If he has unloaded them1 and brought them into his2 house [and] fixed [the price] before measuring, neither of them may withdraw.3 [If] measuring took place before the price has been fixed, both may withdraw.4 Now, since the vessel of the seller, [if it is] on the premises of the buyer, does not serve as a means of retaining possession for him,5 the vessel of the buyer also [if it is] on the premises of the seller does not serve as a means of acquiring possession for him!6 R. Nahman b. Isaac replied: [The law quoted7 refers to the case] when [the goods] were emptied out [from the seller's sacks into the territory of the buyer]. Raba [remarked] indignantly: Does it state 'he emptied them'? The statement reads, 'he unloaded them'!8 But, said Mar son of R. Ashi: [The law here refers] to bundles of garlic.9
Huna the son of Mar Zutra said to Rabina: Observe that it has been said, 'he unloaded them';10 what matters it, then, [whether the price had been] fixed or not? — He [Rabina] replied: [When the price] has been fixed, each [of the parties] acquiesces [in the sale, but when a price] has not been fixed, none [of them] acquiesces.11
Rabina said to R. Ashi: come and hear! [It has been stated:]12 Both Rab and Samuel hold that a man's vessel acquires for him ownership everywhere. Does not this ['everywhere'] include the premises of the seller? — [In the case spoken of] there,13 [the other replied, the seller] said to him 'go and acquire ownership'.14
We have learnt elsewhere:15 Ownership of landed property16 is acquired by means of money. deed and possession;17 and movable property18 is acquired only by meshikah.19 The following reported statement has been attributed in Sura to R. Hisda; at Pumbeditha, to R. Kahana or — according to others — to Raba: [The law of meshikah] has been taught, with reference only to [heavy] objects which are not usually lifted, but objects which are usually lifted can be acquired by hagbahahl20 only; not by meshikah. Abaye sat lecturing on this law, [when] R. Adda b. Mattenah raised the following objection. [It has been taught]:21 He who steals a purse on the Sabbath22 is liable [to make restitution], because the obligation [to pay restitution], for the theft 'has preceded23 the offence against the prohibition of the Sabbath.24 If he was dragging [it]25 as he was moving out, he is exempt [from the payment of restitution]26 because here the offences relating to the desecration of the Sabbath and to theft have been committed simultaneously.27 Now, surely. a purse is an object which is usually lifted, and yet it is acquired by meshikah!28 He replied unto him: When [the purse has] a cord. 'I also', said R. Adda, 'speak of one with a cord' [and yet it is small enough to be lifted]! — [Abaye] replied: [I say that the law refers to] a thing29 [so heavy] that it requires a cord.30
Come and hear: [It has been taught:31 If the purchase was] on the premises of the seller, [the buyer] does not acquire possession until he lifts it or removes it from the seller's premises. This proves clearly that an object which can be lifted may be acquired in accordance with one's desire, either by 'lifting' or by meshikah!32 R. Nahman b. Isaac replied: What has been taught is to be taken — disjunctively; that which can be lifted [is acquired] by lifting, and that which has to be pulled [is acquired] by meshikah.
Original footnotes renumbered.
- The goods bought.
- The buyer's.
- Although the goods are presumably still in the seller's sacks; because the buyer's premises acquired possession for him.
- Before the price is agreed upon. the sale cannot be regarded as completed; because neither buyer nor seller makes up his mind to sell or to buy before knowing whether the other party will accept his price or offer. Cf. n. 7.
- For it has been said that, if the price had been fixed, none may withdraw, though the goods are presumably still in the buyer's sacks. This shows that the buyer's premises acquire possession for him despite the fact that the goods remain in the seller's vessels.
- If premises (the buyer's) can serve as a means of depriving the seller from ownership of his goods though still in his vessels, how much more, in the case of goods in the buyer's vessels, should premises (the seller's) be capable of serving as a means of retaining ownership.
- That goods unloaded on the premises of the buyer are acquired by him.
- I.e., As delivered in their sacks.
- These are not delivered in sacks. When unloaded they come in direct contact with the buyer's territory.
- Into the territory of the buyer, which legally acquires ownership for him.
- V. p. 349. n. II.
- Supra 84b f.
- In the statement of Rab and Samuel.
- The seller thereby implied that he lent the buyer the spot on which his vessel stood.
- Kid. 26a supra 51a, infra 150b.
- V. p. 310, n. 7.
- V. l.c., n. 10.
- V. l.c. n. 6.
- V. Glos.
- V. Glos.
- Tosef. B.K. IX.
- And carried it out into reshuth harabbim. It is forbidden to carry from private domain into public domain and vice versa on the Sabbath.
- The thief becomes liable to pay restitution as soon as he lifted the object.
- His liability to the penalty for desecrating the Sabbath does not commence simultaneously with his liability to make restitution. While the latter follows immediately upon his lifting of the stolen object (cf. previous note), the former is effected subsequently. when he takes the object out into reshuth harabbim. Since the two offences have not been committed simultaneously, the law that the lighter penalty (that for theft) is superseded by the heavier (that for desecration of the Sabbath) does not apply.
