Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 100a

MISHNAH. IF A MAN EXCHANGED A COW FOR AN ASS, AND IT CALVED; AND LIKEWISE IF HE SOLD HIS MAIDSERVANT, AND SHE BORE A CHILD, THE ONE MAINTAINING, 'IT WAS BEFORE I SOLD HER,' WHILST THE OTHER SAID, 'IT WAS AFTER I BOUGHT HER' — THEY MUST DIVIDE.¹  IF HE [THE VENDOR] HAD TWO SERVANTS, ONE AN ADULT AND THE OTHER A CHILD; OR LIKEWISE TWO FIELDS, ONE LARGE AND ONE SMALL, THE PURCHASER MAINTAINING, 'I BOUGHT THE LARGE ONE,' WHILST THE OTHER SAYS, 'I DO NOT KNOW,' HE ACQUIRES THE LARGE ONE. IF THE VENDOR SAYS, 'I SOLD THE SMALL ONE,' AND THE OTHER SAYS, 'I DO NOT KNOW,' HE RECEIVES ONLY THE SMALL ONE. IF ONE [THE VENDEE] CLAIMS THAT IT WAS THE LARGE ONE, AND THE OTHER THAT IT WAS THE SMALL ONE, THE VENDOR MUST SWEAR THAT HE HAD SOLD THE SMALL ONE. IF THIS ONE SAYS, 'I DO NOT KNOW,' AND THE OTHER SAYS, 'I DO NOT KNOW,' THEY MUST DIVIDE.

GEMARA. Why should they divide? Let us see in whose possession it [sc. the calf or child] is, and then apply to the other the principle, He who claims from his neighbour has the onus of bringing proof? — R. Hiyya b. Abin said in Samuel's name: It means that it [the calf] was standing in a meadow; the maidservant, too, was in the market-stand.²  Then let us presume the ownership of the first master, and apply to the other the principle, He who claims from his neighbour bears the onus of proof?³  — This agrees with Symmachus, who ruled: When the ownership of property is in doubt, it is divided [among the claimants] without an oath. Now, when did Symmachus rule thus? Where [each] claimant pleads, 'Perhaps [it is mine];' but did he maintain it likewise when each states, '[I am] certain'?⁴  — Said Rabbah son of R. Huna: Even so: Symmachus ruled thus even when each states '[I am] certain.' Raba said: In truth, Symmachus ruled thus only when each pleads, 'perhaps,' but not when each states, '[I am] certain:' but read [in the Mishnah]: The vendor maintains, 'Perhaps it was before I sold [her],' and the vendee, 'Perhaps it was after I bought [her].'

We learnt: IF THIS ONE SAYS, 'I DO NOT KNOW, AND THE OTHER SAYS, 'I DO NOT KNOW,' THEY MUST DIVIDE. Now, on Raba's view, it is well; since the last clause refers to when both state 'perhaps', the first may likewise refer to a case where both plead 'perhaps'. But according to Rabbah son of R. Huna, who maintained: Indeed, Symmachus ruled thus even when both plead 'certain' — if they divide even on certain claims,⁵  is it necessary to teach it when their claims are uncertain? — As for that, it is no argument. The last clause is stated in order to throw light on the first: [viz.,] that you should not say that the first clause refers [only] to a doubtful plea on both sides, but where both contend with certainty, it is not so;⁶  therefore the last clause teaches the case of 'perhaps', on the part of both, from which it follows that the first refers to a plea of certainty by both;⁷  and even then, they must divide.

We learnt: IF ONE [THE VENDEE] CLAIMS THAT IT WAS THE LARGE ONE, AND THE OTHER [THE VENDOR] THAT IT WAS THE SMALL ONE, THE VENDOR MUST SWEAR THAT HE HAD SOLD THE SMALL ONE. Now, on Raba's view, that Symmachus gave his ruling only where each [claimant] is uncertain, but not when they are both positive, it is well: hence he must swear.⁸  But according to Rabbah son of R. Huna, who maintained that the ruling of Symmachus does indeed hold good even when both are positive, why should the vendor swear? Let them divide! — Symmachus admits [that one must swear] where an oath is necessary by Biblical law, as we interpret this below.

IF HE HAD TWO SERVANTS, ONE AN ADULT AND THE OTHER A CHILD, etc. Why should he swear? What he claims he does not admit, and what he admits he does not claim?⁹  Moreover, it is a case of 'Here it is'?¹⁰  Moreover, an oath is not taken with respect to slaves?¹¹  — Rab said: It means that he demands money: [the vendee claims] the price of an adult slave, whilst [the vendor offers] the value of a child slave; similarly, the value of a large field and that of a small one [are involved].¹²  Samuel said: It means that he [the purchaser] claims raiment for an adult slave, and the vendor offers raiment for a child slave;¹³  or [the dispute concerns] the sheaves of a large field and those of a small one.

