THE [CONDITION] 'MEASURED BY THE ROPE CANCELS [THAT OF] 'MORE OR LESS; THESE ARE THE WORDS OF BEN NANNUS.
GEMARA. R. Abba b. Memel said in the name of Rab: His colleagues are in disagreement1 with Ben Nannus. What does this teach us? Surely we have learnt:2 It happened at Sepphoris that a person hired a bath house from another for twelve gold [denarii] per annum, one denar per month,3 and the matter4 was brought before R. Simeon b. Gamaliel and before R. Jose who said that [the rent for] the intercalary month must be divided.5 [What, then, does Rab come to teach us?] — If [the inference6 had come] from there, it might have been said that there7 only [do the Rabbis hold the opinion that the rent for the month is to be divided], because it might be assumed that [the owner] had changed8 his mind, and it might [also] be assumed that [with the second expression] he was merely explaining9 [the first];10 but here,11 where [the seller] has clearly changed his mind,12 it might have been thought [that the Rabbis do] not [disagree with Ben Nannus]; hence [it was necessary for Rab] to teach us.13
Rab Judah said in the name of Samuel: This14 is the assertion of Ben Nannus, but the Sages say: The expression [which confers the] least15 [advantage upon the buyer] is to be followed. 'This'16 [would imply that] he [Samuel himself] is not of the same opinion. but, surely, both Rab and Samuel said:17 [If a seller said.] 'I sell you a kor for thirty [selai'm]'. he may withdraw even at the last se'ah.18 [If. however, he said]. 'I sell you a kor for thirty, [each] se'ah for a sela', [the buyer] acquires19 possession of every se'ah as It is measured out for him.20 [This, surely, shows that Samuel21 is of the same opinion as Ben Nannus!]22 — But, [it may be replied that] 'this', [may denote that Samuel] is of the same opinion.23 Does [Samuel, however,] hold the same opinion? Surely Samuel said: [The Mishnah which states that the rent of the bath house for the intercalary month is to be divided] speaks [only of the case] where [the owner] comes24 in the middle25 of the month, but where he comes at the beginning of the month all [the rent of the month] belongs to the owner,26 [and if he comes] at the end of the month, all [the rent of the month] belongs to the tenant.27 [Does not this prove that Samuel disagrees28 with Ben Nannus?]
Original footnotes renumbered.
- In their opinion it is doubtful which expression is to be regarded as valid, and the property or sum in dispute is, therefore, to be divided between the buyer and the seller.
- B.M. 102a.
- Both expressions were used at the time of hire, and the year was a leap-year, containing thirteen months.
- The dispute whether the intercalary month was to be included in the year, on account of the first expression, 'twelve gold [denarii] per annum', or whether it was not to be so included, on account of the second expression, 'one denar per month'.
- Between the tenant and the owner of the house, i.e., the former pays only for half a month, since it is doubtful to whom the rent of the month belongs. Now, this clearly shows that the Rabbis do not agree with Ben Nannus, according to whom the second expression would have had to be considered as binding and a full month's hire would have had to be paid.
- That the Rabbis are in disagreement with Ben Nannus.
- The case of the bath house.
- He first thought of letting the bath house for twelve denarii per annum, irrespective of whether the year was of twelve or thirteen months, and then changed his mind and demanded a denar for each month.
- He had no intention of expecting thirteen denarii for the leap year. By the expression, 'a denar per month', he only meant that he wished to be paid monthly instead of yearly, and also that he might cancel the arrangements at the end of every month without having to wait till the end of the year.
- And since the matter is in doubt, the Rabbis are of the opinion, and Ben Nannus himself might agree with them, that the sum disputed should be divided.
- In our Mishnah.
- Since the second expression is in direct contradiction to the first.
- That even in this case the Rabbis disagree with Ben Nannus.
- The law in our Mishnah.
