BAVA BASRA 77 (7 Elul) - Dedicated in memory of Esther Miryam bas Harav Chaim Zev and her husband Harav Refael Yisrael ben Harav Moshe (Snow), whose Yahrzeits are 7 Elul and 8 Elul respectively. Sponsored by their son and daughter in law, Moshe and Rivka Snow.
1)
(a)
Ameimar rules 'Osiyos Niknos bi'Mesirah' (like Rebbi). What did Rav Ashi ask him about his ruling?
(b)
What did Rav Ashi comment when Ameimar replied that it was a tradition?
(c)
How does this affect the need for the seller to specifically state 'K'ni lach ve'Chol Shibudeih'?
1)
(a)
Ameimar rules 'Osiyos Niknos bi'Mesirah' (like Rebbi). Rav Ashi asked him - whether this was a traditional ruling or a S'vara.
(b)
When Ameimar replied that it was a tradition, Rav Ashi commented that it was a S'vara too, since it is illogical for words alone to acquire words (only an action).
(c)
In that case - it is not necessary for the seller to specifically state 'K'ni lach ve'Chol Shibudeih' (which only applies to a Kinyan Sh'tar).
2)
(a)
We query Rav Ashi from a series of rulings, beginning with Rabah bar Yitzchak Amar Rav's statement concerning 'two Sh'taros'. What does Rabah bar Yitzchak Amar Rav say about a case where someone asks two people to make a Kinyan on his field on behalf of a friend and to write him a Sh'tar? Is he permitted, once the Kinyan has been made ...
1.
... to retract from the sale?
2.
... to withdraw his instructions to write the Sh'tar?
(b)
What if he specifically stated 'Kisvu u'Tenu'?
(c)
And what will be the Din if he stipulated 'al-Menas she'Tichtevu Lo es ha'Sh'tar'?
(d)
How do we reconcile this with what we learned in Chezkas ha'Batim that when a Kinyan takes place in front of two witnesses, they have an automatic mandate to write a Sh'tar, since 'a Stam Kinyan stands to be transcribed'?
2)
(a)
We query Rav Ashi from a series of rulings, beginning with Rabah bar Yitzchak Amar Rav's statement concerning 'two Sh'taros'. In a case where someone asks two people to make a Kinyan on his field on behalf of a friend and to write him a Sh'tar, once the Kinyan has been made, Rabah bar Yitzchak Amar Rav ...
1.
... does not permit him to retract from the sale, but ...
2.
... permits him to withdraw his instructions to write the Sh'tar ...
(b)
... even if he specifically stated 'Kisvu u'Tenu'
(c)
If however, he stipulated 'al-Menas she'Tichtevu Lo es ha'Sh'tar' then - as long as he has not handed the purchaser the Sh'tar, he may retract even from the sale.
(d)
And what we learned in Chezkas ha'Batim that when a Kinyan takes place in front of two witnesses, they have an automatic mandate to write a Sh'tar, since a Stam Kinyan stands to be transcribed simply means that - we assume that to be the wish of the seller, but not if he specifically states to the contrary.
3)
(a)
Based on the Mishnah in Get Pashut, Rav Chiya bar Avin Amar Rav Huna adds a third case of 'Sh'tar' to the previous two. What does the Tana there say about writing a Sh'tar on behalf of the seller without first consulting the purchaser?
(b)
Why is this permitted?
(c)
Which third ruling does Rav Chiya bar Avin Amar Rav Huna now add to the two of Rabah bar Yitzchak Amar Rav?
(d)
On what basis does the purchaser now acquire the Sh'tar?
3)
(a)
Based on the Mishnah in Get Pashut - which permits writing a Sh'tar on behalf of the seller without first consulting the purchaser, Rav Chiya bar Avin Amar Rav Huna adds a third case of 'Sh'tar' to the previous two.
(b)
The reason that this is permitted is - because the only person who stands to lose by it is the seller himself.
(c)
The third ruling that Rav Chiya bar Avin Amar Rav Huna now add to the two of Rabah bar Yitzchak Amar Rav is that - the moment the purchaser acquires the field, he acquires the Sh'ytar wherever it is ...
(d)
... via the Kinyan on the Karka, which he acquires with Kesef, Sh'tar or Chazakah (as we learned in the Mishnah in Kidushin).
4)
(a)
How does this pose a Kashya on Ameimar and Rav Ashi?
(b)
How do we reconcile Ameimar and Rav Ashi with Rav?
(c)
How do we support this answer with the Din of a coin, which can be acquired together with Karka, via Kinyan Agav?
