Bava Batra 5

הַמּוֹכֵר אֶת הַסְּפִינָה, מָכַר אֶת הַתֹּרֶן וְאֶת הַנֵּס וְאֶת הָעוֹגִין וְאֶת כָּל הַמַּנְהִיגִין אוֹתָהּ, אֲבָל לֹא מָכַר לֹא אֶת הָעֲבָדִים, וְלֹא אֶת הַמַּרְצוּפִין, וְלֹא אֶת הָאַנְתִּיקִי. וּבִזְמַן שֶׁאָמַר לוֹ הִיא וְכָל מַה שֶּׁבְּתוֹכָהּ, הֲרֵי כֻלָּן מְכוּרִין. מָכַר אֶת הַקָּרוֹן, לֹא מָכַר אֶת הַפְּרָדוֹת. מָכַר אֶת הַפְּרָדוֹת, לֹא מָכַר אֶת הַקָּרוֹן. מָכַר אֶת הַצֶּמֶד, לֹא מָכַר אֶת הַבָּקָר. מָכַר אֶת הַבָּקָר, לֹא מָכַר אֶת הַצֶּמֶד. רַבִּי יְהוּדָה אוֹמֵר, הַדָּמִים מוֹדִיעִין. כֵּיצַד, אָמַר לוֹ מְכוֹר לִי צִמְדְּךָ בְּמָאתַיִם זוּז, הַדָּבָר יָדוּעַ שֶׁאֵין הַצֶּמֶד בְּמָאתַיִם זוּז. וַחֲכָמִים אוֹמְרִים, אֵין הַדָּמִים רְאָיָה:

One who sells a boat has sold the mast, the sail, the anchor, and all of its "conductors" [the oars, by which the boat is "conducted" to its destination]. But he has not sold the sailors, the packing bags [for its cargo], or its wares. [And all those things mentioned below under "If he sold … he has not sold …" — if he made a gift of the boat or dedicated it, they are not included in the gift or the dedication. They are not like bor, duth, or wine vat (above), which are all "ground-fixed" and "absorbed" in the field relative to dedication and gift, but these are not "absorbed" at all.] And if he said: "It and all that is in it," all are sold. If he sold the wagon, he has not sold the p'radoth [the animals pulling the wagon. This, if they are not attached to it at the time of the sale. Some understand "p'radoth" as the wood pieces, separate (nifradim) from the wagon, by which the wagon is pulled. This, if they are not tied to it at the time of the sale.] If he sold the p'radoth, he has not sold the wagon. If he sold the yoke, he has not sold the team. If he sold the team, he has not sold the yoke. R. Yehudah says: The money apprises us (as to what has been sold.) How so? If he said to him: "Sell me your yoke for two hundred zuz," it is obvious that a yoke (itself) is not sold for two hundred zuz. The sages say: The money is no proof. [As to the ruling (Bava Metzia 4:3) that (with an overcharge of) a sixth the sale is valid and the overcharge is returned, and with an overcharge of more than a sixth the sale is annulled, this is when the buyer might mistakenly think that it is worth that much (more than a sixth, etc.), so that the sale is "a sale in error." But where the buyer would not make such a mistake, as in buying a yoke worth a zuz for two hundred, we say that he gave it to him as a gift and the sale is not annulled. The halachah is not in accordance with R. Yehudah.]

הַמּוֹכֵר אֶת הַחֲמוֹר, לֹא מָכַר כֵּלָיו. נַחוּם הַמָּדִי אוֹמֵר, מָכַר כֵּלָיו. רַבִּי יְהוּדָה אוֹמֵר, פְּעָמִים מְכוּרִין וּפְעָמִים אֵינָן מְכוּרִין. כֵּיצַד, הָיָה חֲמוֹר לְפָנָיו וְכֵלָיו עָלָיו, וְאָמַר לוֹ מְכוֹר לִי חֲמוֹרְךָ זֶה, הֲרֵי כֵלָיו מְכוּרִין. חֲמוֹרְךָ הוּא, אֵין כֵּלָיו מְכוּרִין:

