Amemar said: The law is [according to Rabbi] that letters are acquired by mesirah.1 R. Ashi said to Amemar: '[Is this] a tradition or a logical deduction?' He replied unto him: '[It is] a tradition.' R. Ashi said: This2 may also be deduced logically, because letters3 are words, and words cannot be acquired by means of [other] words.4 And [can they] not? Surely Raba b. Isaac said in the name of Rab: There are two [kinds] of deeds. [If a person says],5 'take possession6 of the field on behalf of X, and write for him the deed',7 he may withdraw the deed8 but not the field.9 [If, however, he says, 'take possession of the field] on condition that you write for him the deed', he may withdraw10 both the deed and the field. But R. Hiyya b. Abin says in the name of R. Huna: There are three kinds of deeds. Two have just been described. [And the] third11 is one which the seller writes before [the sale],12
Original footnotes renumbered.
- And there is no need to write, in addition, a bill of sale (v. Glos.).
- That a bond is acquired by mesirah only. and not by a bill of sale.
- I.e., a bond.
- I.e., a deed of sale.
- I.e., to witnesses.
- Possession of the field on behalf of a donee is obtained by the handing over of an object (e.g. a scarf) by the donor to witnesses. The transfer of the object symbolises the transfer of the gift.
- Confirming the donation.
- If the donor, after having given the instructions to the witnesses, desires to have no written confirmation of the gift. he may recall the deed at any time before it reaches the donee.
- Because the field had already passed into the legal ownership of the donee, from the moment the donor had handed over the 'symbolic' object to the witnesses.
- Because in this case he intimated his desire that the field shall become the property of the donee only after he had received the deed; and since the deed has not been delivered, both the field and the deed may be withdrawn at the discretion of the donor.
- Lit., 'another'.
- Being anxious to sell, and in order to expedite the transaction on obtaining the consent of the buyer, he requests a scribe to prepare the deed before he knows whether the person to whom he wishes to sell would consent to buy.
Baba Bathra 77b
in accordance with the law we have learned [that] a deed may be written for the seller1 though the buyer is not with him.2 [In this case], as soon as [the buyer] takes possession of the ground he acquires [also] the deed, irrespective of the place in which it is kept.3 And this accords with what we have learned, that movable property4 may be acquired with landed property5 by means of money,6 deed7 and possession!8 — [Acquiring a deed] on the basis [of land bought jointly with it] is different [from its independent acquisition]; for a coin which cannot be acquired by halifin9 may [yet] be acquired by virtue of land [bought jointly with it]. As in the case of R. Papa.10 He had a money claim of twelve thousand zuz at Be-Huzae.11 He passed them over into the possession of R. Samuel b. Aha by virtue of his threshold.12 When the latter came [back] he went out to meet him as far as Tauak.13
BUT HE DOES NOT SELL THE CREW, NOR THE PACKING BAGS, NOR THE STORES, ETC. What is the meaning of Enteke?14 — R. Papa said: The merchandise which it contains.
MISHNAH. HE WHO SOLD A WAGGON HAS NOT SOLD THE MULES, HE WHO SOLD THE MULES HAS NOT SOLD THE WAGGON. HE WHO SOLD THE YOKE HAS NOT SOLD THE OXEN. HE WHO SOLD THE OXEN HAS NOT SOLD THE YOKE. R. JUDAH SAYS: THE PRICE INDICATES [WHAT IS TO BE INCLUDED IN THE SALE]. HOW? — [IF] HE SAID UNTO HIM: SELL ME YOUR YOKE FOR TWO HUNDRED ZUZ; IT IS OBVIOUS THAT A YOKE [ALONE] IS NOT [SOLD] FOR TWO HUNDRED ZUZ. BUT THE SAGES SAY: THE PRICE IS NO PROOF.
GEMARA. R. Tahlifa the Palestinian15 recited [a Baraitha] before R. Abbahu: He who sold the waggon has sold the mules. 'But surely', [the master said,] 'we learned: HE HAS NOT SOLD'! He said unto him: Shall I cancel it? He replied unto him: No; your teaching may be interpreted [as dealing with the case] when [the mules] were harnessed16 to it.
HE WHO SOLD THE 'YOKE' HAS NOT SOLD THE OXEN, ETC. How is this to be understood? If it be said that [the Mishnah speaks of a place where] a yoke is called yoke and oxen [are called] oxen, [in this case] surely he sold him the yoke, but has not sold him the oxen17 And if the oxen also are called 'yoke', all was [obviously] sold!18 — [The law in the Mishnah] is necessary [to be stated in order to provide] for a place where a yoke is called 'yoke' and oxen, oxen'; while there are also some who call the oxen [also] 'yoke'. [In such a case], R. Judah holds the opinion that the price indicates [what was the intention of the seller],19 and the Rabbis [the Sages] hold the opinion [that] the price is no proof.20
But if the [excessive] price is no proof [that the oxen were included in the sale], the [return of the overcharge or the] cancellation of the [entire] purchase should follow!21
Original footnotes renumbered.
- Though the statement in the deed is seemingly untrue, since the buyer mentioned is only imaginary; yet, at the request of the seller, it may be written, because this involves no loss to anyone except possibly to the seller himself should he lose the deed and the person therein named should happen to find it.
- V. infra 167b.
- Since it was the intention of the seller to give the buyer possession of the deed the latter acquires it together with the land just as if he had performed meshikah with the deed itself.
- Lit., 'property which has no secure foundation', from which debtors cannot collect their debts.
- Lit., 'property which has a secure foundation, I.e., real estate which cannot be moved and is consequently always at the disposal of the creditor or anyone having a rightful claim to it.
- Paid for the land.
- Confirming the sale of the land.
- possession, by performing some kind of work on the estate, v. supra 42a. Now in view of the statement above that the deed is acquired irrespective of the place in which it is kept, how could Amemar and R. Ashi state that a deed can be acquired only by means of actual delivery?
- Lit., 'substitution'. One of the forms of possession consisting of a symbolical act: handing to the purchaser any object in substitution of the actual thing sold.
- [His home was at Naresh, S. of Sura.]
- [Modern Khuzistan, S. W. Persia, Obermeyer, p. 204 ff.]
- Thus the threshold and the debt were acquired by R. Samuel at the same time, empowering him (R. Samuel) to collect the debt as its legal owner, and freed the debtors of all responsibility from the moment they paid him over the money.
- [S. of Naresh, Obermeyer, p. 28.] Showing his gratitude for the successful results of the mission. Cf. infra 150b.
- [G], is the term used in the Mishnah, supra 731.
- Lit., 'son of the West'.
- To the waggon at the time the sale took place, while our Mishnah deals with the case when they were not attached to it.
- Why. then, does R. Judah say that the sale is dependent on the price?
- Why do the Sages say that the price is no proof?
- Since the seller has asked for a high price, he must be one of those who describe the oxen also as 'yoke'.
- There is doubt as to whether the seller intended to include the oxen in the sale of the yoke, and in such a case the possessor is entitled to the benefit of the doubt. The buyer, therefore, cannot lay claim to the oxen.
- I.e., if the difference between the actual cost and the price given is a sixth of the value, the overcharge should be returned; if more than a sixth, the whole transaction should be cancelled.