Babylonian Talmud: Tractate Baba Bathra

Folio 95a

In that case¹  [the seller explicitly] said to him, '[I sell you an area of a kor]²  more or less';³  but a quarter [of a kab] is of no importance;⁴  more than a quarter, is of importance, because, since [in the area of a kor, the quantity may be combined into nine kab,⁵  they form an important independent field which must be returned. [But in the case of the refuse in produce,⁶  even if it amounted to more than a quarter of a kab per se'ah, only the surplus might have to be returned but not the quarters⁷].

Come and hear! [We learned]: [If] the overcharge is less than a sixth, the purchase is valid;⁸  [if it is] more than a sixth, the purchase is cancelled; [if it is] a sixth, the sale is valid but the overcharge must be refunded.⁹  Now, should [not a part of the overcharge] be returned¹⁰  [so as to reduce¹¹  it] to less than a sixth?¹²  [But since the law is not so] it may be inferred [that] wherever [a part] is to be returned, all must be returned. [Is not this, then, a confirmation of R. Huna's statement?¹³] What a comparison! There,¹⁴  one spoke to the other of equal values¹⁵  from the very beginning; only. [since] less than a sixth is not noticeable, a person does not mind to forego it; a sixth, [however], [since it] is noticeable, one does not forego; [while] more than a sixth is a purchase based on error and is to be entirely cancelled.¹⁶

Come and hear! [It has been taught:] [If] one undertakes to plant another's field,¹⁷  [the owner] must accept ten failures for every hundred trees.¹⁸  [If the failures are] more than this [number],¹⁹  [the re-planting of] all²⁰  is imposed upon him. [Is not this a confirmation of the statement of R. Huna?]²¹  — R. Huna, the son of R. Joshua. said: [The two cases cannot be compared. for] wherever [there are] more than this [number of trees]²²  it is the same as if one began to plant [a new field].²³

A CELLAR OF WINE, etc. How is this to be understood? If [it means that] the seller said to the buyer. '[I sell you] a cellar of wine', without specifying which cellar, there is a difficulty;²⁴  [and] if [it means that] he said to him, 'this cellar of wine', there is [also] a difficulty;²⁵  [and] if he said to him, 'this cellar', there is [again] a difficulty.²⁶  For it has been taught: [If one says]. 'I sell you a cellar of wine', he must give him wine all of which is good.²⁷  [If one said]. 'I sell you this cellar of wine', he may give him such wine as is sold In the shop.²⁸  [If one said]. 'I sell you this cellar', the sale is valid even if all of it is vinegar.²⁹  [How. then, is the Baraitha to be reconciled with our Mishnah?] [Our Mishnah], in fact, deals with the case where [the seller] said to him ['I sell you] a cellar of wine', without specifying which cellar, but³⁰  read in the first clause of the Baraitha [as follows]: ['He must give him wine all of which is good']. but [the buyer] must accept ten [casks of] pungent wine for [every] hundred. Must one, however, accept [ten casks of pungent wine] when the cellar was not specified? Surely R. Hiyya has taught: [If] a person has sold a jug of wine to another, he must give him wine all of which is good!³¹  A jug is different, because it contains [only] one [kind of] wine.³²  Did not, however, R. Zebid of the school of R. Oshaia recite: [If the seller says]. 'I sell you a cellar of wine', he must give him a wine all of which is good; [if he says], 'I sell you this cellar of wine', he must give him wine all of which is good and [the buyer must] accept ten casks of pungent wine for [every] hundred.