One who sells an ass has not sold its gear. R. Nachum Hamadi says: He has sold its gear. [With riding gear, such as saddle and (saddle) cushion, all agree that he acquires them, even if they are not on it at the time of the sale. Where do they differ? With carrying gear, such as sack and (saddle) bags. The first tanna holds that he has not sold him the latter, and Nachum Hamadi holds that he has. The halachah is in accordance with the first tanna, viz.: he has not acquired the carrying appurtenances, even if they were not on it at the time of the sale.] R. Yehudah says: They are sometimes sold and sometimes not sold. How so? If an ass were (standing) before him with its gear on, and he said to him: "Sell me this ass" [implying: as it is, with its gear], its gear is sold. (If he said:) "Is it your ass?" [connoting: (If it is,) sell it to me, then it is as if he sells an ass itself, and] its gear is not sold, [even if it were upon it at the time of the sale. The halachah is not in accordance with R. Yehudah.]

הַמּוֹכֵר אֶת הַחֲמוֹר, מָכַר אֶת הַסְּיָח. מָכַר אֶת הַפָּרָה, לֹא מָכַר אֶת בְּנָהּ. מָכַר אַשְׁפָּה, מָכַר זִבְלָהּ. מָכַר בּוֹר, מָכַר מֵימָיו. מָכַר כַּוֶּרֶת, מָכַר דְּבוֹרִים. מָכַר שׁוֹבָךְ, מָכַר יוֹנִים. הַלּוֹקֵחַ פֵּרוֹת שׁוֹבָךְ מֵחֲבֵרוֹ, מַפְרִיחַ בְּרֵכָה רִאשׁוֹנָה. פֵּרוֹת כַּוֶּרֶת, נוֹטֵל שְׁלֹשָׁה נְחִילִין וּמְסָרֵס. חַלּוֹת דְּבַשׁ, מַנִּיחַ שְׁתֵּי חַלּוֹת. זֵיתִים לָקֹץ, מַנִּיחַ שְׁתֵּי גְרוֹפִיּוֹת:

One who sells an ass has sold its foal. [the Gemara construes this as an instance of one's saying: "I am selling you a nursing ass." For of what avail is the milk of an ass? It must be, then, that his intent is it and its foal.] If he sold a cow, he has not sold her calf. [This, when he says: "I am selling you a nursing cow." For a cow stands (to be sold) for its milk, and this was his intent: "a cow for its milk."] If one sold ashpah [a place three or more handbreadths high or three or more handbreadths deep, used as a dung deposit],he has sold its [i.e., his animals'] dung. If he sold a bor (see 2:1), he has sold its water. [This is an individual opinion, with which the sages differ. The halachah is in accordance with the sages.] If he sold a hive, he has sold the bees. If he sold a dove-cote, he has sold the doves. One who buys the "fruits" of the dove-cote [the fledglings of the entire year] from his neighbor "chases off" the first (breichah) (brood) [and leaves them to the seller. Every two births is called a "breichah." They are left with their mother so that they (the mothers) not fly off.] (One who buys) the "fruits" of a hive [the bees born in the hive during that year] takes three swarms, [the first three leaving the hive, and he places them in his hive. For the first are the best, and the quality progressively diminishes.] And, [after that] he alternates. [That is, he takes one (swarm) and leaves one to the seller to grow and combine with the host to populate the hive; and so, in succession.] (One who buys) honey-combs leaves two [for the nourishment of the bees in the rainy season.] (One who buys) olive trees to cut leaves two shoots [which are then re-planted.]