4)
(a)
This poses a Kashya on Ameimar and Rav Ashi - who hold 'Osiyos Niknos bi'Mesirah' (and a Sh'tar alone is not sufficient); whereas Rav seems to hold that one acquires a Sh'tar even with words alone (by mere agreement of the sale), even without Mesirah, how much more so with a Sh'tar.
(b)
We answer this by stressing that Kinyan Agav is a powerful Kinyan (and does not fall under the category of 'Mili' [mere words]).
(c)
And we support this answer with the Din of a coin, which can be acquired together with Karka via Kinyan Agav - despite the fact that it cannot be acquired by means of Chalipin.
5)
(a)
The Din of acquiring a coin we know from a case of Rav Papa, who sent Shmuel bar Acha to collect his debt from bei Chuza'ah, whom he had lent twelve thousand Zuz. He was Makneh the money to him in the form of a Harsha'ah. What is a Harsha'ah?
(b)
Why was this necessary?
(c)
How was he Makneh it to him?
(d)
What did Rav Papa do when Rav Shmuel bar Acha returned safely with the money?
5)
(a)
And the Din of acquiring a coin we know from a case of Rav Papa, who sent Shmuel bar Acha to collect his debt from bei Chuza'ah, whom he had lent twelve thousand Zuz. He was Makneh the money to him in the form of a Harsha'ah - power of attorney.
(b)
This was necessary - because it rendered Shmuel bar Acha liable for any Oneis that may occur on the return journey; otherwise, the b'nei Chuza'ah would have refused to hand him the money, seeing as they would then have had to carry the liability for any such Oneis.
(c)
He effected this Kinyan by being Makneh it to him together with the threshold of his house (Metaltelin Agav Karka), which Rav Shmuel acquired with a Kinyan Chalipin (Rashi, Bava Metzia).
(d)
When Rav Shmuel bar Acha returned safely with the money - Rav Papa was so pleased that he went out as far as Tavach to greet him.
77b----------------------------------------77b
6)
(a)
Our Mishnah rules that if someone sells a cart, the mules are not automatically included in the sale. How about the reverse case (where he sells the mules)?
(b)
What does the Tana say about someone who sells the yoke as well as the wagon and the vessels that go with it as regards having sold the oxen that usually draw it, and vice-versa?
(c)
How does Rebbi Yehudah qualify the above ruling?
(d)
One reason that the Chachamim do not go after the price at all is because sometimes a person does not mind paying a little extra in the form of a gift. What is the other reason?
6)
(a)
Our Mishnah rules that if someone sells a cart, the mules are not automatically included in the sale - and the same will apply in the reverse case (where he sells the mules).
(b)
The Tana also states that if someone sells the yoke as well as the wagon and the vessels that go with it - he has not sold the oxen that usually draw it, and vice-versa.
(c)
Rebbi Yehudah qualifies the above ruling - by confining it to where the sale tallies with the price.
(d)
The Chachamim do not go after the price at all either because sometimes a person does not mind paying a little extra in the form of a gift, or because - even if the excess was indeed paid in error and must be returned, it does not negate the sale (as we will see in the Sugya).
7)
(a)
What is the problem with the Beraisa that Rav Tachlifa bar Ma'arva cited in front of Rebbi Avahu, 'Machar es ha'Karon, Machar es ha'Perados'?
(b)
On what grounds did Rebbi Avahu nevertheless instruct him to leave the Beraisa intact (and not to erase it)? How did he differentiate between our Mishnah and the Beraisa?
7)
(a)
The problem with the Beraisa that Rav Tachlifa bar Ma'arva cited in front of Rebbi Avahu, 'Machar es ha'Karon, Machar es ha'Perados' is that - it contradicts our Mishnah, which rules ' ... Lo Machar es ha'Perados'.
(b)
Rebbi Avahu nevertheless instructed him to leave the Beraisa intact (and not to erase it) - because he established our Mishnah where the oxen were not hitched to the wagon; whereas the Beraisa speaks where they were.
8)
(a)
Why can the Machlokes between the Tana Kama and Rebbi Yehudah in our Mishnah 'Machar es ha'Tzemed Lo Machar es ha'Bakar', not be speaking where ...
1.
... everyone calls a Tzemed a Tzemed and an ox an ox?
2.
... everyone sometimes refers to an ox as 'Tzemed'?
(b)
Then in which case do Rebbi Yehudah and the Tana Kama argue?
(c)
What is the basis of their Machlokes?
(d)
Why do the Rabbanan decline to use the price as an indicator?
8)
(a)
The Machlokes between the Tana Kama and Rebbi Yehudah in our Mishnah 'Machar es ha'Tzemed Lo Machar es ha'Bakar', cannot be speaking where ...
