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Babylonian Talmud: Tractate Baba Bathra

Folio 78a

And should you reply that the Rabbis do not accept [the law of the return of overcharge or that of] the cancellation of the purchase,1  surely.2  have we not learnt: R. Judah says: 'In the case of the sale of a scroll of the Law, a beast or a pearl, [the law of] overcharging does not apply.3  But they4  said unto him: Only [about] those [mentioned above]5  has [this]6  been said.'?7  — What is the meaning of [the statement that] the price is no proof? That the [entire] sale is to be cancelled.8  If you prefer, I would say: The Rabbis apply [the laws of] overcharging and cancellation of sale [only in cases] where one is likely9  to be deceived,10  but not when one is unlikely to be deceived,11  [for in the latter case] it may be assumed that [the difference] was given as a gift. nbsp;


GEMARA. 'Ulla said: The dispute [between the first Tanna and Nahum the Mede is only] about the sack, the saddle-bag,15  and pallet.16  For the first Tanna is of the opinion that an ass is, as a rule, used for riding,17  and Nahum the Mede is of the opinion that an' ass is, as a rule, used for carrying burdens;18  but [in the case of the] saddle, pack-saddle, cover19  and saddle-belt both agree20  that these are included in the sale.

An objection was raised: [It has been taught: If one says to another] 'I sell you the ass and its equipment', he has sold him the saddle, the pack.saddle. the cover and the saddle-belt, but he has not sold the sack, the saddle-bag and the pallet; if, however, he said unto him, '[I sell you] it [the ass] and all that is upon it', then all these are included in the sale. [From this follows that] the reason why [the buyer] acquires possession of the saddle and the pack. saddle is that [the seller] said '[I sell] it and its equipment', but if he had not said so, [the buyer would] not [have acquired these]?21  No! The law that the saddle and the pack-saddle are included in the sale is applicable even though [the seller] did not say unto him '[I sell you the] ass and its equipment'; but [by the inclusion of the statement]22  he teaches us that although [the seller] said unto him: '[I sell you] the ass and its equipment's he [the buyer] does not acquire the sack, the saddle-bag and the pallet.23

What is kumni?24  — R. Papa b. Samuel said: A [mattress] seat25  for travelling women.

The students inquired: Is the dispute [between the first Tanna and Nahum the Mede] in the case when [the sack and saddle-bag] are upon it,26  but when these are not upon it, Nahum the Mede agrees with the Rabbis,27  or is the dispute in the case when these are not upon it, but when they are upon it, the Rabbis agree with Nahum?28

Come and hear: [It is stated in the above Baraitha:] But when he said unto him, '[I sell you] it and all that is upon it', then all these are sold. Now, this would be correct if it were assumed that the dispute [related to the case] when they29  are upon it;30  [since] this [Baraitha] could be assigned to the Rabbis.31  If, however, it is assumed that the dispute [relates to the case] when they32  are not upon it,33  but that [in case] they are upon it both agree that they are [implicitly] included in the sale, to whom [could] this [Baraitha be assigned]?34  — It may still be said that the dispute relates to the case when they are not upon it, and the Baraitha may be assigned to the Rabbis, but read: If, however, he said unto him, 'it and all that ought35  to be on it'.

Come and hear: R. JUDAH SAYS: SOMETIMES IT IS SOLD, SOMETIMES IT IS NOT SOLD. Now, does not R. Judah presumably base his statement on what the first Tanna has said? [And since R. Judah specifically36  deals with the case when the equipment is upon the ass, the first Tanna must also be speaking of a similar case!]37  — No; R. Judah

