Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 47a

but [the vendor] nevertheless has a claim of fraud against him.¹  'He acquires a title thereto,' — even though he did not take possession thereof [sc. of the article]: since he [the other party] was not particular [as to the exact amount of money], he [the former] acquires it, for it partakes of the nature of barter. 'Nevertheless, he has a claim of fraud against him,' — because he had said to him, 'Sell it me for these coins.'²  R. Abba said in R. Hunas name: [If A said to B.] 'Sell [it] me for these coins,' he acquires a title thereto, and he [the vendor] has no claim of fraud against him.³

Now, it is certain [if money or an article is delivered as] payment, but he [the recipient] is not particular [that the value shall correspond] — then we have just said that he [the giver] acquires title, for it partakes of the nature of barter. But what if it⁴  is delivered as barter, and he [the recipient] is particular?⁵ — Said R. Adda b. Ahaba: Come and hear: If one was standing with his cow [in a market], and his neighbour came and asked him, 'Why [have you brought] your cow [hither]?' — 'I need an ass,'[he replied]. 'I have an ass which I can give you [in return for your cow].' 'What is the value of your cow?' 'So much.' 'What is the value of your ass?' 'So much.'⁶  If the ass-owner drew the cow into his possession, but before the cow-owner had time to draw the ass into his possession it [the ass] died, he [the ass-owner] acquires no title thereto [the cow]. This proves that in the case of barter, where each is particular, no title is gained [unless both take possession]. Said Raba: Does then [the general law of] barter apply only to imbeciles, who are not particular? But indeed in all cases of barter they are certainly particular; nevertheless, title is acquired [when only one party takes possession].⁷  Here however it means that one said, '[I give you] my ass in return for a cow and a lamb,' and he drew the cow into his possession but not the lamb,⁸  in which case the meshikah was not completed.⁹

The Master said: '"Sell it me for these [coins]." He acquires title thereto, yet he [the vendor] has a claim of fraud against him.' Shall we say that in R. Huna's opinion coin may effect a barter? — No. R. Huna agrees with R. Johanan, who ruled: Biblically speaking, [the payment of] money effects a title. Why then was it said that only meshikah gives possession? As a precautionary measure, lest he say to him, 'Your wheat was burnt in the loft.' Now, the Rabbis enacted a preventive measure only for a usual occurrence, but not for an unusual occurrence.¹⁰

Mar Huna, the son of R. Nahman, said to R. Ashi: You have had it reported so.¹¹  But we had it reported thus: And R. Huna said likewise, Coin cannot effect a barter.¹²

Wherewith is a title effected?¹³ — Rab said: With the utensil of the receiver; for the receiver wishes the bestower to take possession,¹⁴  so that he [the latter] in his turn may determine to give him possession. Whilst Levi said: With the utensil of the bestower, as will be explained anon. R. Huna of Diskarta¹⁵  said to Raba: Now, according to Levi, who maintained that it is with the utensil of the bestower, one will be able to acquire land in virtue of a garment, which is tantamount to secured property being acquired along with unsecured, whereas we learnt the reverse: Unsecured chattels may be acquired along with secured chattels!¹⁶ — Said he to him: Were Levi here, he would have smitten you¹⁷  with fiery lashes! Do you really think that the garment gives him possession? [Surely not! but] in consideration of the pleasure he [the bestower] experiences in that the receiver accepts it from him, he wholeheartedly transfers it to him.¹⁸

This¹⁹  is disputed by Tannaim: Now this was the manner in former times in Israel concerning redeeming and concerning changing, For to confirm all things; a man drew off his shoe, and gave it to his neighbour;²⁰  'redeeming' means selling, and thus it is written, It shall not be redeemed;²¹  'changing' refers to barter, and thus it is written, He shall not alter it, nor change it;²²  for to confirm all things; a man drew off his shoe, and gave it to his neighbour. Who gave whom? Boaz gave to the kinsman. R. Judah said: The kinsman gave to Boaz.²³

It has been taught: Acquisition may be made by means of a utensil, even if it is worth less than a perutah. Said R. Nahman: This applies only to a utensil, but not to produce.²⁴  R. Shesheth said: [It may be done] even with produce. What is R. Nahman's reason? — Scripture saith, 'his shoe': implying, only 'his shoe' [i.e., a utensil], but nothing else. What is R. Shesheth's reason? Scripture saith, for to confirm all things.²⁵  But according to R. Nahman too, is it not written, to confirm all things?-That means, to confirm all things the title to which is to be effected by means of a shoe.²⁶  And R. Shesheth too: is it not written, 'his shoe'?- R. Shesheth can answer you: [That is to teach,] just as his shoe is a clearly defined object, so must everything [used in this connection] be a clearly defined object, thus invalidating half a pomegranate or half a nut, which may not be [employed].²⁷