1.
... everyone calls a Tzemed a 'Tzemed' and an ox an ox, because then how could Rebbi Yehudah go after the price of the Tzemed (since it is clear that he only sold him the Tzemed [irrespective of the price]).
2.
... everyone sometimes refers to an ox as 'Tzemed' because then how could the Rabanan not use the aspect of price as a decisive factor to determine that the owner must have sold the oxen too.
(b)
Rebbi Yehudah and the Tana Kama must therefore be arguing in a case - where some people sometimes refer to an ox as 'Tzemed' (though most people don't).
(c)
The basis of their Machlokes is - whether the excessive price indicates that the seller must be from those who sometimes refer to an ox as Tzemed (Rebbi Yehudah) or not (the Rabanan).
(d)
The Rabbanan decline to use the price as an indicator - because they hold 'Yad Loke'ach al ha'Tachtonah' (the onus lies on the purchaser [who is trying to extract from the seller] to prove that the latter is from those who refer to an ox as 'Tzemed').
9)
(a)
What will be the Din in a case where the seller charges the purchaser more than a sixth above the regular price?
(b)
What is then the problem with our Mishnah?
(c)
What do we mean when we suggest that perhaps the Rabbanan do not hold of Bitul Mekach? Does this mean that they do not hold of Ona'ah?
9)
(a)
In a case where the seller charges the purchaser more than a sixth above the regular price - the entire transaction is Bateil ...
(b)
... in which case the problem with our Mishnah is - according to the Chachamim, who say 'Ein ha'Damim Re'ayah', which suggests that the sale is fully valid even if the seller charged the purchaser the price of an ox over and above that of a Tzemed alone (which is certainly more than a sixth above the regular price), so why is the sale valid? Why is the sale not Bateil?
(c)
When we suggest that perhaps the Rabbanan do not hold of Bitul Mekach - it incorporates Ona'ah (which they will not hold of either).
10)
(a)
Rebbi Yehudah, in a Mishnah in ha'Zahav, holds that there is no Ona'ah on a Seifer-Torah, an animal or a jewel. Why not?
(b)
What did the Rabbanan say to him, citing Avadim, Sh'taros and Karka'os?
(c)
The Rabbanan do it seems, hold at least of Ona'ah (if not of Bitul Mekach [a Kashya on what we just learned in our Mishnah]). So how must we establish the Rabbanan in our Mishnah? What does 'Ein ha'Damim Re'ayah' mean?
(d)
Why might we even take the words of the Rabbanan in our Mishnah literally, and the money remains where it is?
10)
(a)
In a Mishnah in ha'Zahav, Rebbi Yehudah holds that there is no Ona'ah on a Sefer-Torah, an animal or a jewel - because people tend to sell these things for way above their normal price.
(b)
The Rabbanan said to him that it is only Avadim, Sh'taros and Karka'os that are not subject to Ona'ah (but that the above items are).
(c)
It seems that the Rabbanan do at least hold of Ona'ah (if not of Bitul Mekach [a Kashya on what we just learned in our Mishnah]). So we establish 'Ein ha'Damim Re'ayah' to mean that - on the one hand, the price is not sufficient proof that the seller has included the oxen in the sale, and on the other, he must return the excess money to the purchaser.
(d)
Alternatively, we might even take the words of the Rabbanan in our Mishnah literally, and the money remains where it is - because Ona'ah and Bitul Mekach only apply to small discrepancies in price, but not to huge price hikes (such as here), where the purchaser must know that the amount he is being charged is way above the going price, in which case, he obviously gave the excess amount as a gift.
11)
(a)
In actual fact, we asked initially 'L'havi Bitul Mekach'? and continued 've'Chi Teima Bitul Mekach le'Rabbanan Leis l'hu'. Why is it impossible to explain this literally? Why must the Sugya really be referring to Ona'ah (as we explained) and not Bitul Mekach?
(b)
If we are concerned with Ona'ah, why do we use a Lashon of Bitul Mekach?
11)
(a)
In actual fact, we asked initially 'L'havi Bitul Mekach'? and continued 've'Chi Teima Bitul Mekach le'Rabanan Leis l'hu'. However, it is impossible to explain this literally. The Sugya can only be referring to Ona'ah (as we explained) and not Bitul Mekach - because the proof that we bring from the Rabbanan in ha'Zahav has nothing to do with Bitul Mekach, only with Ona'ah.
(b)
Although we are concerned with Ona'ah, we nevertheless use a Lashon of Bitul Mekach - because the original Kashya concerns paying for the oxen as well as for the Tzemed, an amount which is far more than a sixth, giving it the outward appearance of Bitul Mekach.