To Part b

Original footnotes renumbered. See Structure of the Talmud Files
  1. I.e., if it is assumed that the Rabbis do not require the return of the overcharge when it is a sixth of the value, and the cancellation of the entire transaction when the overcharge is more.
  2. Lit., 'and not? surely'.
  3. I.e., the buyer can claim no redress for being overcharged.
  4. The Rabbis.
  5. Those mentioned in the first part of the Mishnah in B.M. 56a.
  6. I.e., the law of exemption from overcharging.
  7. B.M. 56b. But in all other cases, according to the Rabbis, either the overcharge must be returned or the entire transaction cancelled. Why then do the Rabbis say here that the price is no proof implying that the sale is valid and that no overcharge is to be returned?
  8. Where the overcharging was higher than a sixth of the price; where it was less, only the overcharge would have to be returned.
  9. When the overcharge is only small.
  10. Lit., 'when the mind might err'.
  11. As in our Mishnah, no one could be deceived into giving two hundred zuz for a yoke worth only a fraction of such a large sum.
  12. The Gemara explains the reason.
  13. As it is, i.e., with its equipment.
  14. In this case he offered to buy the ass only.
  15. [H] [G] doubled pouched bag.
  16. [H] perhaps from [G] pallet-bed. V. the Talmudic explanation, infra.
  17. I.e., by males; and since a sack, saddle-bag and pallet are not required by men-riders, these are not included in the sale of the ass.
  18. The sack, etc., which are required for an ass carrying burdens, are, therefore, also included in the sale.
  19. [H] coarse cloth made of Cilician goats' hair, worn on the animal's back.
  20. Lit., 'the words of all', i.e., the first Tanna and Nahum the Mede.
  21. How, then, can 'Ulla say that both the first Tanna and Nahum the Mede agree that these parts of the equipment are always implicitly included in the sale of the ass?
  22. '(I sell you) it and its equipment'.
  23. In accordance with the opinion of the first Tanna in our Mishnah.
  24. V. p. 313. n. 5,
  25. [H] usually chariot.
  26. I.e., upon the ass at the time of the sale.
  27. That these are not included in the sale.
  28. That these are included in the sale.
  29. I.e., the saddle and the saddle-bag.
  30. The ass.
  31. Who stated that unless 'it and all upon it' was expressly mentioned, the equipment is not included in the sale.
  32. V. n. 8.
  33. V. n. 9.
  34. Neither to the Rabbis nor to Nahum the Mede, since both have been assumed to agree that in the case when the saddle etc. were upon the ass they are implicitly included in the sale, while according to the Baraitha these are not included unless 'it and all upon it', had been explicitly stated at the time of the sale.
  35. The Baraitha accordingly relates to the case when the saddle etc. were not upon the ass.
  36. V. the last clause of the Mishnah.
  37. How then could it be said that the dispute in the Mishnah relates to the case when the equipment is not upon the ass?
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Baba Bathra 78b

speaks of a different case.1

Rabina said to R. Ashi: Come and hear! [We learnt:] He who sold a waggon has not sold the mules.2  And R. Tahlifa the Palestinian recited in the presence of R. Abbahu: He who sold the waggon has sold the mules; and [the master] said unto him: Surely we have learned that he has not sold! And he replied. Shall I cancel it? And [the master] said to him: No; your teaching may be interpreted [as dealing with the case] where [the mules] were harnessed to it. From this it must be inferred that the Mishnah [speaks of the case] where [the mules] are not harnessed [to the waggon]; and since the first part2  [is concerned with the case] when they are absent from it,3  the latter part4  also [must be dealing with the case] when they5  are absent from it!6  — On the contrary, consider the [very] first part [which reads]: But he does not sell the crew nor the Enteke;7  and it has been stated: What is the meaning of Enteke? R. Papa said: The merchandise which it contains.8  Now, since the first part [deals with the case] when it [the merchandise] is in it [the ship], the latter part9  also [must deal with a similar case, which is] when it [the equipment] is upon it [the ass]!10  But [the only way out of the difficulty is to conclude that] the Tanna dealt with different cases in the different parts of the Mishnah.11

(Mnemonic ZeGeM NeSeN.)12

Abaye said: R. Eliezer and R. Simeon b. Gamaliel and R. Meir and R. Nathan and Symmachus and Nahum the Mede are all of the opinion that when a man sells an object he sells it and all its accessories. [As to] R. Eliezer, we learnt: R. Eliezer says: He who sells the building of an olive-press has also sold the beam. [As to] R. Simeon b. Gamaliel, we learnt:13  R. Simeon b. Gamaliel says: He who sells a town has also sold the Santer.14  [As to] R. Meir, it has been taught: R. Meir says: He who sells a vineyard has sold the vineyard tools. [As to] R. Nathan and Symmachus, [the case of] the small boat and the fishing boat.15  Nahum the Mede, in the case just mentioned.16

R. JUDAH SAYS: SOMETIMES IT IS SOLD, etc. What is the difference between THIS ASS OF YOURS and IS THE ASS YOURS? — Raba said: [When the buyer used the expression,] THIS ASS OF YOURS, he was aware that the ass was his,17  and the reason, therefore, why he said unto him, 'THIS',18  [must have been] on account of its equipment. [But when he asked], 'IS THE ASS YOURS?' [he did so] because he was not aware that the ass was his, and this was [the implication of] his inquiry: 'is the ass yours? Sell it to me.'19


GEMARA. Of what case [does the first part of the Mishnah speak]? If [it is] that the [seller] said unto him, '[I sell you] it and its young', then even [in the case of the] cow and its young the same [law should apply].21  If, [however], he did not specify, 'it and its young', [then] even [in the case of the] ass also [the foal should] not [be included in the sale]? — R. Papa answered: [The Mishnah speaks of a case] where [the seller] said unto him, 'I sell you a milch-ass or a milch-cow'. [Consequently in the case of the] cow, it may properly be assumed [that the seller22  thought the buyer] would require the cow for the sake of its milk, but [in the case of an] ass, what could he have meant [by mentioning 'milch']?23  It must [therefore] be concluded that he [meant] to say, '[I sell you] it [the cow] and its calf'. Why is [the foal] called Sayyah?24  Because it follows gentle talk.25

