Babylonian Talmud: Tractate Baba Bathra

Folio 107a

— There,¹  the Rabbis have made a provision which is convenient for the seller²  and [also] for the buyer.³

It was stated:⁴  [In the case where two] brothers divided [an inherited estate between them], and a creditor [of their father] came and distrained the share of one of them, Rab said: The division is cancelled;⁵  Samuel said: He⁶  has forfeited his claim;⁷  and R. Assi said: He⁸  takes a quarter⁹  either in land or in money. Rab said that the division was to be cancelled, because he holds the opinion that brothers, even after having divided [their father's estate between them, remain] co-heirs.¹⁰  Samuel said that he [whose share was seized] forfeited his claim, because he holds the opinion that brothers, after having divided [their father's estate between them], stand to each other in the relationship of vendees, each being in the position of a purchaser without a warranty [of indemnity].¹¹  R. Assi is in doubt whether they still remain co-heirs or stand in the relationship of vendees; he [whose share was seized] takes, therefore, a quarter¹²  either in land or in money.¹³

R. Papa said: The law in all [the cases dealt with in] these traditions is that [a portion, or portions must be] relinquished.¹⁴  Amemar said: The [original] division is cancelled. And the law [is that the original] division is cancelled.¹⁵

Our Rabbis taught: [In the case where] three [experts] went¹⁶  down [to the estate of male orphans] to assess it,¹⁷  [and] one values [the estate] at a maneh¹¹  and the two value [it] at two hundred zuz, [or if] one values it at two hundred zuz and the two value it at a maneh,¹⁸  the one, being in the minority, is overruled.¹⁹  [If] one values [the estate] at a maneh, one at twenty [sela'],²⁰  and one at thirty [sela'], it is to be adjudged at a maneh. R. Eliezer b. R. Zadok, said: It is to be adjudged at ninety [zuz]. Others said: [The difference]²¹  between them is calculated and divided by three.²²  He who said, 'It is to be adjudged at a maneh', [adopts the] middle course.²³  R. Eliezer b. R. Zadok, [who] said, 'It is to be adjudged at ninety', is of the opinion [that] the land

1. The case spoken of by Rab and Samuel.
2. He prefers the transaction to be regarded as incomplete until the last se'ah is measured out, in order that he might withdraw from the sale at the last minute in case prices rise.
3. He also prefers to be in a position to withdraw at the last se'ah, in the expectation that prices may fall. Consequently there was no decision nor any mutual agreement. Hence either party may withdraw even at the last se'ah.
4. B.K. 9a.
5. And a new division of the remainder of the estate is to be made.
6. Whose share was seized.
7. And the division, therefore, is valid, the other brother retaining his full original share.
8. V. p. 443. n. 16.
9. Of his brother's share, i.e., an eighth of the original estate.
10. Hence they remain collectively responsible for the payment of their father's debts.
11. None of them having undertaken to make good the loss of any of the others.
12. Of his brother's share. Half the share certainly belongs to his brother, and the doubt is only in respect of the other half; hence it is divided between the two, each one receiving, or retaining a quarter of it.
13. His brother cannot be compelled to give up a portion of his land. Since creditors must accept money, he has only himself to blame for having parted with his land, and can only expect to receive from his brother the kind of payment the latter would have made to the creditor.
14. The one in possession must give up a portion to him who has been deprived of his share, so that all their respective shares in the estate be equalized. The original division, however, is not entirely upset no new lot taking place and every one retaining a portion of what was originally allotted to him.
15. An entirely new division must be made, and lots cast again.
16. Under instructions from a judicial court.
17. With the object of selling it for the maintenance of the dead owner's widow or his orphan daughters.
18. Maneh hundred zuz or twenty-five sela'. A sela' four zuz.
19. The opinion of the two who are in the majority is to be followed. (Cf. Ex, XXIII, 2.)
20. I.e., five sela less than a maneh. (V. p. 444, n. 11).
21. Between the lowest valuation and the highest, i.e., between the thirty. and the twenty, sela', amounting to ten sela'.
22. Ten sela' equal 40 zuz. 40/3 = 13 1/3]. This quotient is added to the lowest valuation which is 20 sela' or 80 zuz. Thus, 80 + 13 1/3 = 933 zuz.
23. The average of 80 zuz (or twenty sela' which is the lowest valuation) and 120 zuz (or 30 sela', the highest valuation). (80 + 120) / 2 = 100 zuz or a maneh.

is worth ninety [zuz], and the reason why one valued it at twenty [sela]¹  is because he had underestimated²  it by ten [zuz], and he who valued it at a maneh overestimated³  it by ten [zuz]. On the contrary! [Let it be assumed that] the land is worth a hundred and ten [zuz] and that he who valued it at a maneh underestimated⁴  it, by ten [zuz], and he who said thirty⁵  overestimated⁶  it by ten [zuz]?⁷  At all events one should adopt the first two, since both do not exceed the sum of one maneh.⁸  The others [who] said: [The difference] between them is calculated and divided by three, hold the opinion [that] the land is worth ninety-three [zuz] and a third; [and] that he who valued it at twenty [sela'] underestimated⁴  it by thirteen [zuz] and a third; he who valued it at a maneh overestimated⁶  by thirteen [zuz] and a third. Logically [the latter] should have given a higher⁹  estimate¹⁰  but the reason why he did not do it¹¹  is because he thought. 'It is enough that I have exceeded my colleague's [estimate] by so much' — On the contrary! [Let it be said]: The land is worth a hundred and thirteen [zuz] and a third; he who valued it at a maneh underestimated¹²  it by thirteen [zuz] and a third, and he who valued it at thirty [sela'] overestimated¹³  it by thirteen [zuz] and a third; and logically he should have submitted a higher estimate¹⁴  [but] he thinks, 'It is enough that I have exceeded my colleague's by so much'? — At all events one should adopt the first two, since both do not exceed the sum of a maneh.¹⁵

