Babylonian Talmud: Tractate Baba Bathra

Folio 84a

he [the buyer] can say unto him: If you had not imposed upon me, you would have had no right to withdraw; can you have the right to withdraw now that you have imposed upon me? And the Tanna [of our Mishnah, who taught that 'if wheat was sold as] GOOD AND IT TURNED OUT TO BE BAD, THE BUYER MAY WITHDRAW,' but not [inferentially] the seller,¹  confirms [what has just been said].

R. Hisda further stated: [If] one has sold to another what was worth six for five and the price fell²  to three, the seller, since he has been imposed upon, may withdraw, but not [so] the buyer; because [the seller] can say unto him: If you had not imposed upon me you would have had no right to withdraw; can you have the right to withdraw now? And the Tanna [of our Mishnah, who taught that 'if wheat was sold as] BAD AND IT TURNED OUT TO BE GOOD, THE SELLER MAY WITHDRAW,' but not [inferentially] the buyer,³  confirms [this statement].

What does he⁴  come to teach us? [Surely] this [statement of his may be inferred from] our Mishnah! — If⁵  [it had to be inferred] from our Mishnah, it could have been said that [in the cases dealt with in the statement] of R. Hisda, both⁶  may perhaps withdraw; and [that the first clause of] our Mishnah comes to teach us that⁷  the buyer may withdraw;⁸  for [without this Mishnah] it might have been said that [he cannot], because it is written: 'It is bad, it is bad', saith the buyer.⁹

[IF ONE HAS SOLD WHEAT AS] DARK-COLOURED AND IT TURNED OUT TO BE WHITE, etc. R. Papa said: Since white is given [as the contrast of the other colour]¹⁰  it may be inferred that the sun is dark-red.¹¹  This can be proved [from the fact] that the sun is red at sunrise and at sunset. The reason why we do not see it [red] all day, is [because] our eyesight is not strong [enough].¹²  An objection was raised: And the appearance thereof be deeper than the skin,¹³  [that means], like the appearance of sunlight [which is] deeper than the shadow.¹⁴  Surely there¹⁵  [the appearance] was white,¹⁶  [how, then, could the sun be said to be red]?¹⁷  — Like the appearance of the sun [in one respect], and not like the appearance of the sun [in another respect]. Like the appearance of the sun, [in] that it is deeper than the shadow; and not like the appearance of the sun [in another respect], for there,¹⁸  it is white and here¹⁹  it is red. But according to our previous assumption,²⁰  is not the sun red at sunrise and at sunset?²¹  — [It is red] at sunrise, because it passes by the roses of the Garden of Eden;²²  at sunset, because it passes the gate of Gehenna.²³  Others reverse [the answer].²⁴

[IF LIQUID HAS BEEN SOLD AS] WINE, AND IT TURNED OUT TO BE VINEGAR … BOTH MAY WITHDRAW. Must it be said that our Mishnah is [in agreement with] Rabbi and not [with] the Rabbis?²⁵  For it has been taught:

1. Though the price may have risen.
2. A long time after the sale; cf. B.M. 51a.
3. Though the price has fallen.
4. R. Hisda.
5. The following three lines in the original are rather difficult, and different, hardly satisfactory, interpretations have been offered. Cf. Rashb., Tosaf., and R. Gersh., a.l.
6. The buyer and the seller; since there was overreaching of one party at the time of the sale, and, subsequently, of the other, when the prices respectively rose or fell.
7. When there is no overreaching, but a sale at the proper price.
8. Because he can say that he bargained for good, not bad wheat.
9. Prov. XX, 14. Since the buyer always cries 'bad, bad', he should not be entitled to withdraw even when wheat sold as good be found to be bad. Hence the necessity for the first clause of the Mishnah. Similarly, the second clause is required for the case where the seller is entitled to withdraw though, on the analogy of the seller, he always cries 'good, good'.
10. Wheat has only one of two colours, white or dark-red (cf. note on Mishnah).
11. Its Heb. equivalent [H] is assumed to be derived from the same root as [H] 'sun', hence sun-colour. Since [H] means 'white', and dark-red is the only other possible colour of the wheat, [H] must signify 'dark-red'. V. previous note.
12. The powerful light of the sun dims our eyes during the day. At sunrise and at sunset, when the light of the sun diminishes, its redness becomes visible.
13. Lev. XIII, 25, 30.
14. Sheb. 6b; Bek. 41a; Hul. 63a.
15. In the verse quoted.
16. The verse speaks of a 'white spot'.
17. Since the appearance of the spot which is white is compared to the sun, the sun also must be white.
18. The white spot spoken of in the Biblical verse.
19. I.e., the sun.
20. Assumed (by the objection to R. Papa's statement). that the sun was white.
21. How, then, can it be assumed to be white?
22. Eden is in the East (cf. Gen. II, 8). where the sun is seen in the morning.
23. Gehenna is, opposite Eden, in the West.
24. At sunrise, when the sun is in the East, it is red because of the reflection of the fire of Gehenna on the opposite side (West). At sunset, when the sun is in the West, the redness is the result of the reflection of the roses of the Garden of Eden thrown from the East.
25. The representatives of the anonymous opinion in the Baraitha that follows.

