Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 14a

— They are really one, for there is one reason [for both views]. As it is because R. Eleazar says that the difference of opinion [in our Mishnah] concerns a case where the debtor does not admit [his indebtedness] that he interprets it thus.¹  The view of Samuel is refuted in two points. The one point [is the same] as [that which applies to] R. Eleazar, for he [also] interprets our Mishnah as referring to a case where the debtor does not admit [his indebtedness]. And the other point is that Samuel says:²  If one finds a deed of transfer³  in the street one should return it to the owners, and we are not afraid that [the debt] may have been already paid.⁴  The refutation is that here [in the Baraitha] we are taught that even if both parties admit [the genuineness of the documents] one should not return them either to the one or to the other, which shows that we are afraid that [the debt] may have been paid, and it follows with even greater certainty that in a case where⁵  the borrower does not admit [the genuineness of the document] we are afraid that [the debt] may have been paid.⁶

Samuel said: What is the reason of the Rabbis [who maintain that a document which contains no clause mortgaging the debtor's property entitles the creditor to exact payment even from encumbered property]? They are of opinion that [the omission of the clause] mortgaging [the debtor's property] is due to an error of the scribe.⁷

Said Raba b. Ithi to R. Idi b. Abin: And has Samuel really said thus? Has not Samuel said: '[As regards] improvement [of the field], [the claim to] the best property, and mortgaging [the debtor's property] it is necessary for the scribe to consult [the seller of the field]'?⁸  Shall we say that he who stated the one view [of Samuel] did not state the other?⁹  — There is no contradiction [between the two views]. The first view [was stated] in connection with a note of indebtedness, [in which case it is assumed] that no man will advance money without adequate security.¹⁰  The second view [was stated] in connection with buying and selling, [in which case it is assumed] that a man may buy land for a day,¹¹  as, for instance, Abbuha b. Ihi did, who bought a garret from his sister [and] a creditor came and took it away from him. He appeared before Mar Samuel [who] said to him: 'Did she write you a guarantee?' He answered, 'No.' [Whereupon Samuel] said to him: 'If so, go in peace.'¹²  So he said to him: 'Is it not you, Sir, who said that [the omission of a clause] mortgaging [the debtor's property] is due to an error of the scribe?'¹³  He [Samuel] answered him: 'This applies only to notes of indebtedness, but it does not apply to documents [drawn up in connection with] buying and selling, for a man may buy land for a day.'

Abaye said:¹⁴  If Reuben sold a field to Simeon with a guarantee,¹⁵  and Reuben's creditor came and took it away from him, the law is that Reuben may go and sue him [the creditor],¹⁶  and he [the creditor] cannot say to him [Reuben]: 'I have nothing to do with you,'¹⁷  for he [Reuben] may say to him [the creditor]: 'What you take away from him [Simeon] comes back on me.'¹⁸  Some say that even [if the field has been sold] without a guarantee the law is the same, for he [Reuben] may say to him [the creditor]: 'I do not wish Simeon to have a grudge against me.'¹⁹

Abaye also said: If Reuben sold a field to Simeon without a guarantee, and claimants appeared [contesting Reuben's title to sell the land], he [Simeon]

1. The reason why R. Eleazar finds himself in disagreement with the Baraitha in the two points mentioned is that he interprets the Mishnah as referring to a case where the debtor does not admit the debt, and it therefore follows that the document, on the view of R. Meir, does not entitle the lender to exact payment even from unencumbered property, and when in consequence thereof R. Eleazar has to add, 'But when the debtor admits (the debt) all agree that (the document) should be returned,' he explains that 'we are not afraid that the debt may have been already paid and a fraudulent agreement reached,' etc. The two conclusions therefore result from the same premise.
2. Cf. infra 16b.
3. Which renders the debtor's property liable to legal seizure by the creditor irrespective of the date of the actual loan.
4. Even when the debtor does not admit the debt, for it is assumed that if the debt had been paid the document would have been torn up.
5. [V. D.S. a.l., printed editions read 'here'.]
6. But according to R. Eleazar even a deed of transfer would not have to be returned if the debtor does not admit the debt, and the reason why R. Meir says that a document containing no mortgage clause should be returned is that it is of no use to the creditor, as he cannot enforce payment with such a document, and he may just have the paper for what it is worth.
7. All notes of indebtedness must be assumed to contain the mortgage clause, as no one will lend money without adequate security, and if a note is produced which contains no mortgage clause it can only be due to an error on the part of the scribe who, in writing the note, failed to carry out the instructions given to him by the creditor. Cf. infra 15b; Keth. 104b; B.B. 169b.
8. The scribe must ask whether, in drawing up a deed of sale of land, he is to insert clauses dealing with the guarantees given to the buyer in case the land is seized by the seller's creditors, and making clear the buyer's claims to compensation for improvements made by him in the land; to the best portions of the seller's land (as indemnity to the buyer); and to the seller's property generally as security against loss through seizure by the seller's creditors. For all this the seller's consent is required, which would show that the omission of the mortgage clause in a document is not merely 'a scribe's error'.
9. I.e., that there is a conflict of opinions between Amoraim as to what Samuel's view really was.
10. In the case of a loan, where the lender derives no benefit from the transaction, one must assume that the lender will take no risks and will insist on adequate security. In such a case the omission of the mortgage clause could only be due to a mistake on the part of the scribe.
11. The buyer will take risks, for even if the land is ultimately seized by the seller's creditors, he (the buyer) will in the meantime have profited by the produce of the land.
12. I.e., you have no case, as you have not secured yourself by asking for a guarantee to be inserted in the deed of sale.
13. I.e., that even if the guarantee is not inserted in the deed, the Court assumes that the omission is only a scribe's error, and that the guarantee must have been given.
14. Cf. B.K. 8b; Keth. 92b; and Tosaf. a.l.
15. Against seizure by the seller's creditors.
16. Reuben may put up a counter-claim against the creditor, and thus prevent him from taking away the land bought by Simeon.
17. The creditor cannot plead that Reuben's counter-claim does not affect his right to seize the land bought by Simeon, and that Simeon's claim should be dealt with by the Court as a separate action.
18. I.e., I shall have to refund him the purchase money. I am thus directly concerned in your action against Simeon, and I have a right to stop you from seizing his land in virtue of my counter-claim.
19. Although legally Simeon has no redress, as I did not offer him any guarantee against loss through the actions of my creditors, I do not wish him to feel that I have let him down by selling him property which was liable to be seized by my creditors.

