MISHNAH. [IF ONE SAYS, I SELL YOU THIS1 BETH KOR] WITHIN ITS MARKS AND BOUNDARIES', THE SALE IS VALID [IF THE DIFFERENCE2 IS] LESS THAN A SIXTH;3 [IF IT AMOUNTS] TO A SIXTH, DEDUCTION4 MUST BE MADE.
GEMARA. It was stated: R. Huna said: [The law of] a sixth5 is6 like [that of] less than a sixth. Rab Judah said: [The law of] a sixth5 is6 like [that of] more than a sixth. According to R. Huna, [who] said [that the law of] a sixth is like [that of] less than a sixth, [the Tanna of our Mishnah] means to say thus: The sale is valid [in the case where the difference is] less than a sixth as well as [when it is exactly] a sixth.7 [If it is] more than a sixth deduction is to be made. According to Rab Judah, [who] said [that the law of] a sixth is like [that of] more than a sixth, the Tanna means to say thus: The sale is valid [when the difference is] less than a sixth. [If it is] more than a sixth as well as [when it is exactly] a sixth,4 deduction is to be made.8
An objection9 was raised: [It has been taught:] [If one states, 'I sell you a field] within its marks and boundaries', [and it was found to contain] a sixth less, or more, [the case] is like [that of] judicial appraisement [and] the sale is valid. Now, surely, [in the case of] judicial appraisement10 [the law of] a sixth [is the same] as [that of] more11 than a sixth!12 — R. Huna can reply to you.13 'And according to your argument [is there here no difficulty]? Surely it is stated, [the sale is valid]!'14 Hence, [this must be the explanation, the case is] like judicial appraisement [in one respect], and unlike judicial appraisement [in another]. [It is] like judicial appraisement [with respect] to the sixth,15 and [it is] unlike judicial appraisement, for there16 the purchase is cancelled, while here17 it is valid.
R. Papa bought a field from a certain person
Original footnotes renumbered.
- Pointing to a particular field.
- Between the actual area and that mentioned by the seller.
- Though the mention of beth kor is the same as the mention of 'more or less' (cf. supra 104a), in which case the sale is valid only when the difference is less than one twenty-fourth, or a quarter kab per se'ah, the pointing out of the field and the addition of the stipulation, 'within its marks and boundaries', modify the implication of beth kor, and a greater difference is, consequently, allowed before any deduction can be claimed. While the expression, 'within its marks and boundaries', implies the offer of a specified field whatever be its area, the expression beth kor, used with it, implies an area not too much different in size from that of a beth kor. Hence the law of our Mishnah which limits the allowed difference to a sixth.
- If less land was given, the difference in price is to be deducted. If more land was given, the surplus of land is to be returned.
- If the difference between the actual, and the specified area was exactly a sixth.
- The point of difference between R. Huna and Rab Judah lies in the interpretation of [H] in the phrase, [H] One considers [H] as exclusive, the other as inclusive.
- Lit., 'a sixth being inclusive'.
- [H] in our Mishnah, is taken by R. Huna to mean that 'the sale is valid (if the actual area is) less than (a beth kor by) a sixth', and from this it follows that the sale is certainly valid if the difference is less than a sixth; whereas Rab Judah interpreted our Mishnah as follows: 'The sale is valid (if the difference between the actual area and that of a beth kor is) less than a sixth'. Hence it follows that if the difference is a sixth, and certainly if it is more, deduction is to be made.
- To the view of R. Huna.
- When the court appraised orphans' property and an error of a sixth was made.
- Since the entire transaction is cancelled even if the error was exactly one sixth.
- Now … sixth, how, then, can R. Huna maintain that the law of a sixth is the same as that of less than a sixth?
- Rab Judah.
- And if it is to be compared in all respects, as you suggest, to the case of judicial appraisement, the transaction should be invalidated.
- Viz., that the standard of error is the sixth, and not the twenty-fourth (quarters of a kab per se'ah).
- Where an error has been made by the court.
- In the case of a sale of a field within marks and boundaries that have been pointed out.
Baba Bathra 106b
who stated1 that it contained an area of twenty griva,2 but it contained only fifteen. He3 came before Abaye who said unto him, '[Surely] you realized [its size] and accepted.' But did we not learn: THE SALE IS VALID [IF THE DIFFERENCE IS] LESS THAN A SIXTH; [IF IT AMOUNTS] TO A SIXTH, DEDUCTION4 MUST BE MADE? — This applies only where [the buyer] is not acquainted with the field, but where he is acquainted with it [it is assumed that] he understood [the conditions] and accepted. 'But,' [argued R. Papa.] 'he said to me, twenty!'5 — He replied: '[The seller might say that he meant] that the field was as good6 as [one of] twenty.