- So that there was no 'lifting' whereby to acquire possession of the theft.
- The heavier penalty for the desecration of the Sabbath supersedes the lighter penalty for theft.
- Since the object has not been lifted while on the premises of the owner, the thief acquires possession by meshikah, only when the stolen object has been taken out, but at that moment he also commits the offence against the laws of Sabbath, which prohibit the removal of things from one domain into another. (V. n. 2.)
- For it has been said that the offence relating to theft had been committed simultaneously with that of the desecration of the Sabbath, though at the time of the dragging out there was only meshikah and no lifting at all.
- A big purse.
- Whereby to drag it out; and since it is a heavy object it can justly be acquired by meshikah.
- Supra 85a.
- 'Removing from the seller's premises', without lifting is obviously meshikah.
Baba Bathra 86b
Come and hear: IF ONE HAS SOLD FRUIT TO ANOTHER [AND THE BUYER] HAS PULLED [THEM]. THOUGH THEY HAVE NOT [YET] BEEN MEASURED, OWNERSHIP IS ACQUIRED. Surely fruit can be lifted up, and yet it is taught that ownership [of it] is acquired by meshikah?1 Here2 we are dealing with [fruit packed in] large bags.3 If so,4 [how can you] explain the last clause [which reads]. IF ONE BUYS FLAX FROM ANOTHER. HE DOES NOT ACQUIRE OWNERSHIP UNTIL HE MOVES IT FROM ONE PLACE TO ANOTHER. Is not flax [also] packed in large bags?5 — Flax is different — [It has to be packed in small bags] because, [otherwise]. it slips out.6
Rabina said to R. Ashi, Come and hear: Large cattle are acquired by mesirah,7 and small by lifting these are the words of R. Meir and R. Simeon b. Eleazar. But the Sages say: Small cattle [are acquired] by meshikah.8 Surely, [it may be asked], small cattle can be lifted and yet it is taught9 that ownership of them may be acquired by meshikah! — Cattle are different because they clutch the ground.10
Both Rab and Samuel said: [If the seller said], 'I sell you a kor11 for thirty', he may withdraw even at the last12 se'ah.11 [If, however, he said]: 'I sell you a kor for thirty, [each] se'ah for a sela', [the buyer] acquires possession of every se'ah13 as it is measured out for him.14
Come and hear: If the measure was the property of one of them, he [whose measure it is] acquires successive possession of every single unit of the quantity as soon as it is put in.15 [Surely this law applies] even to [the case] where the measure had not been filled!16 — [This law refers only to such a case] as when [the seller] said to [the buyer], '[I sell you] a hin17 for twelve sela'im, [every] log13 for a sela'. And, as R. Kahana said,18 'there were marks in the hin [of the Temple].19 so, in this case also, there were marks on the measures.20
Come and hear! [It has been taught: In the case where a man] hired a labourer to work for him at the harvesting season for a denarius a day. [and paid him his wage in advance].
Original footnotes renumbered.
- How then, can it be said that things that can be lifted cannot be acquired by meshikah?
- In the Mishnah quoted.
- Which cannot be lifted up.
- That the Mishnah deals with fruit in large bags.
- If the first clause, (fruit), deals with small bags, the final clause also (flax), would, consequently, deal with small bags. The reason for the difference between the modes of acquiring ownership, ('pulling' in the first, 'lifting' in the second case). could then be explained by the fact that flax is never dragged but always lifted. Thus, the purpose of our Mishnah would be the laying down of the following law: Things which are usually lifted may be acquired not only by 'lifting' but also by 'pulling' — (first clause); while things which are always lifted can be acquired by lifting only — (final clause). If, however, it be assumed that the reason why in the first clause 'pulling' is effective, is only that the fruit is packed in large bags it must consequently be assumed that the reason why the flax cannot be acquired thus, but only by 'lifting', is that it is packed in small bags. If so, it is asked, is not flax also packed in large bags? And if they are so packed, wherein lies the cause of the different modes of acquisition?
- Small bags are usually lifted, hence only 'lifting', and not 'pulling', is the mode of acquisition.
- V. Glos.
- Kid. 25b, B.K. 11b.
- By the Sages, who are in the majority in the dispute.
- And it is difficult to lift them. Therefore, 'pulling' has been made the mode of their legal acquisition.
- Kor and se'ah are measures of capacity, the former containing thirty of the latter.
- Because he implied in his offer that it was his desire to sell the entire kor. As long as the buyer has not legally acquired every fraction of it, the purchase is not consummated.
- The seller, by specifying the price per kor and se'ah, has intimated his desire to sell either the entire kor or any fraction of it.
- Lit., 'he acquires first first'. (Cf. p. 347. n. 1).
- Supra 85a.
- How, then, could it be said that the seller 'may withdraw even at the last se'ah'?
- Hin and log are liquid measures, the former containing twelve of the latter.
- Shab. 80b, Men. 87b.
- Marking off a quarter. a third, and a half of the hin, required respectively as a meal offering for the lamb, the ram, and the bullock.
- Every log was marked off, so that when the commodity measured reached any of the marks it might be regarded as having 'filled the measure', because each mark represented a complete unit.