Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 51a

therefore they reverted. But if you say that the vendor is as the vendee, what difference did it make to them?¹  Just as the Rabbis²  ameliorated [the position of] the vendee, so did they likewise that of the vendor! — The merchants of Lydda very seldom erred.³

Rami b. Hama's host⁴  sold some wine,⁵  and erred. Finding him depressed, he [Rami] asked him, 'Why are you sad?' 'I sold wine,' he replied, 'and erred.' 'Then go and retract,' he counselled. 'But I have tarried more time than is necessary to shew it to a dealer or a relative,' said he. Thereupon he sent him to R. Nahman, who said to him: This was taught only of the vendee; but the vendor can always retract. Why? The vendee has the purchase in his hand; wherever he goes he shews it and is told whether he erred or not. But the vendor, who has not the purchase in his hand, [must wait] until he comes across an article like his, and only then can he know whether he erred or not.

A man had silk skeins⁶  for sale. He demanded⁷  Six [zuz], whilst they were worth five, yet if five and a half were offered, he would have accepted. Then a man came and said [to himself]. 'If I pay him five and a half, it is [immediate] renunciation;⁸  therefore I will pay him six and then sue him at law.' When he went before Raba, he said to him: This was taught only of one who buys from a merchant; but when one buys from a private person,⁹  he has no claim of fraud upon him.¹⁰

A man had jewellery for sale. He demanded sixty [zuz], whilst it was worth fifty; yet had he been offered fifty-five, he would have accepted. Then a man came and argued. 'If I give him fifty-five, it will constitute renunciation: therefore I will give him sixty and then sue him at law.' When he came before R. Hisda, he said to him: This was taught only of one who buys from a merchant; but when one buys from a Private individual, he has no claim of fraud against him. Said R. Dimi to him: 'Well spoken!'¹¹  and R. Eleazar said likewise, 'Well spoken!' But did we not learn, Just as the law of overreaching holds good in the case of a layman, so it holds good in the case of a merchant. Now, who is meant by 'a layman?' Surely a Private individual! — Said R. Hisda:¹²  That applies to rough cloth garments..¹³  But garments of personal use, which are dear to him, he would not sell but at an enhanced price.

MISHNAH. BOTH THE VENDEE AND THE VENDOR CAN CLAIM FOR OVERREACHING. JUST AS THE LAW OF OVERREACHING HOLDS GOOD IN THE CASE OF A LAYMAN, SO IT HOLDS GOOD IN THE CASE OF A MERCHANT. R. JUDAH SAID: THERE IS NO OVERREACHING FOR A MERCHANT.¹⁴  HE WHO WAS DECEIVED HAS THE UPPER HAND; IF HE WISHES, HE CAN EITHER SAY, GIVE ME BACK MY MONEY,' OR, 'RETURN WHAT YOU OVERCHARGED ME.

GEMARA. Whence do we know this? — For our Rabbis taught: And if thou sell aught unto thy neighbour … ye shall not deceive.¹⁵  From this I know it¹⁶  only if the purchaser was defrauded; how do I know it if the vendor was overreached? Because Scripture states,'…acquirest…ye shall not deceive' — Now, both vendee and vendor must be written, for had the Divine Law stated [the law only of] the vendor — that is because he knows his purchase;¹⁷  but as for the purchaser, who is not experienced in the purchase,¹⁸  I might think that the Divine Law did not apply the injunction of 'ye shall not defraud' to him. And had Scripture mentioned the vendee [only], that might be because he acquires [an article], for it is proverbial, 'When you buy, you gain'. But as for the vendor, who indeed loses thereby, as it is said, 'He who sells, loses,'¹⁹  I might think that the Divine Law did not exhort him, 'ye shall not defraud;' hence both are necessary.

R. JUDAH SAID, THERE IS NO OVERREACHING FOR A MERCHANT. Because he is a merchant, has he no claim for overreaching? — Said R. Nahman in Rab's name: This was taught of a speculator.²⁰  Why? Because he well knows the value of what he sells, but foregoes [part thereof] to him [the vendee], the reason that he sells thus [cheaply] being that he has chanced upon another purchase;²¹  nevertheless now he wishes to retract.²²  R. Ashi said: What is meant by 'THERE IS NO OVERREACHING FOR A MERCHANT? He is not subject to the law of overreaching. i.e., he can withdraw even for less than the [recoverable] standard of overreaching.²³

It has been taught in accordance with R. Nahman: R. Judah said: There is no overreaching for a merchant, because he is an expert.²⁴