It was taught: R. Jose said: When brothers divide [an estate]7 all of them acquire8 possession [of their respective shares] as soon as the lot for one of them is drawn.9 On what ground [is possession acquired]? — R. Eleazar said: [Possession is acquired in the same way] as [at] the beginning of [the settlement of] the land of Israel. As [at that] beginning, [the acquisition was] by lot, so here [also it is] by lot. Since there, however, [the division was made] through the ballot box10 and the Urim and Tummim,11 [should not the division] here also [be made] through12 the ballot box and the Urim and Tummim? — R. Ashi replied: [The lot alone suffices here] because [in return for] the benefit of mutual agreement13 they determine to allow each other to acquire possession [by the lot14 alone].
It has been stated: [In the case when] two brothers divided [an estate between them] and a [third] brother arrived from a country beyond the sea, Rab said the division is cancelled,15 and Samuel said they relinquish16 [thirds from their respective shares for the third brother].
Raba said to R. Nahman: According to Rab, who said that the division is cancelled, it is clear that [we act on the principle that even a definite] decision may be revised; but if so, the division should be cancelled17 also in the case where [a partnership] of three was in existence and two of these divided18 the property!19 — What a comparison! There,20 they went [into the matter], from the very beginning, with the intention of [dividing the property between] three;21 but here,22 they did not enter '[into the matter], at first, with the intention of [dividing the estate between] three.23
R. Papa said to Abaye: According to Samuel, who said that they relinquish [thirds from their respective shares for the third brother], it appears that [where] a decision [has been arrived at, it] must be adhered to; but, surely, both Rab and Samuel have said:24 [If the seller said.] 'I sell you a kor for thirty', he may withdraw even at the last se'ah;25 [if, however, he said,] 'I sell you a kor for thirty. [each] se'ah for a sela' [the buyer] acquires26 possession of every se'ah as it is measured out for him.27 [This shows that even a decision arrived at,28 may be upset!]29
Original footnotes renumbered.
- And also pointed out the marks and boundaries of the field.
- A griva equals one se'ah.
- R. Papa.
- And here, the difference was more than a sixth, 5/20 = 1/4; why, then, was not R. Papa allowed to deduct the difference?
- Implying that if found to contain less, the difference would be made good from another field, or a deduction from the price would he allowed.
- I.e., the fifteen se'ah of that field will produce as much as twenty in an ordinary field.
- Into equal shares.
- And none may withdraw.
- If there are only two brothers, one acquires possession of one share as soon as the other brother has acquired by lot his share. If more than two brothers, they acquire possession collectively of the remaining shares when the lot has determined to whom the first share was to be allotted. The first brother then, stands out, and lots are cast between the others.
- V. infra 222a.
- Cf. Ex. XXVIII, 30, Lev. VIII, 8, Num. XXVII, 21. Cf. also I Sam. XXVIII, 6, Ezr. II, 63, Neh. VII, 65.
- How, then, are the shares acquired here, in the absence of the Urim and Tummim, by mere lot?
- Lit., 'because they listen to one another,' viz., to dissolve a partnership (Rashb.) [or to divide by lot (R. Gershom)].
- They are all so anxious to dissolve their partnership at the earliest possible moment, that they readily agree that through the lot alone every one of them shall acquire possession of his share.
- And a new division in three parts is to be made, lots being drawn again.
- I.e., the division is valid, but each of the two brothers 'gives up a third of his share in favour of the new arrival. Thus, each of the three brothers retains or receives two thirds of half the estate, which form a third of the whole.
- If the third party raises an objection.
- In three parts, in the presence of a lay court of three, without consulting the third partner. (Cf. B.M. 32b.)
- But, as a matter of fact, such a division cannot be cancelled, however much the third partner or brother may object. (Cf. B.M. 31b.)
- The case just cited.
- Hence there was a proper and equitable division which the third party cannot upset.
- In the case of the arrival of an absent brother from beyond the sea.
- They divided the estate into two parts only, ignoring altogether the just claims of the absent brother. Such a division, therefore, may be justifiably cancelled.
- V. supra 105a.
- V. supra p. 437. n. 23.
- loc. cit. n. 14.
- V. p. 438, n. 1.
- As in the first case of Rab's and Samuel's statement, where twenty-nine se'ah of the thirty in the kor had already been handed over to the buyer.
- Since all must be returned to the seller. If decisions are to be adhered to, why should the buyer be obliged to return that portion of the purchase which by mutual agreement had passed over into his possession?