Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 15a

bandits took away [the field from the person who acquired it unlawfully].¹  When the [original owner who was] robbed [of his field] comes to demand the capital [value of the field] he may exact payment from encumbered property. But if he comes to demand the value of the fruit he may exact payment from unencumbered property [only]. Raba does not give the same explanation as Rabbah son of R. Huna because it says, 'He has had to give it up again,' which obviously means through the [intervention of the] Court.²  And Rabbah son of R. Huna does not give the same explanation as Raba, because it says, 'He has had to give it up again,' which obviously means in its original condition [and not full of holes].³  R. Ashi said: It refers partly to one and partly to the other,⁴  viz., if one violently took away from a neighbour a field full of fruit, and ate the fruit and sold the field,⁵  when the buyer comes to demand the capital [value of the field itself] he may exact payment from encumbered property; when the robbed [neighbour] comes to demand [the value of] the fruit he may exact payment from unencumbered property [only]. [The question now arises:] Both according to Raba and according to Rabbah son of R. Huna this is [like] a debt contracted verbally,⁶  and a verbally contracted debt does not entitle [the creditor] to exact payment from encumbered property? — Here we deal with a case where [the robber first] stood his trial and then sold [the field].⁷  But if so, the produce [of the field should] also [be recoverable from encumbered property]? — [The case is one where the robber] has stood his trial as regards the capital [value of the field itself] but has not stood his trial as regards the produce. But how can this be determined?⁸  — It is the usual practice: When a person sues, he sues first for the principal.⁹

But does Samuel [really] hold the view that he who bought [a field] from a robber is not entitled to [compensation for the] improvement [he made in the field]? Did not Samuel say to R. Hinena b. Shilath [the scribe]:¹⁰  Consult [the seller, when drawing up a deed of sale], and write, 'best property, improvement, and produce'?¹¹  Now, to what [kind of transaction does this apply]? If [it applies] to a creditor [claiming the field for his debt], is he entitled to the produce of the field? Has not Samuel said: The creditor exacts payment from the improvement, [which means] from the improvement only, but not from the produce? It must therefore [be said that it applies] to one who bought [a field] from a robber!¹²  — R. Joseph said: Here we deal with a case where [the robber] owns land.¹³  Said Abaye to him: Is it permitted to borrow a measure [of corn and to repay the loan] with [the same] measure,¹⁴  when [the borrower] has land? — He [R. Joseph] answered him: There [it is] a loan; here [it is] a sale.¹⁵

Some say: R. Joseph said: Here we deal with a case where there was a formal act of acquisition [whereby the seller pledged himself to be immediately responsible to the buyer for the improvement].¹⁶  [But] Abaye said to him: Is it permitted to borrow a measure [of corn and to repay the loan] with [the same] measure, when there was a formal act of acquisition [whereby the borrower pledged himself to be immediately responsible to the lender for an increase in price]? — He [R. Joseph] answered him: There [it is] a loan; here [it is] a sale.

[To revert to] the above text: Samuel said: 'A creditor exacts payment from the improvement.' Said Raba: You may know [that this view is correct], for the seller writes [in the deed of sale] the following [guarantee] to the buyer: 'I shall confirm, satisfy, clear, and perfect these purchases¹⁷  — them, the gains resulting from them, and the improvements to be made in them — and I shall stand [as surety] for you, and this purchaser agrees [to it] and accepts it.'¹⁸  R. Hiyya b. Abin then said to Raba: If this is so, [would you say that] in the case of a gift, regarding which [the donor] writes no such [guarantee], [a creditor who has a previous claim to the property] may indeed not appropriate the improvement?¹⁹  — He [Raba] answered him: Yes. But [R. Hiyya then asked]: Does a gift confer a greater right [on the recipient] than a sale [does on the buyer]?²⁰  — [The former] answered: Yes, it undoubtedly does.²¹