R. Samuel b. Nahman said in the name of R. Johanan:26  What is the meaning of the verse: Wherefore hamoshelim [they that speak in parables] say, etc.?27  — Hamoshelim,28  [means] those who rule their evil inclinations. Come Heshbon,29  [means,] come, let us consider the account of the world; the loss incurred by the fulfilment of a precept against the reward secured by its observance, and the gain gotten by a transgression against the loss it involves.30  Thou shalt be built and thou shalt be established31  — if thou dost so, thou shalt be built in this world and thou shalt be established in the world to come. 'Ayyar Sihon:32  if a man makes himself like a young ass that follows the gentle talk [of sin]; what comes next?33  For a fire goes out Meheshbon34  etc.: A fire will go out from those who calculate [the account of the world]35  and consume those who do not calculate.36  And a flame from the city of Sihon:37  From the city of the righteous who are called trees.38  It has devoured 'Ar Mo'ab:39  This refers to one who follows his evil inclination like a young ass40  that follows gentle talk.41  The high places of Arnon,42  refers to the arrogant; for it has been said: Whosoever is arrogant falls into Gehenna.43  Wanniram44  — the wicked says: There is no High One;45  Heshbon is perished45  — the account of the world is perished.46  Unto Dibon — the Holy One, blessed be He, said: 'Wait until judgment cometh';47  and we have laid waste

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Original footnotes renumbered. See Structure of the Talmud Files
  1. While the dispute between the first Tanna and Nahum the Mede may still relate to the case when the ass does not wear its equipment and both of them may be in agreement in the case when the ass does wear it, R. Judah may yet differ from them and hold that the equipment. even if worn by the ass, is sometimes not included in the sale.
  2. V. Mishnah, supra 77b.
  3. I.e., the mules are not attached to the waggon.
  4. The Mishnah, supra 78a, dealing with the case of an ass and its equipment.
  5. The saddle and packsaddle.
  6. The ass; which solves the query of the students.
  7. The Mishnah, supra 731.
  8. Supra 77b.
  9. The Mishnah, supra 78a.
  10. But this assumption is in direct contradiction to the previous assumption; which is impossible!
  11. [H], 'words, words'.
  12. This mnemonic is an aid to the memorization of the names of the Rabbis mentioned in the following passage: Z =Eliezer, G = b. Gamaliel, M =Meir, N=Nathan, S =Symmachus, N = Nahum.
  13. Supra 67b.
  14. Supra p. 270.
  15. Supra 73a.
  16. In the Mishnah, supra 78a.
  17. The seller's.
  18. Heb. [H], implies the ass as it stands, viz., with all its equipment.
  19. Here, no emphasis was laid on 'this ass' (cf. previous note). The equipment therefore is excluded from the sale.
  20. Throughout this Mishnah 'also sold' means, 'sold implicitly at the same time'.
  21. I.e., that the calf should he sold implicitly together with the cow.
  22. Who mentioned 'milch'.
  23. Surely an ass is not required for milk.
  24. [H] is the term used in the Mishnah for 'foal'.
  25. From the root [H] = [H], talk; i.e., the gentle (lit.. the beautiful), the persuasive words of its driver. An older ass must be driven by force.
  26. [Some texts read, R. Samuel b. Nahmani in the name of R. Jonathan.]
  27. Num. XXI, 27.
  28. The Heb. root [H] means 'to speak in parables' and also 'to rule', 'to master'.
  29. Ibid. [H] is rendered reckoning' from [H].
  30. Cf. Aboth, II, 2.
  31. Ibid. [H] may be taken as second person singular masc. (as interpreted here) as well as third pers. sing. fem. (as E.V.).
  32. Ibid. [H] punctuated as in M.T. gives the meaning 'city of Sihon'. But it may also be punctuated [H] in accordance with the interpretation here given. [H] 'young ass'; [H] of the same root as [H] 'talk'.
  33. Lit., 'what is written after it'.
  34. Ibid. v. 28. Heb. [H] may mean 'from the city of Heshbon' (as E.V.). and may also be taken as coming from the root [H], 'to reckon', 'to consider', V. p. 317, n. 9.
  35. Viz., The righteous, v. supra.
  36. The wicked.
  37. Ibid.
  38. [H] is taken to mean trees, [H] The righteous are compared to trees. Cf. Ps. XCII, 13; Zech. I, 8, 10, 11. and Sanh. 93a.
  39. Ibid.
  40. [H] taken to have the same meaning as [H] 'young ass', 'foal'.
  41. Allows himself to be enticed by the attractions of sin.
  42. Ibid. Heb., [H] is rendered men of haughtiness.
  43. Supra 10b. A.Z. 18b.
  44. Ibid. v. 30. [H] E.V. 'we shot at them'. Here taken as an abbreviation of [H] 'no High One'.
  45. Ibid.
  46. There will be no day of judgment.
  47. Heb. [H] (E.V. Dibon) is taken as an abbreviation of [H].
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