may retract as long as he has not taken possession of it,¹  but if he has taken possession of it he cannot retract,²  for he [Reuben] may say to him [Simeon]: 'You bought a bag sealed with knots, and you got it.'³  When is he deemed to have 'taken possession'? When he has set his foot upon the landmarks.⁴  But some say that even [when the field is sold] with a guarantee [the buyer may not retract]⁵  for he [the seller] may say to him [the buyer]: 'Show me your document [legalising the seizure of the field and entitling you to demand your money back] and I shall pay you.'⁶

It was stated: If one sells a field to his neighbour and it turns out not to be his own,⁷  — Rab says: He [the buyer] is entitled to [the return of the money [which he paid for the field] and to [compensation from the seller for the] improvement [which he made in the field].⁸  But Samuel says: He is entitled to the money [he paid] but not to [compensation for the] improvement.

R. Huna was asked: If he [the seller] expressly stated [that he would compensate the buyer for the] improvement [if the field were taken away], what is the law then? Is Samuel's reason [for withholding compensation] that [the seller] did not expressly state [that he would compensate the buyer for the] improvement? [Then it would not apply to this case, for] here [the seller] did state expressly [that he would compensate the buyer]. Or is Samuel's reason that, in view of the fact that he [the seller] really had no land [to sell, the money received by the buyer as compensation for the improvement] would appear like usury?⁹  R. Huna answered: Yes and No, for he was hesitant.¹⁰

It was taught: R. Nahman said in the name of Samuel: He [the buyer] is entitled to [have returned to him] the money [paid for the field], but not to [compensation for] improvement, even if he [the seller] stated expressly that [he would compensate the buyer for the] improvement, the reason being that, in view of the fact that he [the seller] really had no land to sell, he [the buyer] would be taking profit for his money.⁹  Raba then asked R. Nahman [from the following Mishnah]: We may not collect from encumbered property for the purposes of usufruct, the improvement of land, the alimentation of wife and daughters, out of consideration for the public good.¹¹  [This would show that] it is only from encumbered property that we do not collect, but we do collect from unencumbered property, and it is stated [that this law applies] to the improvement of land. Now may it not be assumed that it refers to [land] bought from one who acquired it wrongfully?¹²  — No, [it refers to land seized by] a creditor.¹³  But note the first part: 'We may not collect [etc.] for the purpose of usufruct.' Now if it refers [to land seized by] a creditor, is the creditor entitled to the produce [of the land]? Has not Samuel said: 'A creditor collects [his debt from] an improved field,'¹⁴  and does it not mean that [he] only [collects it from] an improved field but not from the produce [of the field]? It is therefore obvious that it refers to one who acquired [a field] wrongfully and to the one who has been deprived of it,¹⁵  and seeing that the first part deals with one who acquired a field wrongfully and one who has been deprived of it, the second part [surely] also deals with such a case!¹⁶  — How does it follow? This [first part] deals with one case,¹⁷  and this [second part] deals with another case.¹⁸  But are we not taught differently [in a Baraitha relating to the above Mishnah]: How [does it happen that payment is exacted for] improvement of the land? If one has taken away a field by violence from a neighbour, and he has had to give it up again [in consequence of legal action], then the one that is entitled to compensation may collect the original value [of the field] from encumbered property, and the value of the improvement [may be collected] from unencumbered property.¹⁹  Now, how is this to be understood? If we say that [it is to be understood] as stated,²⁰  what right has the person who acquired the field wrongfully to claim compensation from anybody? It must therefore be [understood as referring to a case] where a person wrongfully took away a field from a neighbour and sold it to another person, and [this other person] has improved it!²¹  — [R. Nahman] answered him: Had you not to remove the difficulty [in the Baraitha] by explaining [that it refers to an unlawfully acquired field]? You may as well remove the difficulty [by saying that it refers to a field seized] by a creditor [after it has been improved by the buyer].