הַקּוֹנֶה שְׁנֵי אִילָנוֹת בְּתוֹךְ שְׂדֵה חֲבֵרוֹ, הֲרֵי זֶה לֹא קָנָה קַרְקַע. רַבִּי מֵאִיר אוֹמֵר, קָנָה קַרְקַע. הִגְדִּילוּ, לֹא יְשַׁפֶּה. וְהָעוֹלֶה מִן הַגֶּזַע, שֶׁלּוֹ. וּמִן הַשָּׁרָשִׁים, שֶׁל בַּעַל הַקַּרְקַע. וְאִם מֵתוּ, אֵין לוֹ קַרְקַע. קָנָה שְׁלֹשָׁה, קָנָה קַרְקַע. הִגְדִּילוּ, יְשַׁפֶּה. וְהָעוֹלֶה מִן הַגֶּזַע וּמִן הַשָּׁרָשִׁין, שֶׁלּוֹ. וְאִם מֵתוּ, יֶשׁ לוֹ קַרְקַע:

One who buys "two trees" [unqualified] in the midst of his neighbor's field does not acquire [any] land [around them.] R. Meir says: He does acquire land. If they grew, he [the owner of the land] may not cut them, [even though their shade harms his land. For since the owner of the trees has no land, (it is understood that) the owner of the field has "bound" his land to him for all of their requirements so long as they are there.] And what grows from the trunk [i.e., whatever is above the ground, "beholding" the sun] is his [the tree owner's. Not that he should let it grow there; for we fear that the soil might rise until part of the tree growing out of the trunk is covered with it, so that the impression is given of three trees and the buyer might say to him: "You sold me three trees and I own (their) land." (see below) But he must cut it and burn it.] And (what grows) from the roots [i.e., whatever is below the ground] is the land owner's. And if they died [i.e., if the trees dried up], he (the tree owner) has no land [on which to plant others in their place.] If he bought three (trees), he acquires the land, [it being considered a "tree-field," and he acquires the land between tree and tree, and beneath them, and to the side, the full (space) of a fruit picker and his basket, so that he can stand there with his basket and pick. This, when there is no less between tree and tree than four cubits and no more than sixteen. It is only then that he acquires the land as indicated. But if there is less between tree and tree than four cubits or more than sixteen, he does not acquire the land.] If they grew, he (the field owner) may cut them. And what grows from the trunk and from the roots is his (the tree owner's). And if they died, he (the tree owner) has land (on which to re-plant them).

הַמּוֹכֵר רֹאשׁ בְּהֵמָה גַסָּה, לֹא מָכַר אֶת הָרַגְלָיִם. מָכַר אֶת הָרַגְלַיִם, לֹא מָכַר אֶת הָרֹאשׁ. מָכַר אֶת הַקָּנֶה, לֹא מָכַר אֶת הַכָּבֵד. מָכַר אֶת הַכָּבֵד, לֹא מָכַר אֶת הַקָּנֶה. אֲבָל בְּדַקָּה, מָכַר אֶת הָרֹאשׁ, מָכַר אֶת הָרַגְלָיִם. מָכַר אֶת הָרַגְלַיִם, לֹא מָכַר אֶת הָרֹאשׁ. מָכַר אֶת הַקָּנֶה, מָכַר אֶת הַכָּבֵד. מָכַר אֶת הַכָּבֵד, לֹא מָכַר אֶת הַקָּנֶה:

One who sells the head of a large beast has not sold the feet. [In the Tosefta it is stated: Where is this so? Where they are not accustomed to do so. But where they are, "all is according to the custom of the land."] If he sold the feet, he has not sold the head. If he sold the windpipe [i.e., the lung, so called because of its windpipe], he has not sold the liver. If he sold the liver, he has not sold the lung. But in a small animal, if he sold the head, he has sold the legs; if he sold the legs, he has not sold the head. If he sold the windpipe, he has sold the liver; if he sold the liver, he has not sold the windpipe.