R. Nahman said: The following Baraitha corroborates the view of Mar Samuel, but our colleague Huna explains it as referring to a different matter. For it was taught: If one has sold a field to a neighbour and then [the buyer] has to surrender it [to another claimant], he [the buyer] may, when seeking redress, exact repayment of the capital [value of the field itself] from encumbered property, and the [refund of the cost of the] improvement he collects from unencumbered property. But our colleague Huna explains it as referring to a different matter, [viz.], to that of one who has bought [a field] from a person who acquired it wrongfully.²²  Another [Baraitha] taught: If one has sold a field to his neighbour, and he [the buyer] has improved it, and then a creditor [of the seller] comes and seizes it, he [the buyer], when seeking redress,is entitled, in a case where [the value of] the improvement is greater than the cost [thereof], to collect [the value of] the improvement from the owner of the land and the cost thereof from the creditor.²³  But in a case where the cost [of the improvement] is greater than the [value of that] improvement, he [the buyer] is only entitled to collect from the [seller's] creditor the amount of the cost which corresponds to the [value of the] improvement.²⁴  Now, how does Samuel explain this [Baraitha]? If [he explains it as referring] to one who bought [the field] from a person who acquired it wrongfully, then the first part [of the Baraitha]²⁵  contradicts him, for Samuel said [above]: 'He who buys [a field] from a person who acquired it wrongfully is not entitled to [compensation for] the improvement [he made in the field].' [And] if [he explains it as referring] to [the seller's] creditor [seizing the field], then both the first part and the second part [of the Baraitha] contradict him,²⁶  for Samuel said [above]: 'A creditor exacts payment from the improvement [made in the field by the buyer]'?If you like, I shall say [that Samuel will explain the Baraitha as referring] to one who bought [the field] from a person who acquired it wrongfully, and where the latter owns land,²⁷  or where there was a formal act of acquisition [whereby he pledged himself at the sale that he would pay for the improvement].²⁸  [And] if you like, I shall say [that Samuel will explain the Baraitha as referring] to [the seller's] creditor [seizing the field]. [Nevertheless] there is no contradiction [to Samuel's views]. [For] here [the reference is] to an improvement