- If the land sold is more than the stipulated area, the expression, 'measured by the rope', is adopted and the buyer must return the surplus. If the sold land, however, is less than the stipulated area, the expression, 'more or less', is adopted and the seller need not make good the difference. The seller, being the original possessor of the land, has always the advantage.
- Viz., 'this is the assertion of Ben Nannus'.
- B.M. 102b, supra 86b; infra 106b.
- Because the terms of the offer implied that his desire was to sell the entire kor. So long, therefore, as the buyer has not acquired every fraction of the kor, the purchase cannot be regarded as having been legally completed.
- By specifying the price per kor and per se'ah, the seller has intimated his consent to sell either the entire kor or any smaller quantity.
- Lit. 'he acquires first first'.
- Who stated, in the second case, that the buyer acquired possession of every se'ah as it was measured out, on account of the expression, 'each se'ah for a sela', which the seller used after he said, 'I sell you a kor for thirty'.
- Who stated that the second expression cancels the first.
- As Ben Nannus. 'This etc', only indicates that the Rabbis disagree.
- To the court.
- Since it is doubtful which expression cancels which, the money and the bath house are to remain in the possession of their respective owners. For the first half of the month, therefore, which has already passed, no rent can be claimed from the tenant who is in possession of his money. For the second half, however, the owner may claim the rent, since the property is his, and he has the power to prevent the other from using it.
- Because the property is in his possession.
- Because his money is to remain with him, who holds it in possession.
- Since he is doubtful as to whether the first, or second expression is to be regarded as binding. Cf. supra n. 6.
Baba Bathra 105b
— But, [it may be replied.] 'this', in fact, [implies that Samuel] is not of the same opinion;1 [as, however, his] reason there [for dividing2 the monthly rent of the bath house is] because [each one of the parties] is in possession3 [of a part of that concerning which they are in dispute], so here4 also [the reason why the buyer acquires every se'ah as it is measured out to him is] because it is [then] in his possession.5
R. Huna said in the name of the school of Rab: [If one says that he would sell an object for] an istira,6 a hundred ma'ah, [he is entitled to] a hundred ma'ah. [If he says], 'a hundred ma'ah, an istira'.[he is entitled to] an istira. What does this teach us? That the second expression is to be preferred?7 Surely Rab has said it once! For Rab said: Had I been there8 I would have given all to the owner.9 [Why, then, need Rab say it again?]10 — [Since] it might have been said that [the reason Rab would have assigned all to the owner of the bath house] was because [he held that the second expression]11 was merely explaining [the first],12 therefore,13 [it was necessary for Rab] to teach us [the case of the istira].14
Original footnotes renumbered.
- That the second expression cancels the first.
- If the dispute is brought before the court in the middle of the month.
- The owner is in the possession of the wash house; the tenant, of his money.
- The sale of the kor.
- And not, as has been suggested before, because the second expression cancels the first.
- A silver coin equal in value to ninety-six copper ma'ah,
- Lit., 'hold the last expression'. I.e., that the law is in agreement with the view of Ben Nannus.
- When the dispute about the bath house was brought before R. Simeon b. Gamaliel and R. Jose.
- Apparently because Rab is of the opinion that the second expression cancels the first.
- In the case of the istira.
- I.e., 'one denar per month'.
- I.e., 'twelve gold denarii per annum; indicating that per annum' in the first expression referred to an ordinary year only, and not to a leap year of thirteen months, and not because Rab held that the second cancelled the first.
- In order that it should not be assumed that, whenever the second expression cannot be regarded as an explanation of the first, Rab holds the view of the Rabbis against that of Ben Nannus.
- In this case, the two expressions cannot be regarded as explanatory of one another, because the expression 'ninety-six ma'ah' can never be made to mean a hundred ma'ah, and vice versa. And since the two expressions must be contradictory, and Rab had said that the latter is to be followed, one may definitely conclude that Rab is of the same opinion as Ben Nannus who stated that the second expression cancels the first.