אַרְבַּע מִדּוֹת בַּמּוֹכְרִין. מָכַר לוֹ חִטִּים יָפוֹת וְנִמְצְאוּ רָעוֹת, הַלּוֹקֵחַ יָכוֹל לַחֲזֹר בּוֹ. רָעוֹת וְנִמְצְאוּ יָפוֹת, מוֹכֵר יָכוֹל לַחֲזֹר בּוֹ. רָעוֹת וְנִמְצְאוּ רָעוֹת, יָפוֹת וְנִמְצְאוּ יָפוֹת, אֵין אֶחָד מֵהֶם יָכוֹל לַחֲזֹר בּוֹ. שְׁחַמְתִּית וְנִמְצֵאת לְבָנָה, לְבָנָה וְנִמְצֵאת שְׁחַמְתִּית, עֵצִים שֶׁל זַיִת וְנִמְצְאוּ שֶׁל שִׁקְמָה, שֶׁל שִׁקְמָה וְנִמְצְאוּ שֶׁל זַיִת, יַיִן וְנִמְצָא חֹמֶץ, חֹמֶץ וְנִמְצָא יַיִן, שְׁנֵיהֶם יְכוֹלִין לַחֲזֹר בָּהֶן:

There are four "measures" [distinct laws] in respect to sales: If he sold him good wheat and it was found to be bad, the buyer can back out. [i.e., If it were stipulated that he be given good wheat and it was found to be bad, it is like ona'ah ("wronging," overcharging). Therefore, only the object of the ona'ah, the buyer, can back out, but not the seller, even if the price of wheat rose greatly.] (If it were stipulated that he be given) bad wheat and it was found to be good, the seller can back out. Bad and found to be bad; good and found to be good, neither can back out [even if the price rose or fell. And the buyer cannot say: "I intended good wheat — I said 'bad' only by way of (Proverbs 19:8): '"Bad, bad," the buyer says.'" And, conversely, the seller cannot say: "I intended bad wheat — I said 'good' only because it is the way of a seller to call bad good."] Shechamtith [red (-brown). The Targum of (Genesis 30:35): "And all chum" (brown) is: "And all shechum."], and it were found to be white; white, and it were found to be shechamtith — Olive wood, and it were found to be sycamore wood; sycamore, and it were found to be olive — Wine, and it were found to be vinegar; vinegar, and it were found to be wine — both can back out. [For some prefer the one, and others, the other. All such instances are a mekach tauth (a "mistaken sale") for both, and both can back out, whereas in the instance of "good, and they were found to be bad," all prefer the good. [("Wine, and it were found to be vinegar, etc.":) Some prefer wine; others, vinegar.]

הַמּוֹכֵר פֵּרוֹת לַחֲבֵרוֹ, מָשַׁךְ וְלֹא מָדַד, קָנָה. מָדַד וְלֹא מָשַׁךְ, לֹא קָנָה. אִם הָיָה פִקֵּחַ, שׂוֹכֵר אֶת מְקוֹמָן. הַלּוֹקֵחַ פִּשְׁתָּן מֵחֲבֵרוֹ, הֲרֵי זֶה לֹא קָנָה עַד שֶׁיְּטַלְטְלֶנּוּ מִמָּקוֹם לְמָקוֹם. וְאִם הָיָה בִמְחֻבָּר לַקַּרְקַע וְתָלַשׁ כָּל שֶׁהוּא, קָנָה:

One who sells fruits to his neighbor — If he pulled and did not measure, he acquires. [If he pulled from the public domain to an alley or in their common courtyard, he acquires. But pulling in the public domain itself does not effect acquisition. ("even if he did not measure":) As when he stipulated beforehand: "so much produce for so much money." But if he did not do so, even if he measured and pulled he does not acquire, not relying on it. For the seller can ask as much as he wishes, and the buyer can say: "I will buy it only cheap."] If he [the buyer] measured [for the seller in the public domain, even in the vessels of the buyer], and he (the buyer) did not pull, he does not acquire. [For a man's vessels do not acquire for him in the public domain. And if the buyer himself measured, even in the public domain, he acquires with lifting.] If he [the buyer] were shrewd, he rents its place [if it were in the owner's domain, and its place acquires for him. (We are speaking of heavy loads, which are not generally lifted, for which reason he acquires with pulling.)] One who buys flax from his neighbor does not acquire until he moves it from place to place. [That is, (he acquires it) with lifting. And it ("moving") is stated incidentally. For one who lifts something generally moves it from place to place.] And if it were attached to the ground, and he tore somewhat, he acquires. [The Gemara construes this as an instance of the seller's telling the buyer: "Go and improve some ground for me and acquire all that is on it." For since he hired him to do some work on his ground, when he does some work, he acquires his hire, and he also acquires whatever he wished to bequeath him with the hire. Therefore, if he tears somewhat, he acquires.]