1. When a man buys an animal, it does not become his even after payment, until he performs meshikah. Hence there is no possibility of conflict, since it must be known whether it had calved before or after meshikah. But when an exchange is made, as soon as meshikah is performed on one animal the complete exchange is effected on both. Hence the dispute could arise with respect to the cow only in the case of an exchange. But in respect of the maidservant the dispute is possible even in the case of a sale, because possession of her is effected by paying the purchase price.
2. A narrow path adjoining the open road where slaves, cattle, etc., are sold. Thus they were in neither's possession. The Talmud could have answered that they were standing in the street, but, it is unusual to be in the street for a lengthy time (Tosaf.).
3. For when the ownership of an object is in dispute, one may presume that it has not changed hands, unless there is proof to the contrary.
4. As in the Mishnah, v. supra 3b, and B.K. 38b.
5. Since, on his view, the first part of the Mishnah refers to such.
6. I.e., they do not divide.
7. As it is superfluous to state two identical clauses.
8. Since they were both positive.
9. V. supra pp. 19 and 563, n. 1.
10. Helak, v. supra p. 13. n. 5. When the vendor admits the sale of the child, he offers it immediately to the claimant, and there is a view that in such case there is no oath.
11. V. Shebu. 42b.
12. Hence all three difficulties are removed: with respect to the second, the vendor admits that he owes the value of a child slave, etc., but does not immediately offer it.
13. Where the purchase of raiment for a slave is in dispute.

[You say] 'Raiment', but [surely] what he claims he does not admit, and what he admits he does not claim! — Even as R. papa said [below], when it is on the roll; so here too, when it is on the roll.¹  Now, this presented a difficulty to R. Hoshaia:²  does then the Mishnah state 'raiment'? It states 'a slave'! — But, said R. Hoshaia, it means, e.g., that he claimed a slave together with his raiment, or a field with its sheaves. But still the difficulty remains: With respect to raiment, what he claims he does not admit; and what he admits he does not claim! — Said R. papa: It refers to cloth on the roll.³  This presented a difficulty to R. Shesheth: Does he [the Tanna] wish to teach us that [movable property] binds [immovable]? But we have already learnt it: Unsecured chattels bind secured property in respect of an oath!⁴  — But, said R. Shesheth, [the Tanna of the Mishnah] is R. Meir, who maintained that a slave ranks as movable chattels. But the difficulty still remains: what he claims he does not admit; what he admits he does not claim. — He [the Tanna] is of R. Gamaliel's opinion. For we learnt: If he [the plaintiff] claims wheat, whilst the other [the defendant] admits [owing] barley, he is free [from an oath]. R. Gamaliel held him liable. Yet even so, it is still a case of 'Here it is!' — Said Raba: In the case of the slave [which he admitted], he [the seller] had cut off his hand; and in the case of the field, he had dug in its pits, ditches, and cavities.⁵

But are we not informed that R. Meir holds the reverse? For we learnt: If a man took by violence a cow, and it aged, or slaves, and they aged, he must pay their value at the time of the robbery.⁶  R. Meir said: In the case of slaves he can say to him [the owner], 'Behold, here is yours before you!'⁷  — That is no difficulty. It is as Rabbah b. Abbuha⁸  reversed [the Mishnah] and read: R. Meir said: He must pay their value at the time of the robbery; but the Sages ruled: In the case of slaves he can say to him [the owner], 'Behold, here is yours before you.' But [there is this difficulty]: How do we know that R. Meir holds that real estate is equated to slaves: just as an oath is taken for slaves, so also is an oath taken for real estate? Perhaps [in his opinion] there is an oath only in respect of slaves, but not for immovable property?⁹  — You cannot think so. For it has been taught: If a cow is exchanged for an ass, and it calved; likewise, if one sells his maidservant, and she bore a child, one says, 'It happened in my possession,' and the other is silent, the former acquires it. If each says, 'I do not know,' they divide; if each pleads, 'It happened in my ownership,' the vendor must swear that she bore whilst in his possession, because all who take an oath in accordance with Scriptural law, swear to be freed from liability:¹⁰  this is R. Meir's view. But the Sages rule: No oath is taken in respect of slaves or lands.¹¹  Surely then it follows that in R. Meir's opinion an oath is taken [even on lands]. But how is this to be inferred? perhaps they argue by analogy:¹²  Just as you admit to us in the matter of lands [that there is no oath], so should you admit in respect to slaves? The proof¹³  is this: We learnt, R. Meir said: Some things are similar to real estate, yet do not rank as such; but the Sages dispute it. E.g., [If A claims from B,] 'I delivered you ten laden vines,' and B replies, 'There were only five,' — R. Meir makes him liable; but the Sages say: That which is attached to the soil is as the soil.¹⁴  Whereon R. Jose son of R. Hanina said: They differ with respect to grapes which are ready for vintaging: one Master [sc. R. Meir] regards them as already vintaged;¹⁵  whilst the other maintains that they are not as already vintaged! But after all, it must be explained as R. Hoshaia:¹⁶  and as to your difficulty, '[does the Tanna wish to teach that movable property] binds [immovable]?' It is necessary. For I might think that a slave's garment is as the slave himself; likewise the sheaves of a field are as the field itself:¹⁷  therefore we are taught [otherwise].