1. The robber was robbed (by heathen men of violence, against whom there is no redress). In such a case the first (Jewish) robber is responsible to the rightful owner, and he is made to pay the owner for his loss. Cf. B.K. 116b.
2. The term, 'He has had to give it up' (lit., 'It is made to go out from under his hand'), applied to the person who first robbed the field, indicates that this first robber is in possession of the field, and is made to give it up as a result of the intervention of the Court. It cannot therefore be assumed that bandits took it away.
3. Rabbah son of R. Huna cannot accept the version that the robber dug pits etc. in the field, as the term 'It is made to go out etc.' implies that the field was intact when the court intervened to compel its return to the rightful owner.
4. I.e., one part refers to the buyer of the field, and the other to the original owner. The former demands the cost of the field itself, and is entitled to exact payment from encumbered property, while the latter demands compensation for the produce of his field, and is entitled to exact payment from unencumbered property only.
5. The Court then intervened and compelled the person who had bought the field to return it to the rightful owner, and it was given back in its original condition.
6. As the claim of the robbed person is not based on any document, the payment which the robber has to make in compensation for the property he had seized is like the repayment of a loan granted without a note of indebtedness.
7. The reason why encumbered property is liable to be seized by the seller's creditor who has written evidence as to his claim is that the writing of the document ensures publicity, which should prevent people from advancing money on such property. A trial in Court has the same effect as regards publicity and the consequent warning to would-be mortgagees.
8. How could it be said with certainty that cases would arise where a person who acquired a field wrongfully would be tried for seizing the field itself but not for appropriating its produce?
9. He first wants to make sure that he will recover the main loss, and subsequently he tries to regain the smaller losses.
10. A highly respected friend of Samuel. Cf. Sanh. 72b; Shab. 58a.
11. V. supra 14a. The guarantee given to the buyer in the deed of sale is to include a clause entitling the buyer to recover his loss, in the event of the property being claimed by creditors, by exacting payment from the seller's best property, as compensation for the original value of the field as well as for the improvements he made and for the produce of the field.
12. [In which case the formula provides for compensation in respect of the improvement made by the buyer in the field.] How then could Samuel have said that the person who has bought a field from a robber and has to return it to the rightful owner cannot claim compensation for the improvement he made in it?
13. The robber repays with land, not with money, and therefore the additional amount paid for the improvement does not appear as usury given for borrowed money; cf. supra 24b.
14. This is not permitted, as any advance in the price of corn would increase the value of the returned measure, and the increase would be usury.
15. There is no usury in a sale.
16. [The payment for the increase included in the guarantee becomes thus due from the moment of the sale and is no longer regarded as usury.]
17. I.e., the seller undertakes to satisfy all claims against the property and to be responsible for any loss the buyer may sustain because of previous claims against the property or for any other reason. The guarantee refers to 'produce and improvement' as well as to the original value of the property sold.
18. As the seller is thus responsible to the buyer, the creditor enforces his claim against the property acquired by the buyer and the produce it has yielded, and the latter then seeks redress from the seller.
19. As there is no guarantee given by a donor as regards previous claims against the property given away, the recipient is not entitled to compensation from the donor, and if the former loses the improvements he has made in the property he has no redress. For this reason the creditor of the donor ought not to be entitled to the improvement made by the recipient, as the loss would be the latter's, not the debtor's.
20. I.e., why should a person who receives a free gift be more protected against loss than a person who pays for what he gets?
21. Lit., 'It is better and better.' The creditor has no right to inflict a loss upon the recipient of the gift by taking away the improvement made by the recipient. As the recipient cannot reclaim the loss from the donor, whose debt is the cause of the creditor's action against the recipient of the gift, there is no reason why the latter should lose more than the value of the gift itself, which was originally accepted by the creditor as security for his loan.
22. According to R. Huna the rightful owner of the field has a right to claim the improvement, as the field, which was taken away from him wrongfully and sold illegally, never became the property of the buyer. But a creditor who seizes a field for a debt due to him from the seller has no right to claim the improvement made in it by the buyer, for the latter acquired the field legally, and, until the creditor seized it, it was his property.
23. The buyer is entitled to compensation from the seller to the amount by which the value of the improvement exceeds the expense incurred in making the improvement, as the improvement helped to pay the seller's debt. But the cost of the improvement the creditor has to refund to the buyer, who spent his money on improving the field before the creditor seized it.
24. The buyer cannot claim from the creditor the excess of his expenditure over the actual value of the improvement, and he loses this amount.
25. According to which the rightful owner of the field, designated 'creditor', has to pay for the improvement.
26. As it is laid down in both parts of the Baraitha that the creditor has to refund the cost of the improvement, while Samuel teaches that the creditor may collect his debt from the improvement, without repaying the cost incurred by the buyer.
27. V. p. 86, n. 4.
28. V. ibid. n. 7.

which [has matured and] is ready to be carried away,¹  [but] there [the reference is] to an improvement which [has not yet matured and] is not ready to be carried away. But do not cases occur daily²  where Samuel allows [creditors] to collect [their debts] even from improvements which [have matured and] are ready to be carried away?³  — There is no contradiction: These [are cases] where [the creditor] claims from him [the seller] an amount equal to [the combined value of] the land and the improvement;⁴  the other is [a case] where [the creditor] claims from him [the seller] an amount equal to the value of the land alone, in which case the creditor compensates him [the buyer] for [the value of] his improvement and dismisses him. [But, it is asked:] This is right and proper according to the view of him who says⁵  that when the buyer has money [to pay the seller's debt] he cannot dismiss the creditor [by paying him the money].⁶  But according to the view of him who says that when the buyer has money [to pay the seller's debt] he can dismiss the creditor [by paying him the money], let him⁷  say unto him [the creditor]: 'If I had money I would have kept you away from the whole field [by paying the amount due to you] — now that I have no money give me a piece⁸  of ground in the field corresponding to the value of my improvement'! — Here [in the Baraitha] we deal with a case where he [the seller] had made it [the field] an hypothec,⁹  in that he said [to the creditor], 'You shall receive payment only from this.'

