certainty?

This is precisely Rav’s opinion! [

These are Rav’s words!]

And the Gemara explains: Rav Naḥman holds that the ruling is with the landlord

even if he completely reversed the order [

even if he reversed it], saying at first, “One gold dinar per month,” and afterward, “Twelve gold dinars per year.” In that case, according to Rav, the ruling is with the renter because one adopts the latter expression, whereas according to Rav Naḥman, the ruling is with the landlord .

Rav Naḥman agrees with Shmuel that it is uncertain whether to adopt the first expression or the latter one, and with regard to money in dispute, the law is that the claimant must bring proof.

However, Shmuel and Rav Naḥman disagree on this point: Shmuel holds that if they come to court at the end of the month, the ruling is with the renter, since he is in possession of the money; whereas Rav Naḥman holds that the time at which they came to court is of no significance.

According to Rav Naḥman, since the uncertainty itself—whether the renter is entitled to dwell in the house for an additional month—arises at the beginning of the month, the matter has already been decided in favor of the landlord, because the land remains in the possession of its owners. It follows that the renter is living during this month in the landlord’s house without having rented it, and he must pay for this .

According to Rav Naḥman, Rabban Shimon ben Gamliel holds that they divide it whether he comes to court at the beginning, in the middle, or at the end of the month; and he agrees with Sumakhos, who says that money in dispute is divided . But according to the Rabbis who disagree with Sumakhos, the intercalated month always belongs to the landlord.

The Gemara now presents a question concerning a dispute between the landlord and the renter over payment of the rent.

They asked Rabbi Yannai:

A landlord and a renter who came to court:

The renter said: I paid

the rental payment.

And the landlord said: I did not take

rent from you.

Upon whom

of them

does the burden of proof fall

for his claim? The Gemara analyzes the question:

When [

when did they come to court]?

If they came

they came

during its term,

before the rental period had ended, when the payment date had not yet arrived, since rent is payable only at the end?

But

we learned

this in the Mishna: In such a case, the renter must bring proof that he paid, so there is no room for a question!

If they came after its term,

they came to court?

But

we learned

this in the Mishna as well: In that case, the landlord must bring proof of his claim!

And the Gemara cites the words of the Mishna in tractate Bekhorot,

as we learned: If

the father died

of a firstborn son

within thirty days

of the birth of his son, the son is

presumed not to have been redeemed,

and he must redeem himself when he grows up ,

until he brings proof that he was redeemed

by his father , and was exempted from his obligation.

And if the father died

after thirty days

from the birth of his son, the son is

presumed to have been redeemed,

and he is exempt from redeeming himself when he grows up,

until they say to him:

We know that your father did not redeem you, because before his death he told us

that he had not been redeemed

his son; then he is obligated to redeem himself. [Bekhorot 49a]

From this Mishna it can be learned with regard to the payment of rent that before the payment deadline arrives, one must presume that it has not been paid , whereas after the deadline one must presume that it has been paid, unless it is proven that this is not so.

And we interpret the dilemma:

There is no need

except when they came to court

on the day his term expires

(on the last day of the rental), and the tenant claims that he paid on that day.

Is it a person’s practice to pay on the day his term expires, or not?

(Is a person likely to pay on the last day, or not, and is it customary for a person to pay only on the day after the last day?)

Rabbi Yohanan said to them: You have learned it,

we have stated in the Mishna the resolution of this dilemma.