ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Basra 77
BAVA BASRA 76& 77- sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of
love for the Torah and for those who study it.
(a) Ameimar rules 'Osiyos Niknos bi'Mesirah. Rav Ashi asked him him -
whether this was a traditional ruling or a S'vara.
(b) When Ameimar replied that it was a tradition, Rav Ashi commented - that
it was a S'vara too, since it is not logical for words to acquire words
(only an action).
(c) In that case - it is not necessary for the seller to specifically state
'K'ni Lach ve'Chol Shibudeih' (which only applies to a Sh'tar).
(a) Rava bar Yitzchak Amar Rav describes 'two Sh'taros'. If someone asked
two people to make a Kinyan on his field on behalf of a friend and to write
him a Sh'tar, it is obvious that once the Kinyan has been made, the seller
may no longer retract from the sale - though he is permitted to withdraw his
instructions to write the Sh'tar.
(b) If he said *'al-M'nas* she'Tichtevu Lo es ha'Sh'tar' - then as long as
he has not handed the purchaser the Sh'tar, he may retract even from the
(c) Even though we learned in Chezkas ha'Batim 'Kinyan bi'Fenei Sh'nayim
ve'Ein Tzarich Lomar Kisvu, di'S'tam Kinyan li'Chesivah Omed' - that only
means that we assume that to be the wish of the seller, but not if he states
to the contrary.
(a) A seller - is permitted to write a Sh'tar on behalf of the buyer prior
to the sale without first consulting him (as the Mishnah in Get Pashut
(b) The Sh'tar is not Pasul because it is predated - either because they
made a Kinyan that effects the transaction immediately, or like Abaye, who
says that the transaction works retroactively, to take place from the date
on the Sh'tar, assuming that the witnesses signed on that day.
(a) Based on the Mishnah in Get Pashut, Rav Chiya bar Avin Amar Rav Huna adds a third case of 'Sh'tar' to the previous two. If the seller wrote such a
Sh'tar, following which the purchaser acquired the field with Kesef, Sh'tar
or Chazakah - he acquires the Sh'tar too.
(b) We initially think that he acquires the Sh'tar - on the basis of the
(c) This poses a Kashya on Ameimar and Rav Ashi - who hold 'Osiyos Niknos
bi'Mesirah' (and even a Sh'tar is not sufficient); whereas Rav seems to
hold that one acquires a Sh'tar even with mere words alone, how much more so
with a Sh'tar.
(d) We answer this - by confining Rav's ruling to a case of Kinyan
Metaltelin Agav Karka, which anyway acquires Metatelin even with a Kinyan
that would normally acquire them.
(a) We support this answer with the Din of Matbe'a, which can be acquired
together with Karka, even by means of Kinyan Chalipin (despite the fact that
Chalipin is disqualified from acquiring a coin [similar to a Sh'tar, which
cannot normally acquire a Sh'tar]).
(b) And we know the Din of Matbe'a from a case of Rav Papa, who sent Shmuel
bar Acha to claim his debt from Bei Chuza'a. He needed to be Makneh it to
him with a Kinyan (otherwise known as a Harsha'ah) - because otherwise, the
B'nei Chuza'ah would have refused to hand him the money, since they would
have been liable for any O'nes that occurred on the return journey.
(c) He effected this Kinyan - by being Makneh it to him together with the
threshold of his house (Metaltelin Agav Karka), which Rav Shmuel acquired
with a Kinyan Chalipin (Rashi, Bava Metzi'a).
(d) When Rav Shmuel bar Acha returned with the money (twelve thousand Zuz) -
Rav Papa was so happy, that he went as far as Tavach to greet him.
(a) Our Mishnah rules that if someone sells a cart, the mules are not
automatically included in the sale - and the same will apply in the reverse
(b) The Tana also states that if someone sells the yoke as well as the wagon
and the vessels that go with it - he has not sold the oxen that usually draw
it, and vice-versa.
(c) Rebbi Yehudah qualifies the above ruling - confining it to where the
sale tallies with the price.