Wine and vinegar are the same¹  in kind. Rabbi says: [They are regarded as] two [different] kinds.²  — It may be said [to be in agreement] even [with] the Rabbis. They dispute with Rabbi only in the case of tithe and heave-offering [for they are of the same opinion as] R. Elai. For R. Elai said: Whence [is it inferred] that, if one separates a heave-offering from an inferior quality for the [redemption of] a superior quality, his offering is valid, for it is said: And ye shall bear no sin by reason of it, seeing that ye have set apart from it the best thereof,³  [but, it is to be inferred, if you do not set apart from the best, but of the worst, you shall bear sin]; if, [however, the inferior quality] does not become consecrated, why [should there be any] bearing of sin?⁴  Hence [it may be inferred] that if one separates a heave-offering from an inferior quality for [the redemption of] a superior quality, his offering is valid.⁵  As regards commercial transactions, however, all [are of the opinion that wine and vinegar are not of the same kind] because some one may like wine and not vinegar while another may like vinegar and not wine.⁶  nbsp;

MISHNAH. IF ONE HAS SOLD FRUIT TO ANOTHER⁷  [AND THE BUYER] HAS PULLED⁸  [THEM]. THOUGH THEY HAVE NOT [YET] BEEN MEASURED,⁹  OWNERSHIP IS ACQUIRED. [IF HOWEVER] THEY HAVE BEEN MEASURED¹⁰  BUT [THE BUYER] HAS NOT PULLED [THEM], OWNERSHIP IS NOT ACQUIRED. IF [THE BUYER] IS PRUDENT, HE HIRES THE PLACE WHERE THEY ARE KEPT.¹¹  IF ONE BUYS FLAX FROM ANOTHER, HE DOES NOT ACQUIRE OWNERSHIP UNTIL HE MOVES IT FROM PLACE TO PLACE. AND IF IT WAS ATTACHED TO THE GROUND AND HE PLUCKED [OF IT] ANY QUANTITY, HE ACQUIRES OWNERSHIP.

GEMARA. R. Assi said in the name of R. Johanan: [If the buyer] has measured [with the seller's instruments] and has put [them] in an alley, he acquires possession.¹²  R. Zera said to R. Assi: Is it not possible that my master¹³  has heard [this statement]¹⁴  only in [the case where the buyer] has measured into his [own] basket?¹⁵  He replied unto him: This young Rabbi seems to think that people do not correctly memorise what they hear. [If the buyer had] measured it into his [own] basket, would there have been any need to tell [that ownership is acquired]?¹⁶  Did he¹⁷  accept it from him¹⁸  or not? — Come and hear what R. Jannai said in the name of Rabbi: [In the case of] a courtyard in partnership, [the partners] may acquire possession [of objects they buy] from one another. Does not this [refer to the case where the objects bought lie] on the [bare] ground?¹⁹  — No; [this refers to the case when they were put] into his basket. This can also be supported by argument. For R. Jacob said in the name of R. Johanan: [If the buyer] measures and puts [them] in an alley. he does not acquire possession. Are not these²⁰  contradictory? But surely it must be concluded [that] one²¹  [case refers to one] who measures into his basket, the other²²  [case, to one] who measures upon the [bare] ground. This is conclusive.²³

