Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 66a

They are merely words of good cheer¹  R. Ashi said to him: Why so? [Is it] because the buyer should have stipulated, whilst here the vendor did so, and therefore you maintain that they were merely words of good cheer? But [what of] the Baraitha wherein it is taught: [If the purchaser says,] 'When you have money, I will resell it to you,' that is permitted? Now, surely [there too] though the vendor should have made this stipulation,²  the vendor did not stipulate but the buyer; and yet when we asked,³  What is the difference between the first clause and the second, Raba answered: In the second clause he [the purchaser] stipulates that it [the resale] should be voluntary, thus implying that if he does not stipulate that it should be voluntary [the transaction would be forbidden], and we do not assume that [his offer] was merely words of good cheer!⁴  — He replied: What was said was that it is accounted as though he had stipulated that it [the re-sale] should be voluntary.⁵

A certain sick man⁶  wrote a get⁷  for his wife.⁸  He then groaned and sighed, whereupon she [his wife] said to him, 'Why do you sigh? should you recover, I am yours.' Said R. Zebid: These were mere words of consolation. R. Aha of Difti asked Rabina: And what if they were not mere words of consolation? Does it lie within her power to insert a condition in the get? Surely it rests only with him to give the get on a condition! — I might think, he himself meant to give the get in accordance with her desires.⁹  Hence he teaches otherwise.¹⁰

IF HE LENT MONEY ON A FIELD. R. Huna said: [If he stipulated thus] when lending the money, it becomes completely his;¹¹  if after, he acquires [of the field] only in proportion to the money owing. R. Nahman said: [Even if the stipulation was made] after lending the money, it becomes completely his. Now, R. Nahman gave a practical decision at the Resh Galutha's [court]¹²  in accordance with his ruling. Rab Judah [however] tore up the document [embodying his decision]. Said the Resh Galutha to him: Rab Judah has torn up your document. He replied: Did then a child tear it up? It was a great man who tore it up. He must have seen some reason therein [to invalidate it], and hence tore it up. Others say: He [R. Nahman] replied: A child has torn it up, for in civil law everyone is a child compared to me.

Subsequently R. Nahman ruled: Even [if the stipulation was made] when the money was being handed over, he [the creditor] acquires no rights therein at all. Raba objected to R. Nahman: IF YOU DO NOT REPAY ME WITHIN THREE YEARS, IT [THE FIELD] IS MINE,' — IT BECOMES HIS! — He replied: I used to rule that an asmakta¹³  is binding, but Minyomi ruled that it is not.¹⁴  But [then] according to Minyomi, is not our Mishnah difficult? — If you wish, I can answer that the Mishnah agrees with R. Jose, who ruled that an asmakta is legally valid;

1. I.e., to tranquillise the buyer, but not seriously meant, and therefore of no legal consequence.
2. The attachment to one's soil is very strong, and when a man sells his estate through financial exigencies, it may be assumed that he would like the option of repurchasing.
3. Supra.
4. But binding, though it is to the purchaser's disadvantage.
5. Since it is a stipulation which would come most naturally from the vendor, whereas it was actually made by the purchaser, its voluntary character is inherent. On this interpretation Raba's dictum supports Amemar.
6. [H], a man expecting to die.
7. v. Glos.
8. He was childless, and the divorce was to free her from the tie of his brother (v. Deut. XXV 5ff), but he did not stipulate that it should be valid only if he died.
9. Therefore the stipulation should be regarded as his, and so valid.
10. That her words were not meant to be binding at all.
11. If the loan is not repaid.
12. Resh Galutha, exilarch, was the official title of the head of Babylonian Jewry, whose son-in-law R. Nahman was.
13. V. Glos.
14. And he persuaded me to his ruling.

alternatively, it means that he said to him: 'Let it be yours from now.'¹

Mar Yanuka and Mar Kashisha, the sons of R. Hisda,²  said to R. Ashi: Thus did the Nehardeans say in R. Nahman's name: An asmakta, in its time, is binding; out of its time, it is not binding.³  Said he to them: Every agreement [not merely an asmakta] is binding only when it matures, but not otherwise! perhaps you mean thus: If he [the debtor] meets him [the creditor] within the period [of repayment] and says to him, 'Take possession,'⁴  he acquires it; if after the time [fixed for repayment] and he says to him, 'Take possession,' he does not acquire it. Why? He spoke thus [merely] through shame.⁵  Yet that is incorrect:⁶  even if within the period, he obtains no legal right, and as for his saying, 'Take possession,' he intends [thereby] that when the time comes he shall not trouble him.⁷

R. papa said: An asmakta is sometimes legally binding and sometimes not. If he [the creditor] found him [the debtor] drinking beer [at the expiration of the period], it is binding; if he was endeavouring to procure money, it is not binding.⁸  R. Aha of Difti said to Rabina: perhaps he was drinking to drown his anxiety, or else someone had assured him of the money? But, said Rabina, if he insists on its full value, it [his offer to the creditor to take the field] is certainly valid.⁹  Said R. Aha of Difti to Rabina: perhaps that is due to fear lest his land lose its worth?¹⁰  But, said R. Papa, if he is particular about his land, it [his offer to the creditor] is certainly binding.¹¹