1. The sale of the land.
2. Kor = thirty se'ah.
3. V. infra 103b. Had he not said so, even a fraction more than the area agreed upon would have had to be returned.
4. The seller, by his statement, has intimated that he does not mind conceding such a small area.
5. The thirty quarters of a kab for the thirty se'ah of the kor amount to seven and a half kab. But since the difference is more than a quarter per se'ah by, say, a twentieth of a kab per se'ah, the total amounts to thirty times one twentieth one and a half kab, which, added to the seven and a half, total nine kab.
6. Since a quarter of a kab per se'ah must always be accepted whether the expression 'more or less' had been used or not.
7. Because it is usual to find such quantities of refuse in all produce.
8. Lit., 'possession is acquired'. and nothing of the overcharge need be returned. Any buyer is assumed to be indifferent to the loss of such a small amount as a sixth.
9. B.M. 50b.
10. In the case when the overcharge was a sixth or more than a sixth.
11. Instead of returning the full overcharge, in once case, and cancelling the sale in the other.
12. To the loss of which a buyer. as it has been said, is indifferent.
13. That if the refuse is more than the allowed quantity, the seller must compensate not only for the surplus but for all the refuse.
14. In the case of the overcharge.
15. The price. according to the original arrangement, had to be equal to the value of the produce. The buyer. therefore, had a right to claim the return of an overcharge, even if it were less than a sixth.
16. In the case of refuse in produce, however, the buyer is always ready to accept a certain quantity of it, (a quarter of a kab of refuse per se'ah of produce). He may, therefore, also be assumed to accept this quantity even when more refuse has been found, provided the surplus has been refunded.
17. Lit., 'receives a field from another to plant'.
18. The owner must pay the workman for every hundred trees the full value of sound trees, though ten of them may turn out to be unproductive and useless.
19. More than ten per hundred.
20. All the unproductive trees must be replaced by sound ones.
21. V. p. 394. n. 8.
22. More than ten unproductive trees per hundred trees planted.
23. The area occupied by a number of trees bigger than ten, say eleven, is considered to form a smaller self-contained field. This smaller field is thus treated as a new field in which the workman undertakes to plant eleven trees, where evidently he could not claim to have discharged his task by planting only one productive and ten unproductive trees. He must therefore replace them all. In the case of the refuse, however, dealt with in R. Huna's statement, this argument cannot, obviously, be applied, and the owner may be assumed to accept the loss of a quarter of a kab per se'ah, if the surplus is refunded to him.
24. For according to our Mishnah, the buyer accepts ten casks of pungent wine for every hundred, while according to the following Baraitha (first case), all the wine must be good.
25. According to the second case in the following Baraitha, contrary to the law in our Mishnah, the seller may give a wine all of which is pungent. (Cf. n. 12 infra).
26. Since, according to the third case in the Baraitha, and contrary to our Mishnah, even if all the wine has become vinegar the sale is valid.
27. The term 'wine' implies 'good wine'; and, therefore, no spoilt wine need be accepted by the buyer.
28. Where all the wine is pungent.
29. Because no wine was mentioned when the sale was proposed.
30. In reply to your difficulty, why does our Mishnah allow ten casks of pungent wine while the Baraitha requires all the wine to be good?
31. If in the case of the sale of a cellar, ten casks of pungent wine may be included in every hundred, why must all the wine be good in the case of the jug?
32. No quantity of pungent wine can, therefore, be included in such a sale.

and this is the cellar [about] which the Sages have taught in our Mishnah!¹  — Well, then, our Mishnah also [speaks of the case] where [the seller] said to him 'This'.²  [But. if so] there is a contradiction between 'This'³  and 'This'?⁴  — There is no contradiction. The one [deals with the case] where [the buyer] said to him [that he required the wine] for a dish;⁵  the other, where he did not say to him [that it was required] for a dish:⁶  [The Baraitha] of R. Zebid [deals with the case] where [the buyer] said to him [that the wine was required] for a dish. The [other] Baraitha [deals with the case] where he did not say, 'for a dish'. Consequently, [if⁷  the expression used by the seller was], 'a cellar of wine' and [the buyer] had said to him, 'for a dish', [the former] must give him a wine all of which is good.⁸  [If⁷  the seller said.] 'this cellar of wine', and the buyer had said, 'for a dish', he must give him a wine all of which is good. and [the buyer must] accept ten casks of pungent wine for [every] hundred. [If, however,⁹  the seller said], 'this cellar of wine', but [the buyer] did not say, 'for a dish', he may give him such wine as is sold in the shop.¹⁰