HE WHO WAS DECEIVED HAS THE UPPER HAND. Who is the authority of our Mishnah, [seeing that] it is neither R. Nathan nor R. Judah ha-Nasi? For if R. Nathan — our Mishnah teaches, IF HE WISHES,²⁵  whereas the Baraitha²⁶  does not state, If he wishes;²⁷  whilst if it is R. Judah — our Mishnah refers to the Vendee [only],²⁸  whereas the Baraitha refers to the Vendor.²⁹  (Mnemonic: ZaB RaSH.)³⁰  Said R. Eleazar: I do not know who taught this [Mishnah of] overreaching. Rabbah said: In truth, its authority is R. Nathan, but read in the Baraitha too, [If] he wishes [etc.]. Raba said: In truth, it is R. Judah ha-Nasi, but what the Mishnah omits is explained in the Baraitha.³¹  Said R. Ashi: This too follows from the fact that it states. BOTH THE VENDEE AND THE VENDOR, yet proceeds to explain [the law of] the vendee [only]; this proves that the case of the vendor is merely left over. This proves it.

It has been stated: If one says to his neighbour, 'I agree to this sale on condition that you have no claim of overreaching against me — Rab said: He [nevertheless] has a claim of overreaching against him. Whereas Samuel said: He has no claim of overreaching against him. Shall we say that Rab ruled in accordance with R. Meir, and Samuel in accordance with R. Judah? For it has been taught: If one says to a woman, 'Behold thou art betrothed³²  unto me on condition that thou hast no claims upon me of sustenance, raiment and conjugal rights' — she is betrothed, but the condition is null: this is R. Meir's view. But R. Judah said: In respect of civil matters, his condition is binding! — Rab can answer you: My ruling agrees even with R. Judah. R. Judah states his view there only in that case, because she knew [of her rights], and renounced them;

1. The longer period given by R. Tarfon.
2. Here referring to R. Tarfon's ruling.
3. Therefore the longer period within which they might recover the fraud was of little benefit to them, whilst on the other hand the longer period given to the vendee was definitely to their disadvantage.
4. The word means 'innkeeper'.
5. [H], the word may also mean 'ass'.
6. Others: 'beads', 'frontlets'. [Krauss T.A. I, 174. 'girdles'.]
7. Lit., 'called'.
8. The overcharge being less than a sixth.
9. Lit., 'householder'.
10. A private person may attach a sentimental value to an object, which is naturally greater than the market price, and the vendee must be aware of this.
11. Lit., (with [H], 'thy strength', understood) 'thy strength be firm'.
12. Other versions: R. Papa.
13. Which a private individual does not mind selling.
14. This is explained below.
15. Lev. XXV, 14.
16. That an overcharge is returnable.
17. Hence, if he overreaches, he does it wantonly. and therefore the overcharge is returnable.
18. And if he underpays, it is unwittingly.
19. Money goes, and he who sells loses the article and probably the money too later on; but he who buys has a permanent gain — sentiments natural to a private individual as well as to a noncommercial, agricultural community.
20. So Jast. Rashi: a merchant who is a middleman, buying and selling from hand to hand.
21. For which he needs immediate ready money.
22. Possibly because his intended bargain did not mature.
23. If he was deceived even by less than a sixth he can withdraw from the bargain, since that is his livelihood.
24. This proves that he has no redress, not, as R. Ashi said, that he is put in an advantageous position.
25. I.e., he has the choice of confirming the sale and recovering the fraud or cancelling the sale entirely.
26. Supra 50b.
27. But only enables him to recover the Fraud but not cancel the transaction.
28. As being able to cancel the sale, since it states, GIVE ME BACK MY MONEY.
29. V. supra 50b.
30. V. p. 398, n. 5. Z for EleaZar; B for RaBBah; R for Raba; R for ASHi.
31. V. p. 492. n. 2, and cf. p. 227. n 2.
32. Lit., 'sanctified'.

but here, did he know [that he was defrauded], that he should make renunciation! Whilst Samuel can say: My ruling agrees even with R. Meir. Only there does R. Meir state that view, in so far as he certainly rejects¹  [a Biblical law];²  but here, who can say that he disregards³  anything at all?⁴

R. 'Anan said: I was told on Samuel's authority: If one says to his neighbour. '[I agree to this sale] on condition that you have no claim of overreaching against me,' then he can prefer no claim of overreaching against him. [But if he stipulates,] 'on condition that there is no overreaching therein', then [in case of deceit] a charge of imposition can be preferred.⁵