R. Huna said: The halachah is in accordance with [the opinion of the] others. R. Ashi said: We do not know the reason¹⁶  [for the opinion] of the others; shall we administer the law in accordance with their view?

The judges of the Exile¹⁷  taught: [The difference] between them is calculated and divided by three. R. Huna said: The law is in accordance with [the teaching of] the Judges of the Exile. R. Ashi said: We do not know the reason¹⁸  [for the opinion] of the judges of the Exile, shall we administer the law in accordance with their view?

MISHNAH. IF ONE SAYS TO ANOTHER, 'I SELL YOU HALF¹⁹  A FIELD', A COMPROMISE IS MADE BETWEEN THEM AND HE TAKES THE HALF OF HIS FIELD.²⁰  [IF ONE SAYS.] 'I SELL YOU HALF OF IT²¹  ON THE SOUTHERN SIDE', A COMPROMISE IS MADE BETWEEN THEM AND HE TAKES ITS SOUTHERN HALF.²⁰  HE²²  MUST UNDERTAKE [TO SUPPLY]²³  SPACE FOR THE WALL²⁴  [AND] FOR THE BIGGER AND SMALLER TRENCH.²⁵  AND WHAT IS [THE WIDTH OF] THE BIGGER TRENCH? SIX HANDBREADTHS;²⁶  AND [THAT OF] THE SMALLER ONE, THREE.²⁶

GEMARA. R. Hiyya b. Abba said in the name of R. Johanan: The buyer takes the poorer [side] of it.²⁷  Said R. Hiyya b. Abba to R. Johanan: Surely we have learned that a compromise²⁸  was to be made between them? — He replied unto him: While you were [engaged in] eating date-berries in Babylon,²⁹  I expounded [this] with the aid of the concluding clause. For in the concluding clause it is taught: [IF ONE SAYS]. 'I SELL YOU HALF OF IT ON THE SOUTHERN SIDE', A COMPROMISE IS MADE BETWEEN THEM AND HE TAKES ITS SOUTHERN HALF. But why, [according to your reasoning,] should a compromise be made between them? Surely he [explicitly] said to him, 'Half of it on the southern side'!³⁰  But [you must say that the expression there refers] to the price.³¹  here also [it must be assumed that the expression used refers] to the price.³²

HE MUST UNDERTAKE [TO SUPPLY] THE SPACE FOR THE WALL etc. It was taught: The bigger trench is without and the smaller one is within,³³  and both [are made] behind the wall [on its outer side]

1. 'I.e., eighty zuz,
2. Lit., 'erred (by) ten backwards'.
3. Lit., 'erred (by) ten forwards'.
4. V. note 6.
5. I.e., 120 zuz.
6. V. note 7.
7. Why. then, should the two lower valuations be taken into account and not the two higher ones?
8. It is preferable to adopt the two valuations which have in common the point of not exceeding the sum of a maneh, and to ignore the third, rather than to adopt valuations which have nothing in common.
9. I.e., 93 1/3 + 13 1/3 = 106 2/3, zuz.
10. Lit., 'should have said more'.
11. Lit., 'why he did not say'.
12. V. p. 445, n. 6.
13. V. p. 445, n. 7.
14. V. loc. cit. n. 14.
15. V.loc.cit.n. 12.
16. I.e., 'their reason does not appeal to us', 'we do not accept it'.
17. Samuel and Karna, v. p. 279. n. 6.
18. v. note 5.
19. Not specifying which half.
20. This is explained in the Gemara, infra, to refer to the value of, and not to the actual field.
21. The field.
22. The seller.
23. Out of his portion of the field.
24. Round half the field.
25. Which is dug round the wall. A smaller trench is made between the wall and the bigger trench.
26. Along the entire length of the field.
27. Of the field. The seller, being the previous possessor, is entitled to choose the fertile, and better side.
28. Which implies that the buyer is not to be at a disadvantage and is to have a share which is as good as that of the seller How, then, could R. Johanan state that the buyer must take the worst part?
29. I.e., engaged in worldly pleasures and neglecting the study of the Torah. [Hiyya b. Abba was born at Kafri in Babylonia, whence he came to Palestine at a somewhat advanced age.]
30. How, then, does a compromise come in? Since the seller specified the southern side, that side should go to the buyer!
31. By saying, 'the southern side', not the actual spot was meant but the value of that spot in any part of the field.
32. The compromise consists in this, that the buyer gets land equal to the full value of half the field, while the seller has the choice of giving of the land on any side, even on the worst, provided the value of it is not less than half the price of the entire field.
33. Between the wall and the outer trench.