'If each says, "I do not know," they must divide.'¹⁸  With whom does this agree? With Symmachus, who ruled: When the ownership of property is in doubt, it is divided. Then consider the latter clause: 'If each pleads, "It happened in my ownership," the vendor must swear that she bore whilst in his possession.' Now according to Rabbah son of R. Huna, who maintained: Indeed, Symmachus gave his ruling even where both make positive statements; why should he swear? Surely they ought to divide! — Symmachus admits [that one must swear] when an oath is required by Biblical law; [the circumstances being] that he [the owner] had cut off her [sc. the slave's] hand, and in accordance with Raba's explanation.¹⁹

MISHNAH. IF ONE SELLS HIS OLIVE TREES FOR THEIR WOOD,²⁰  AND THEY YIELD LESS THAN A QUARTER LOG [OF] OIL] PER SE'AH [OF OLIVES],²¹  IT IS THE PURCHASER'S.²²  BUT IF THEY PRODUCED [OLIVES YIELDING] A QUARTER LOG [OF OIL] PER SE'AH, ONE [THE PURCHASER] CLAIMING, 'MY OLIVE TREES PRODUCED THEM;' AND THE OTHER [THE VENDOR] MAINTAINING, 'IT WAS MY LAND WHICH CAUSED THE YIELD,' THEY MUST DIVIDE. IF THE RIVER SWEPT AWAY A MAN'S OLIVE TREES AND DEPOSITED THEM IN HIS NEIGHBOUR'S FIELD [AND THERE THEY PRODUCED OLIVES] [AND] ONE MAINTAINS, 'MY OLIVE TREES PRODUCED THEM,' WHEREAS THE OTHER CLAIMS, 'MY LAND CAUSED THE YIELD,' THEY DIVIDE.

GEMARA. How is it meant? If he stipulated, 'Cut [them] down immediately,' then even [if the oil yield is] less than a quarter log [per se'ah], it should belong to the landowner; whilst if he stipulated, 'Cut [them] down whenever you desire,' even when it is a quarter log, it ought to be the purchaser's? — It is necessary to state this only when he made no stipulation: [in which case] when there is less than a quarter log, one is not particular;²³  when [however] there is a quarter log, people are particular. R. Simeon b. Pazzi²⁴  said: The quarter log that was stated

1. I.e., not the actual garment is in dispute, but the amount of cloth; one says it was for an adult slave; the other, that it was for a child slave.
2. [Read with MSS.: Rab Hoshaia; Cur. edd.: R(abbi) Hoshaia.]
3. Though no oath is administered on real estate and slaves, yet where an oath is due on account of movable property, one is administered for the former too (v. p. 11, n. 3).
4. 'Unsecured' and 'secured' refer to movable and immovable property respectively. V. preceding note.
5. Subsequent to the transaction, so that he does not offer immediately all he has admitted, as he would have to make the damage good.
6. B.K. 95a. Because when he committed the theft, they passed into his possession, and there and then the liability for repayment fell upon him.
7. Because slaves, like real estate, cannot be stolen, i.e., they never quit the original ownership through theft, and are considered to be, and grow old, in the legal possession of their rightful owner. This contradicts what has been stated, namely, that R. Meir treats slaves as movables.
8. [Read with MSS.: Rab; v. B.K. 96b.]
9. Whilst our Mishnah states that an oath is administered when it is disputed which field was sold, so that our Mishnah cannot after all represent the view of R. Meir.
10. I.e., the plaintiff is not permitted to swear to sustain his claim, but only the defendant, in order to refute it.
11. B.K. 96b.
12. Lit., 'perhaps they say to him, "just as".'
13. That R. Meir agrees that there is no oath for lands.
14. Shebu. 44b.
15. Hence he says, they are similar to land, in that they are attached thereto, yet do not rank as such, being regarded as already vintaged hence detached, and subject to the laws of oaths. — This shews that for land itself there is no oath, in R. Meir's opinion.
16. [V. supra p. 571, n. 6. The reading,'Rab Hoshaia' is confirmed here by MSS.M.]
17. Hence there should be no oath.
18. The quotation is from the Baraitha, not the Mishnah, as is seen from the second clause quoted, which is absent in the Mishnah.
19. Supra p. 572.
20. I.e., that the purchaser should cut them down for wood.
21. I.e., they were left in the soil for some time, and produced very inferior olives, in a se'ah of which there was less than a quarter log of oil.
22. Lit., 'they belong to the owner of the olive trees.'
23. About the benefit derived by the purchaser from his soil.
24. Var. lec.: b. Lakish.