R. Papa also said: Although the Rabbis ruled that an asmakta gives no legal title, yet it creates a mortgage from which payment may be exacted.¹²  Said R. Huna the son of Nathan to R. Papa: Did he then say to him, 'Let it be yours for the exaction of your debt'? Mar Zutra, the son of R. Mari, objected before Rabina: But even if he had said, 'Let it be yours for the exaction of your debt' — has he a legal title? After all, it is an asmakta, and an asmakta is not binding. But when did R. Papa rule that it creates a mortgage? — If he stipulated, 'You shall receive payment only out of this.'¹³

A man once sold land to his neighbour with security. Said he [the purchaser] to him, 'Should this be seized from me, will you repay me out of your "very best"?' — He replied, 'I will not repay you out of the "very best", as I want them for myself, but out of other "best" which I possess.'¹⁴  Subsequently it was seized from him. Then there came an inundation and swamped the very best [land]. R. Papa thought to rule: He promised him of 'the best', which is intact. Said R. Aha of Difti to him: But he [the vendor] can plead, 'When I promised to repay you from the "best", the "very best" was existent; but now the "best" has replaced the "very best".'¹⁵

Rab b. Shaba owed money to R. Kahana. 'If I do not repay you by a certain date', said he to him, 'you may exact your debt out of this wine.'¹⁶  Now, R. papa thought to argue, Where do we rule that an asmakta is not binding, only in respect of land, which is not for sale;¹⁷  but as for wine, since its purpose is to be sold, it is just the same as money. But R. Huna, the son of R. Joshua, said to R. Papa: Thus is it stated in Rabbah's name: No 'if' is binding.¹⁸

R. Nahman said: Now that the Rabbis have ruled, An asmakta gives no claim, both the land and its produce are returnable.¹⁹  Shall we say that R. Nahman holds that renunciation in error is invalid?²⁰  Surely it has been stated: If one sells his neighbour the fruit of a palm tree — R. Huna said: As long as it is non-existent [the fruit not having grown yet], he can retract;²¹  but when it is [already] come into existence, he cannot. R. Nahman said: Even when it has come into existence, he can retract. Yet R. Nahman said: I admit that if he [the purchaser] snatched and consumed it, he [the vendor] has no claim upon him!²²  — There it is a sale; here it is a loan.²³

Raba said:

1. In which case it is not an asmakta at all. For the money is given as the purchase price, not as a loan, save that the vendor has the option of repurchase.
2. Yanuka is derived from a root meaning youth, Kashisha, age. Accordingly, Rashi in Keth. 89b says that Mar Yanuka was the younger, and Mar Kashisha the older. Tosaf. in B.B. 7b, s.v. [H], reverses it: Mar Yanuka means a son born in R. Hisda's youth, Mar Kashisha, in his old age.
3. R. Ashi assumed this to mean: when the obligation matures, it is binding, and the creditor can foreclose; but not before.
4. I.e., I have no intention of redeeming it when the time comes.
5. At not having repaid the loan, yet was not in earnest; therefore it is an asmakta and non-binding.
6. Granted that this is your meaning, the ruling is incorrect.
7. By demanding repayment.
8. If repayment was due, and the debtor told him to take the field, at the same time engaging in frivolous pursuits, it is evident that he does not care about it and is in earnest. But if he was attempting to find the money, he was obviously anxious to retain his estate, and therefore his offer was not really meant and is not binding.
9. Rashi: if when selling some of his articles he insists on obtaining their full value, he is not anxious for the field, as otherwise he would sell for less and repay. Tosaf.: If, when he borrowed, he was mindful of borrowing to the full value of the field, he must have borne in mind the possibility of nonredemption, and therefore means the creditor to have it now.
10. If he were seen selling articles (on Rashi's interpretation) or mortgaging a field (Tosaf.) at less than their value, his financial straits would be known, with the result that his property would drop in price. Yet he really may wish to retain the field
11. Rashi: if he is particular not to sell any land, even for its full value, he is obviously not anxious to retain the mortgaged estate, as otherwise he would have sold off some other field. (Presumably this assumption is made because he could not have obtained on a mortgage the same money as by a sale in the open market) Tosaf.: If, when borrowing, he was insistent that the mortgage should be on that particular field, he evidently anticipated the possibility of non-redemption, and was reconciled to it.
12. I.e., though the creditor cannot seize the whole field, which is probably worth more than the debt, he can claim payment from that particular field, and refuse to be fobbed off with another.
13. Since he assigned the field for repayment in all circumstances, it is no longer asmakta as far as the amount of the debt is concerned.
14. 'Very best', [H], and 'best', [H], denote two grades of soil.
15. So that he must be indemnified out of medium quality soil.
16. And a valuation was made, but it subsequently appreciated.
17. V. p. 386, n. 6; therefore the offer to give land is not genuine.
18. A stipulation, '"if" I do not repay, take so and so,' is not binding.
19. The reference is to the case stated in the Mishnah on 65b. If the creditor after three years returns the field and enjoys the usufruct, he must return both. [Maim. Yad., Laweh. VI, 4, and Alfasi, include in the return also the usufruct enjoyed by the creditor during the three years.]
20. The debtor, in permitting the creditor to possess its usufruct, has obviously renounced his own rights; but erroneously, not knowing that the creditor's title is invalid, and R. Nahman rules that the produce is returnable.
21. Because one cannot give possession of that which is non-existent.
22. Though the vendor permitted him only because he was unaware that he could retract, hence in error; thus proving that an erroneous renunciation is valid.
23. And in a loan it looks like interest.