If [the buyer] knew that [the field] did not belong to him [who sold it], and [yet] he bought it, Rab says: He is entitled to the purchase-price¹⁰  but not to the [value of the] improvement.¹¹  But Samuel says: He is not entitled even to the purchase-price. Wherein do they differ? Rab is of the opinion that a person, knowing that [the seller] has no land, will make up his mind and give him [the money] as a deposit.¹²  But then he should say to him that it is to be regarded as a deposit? He is afraid that he [the seller] will not accept it [as such].¹³  But Samuel is of the opinion that a person, knowing that [the seller] has no land, will make up his mind and give him [the money] as a present. But then he should say to him that it is to be regarded as a present? He [the recipient] might be bashful.¹⁴  But has not this difference of opinion [between Rab and Samuel] been expressed once already? Has it not been stated:¹⁵  'If a man betrothed his sister to himself [by giving her money],¹⁶  Rab says: The money has to be given back. But Samuel says: The money is to be regarded as a present. Rab says that the money has to be given back, [because he is of the opinion that] a person, knowing that one's betrothal to one's sister is not valid, will make up his mind and give [her the money] as a deposit. But then he should say to her that it is to be regarded as a deposit? He is afraid that she will not accept it [as such]. But Samuel says that the money is to be regarded as a present, [because he is of the opinion that] a person, knowing that one's betrothal to one's sister is not valid, will make up his mind and give [her the money] as a present. But then he should say to her that it is to be regarded as a present? She might feel bashful? — It is necessary [to have the difference of opinion recorded in both cases]. For if it were taught [only] in that case¹⁷  [we might think that only] in such a case does Rab say [that the money is to be returned],¹⁸  because people do not usually give presents to strangers, but as regards a sister [we might think that] he agrees with Samuel. And if it were taught [only] in this case,¹⁹  [we might think that only] in such a case does Samuel say [that the money is not to be returned],²⁰  but as regards the other case²¹  [we might think] that he agrees with Rab.²²  [Therefore] it is necessary [to state both cases].

[Now, behold,] both according to Rab, who says [that the money is to be regarded as] a deposit, and according to Samuel, who says [that the money is to be regarded as] a present — how does [the person who has given the money] go down [to the field] and how does he eat the fruit [thereof]?²³  He thinks, 'I shall go down to the field and work [in it] and shall eat [the fruit] thereof,²⁴  just as he [who acquired it wrongfully] would have done, and when the [rightful] owner of the field will come [and claim it] my money will be [treated] as a deposit, according to Rab, who says [that it is to be regarded as] a deposit, and as a gift, according to Samuel, who says [that it is to be regarded as] a gift.'

Said Raba: The law [in regard to the above controversy] is that he [the buyer] is entitled to the purchase-price as well as to the [value of the] improvement, even if the improvement was not mentioned [in the indemnity clause in the deed of sale].²⁵  If [the buyer] knew that [the field] did not belong to him [who sold it], he [the buyer] is entitled to the purchase-price but not to [the value of] the improvement, [and the omission of] the guarantee clause is [to be regarded as] an error of the scribe,²⁶  both in [the cases of] notes of indebtedness and in [the cases of] deeds of sale. Samuel asked Rab [the following question]: If [the robber who sold the field unlawfully] bought it subsequently from the original owners, what is the law [then]?²⁷  — [Rab] said to him [in reply]: What was it that the first person²⁸  sold to the second person?²⁹  [Surely the former sold to the latter in advance] every right that he [the former] might subsequently acquire!³⁰  [And] for what reason?³¹  — Mar Zutra said: [Because] he wished that he [the buyer] should not call him a robber. R. Ashi said: [Because] he wished to vindicate his honesty. What is the difference between them?³²  — The difference would be seen [in a case] where the buyer died. According to the view [of Mar Zutra, viz.], 'he wished that he should not call him a robber,'