Come and hear: How [does it happen that payment is exacted as compensation for] the use of the produce [of the field]? If one has wrongfully taken away a field from a neighbour, and he has had to give it up again [in consequence of legal action], then the one that is entitled to compensation may collect the capital [value of the field itself] from encumbered property, and the value of the produce [may be collected] from unencumbered property. Now, how is this to be understood? If we say that it is to be understood as stated,²²  what right has the person who has acquired [the field] wrongfully to claim compensation from anybody? It must therefore be [understood as referring to a case] where one wrongfully took away a field from a neighbour and sold it to another person, and [this other person] has enhanced its value [by producing fruit]!²³  — Raba answered: We deal here with a case where one wrongfully took away from a neighbour a field full of fruit and ate the fruit, and then dug in it pits, ditches and hollows. When the robbed [neighbour] comes to demand the capital [value of the field itself] he may exact payment from encumbered property, but when he comes to demand [the value of] the fruit he may exact payment from unencumbered property [only]. Rabbah son of R. Huna said: [It refers to a case] where

1. And has not paid the purchase price. (Rashi.)
2. Even if he has not paid yet, for the buyer acquires the land legally when he takes possession of it, and the purchase price, if not paid, becomes a debt due to the seller (Rashi).
3. You agreed to buy the field without examining my title, and you have to stand the consequences.
4. [To level them round (Rashi).]
5. Although in the end the seller must make good the buyer's loss, the buyer has no right to withdraw from the transaction on the plea that in the end his money will have to be refunded.
6. I need not refund your money until the Court has given its decision regarding the legality of the seizure and your title to have the money refunded.
7. The seller had acquired the field wrongfully and had no title to the property. The rightful owner then comes and seizes the field from the buyer.
8. If during his tenure of the field the buyer improved it by manure or by erecting a fence round it, he may claim compensation from the seller. The obvious question why the original (rightful) owner, who regains possession of his field, is not made to pay for the improvement, may be answered by referring to a case where the seller allowed the field to deteriorate after taking it away from the rightful owner, and the buyer only restored it to its original condition so that the original owner derives no actual benefit from the change (Rashi).
9. As the seller had no right to the field the transaction was entirely invalid, and there was no sale. The money handed over to the seller could therefore only be regarded as a loan, and when the seller returns to the buyer a larger sum than the purchase-price paid him, it appears like interest on the money.
10. Lit., 'it was lax in his hand.' Similar expressions occur in Shab. 113; 115a; Kid. 65a.
11. Cf. Git. 48b. The reason why one may not hold encumbered property liable for such purposes is that it would prevent people from buying land, as such obligations are so common that they would arise in nearly every case. [This is apart from the fact that the amount involved is not fixed; v. n. 1.]
12. And has improved it before the original owner seized it again. The buyer may then collect the purchase price from the seller's encumbered property even if this property has been sold after the purchase of that field, for as long as the deed of sale contains a guarantee clause the claim involved has priority. The compensation for the improvement, however, can only be collected from unencumbered property — 'out of consideration for the public good' — as at the time when the deed of sale was written, and the guarantee clause inserted, no one knew what the compensation for improvements would amount to, and it is not in the interests of the public to allow such claims. In any case, this shows that the buyer is entitled to compensation from the seller, who had no title to the land, for the amount he spent on improvements.
13. The seller was entitled to sell, but the seller's creditors were entitled to seize the property, in which case the buyer is certainly entitled to the return of the money he spent on improvements, and if he receives a larger amount than the price he paid for the field it does not appear like interest on a loan, as the original sale was valid, and the return of the field is a new transaction.
14. Cf. B.K. 95b.
15. The produce of the field or the improvement therein may be claimed by the original owner who was robbed of his property, no matter whether the produce was there when the field was first taken away, or not. The owner can always claim the land with all its improvements, except that the buyer may demand back his outlay which brought about the improved condition of the field, provided that the sum demanded by the buyer does not exceed the amount by which the value of the field was increased as a result of the improvements.
16. Cf. p. 82, n. 4.
17. Lit., 'as it is'.
18. I.e., the first part deals with a person who has been robbed of his field, and the second part deals with a creditor who has seized the field from the buyer.
19. V. infra 72b; B.B. 157b.
20. Viz., that the person who acquired the field unlawfully has not sold it, and it is he who is made to give it up, not a buyer.
21. The Court compels the buyer to return the field to the rightful owner, who is also entitled to demand from the seller the value of the improvement. From this we would infer that the buyer collects the value of the improvement from the seller who had no title to the field — a contradiction to the view of R. Nahman.
22. Viz., that the person who robbed the field did not sell it, and it is this person who is compelled by the Court to return it to the owner.
23. The original (rightful) owner is not expected to pay for the produce of the field, with the exception of the buyer's outlay in looking after the field, as he is entitled to the produce of his own land. The buyer is therefore entitled to compensation from the person who sold him the field unlawfully, and from him the buyer can claim the value of the field as well as the value of the produce, which he may collect from unencumbered property — again a contradiction to the view of R. Nahman.