The question was raised [as to] what [was the law when the seller said], 'a cellar of wine',¹¹  and [the buyer] did not say, 'for a dish'.¹²  R. Aha and Rabina are in dispute [on the matter]. One says [the buyer must] accept [ten casks of pungent wine for every hundred], and the other says, he need not accept. He who said [that the buyer must] accept, deduces [the law] from the Baraitha of R. Zebid, which states, [that if the seller says], 'I sell you a cellar of wine', he must give him a wine all of which is good; and it has been settled [that this refers to the case] where [the buyer] said to him, 'for a dish'. The reason,¹³  [then, is] because he said to him 'for a dish', but had he not said, 'for a dish' [he would have had to] accept. And he who says that [the buyer] need not accept, deduces [the law] from the [other] Baraitha which states [that if the seller says. 'I sell you a cellar of wine', he must give him a wine all of which is good; and it has been settled [that this refers to the case] where [the buyer] did not say, 'for a dish'. According to him who deduces [the law] from that [Baraitha] of R. Zebid, is there no contradiction from the other Baraitha? — [No]; something is missing. and this is the [additional] reading: This¹⁴  only applies [to the case] when he said to him, 'for a dish', but if he did not say, 'for a dish', he [must] accept.¹⁵  And [if he said], 'this cellar of wine' but did not say, 'for a dish', he may give him a wine which is sold in the shop. And according to him who deduces [the law] from the [other] Baraitha is there no contradiction from that of R. Zebid which has been explained [to refer to the case] where he said to him, 'for a dish', [from which it may be inferred that] if he did not say to him, 'for a dish', [he must] accept?¹⁵  — [No;] the same law, [that he need] not accept, [applies] even [to a case] where he did not say to him, 'for a dish', and this [is the reason] why it¹⁶  had to be explained [to refer to the case] where he said to him, 'for a dish', because there was a contradiction between 'this', [in the last clause of the Baraitha of R. Zebid,] and 'this', [in the second clause of the other Baraitha];¹⁷  [but in the case of the first clauses,¹⁸  there was no such contradiction].¹⁹

Rab Judah said: Over wine which is sold in a shop,²⁰  the benediction²¹  of 'the²²  creator of the fruit of the vine'²³  is to be said.²⁴  And R. Hisda said: Of what use²⁵  is wine that is turning sour?²⁶

An objection was raised: Over bread that has become mouldy. and over wine that has become sour, and over a dish that has lost its colour. — the benediction of '… by whose word everything was made' must be said.²⁷  [How, then, can Rab Judah say that over sour wine the benediction for proper wine is to be said]? — R. Zebid replied: Rab Judah admits²⁸  in [the case of] wine made of kernels,²⁹  which is sold at [street] corners.

Abaye said to R. Joseph: Here [is the opinion of] Rab Judah; here [that of] R. Hisda; whose does [my] master adopt? — He replied unto him: I know a Baraitha:³⁰

1. How, then, has it been said before that our Mishnah deals with the case where the seller said. 'I sell you a cellar of wine'?
2. I.e., 'I sell you this cellar'.
3. In the Baraitha, quoted above, according to which the seller may offer wine all of which is pungent. (Cf. p. 395. n. 22.)
4. In the Baraitha recited by R. Zebid. which states that all the wine must be good with the exception of ten casks which may contain pungent wine.
5. For which good wine is required. because only a little at a time is used, and the wine has to last for a long period. Hence the expression. 'wine', in the offer, implied 'good wine which may keep for a long time'; and the expression, 'this', entitled the seller to include ten casks of pungent wine.
6. Hence the seller may give him even pungent wine, such as is sold in the shop.
7. In the Baraitha of R. Zebid.
8. Since 'wine' and 'for a dish' were mentioned.
9. In the other Baraitha.
10. V. p. 396. n. 22.
11. Which is in favour of the buyer, because 'this' was not used.
12. Which is in favour of the seller.
13. Why all the wine must be good.
14. That if he said, 'I sell you a cellar of wine', he must give him a wine all of which is good.
15. The ten casks of pungent wine for every hundred.
16. The last clause of R. Zebid's Baraitha, 'I sell you this cellar of wine'.
17. V. p. 396. n. 7-8.
18. Where the seller says. 'I sell you a cellar of wine'.
19. And both may, therefore, refer to either case, whether the buyer said, or did not say, 'for a dish'.
20. I.e., any sour, or bad wine.
21. Before partaking of any food, a certain benediction must be said beginning with, 'Blessed art thou, O Lord, our God, King of the Universe' and concluding in different forms corresponding to the particular kind and nature of the food consumed.
22. Beginning with the usual formula (v. previous note.)
23. This is the benediction enacted for wine in a sound condition.
24. Though the wine is bad it is still considered wine, and requires the wine benediction.
25. Lit., 'why to me.
26. Since the wine is spoilt, one must not say over it the benediction enacted for good wine, but that of 'Blessed … by whose word everything was made'.
27. Ber. 40b.
28. That the wine benediction is not to be said.
29. Such a wine is very sour and cannot possibly be regarded as wine. The Baraitha quoted should be assumed to speak of such a wine.
30. From which may be inferred at what stage wine loses its name and assumes that of vinegar, and, consequently, requires a change in the form of the benediction.