An objection is raised: If one trades on trust,⁶  or if one says to his neighbour. '[This sale is] on condition that you have no claim of overreaching against me,' then he has no claim of overreaching against him.⁷  Now, according to Rab, who maintained, 'My ruling agrees even with R. Judah.'⁸  who is the authority for this? — Said Abaye: It is clear [therefore] that Rab's ruling agrees with R. Meir [only], and Samuel's with R. Judah.⁹  Raba said: There is no difficulty; one refers to a general [condition]; the other to a particular [stipulation]. As it has been taught: When is this said?¹⁰  Of a general [condition].¹¹  But if one explicitly states [that he is overcharging], [e.g.,] if the vendor said to the vendee, 'I know that this article, which I sell you for two hundred zuz, is only worth one hundred, but I sell it to you on condition that you have no claim of overreaching against me,' then he has no claim of overreaching. And likewise, if the Purchaser said to the seller, 'I know that this article which I buy from you for one hundred [zuz] is worth two hundred, [yet I do so] on condition that you have no claim of overreaching against me,' then he has no claim of overreaching against him.

Our Rabbis taught: If one buys and sells on trust, he must not compute the inferior goods on trust and the superior at par, but either both on trust or both at par.¹²  And he must pay him the cost of porterage, transport,¹³  and storing;¹⁴  but he does not receive payment for his own trouble, since he has already been paid in full. Whence was his payment in full given him? — Said R. Papa: This refers to cloth manufacturers, who give [a discount of] four per cent.¹⁵

MISHNAH. BY HOW MUCH MAY THE SELA' BE DEFICIENT AND YET INVOLVE NO OVERREACHING?¹⁶  R. MEIR SAID: FOUR ISSARS, WHICH IS AN ISSAR PER DENAR¹⁷  R. JUDAH SAID: FOUR PUNDIONS, WHICH IS A PUNDION PER DENAR.¹⁸  R. SIMEON SAID:

1. Lit., 'eradicates'.
2. I.e., if his condition is kept, he is certainly flouting the provisions of Scripture, therefore the condition is null.
3. V. n. 1.
4. Notwithstanding his stipulation, he may not actually overreach; therefore it is valid.
5. Lit., 'there is overreaching therein.' I.e., the condition was not fulfilled, and therefore the sale is invalid.
6. [H] Rashi: A gives goods to B to sell at whatever price he can, to render him the money at a fixed date, whilst he pays him for his labour, i.e., he appoints him his salaried agent. [Tosaf.: The buyer (B) trusts the seller (A) as to the price he paid for the goods, and is willing to allow him a certain percentage for profit. This interpretation of the term [H] is followed in the rendering of the next paragraph.]
7. The first clause means, A cannot say to B, 'You sold below the market value and must therefore make it up. [According to Tosaf. (v. n. 6), B cannot prefer a charge of overreaching against A since he agreed to accept the goods at the price A originally paid for them (plus a percentage) irrespective of the market value.]
8. V. supra 51a.
9. Even as the first hypothesis.
10. That notwithstanding a condition, each can prefer a claim of fraud against the other.
11. I.e., if it was simply stipulated that there should be no claim for overreaching, without an explicit statement that a known overcharge was to be permitted in a certain transaction. In that case, Rab maintains that a claim can be preferred.
12. Tosaf.: E.g.. A buys 10 articles for 10 zuz, 5 of which are worth 1 1/2 zuz each, whilst the other 5 are only worth 1/2 zuz each, and then sells them to B, who states that he is prepared to trust A as to what he paid for them and is willing to give him a certain percentage of profit: then A must not reckon the inferior goods at the average price of one zuz apiece, whilst quoting the better at 1 1/2 each, but must either strike an average for all, if he sells all together, or estimate each at its own value, if he sells them separately.
13. Lit., 'the hire of a camel.'
14. I.e., the seller is entitled to add his expenses to the cost.
15. The cost price (10 zuz, as stated in the example in n. 3) is subject to a further manufacturer's discount; but the seller, in estimating his profits, bases it on the cost price before the discount is subtracted. That discount is regarded as full payment for his personal trouble (v. S. Strashun a.l.).
16. Coins being valued by weight they depreciate in value after being in use for some time. The Mishnah discusses how far they may thus be underweight or defaced and yet, if tendered at their nominal value, involve no overreaching.
17. A sela' = 4 denorii = 12 pundions; 1 pundion = 2 issars (assarius); i.e., 1/24 of Its value.
18. I.e., 1/12.