Come and hear: [IF HOWEVER] THEY HAVE BEEN MEASURED BUT [THE BUYER] HAS NOT PULLED [THEM]. OWNERSHIP IS NOT ACQUIRED. Does not this refer to an alley!²⁴  — No; [this refers] to reshuth harabbim.²⁵  If so, explain the first clause, [IF HE] HAS PULLED [THEM] THOUGH THEY HAVE NOT [YET] BEEN MEASURED, OWNERSHIP IS ACQUIRED. Does 'pulling' acquire possession in a reshuth harabbim? — Surely both Abaye and Raba have stated:²⁶  Mesirah²⁷  confers legal ownership in reshuth harabbim²⁸  or in a yard which belongs to neither of them;²⁹  Meshikah³⁰  confers ownership in an alley³¹  or in a yard owned by both of them; and 'lifting'³²  confers ownership everywhere.³³  'Pulling' mentioned [in our Mishnah] also means from the reshuth harabbim to an alley. If so, explain the next clause of our Mishnah, IF [THE BUYER] IS PRUDENT, HE HIRES THE PLACE WHERE THEY ARE KEPT. [Now], if [the object is] in reshuth harabbim, from whom could he hire? — This is what [the Mishnah] means: And if [the object] is in the domain of the owner,³⁴  IF [THE BUYER] IS PRUDENT, HE HIRES THE PLACE WHERE THEY ARE KEPT.

Both Rab and Samuel have stated:

1. With reference to Terumah, which must not be separated from one species to redeem another.
2. Our Mishnah, since it allows both buyer and seller to withdraw, must obviously regard wine and vinegar as two different kinds, as Rabbi.
3. Num. XVIII, 32.
4. Surely no wrong has been done, since his action is null and void, and he has to give another heave-offering.
5. Infra 143a; B. M. 56a.
6. Hence, though wine and vinegar may be regarded as belonging to the same kind, the sale of one in lieu of the other is not valid, and both buyer and seller may, therefore, withdraw according to the opinion of all, including that of the Rabbis.
7. And the price was agreed upon.
8. V. p. 304, n. 8. By meshikah one acquires possession in an alley or in a courtyard which is the common property of both buyer and seller.
9. Measuring is not an essential of the sale. It merely determines the quantity sold. The sale, therefore, becomes effective though no measuring has yet taken place.
10. How and where, is explained in the Gemara.
11. In the case when the fruit is kept in the domain of the seller, the buyer hires the place where they are kept, and thus acquires ownership of the fruit. A person's domain acquires possession for him.
12. V. n. 1.
13. R. Assi.
14. That possession Is acquired in an alley.
15. So that the basket, his property, acquired for him possession of the fruit; but if the fruit were put on the bare ground of the alley. no possession would have been acquired.
16. The basket would have acquired possession for the buyer even if it had been in the seller's territory, how much more when it is in an alley.
17. R. Zera.
18. R. Assi.
19. And since objects are acquired in a partner's courtyard, they are also acquired in an alley which is regarded as the property of those who happen to be there. This being the report of R. Jannai, the master of R. Johanan, and being also in agreement with that which R. Assi stated in the name of R. Johanan, it must have been accepted by R. Zera.
20. The reports of R. Assi and R. Jannai, on the one hand, and that of R. Jacob on the other.
21. That of R. Assi and R. Jannai.
22. That of R. Jacob.
23. That R. Jannai's report refers to a case where they were put into his (the buyer's) basket, but otherwise he could not have acquired ownership; so that R. Zera could not have accepted R. Assi's report.
24. How, then, can R. Assi say that objects, if deposited in an alley, are acquired?
25. V. Glos.
26. Supra 76b.
27. V. Glos.
28. V. p. 307, n. 8.
29. V. p. 308, n. 1.
30. V. Glos.
31. V. p. 308, n. 3.
32. V. Glos.
33. Cf. Kid. 23b. How then, in view of the joint statement of Abaye and Raba, can it be said that by pulling in the reshuth harabbim one acquires ownership?
34. The seller.