1. V. B.B. (Sonc. ed.) p. 569, n. 8. Our Baraitha deals with a case where the improved produce of the field is nearly ready to be harvested, so that, although it is still attached to the field and still needs the soil, it may be regarded as 'ripe fruit' whose cost of production the creditor has to refund.
2. Cf. infra 110b; B.K. 95b.
3. Samuel was known to have repeatedly allowed creditors to seize property sold by the debtors and to appropriate the improvement made in it by the buyers, without compensation for the expense incurred, even though the improved produce was near harvesting.
4. In such cases Samuel does not award the buyer the expense of his improvement, as the creditor is entitled to the full repayment of the debt due to him from the seller.
5. Cf. infra 110b; B.K. 96a.
6. The creditor cannot be prevented from seizing the land, if he prefers it to the money offered him by the buyer in settlement of his debt, as the creditor has a prior claim to the land.
7. Let the buyer, in the case dealt with in our Baraitha, say to the creditor, who claims the field with the improvement: 'As I am entitled to keep the land if I am able to repay your debt, I am surely entitled to retain part of the field as compensation for the amount which I have spent on the improvement, and which I am entitled to recover from you.'
8. [H], in other places spelt [H], a measure of grain, or a piece of ground in which such an amount of grain can be sown.
9. In which case all would agree that the buyer cannot put off the creditor by paying the seller's debt, and that the creditor is entitled to seize the field.
10. The buyer is entitled to demand the return of the money he paid the seller for the field which the rightful owner has reclaimed. The fact that the buyer knew that the sale was illegal does not deprive him of the right to reclaim his money from the seller.
11. As the sale of the field was illegal, the buyer never really acquired the field, and as he knew this to be the case he has only himself to blame for the loss he incurred in improving a field which was not his own.
12. For safe keeping — to be demanded back in due course.
13. He will not undertake to look after somebody else's money.
14. It will make the recipient feel bashful of accepting the gift.
15. Git. 45a; 'Ar. 30a; cf. Kid. 46b.
16. Cf. Kid. 2a.
17. Where the buyer knew that the field did not belong to the seller.
18. In view of the fact that the money is regarded as a deposit, according to Rab.
19. I.e., the case of a brother giving money to his sister for the purpose of betrothing her to him.
20. In view of the fact that the money is regarded as a present, according to Samuel, and one is apt to give a present to a sister.
21. Where a person pays money to a stranger for a field which he knows to have been wrongfully acquired.
22. That the money is not to be regarded as a gift, and must be returned.
23. How can it be said that the reason why Rab says that the money is to be returned is that it has to be regarded as a deposit, and that the reason why Samuel says that the money is not to be returned is that it has to be regarded as a gift, seeing that in either case the person who handed over the money would not have deemed himself entitled to take possession of the field and to use its produce. If he did so, it would show that he meant to buy the field with the money, and that, not being familiar with the law, he deemed the sale valid. Rab and Samuel must therefore have given their decisions for reasons other than those stated above.
24. I.e., he knows that it is not a sale, and the money was not handed over as purchase-money. He only intended to take possession of the field and use its produce until the rightful owner reclaimed it, and the money was to be treated as a deposit (in the view of Rab) or as a gift (in the view of Samuel).
25. Samuel's view that the scribe must consult the seller regarding the inclusion of 'improvement' in the indemnity clause, and that non-inclusion is not regarded as an accidental omission by the scribe, is thus rejected.
26. So that in every case the buyer whose field is seized by the seller's creditors can claim indemnity from the seller's property, contrary to the view of Samuel.
27. Is the robber entitled to take the field away from the person to whom he sold it unlawfully, just as any other person would have been who bought the field from the rightful owner?
28. The robber.
29. The person who bought the field from the robber.
30. When the robber sold the field he made over to the buyer any right that he (the robber) might subsequently acquire in regard to the field, and therefore the robber has no right to claim the field from the person who bought it from him. It is assumed, indeed, that the robber only bought the field in order to legalise its sale to the first buyer.
31. What was the motive that could have prompted the robber to secure the property for the buyer?
32. What would be the effect of their difference in actual cases that may arise?