R. Shesheth, the son of R. Iddi, said: In accordance with whom do we write nowadays, 'with a utensil that is fit for acquiring possession therewith'?²⁸  'With a utensil' — that rejects the view of R. Shesheth, who maintains: A title may be effected by means of produce. 'That is valid' — this excludes Samuel's dictum, viz.: Possession can be obtained

1. If the money is less than the value of the article by a sixth, the vendor can claim the cancellation of the transaction (v. infra 49b).
2. 'Sell' would imply to the vendor that the coins approximated to the value of the object.
3. R. Abba holds that no particular significance attaches to the word 'sell' in such circumstances.
4. Any other object except money.
5. That the object given in symbolical delivery shall have a certain value. Is it still regarded as barter, and therefore the transaction is consummated by this symbolical delivery: or perhaps, since he insists that it shall have a certain value, it is the equivalent of money, and therefore does not effect a title?
6. And the values tallied.
7. Although it may be regarded as the equivalent of money.
8. When the ass died.
9. Lit., 'proper'.
10. V. p. 276. n. 4. the transaction under discussion is likewise most unusual.
11. As above. I.e., you are in doubt whether R. Huna holds that coin may effect a barter, but merely answered that his dictum does not compel us to assume that in his opinion it is so.
12. As a definite statement.
13. When A wishes to gain possession of an article belonging to B by means of a symbolical delivery of an object, Does A have to provide the article for effecting the title, the article he delivers being a symbolical exchange for that which he is to acquire; or B, the object he delivers being symbolical of that which he really intends giving?
14. The object of symbolical recovery.
15. [Deskarah, sixteen parasangs N.E. of Bagdad, Obermeyer, op. cit. p. 246.]
16. Unsecured chattels = movables; secured chattels = real estate. The point of R. Huna's observation is this. Since Levi maintains that Possession is effected by means of the bestower's utensil, it follows that if the object transferred is land, the receiver gains Possession thereof in virtue of having taken the bestower's utensil, i.e., the former becomes an appendix to the latter, as it were. But the Mishnah has taught the reverse, viz., when one acquires real estate, he may likewise effect a title to movables that go with it, but not vice versa.
17. Lit., 'he would have brought before you fiery lashes.' He would have threatened you with the ban for having imputed to him a wrong opinion (Rashi).
18. So that when the bestower gives his garment, it is regarded as though he were actually receiving something.
19. The controversy between Rab and Levi.
20. Ruth IV, 7.
21. Lev. XXVII, 33. The reference is to the redemption of a consecrated animal. Evidently, such redemption, if permitted, would be by means of money, i.e., buying the animal back (since substitution is separately dealt with, as the Talmud proceeds to shew); thus here too, by 'redeeming' selling for money is meant.
22. Ibid. 10.
23. Thus we see the same dispute here as between Rab and Levi.
24. I.e., produce cannot be employed as a symbol of acquisition.
25. Which he translates, for to confirm with all things — i.e., any article can confirm a transaction.
26. I.e., both purchase and barter are consummated by the symbolical delivery of a shoe.
27. Half a pomegranate has no distinctive individuality, which is the idea connoted here by 'clearly defined'.
28. In a document recording a transaction by means of halifin. This phrase is also used in a woman's marriage settlement (kethubah).

by means of maroka.¹  'For gaining possession' — this rejects Levi's view, that the utensils of the bestower [are required]:²  therefore it teaches us: to obtain possession, but not to confer possession.³  'Therewith' — R. Papa said: It is to exclude coins. R. Zebid — others state, R. Ashi — said: It is to exclude objects the benefit of which is forbidden.