הַמּוֹכֵר יַיִן וָשֶׁמֶן לַחֲבֵרוֹ וְהוּקְרוּ אוֹ שֶׁהוּזְלוּ, אִם עַד שֶׁלֹּא נִתְמַלְּאָה הַמִּדָּה, לַמּוֹכֵר. מִשֶּׁנִּתְמַלְּאָה הַמִּדָּה, לַלּוֹקֵחַ. וְאִם הָיָה סַרְסוּר בֵּינֵיהֶן, נִשְׁבְּרָה הֶחָבִית, נִשְׁבְּרָה לַסַּרְסוּר. וְחַיָּב לְהַטִּיף לוֹ שָׁלֹשׁ טִפִּין. הִרְכִּינָהּ וּמִצָּה, הֲרֵי הוּא שֶׁל מוֹכֵר. וְהַחֶנְוָנִי אֵינוֹ חַיָּב לְהַטִּיף שָׁלֹשׁ טִפִּין. רַבִּי יְהוּדָה אוֹמֵר, עֶרֶב שַׁבָּת עִם חֲשֵׁכָה, פָּטוּר:

If one sells wine or oil to his neighbor, and they became dearer or cheaper — If (they became dearer or cheaper) before the measure were full, it is the seller's; if after, the buyer's. [We are speaking of a measuring vessel which belongs to neither and which was lent to both. It is lent to the seller until it is filled, and, thereafter, to the buyer. Therefore, before the measure has been filled, at which stage the vessel is lent to the seller, the buyer does not acquire. And after the measure has been filled, at which point the vessel is lent to the buyer, the buyer acquires.] And if there were a middleman between them and the jug [(which was his)] broke, it broke for the middleman (i.e., he is liable) [and we do not say that he is the messenger of the buyer and that it broke for the buyer.] And he [the seller] must "drip" for him [the buyer] three drops [of what adhered to the sides of the measuring vessel after the wine or oil were poured.] If he turned over and collected, it belongs to the seller [i.e., If he turned the measuring vessel over on its side after having poured the oil or the wine and "dripped" three drops, and the exudate of the measuring vessel collected in one spot at the bottom, it belongs to the seller, the buyer having "despaired" of it.] A shopkeeper need not "drip" three drops, [being preoccupied with selling.] R. Yehudah says: He is exempt [from doing so only] near nightfall on Sabbath eve. [The halachah is not in accordance with R. Yehudah.]

הַשּׁוֹלֵחַ אֶת בְּנוֹ אֵצֶל חֶנְוָנִי וּפֻנְדְּיוֹן בְּיָדוֹ, וּמָדַד לוֹ בְּאִסָּר שֶׁמֶן וְנָתַן לוֹ אֶת הָאִסָּר, שָׁבַר אֶת הַצְּלוֹחִית וְאִבֵּד אֶת הָאִסָּר, חֶנְוָנִי חַיָּב. רַבִּי יְהוּדָה פּוֹטֵר, שֶׁעַל מְנָת כֵּן שְׁלָחוֹ. וּמוֹדִים חֲכָמִים לְרַבִּי יְהוּדָה בִּזְמַן שֶׁהַצְּלוֹחִית בְּיַד הַתִּינוֹק וּמָדַד חֶנְוָנִי לְתוֹכָהּ, חֶנְוָנִי פָטוּר:

If one sent his [small] son to a shopkeeper with a pondion [two issarin] in his hand [to bring oil for an issar, and to return an issar], and he measured out an issar of oil for him and gave him an issar, and he (the child) broke the flask [and spilled the oil] and lost the issar, the shopkeeper is liable [for the oil, the flask, and the issar. For the father sent his small son to the shopkeeper only to tell him that he needed oil, not to have him send the oil with his son. The Gemara asks why the shopkeeper should be liable for the flask when it is "willful loss," the father himself having sent it with his son! And it answers that (the instance is one in which) the shopkeeper took it to measure out oil for others, becoming a thief vis-à-vis the flask, so that it is regarded as being in his domain until he returns it to the owner. And even though he returned it to the child, this did not exempt him.] R. Yehudah exempts him; for it was to this end that he sent him [i.e., that the shopkeeper sent it with his son.] And the sages conceded to R. Yehudah that if the flask were in the child's hand and the shopkeeper measured into it, he is not liable [for the flask. The halachah is not in accordance with R. Yehudah.]

הַסִּיטוֹן מְקַנֵּחַ מִדּוֹתָיו אַחַת לִשְׁלֹשִׁים יוֹם, וּבַעַל הַבַּיִת אַחַת לִשְׁנֵים עָשָׂר חֹדֶשׁ. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר, חִלּוּף הַדְּבָרִים. חֶנְוָנִי מְקַנֵּחַ מִדּוֹתָיו פַּעֲמַיִם בַּשַּׁבָּת, וּמְמַחֶה מִשְׁקְלוֹתָיו פַּעַם אַחַת בַּשַּׁבָּת, וּמְקַנֵּחַ מֹאזְנַיִם עַל כָּל מִשְׁקָל וּמִשְׁקָל:

The wholesaler cleans his measures once in thirty days [because of the wine and oil that congeal in them and thus reduce the measure.], and a homeowner, [who does not sell on the scale of a wholesaler], once in twelve months. R. Shimon b. Gamliel says: Just the opposite. A shopkeeper cleans his measures twice a week [For a shopkeeper is not required to "drip" three drops as a wholesaler and a homeowner are (see 3:8), and (residue) remains in the vessel and sticks to it.], and he wipes his weights [i.e., he cleans the stones of his scales with which he measures wet things] once a week. And he cleans his scales for every weighing.

אָמַר רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל, בַּמֶּה דְבָרִים אֲמוּרִים, בַּלַּח. אֲבָל בַּיָּבֵשׁ, אֵינוֹ צָרִיךְ. וְחַיָּב לְהַכְרִיעַ לוֹ טֶפַח. הָיָה שׁוֹקֵל לוֹ עַיִן בְּעַיִן, נוֹתֵן לוֹ גֵרוּמָיו, אֶחָד לַעֲשָׂרָה בַּלַּח וְאֶחָד לְעֶשְׂרִים בַּיָּבֵשׁ. מְקוֹם שֶׁנָּהֲגוּ לָמֹד בַּדַּקָּה, לֹא יָמֹד בַּגַּסָּה. בַּגַּסָּה, לֹא יָמֹד בַּדַּקָּה. לִמְחֹק, לֹא יִגְדֹּשׁ. לִגְדֹּשׁ, לֹא יִמְחֹק:

R. Shimon b. Gamliel said: When is this (the above) so? With wet (objects). But with dry, it is not necessary. And he (the seller) must lower (the balance) for him (the buyer) a handbreadth [for the weight of a litra or more, but not for less.] If he weighed it exactly, he gives him the due surplus, [a tenth of a litra for every ten litra, which is] one to ten [i.e., one in a hundred] in wet measure, and one to twenty [i.e., a half of a tenth for every twenty litra] in dry measure. In a place where the custom is to use small measure, one may not use large measure, [the buyer losing thereby, receiving only one "surplus" where he should have received many]; (where it is the custom) to use large measure, one may not use small measure. To strike off [what projects above the balance], one may not heap, [even for more money]; to heap, one may not strike off, [even for less money.]