(d) The Chachamim do not go after the price at all - because sometimes a
person pays a little more in the form of a gift, or because the excess was
indeed paid in error and must be returned, only it does not negate the sale
(as we will see in the Sugya).
(a) The problem with the Beraisa that Rav Tachlifa bar Ma'arva cited in
front of Rebbi Avahu, 'Machar es ha'Karon, Machar es ha'Perados' is - that
it contradicts our Mishnah, which rules ' ... Lo Machar es ha'Perados'.
(b) Rebbi Avahu nevertheless instructed him to leave the Beraisa intact (and
not to scrap it) - because he established our Mishnah when the oxen were not
hitched to the wagon; whereas the Beraisa speaks when they were.
(a) The Machlokes between the Tana Kama and Rebbi Yehudah in our Mishnah
'Machar es ha'Tzemed Lo Machar es ha'Bakar', cannot be speaking when ...
1. ... everyone calls a Tzemed a Tzemed and an ox an ox, because then - how
could Rebbi Yehudah go after the price of the Tzemed (since it is clear that
he only sold him the Tzemed [irrespective of the price]).
(b) The case in which Rebbi Yehudah and the Tana Kama argue must therefore
be - when some people sometimes refer to an ox as Tzemed (though most people
2. ... everyone sometimes refers to an ox as Tzemed - how could the Rabbanan
not use the aspect of price as a decisive factor to determine that the owner
must have sold the oxen too?
(c) The basis of their Machlokes is - whether the excessive price indicates
that the seller must be from those who sometimes refer to an ox as Tzemed
(Rebbi Yehudah) or not (the Rabbanan).
(d) The Rabbanan decline to use the price as an indicator - because they
hold 'Yad Loke'ach al ha'Tachtonah' (the onus lies on the purchaser [who is
Motzi from the seller] to prove that the latter is from those who refer to
an ox as Tzemed).
(a) In a case where the seller charges the purchaser more than a sixth above
the regular price - the entire transaction is nullified.
(b) The problem with our Mishnah is - with the Chachamim, who say 'Ein
ha'Damim Re'ayah', which suggests that the sale is fully valid even if the
seller charged the purchaser the price of an ox over and above that of a
Tzemed alone (which is certainly more than a sixth above the regular price),
so why is the sale valid? Why is the sale not Bateil (or at least the seller
ought to return what is in excess of the going price)?
(c) When we suggest that perhaps the Rabbanan do not hold of Bitul Mekach -
this incorporates Ona'ah (which they will not hold of either).
(a) Rebbi Yehudah, in a Mishnah in ha'Zahav holds that there is no Ona'ah on
a Sefer-Torah, an animal or a jewel - because people do tend to sell these
things for way above their normal price.
(b) The Rabbanan however, said to him - that it is only Avadim, Sh'taros and
Karka'os that are not subject to Ona'ah (but these things are).
(c) The Rabbanan do it seems, hold at least of Ona'ah (if not of Bitul
Mekach). So we establish 'Ein ha'Damim Re'ayah' to mean - that on the one
hand, the price is not sufficient proof that the seller has included the
oxen in the sale, and on the other, he must return the excess money to the
(d) Alternatively, we might even take the words of the Rabbanan in our
Mishnah literally, and the money remains where it is - because Ona'ah and
Bitul Mekach only applies to small discrepancies in price, but not to huge
price hikes (such as here), where the purchaser must know that the amount he
is being charged is way above the going price, in which case, he obviously
gave the excess as a gift.
(a) In actual fact, we asked initially 'Le'havi Bitul Mekach'? and continued
've'Chi Teima Bitul Mekach le'Rabbanan Leis Lehu'. However, it is impossible
to explain this literally. The Sugya can only be referring to Ona'ah (as we
explained) and not Bitul Mekach - because the proof that we bring from the
Rabbanan in ha'Zahav has nothing to do with Bitul Mekach, only with Ona'ah.
(b) Although we are concerned with Ona'ah, we nevertheless use a Lashon of
Bitul Mekach - because the original Kashya concerns paying for the oxen as
well as for the Tzemed, an amount which is far more than a sixth, giving it
the outward appearance of Bitul Mekach.