Others state: 'Therewith' excludes coins.⁴  'That is fit'; R. Zebid — others state, R. Ashi — said: That excludes objects whose use is forbidden.⁵  But as for maroka, It Is unnecessary [to exclude that].⁶

UNCOINED METAL [ASIMON]⁷  ACQUIRES COINED. What IS ASIMON? — Said Rab: Coins that are presented as tokens⁸  at the baths.⁹  An objection is raised: The second tithe may not be redeemed by asimon, nor by coins that are presented as tokens at the baths; proving that ASIMON is not coins that are presented as tokens at the baths.¹⁰  And should you answer that it is a definition,¹¹  surely the Tanna does not teach thus; [for we learnt:] The second tithe may be redeemed by 'asimon', this is R. Dosa's view. The Sages maintain: It may not. Yet both agree that it may not be redeemed with coins that are presented as tokens at the baths.¹²  But, said R. Johanan. What is 'asimon'? A disk.¹³  Now, R. Johanan follows his views [expressed elsewhere]. For R. Johanan said: R. Dosa and R. Ishmael both taught the same thing. R. Dosa: the statement just quoted. And what is R. Ishmael's dictum? — That which has been taught: And thou shalt bind up the money in thine hand;¹⁴  this is to include everything that can be bound up in one's hand — that is R. Ishmael's view. R. Akiba said: It is to include everything which bears a figure.¹⁵

E. G., IF [A] DREW INTO HIS POSSESSION [B' s] PRODUCE, WITHOUT PAYING HIM THE MONEY, HE CANNOT RETRACT, etc. R. Johanan said: By Biblical law, [the delivery of] money effects possession. Why then was it said meshikah effects possession? Lest he [the vendor] say to him [the vendee]. 'Your wheat was burnt In the loft.'¹⁶  But after all, whoever causes¹⁷  the fire must make compensation! — But [for fear] lest a fire accidentally break out. Now, if the ownership is [still] vested in him [the vendor],¹⁸  he will wholeheartedly take pains¹⁹  to save it; if not, he will not do so.

Resh Lakish said: Meshikah is explicitly provided for by Biblical law. What is Resh Lakish's reason? — Scripture saith, And if thou sell aught unto thy neighbour, or acquire aught of thy neighbour's hand²⁰  — i.e., a thing 'acquired' [by passing it] from hand to hand.²¹  But R. Johanan maintains, 'of [thy neighbour's] hand' is to exclude real estate from the law of fraud.²²  And Resh Lakish?²³  — If so,²⁴  Scripture should have written, 'And if thou sell aught unto thy neighbour's hand, ye shall not defraud:' why state, 'or acquire aught'? This proves that its purpose is to teach the need of meshikah. And R. Johanan: how does he utilise 'or buy'? — He employs it. even as was taught: 'And if thou sell aught … ye shall not defraud:' from this I know the law²⁵  only if the purchaser was defrauded. Whence do I know it if the vendor was cheated? From the phrase. 'or acquire aught…ye shall not defraud.' And Resh Lakish?²⁶  — He learns both therefrom.²⁷

We learnt, R. SIMEON SAID: HE WHO HAS THE MONEY IN HIS HAND HAS THE ADVANTAGE. [This means,] only the vendor can retract, but not the purchaser.²⁸  Now, should you say that [by Biblical law the delivery of] money effects possession, it is well; therefore the vendor can retract, but not the vendee.²⁹  But if you say that [the delivery of] money does not effect a title [even by Biblical law], then the purchaser too should be able to retract!³⁰  — Resh Lakish can answer you: I [certainly] did not state [my view] on the basis of R. Simeon's opinion, but according to the Rabbis.

Now, as for Resh Lakish, it is well: for precisely therein do R. Simeon and the Rabbis differ.³¹  But according to R. Johanan, wherein do R. Simeon and the Rabbis differ? — In respect to R. Hisda's dictum, viz.: Just as they [sc. the Rabbis] enacted the law of meshikah in respect of the vendor, so did they institute it in respect to the vendee.³²  Thus, R. Simeon rejects this dictum of R. Hisda, whilst the Rabbis agree therewith.

We learnt: BUT THEY [SC. THE SAGES] SAID: HE WHO PUNISHED THE GENERATION OF THE FLOOD AND THE GENERATION OF THE DISPERSION, HE WILL TAKE VENGEANCE OF HIM WHO DOES NOT STAND BY HIS WORD. Now, if you say that the delivery of money effects a title, it is well: hence he is subject to the 'BUT etc.'. If, however, you maintain that money does not effect a title, why is he subject to 'BUT'?³³  — On account of his words.³⁴  But is one subject to 'BUT' on account of [mere] words? Has it not been taught:

1. This word is variously translated. Rashi and Asheri: a vessel made of baked ordure; Tosaf. and R. Han.: date-stones used for smoothing parchment, 'fit' implying a wider practicability than the strictly limited use of maroka.
2. In which case they would confer possession.
3. [ [H] the Pe'al, and not [H] the Af'el, causative.]
4. 'Therewith' implies limitation.
5. 'Fit', Heb. [H], generally connotes fit for use, and is a term frequently employed in connection with dietary laws.
6. Because It is too unsubstantial even to be thought fit for this purpose.
7. [G].
8. Heb. [H] Siman: perhaps this interpretation suggested itself to Rab on account of the similarity of the words.
9. Rashi: The bath attendant received checks or tokens from intending patrons, so as to know how many would frequent them and what preparations to make. [According to Krauss, T.A., I, 225, these were received by visitors who in turn presented them to the bath-attendant, the olearius, as token payment.] For this purpose cancelled or defaced coins were used.
10. M. Sh. I, 2.
11. I.e., 'coins that are presented etc.' is not a separate clause, but a definition of 'asimon'. Tosaf. observes that on this hypothesis 'or' (coins etc.) would have to be deleted.
12. 'Ed. III, 2.
13. [H] Jast: circular plate or ring used as weight and as uncoined money.
14. Deut. XIV, 25.
15. I.e., a stamped image; [H] is connected with [H], 'to form a figure'. By contrast then, R. Ishmael must refer to metal not bearing this figure: and R. Johanan equates that with R. Dosa's dictum. This then agrees with his interpretation of 'asimon' as an (uncoined) disk.
16. If the delivery of coin should transfer ownership to the vendee even whilst the purchase is in the vendor's possession, the latter will be remiss in attempting to save it, should a fire break out on his premises; therefore actual meshikah was instituted. On the other hand, if it were ruled that both meshikah and payment were necessary, if the purchaser took it into his possession without paying and a fire broke out on his premises, he would be remiss in saving it. Therefore the Rabbis enacted that the entire transfer of ownership depends on meshikah alone (Tosaf.). On meshikah, v. Glos.
17. Lit., 'throws'.
18. Lit., 'if you place it in his ownership.'
19. Lit., 'he will trouble himself.'
20. Lit. rend. of Lev. XXV, 14.
21. I.e., Scripture shows that the mode of acquisition is by taking the purchase from the vendor's hand, which is meshikah.
22. The verse ends, ye shall not defraud one another. As stated infra 49b, a certain percentage of fraud or overcharging annuls the sale; but the word 'hand' implies that the reference is to something that can pass from hand to hand, sc. movables, but not land.
23. Does he not admit this: and if he does, where is the reference to meshikah?
24. That the only purpose of the verse is that stated by R. Johanan.
25. That fraud annuls the purchase.
26. Seeing that the verse is required for this purpose, how can it teach meshikah?
27. 'Or acquirest' shows that the law of overreaching holds good when the vendor is the victim, and since 'hand' is written in conjunction with 'acquirest' rather than with 'sell', we learn that the acquisition is made by passing the purchase from hand to hand.
28. I.e., when the purchaser has paid the money, the vendor, who holds it, has the advantage of being able to retract, but not the vendee.
29. For, when the vendee delivers the money, ownership rests in him according to Biblical law, and it is only to safeguard his interests in case of accidental fire that the vendor is made to bear the risks until the delivery of the goods. Consequently, since the vendor is put at a disadvantage by the Rabbinical measure, in that he must bear the risks of fire or damage, it is equitable that he shall be compensated by being given the power to retract too. The vendee, on the other hand, is the gainer by the Rabbinical enactment of meshikah; therefore there is no need to increase his advantage still farther by permitting him to retract even if no accident befalls the goods. — This explanation follows R. Hananel; Rashi and R. Tam differ somewhat.
30. Since the sale has been consummated neither by Biblical nor by Rabbinic law.
31. R. Simeon maintaining that the delivery of money consummates the sale by Biblical law, and therefore the vendee cannot retract, whilst in the view of the Rabbis meshikah is a Scriptural requisite, and therefore both the vendor and the vendee can retract.
32. Probably on the score of equitableness. For, notwithstanding the reasoning stated on p. 283. n. II (q.v.), there would be a distinct feeling of unfairness if only one could retract and not the other, e.g. if the price rose or fell.
33. How is this action in retracting in any way reprehensible, seeing that the sale is not complete at all?
34. I.e., it is morally wrong to withdraw from an agreement even if it lacks legal force.