THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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Bava Basra, 88
BAVA BASRA 87 & 88 - dedicated by an admirer of the work of the Dafyomi
Advancement Forum, l'Iluy Nishmas Mrs. Gisela (Golda bas Reb Chaim Yitzchak
Ozer) and Reb Yisroel Shimon (ben Reb Shlomo) Turkel, A"H.
1) EXAMINING AN OBJECT BEFORE PURCHASING IT
QUESTION: The Gemara states that when a potential buyer picks up an object
to examine it before buying it, and the price of that object is known, he
becomes responsible for it. If the object is stolen or destroyed, even
through an Ones, while it is in the buyer's hands, he is obligated to pay
for it as if he had purchased it.
2) CAUSING THE SELLER A LOSS BY SEPARATING "MA'ASEROS"
The Gemara teaches further that when a potential buyer inspects vegetables
(being sold by an Am ha'Aretz) in the market and decides to purchase a
particular one, he may not change his mind and return the vegetable to its
place without first separating Ma'aser (since the produce are being sold by
an Am ha'Aretz, they are "Demai" and the Rabanan required Ma'aser to be
separated from them). The Gemara explains that this applies only to a person
who is particularly G-d-fearing and always acts in accordance with his inner
intentions even when no others are aware of those intentions (the Gemara
refers to Rav Safra as an example of such a person; see Background). A
person who is not on such a level may return the vegetable without
separating Ma'aser, since he has not actually purchased the vegetable (he
simply *wanted* to purchase it). The RITVA adds that this Halachah applies
only when the price of the vegetable is already known.
If the price of the vegetable is already known, and the potential buyer
picked it up in order to purchase it, why is it permitted for him to return
it without separating Ma'aser (if he is not like Rav Safra)? According to
the teaching of the Gemara earlier, it seems that from the moment a person
lifts an object with the intention of purchasing it, the object becomes his.
If he returns it to the seller, then he is "reselling" it, and he must first
separate Ma'aser of Demai!
ANSWER: It is clear from our Gemara that this principle -- that the act of
examining merchandise is tantamount to purchasing it -- does *not* apply
when the buyer examines an object and decides that it does *not* meet his
standards and he chooses to return it. It is only when he does *not* return
the object that the buyer becomes responsible for the object immediately.
Therefore, when the buyer explicitly states that he does *not* want to
purchase the object, the object does not become his and he is not
responsible for it.
There are two ways to understand this distinction:
(a) The RASHBAM (DH v'Hani) gives two explanations for why the buyer's act
of examining an object makes him responsible for any calamity that befalls
it. According to one approach, the buyer is simply considered to have
*borrowed* the object when he picked it up in order to examine it. It is not
yet *his*, but rather he is a *Shomer*. He bears responsibility for the
object and must pay for it if it becomes destroyed in accordance with the
laws of Shomrim, and not because he purchased the object.
According to this approach, it is clear that the buyer is only *responsible*
for the object, and not that it actually belongs to him (until he pays for
it). If the buyer retracts and does not pay for it, he may return the
However, many Rishonim disagree with this approach and prove (from the
incident that the Gemara relates about the gourds that were sold in
Pum-Nehara) that the buyer indeed acquires the object by examining it and he
is not just a Shomer. (See TOSFOS 87b, DH ha'Loke'ach, and Rishonim).
(b) The RASHBA and the RE'EM (cited by the SHITAH MEKUBETZES) explain that a
person acquires an object through examining it only because we assume that
the object will *probably* find favor in his eyes (since most merchandise is
not defective). If the object becomes destroyed while in the hands of the
buyer, the buyer must pay for it, since he did not retract from the purchase
due to a deficiency in the object and he probably would have purchased it.
However, if the buyer explicitly states that this is *not* what he wants to
purchase (even if he thought at first that it *is* what he wanted), we do
not consider him to have purchased the object, and therefore he may return
it without separating Ma'aser.
QUESTION: The Gemara teaches that when a G-d-fearing person inspects
vegetables that are being sold by an Am ha'Aretz in the market and decides
to purchase a particular one, he may not change his mind and return the
vegetable to its place without first separating Ma'aser of Demai (see
above). However, by separating Ma'aser before returning the produce he will
reduce the value of the produce, causing harm to the seller. He must
therefore separate Ma'aser and compensate the seller for the loss incurred
by the separation of Ma'aser from his produce.
What loss does the seller suffer when the buyer separates Ma'aser from the
produce? Since one is obligated to separate Ma'aser from produce bought from
an Am ha'Aretz (because it is assumed that he did not yet separate
Ma'aseros), the true value of the produce is its value after Ma'aser Demai
has been separated from it. The Am ha'Aretz cannot charge for the portion of
the produce that must be separated as Ma'aser, since the buyer knows that he
will simply have to separate it from the produce after he buys it, and thus
the buyer will only pay what the Demai is worth after Ma'aser is separated!
The loss that the seller incurs because he could have sold it to a Nochri,
or to another Am ha'Aretz -- who himself is not careful to separate Ma'aser
and views the produce as already fit to eat, certainly cannot be considered
a loss caused by the potential buyer. The extra amount that the Am ha'Aretz
charges for the Ma'aseros in such a case is analogous to theft, since the
Ma'aseros are not the seller's to sell. One certainly is not required to
compensate the Am ha'Aretz for that type of loss!
Perhaps the loss suffered by the Am ha'Aretz is the "Tovas Hana'ah" (the
right to distribute the Ma'aseros to any Kohen or Levi of his choice), since
the buyer, and not the Am ha'Aretz, is distributing the Ma'aseros. If that
was the loss, though, then it would suffice for the buyer to return to the
Am ha'Aretz the Ma'aseros and let the Am ha'Aretz distribute them as he
wishes. The Am ha'Aretz would not be suffering any loss! What, then, is the
loss incurred due to the separation of Ma'aseros from the produce?
(a) The RITVA explains that even after the Ma'aser is separated, future
potential buyers of the produce will not believe the Am ha'Aretz's claim
that Ma'aser was separated from the produce earlier. Therefore, they will
pay only the price of Demai for the produce, and they will not pay the
normal price of Chulin for it. This is the loss that the Am ha'Aretz incurs.
One may ask that if this is the loss, then the Am ha'Aretz can simply take
back the Ma'aseros from the person who separated it when he takes back the
rest of the produce. He will then display the Ma'aser along with the produce
to prove that Ma'aser was indeed separated from this produce. Once he
declares some of the produce that he is selling to be Ma'aser he should
certainly be trusted to say that Ma'aser was separated from his produce,
since he gains nothing by falsely declaring his produce Ma'aser if it was
not actually separated as Ma'aser.
Perhaps the Ritva means that even if the Am ha'Aretz does declare part of
the produce to be Ma'aser, he is not trusted. That produce might be Ma'aser
that was separated for other produce, but not for the produce that he is
(b) The RITVA also points out that there are some people who pay a normal
price (and not less) for produce that is Tevel, even though they are still
required to separate Ma'aser from it. Tevel is worth more to a Kohen, Levi,
or a poor person, since each one knows that he may eat the Terumah, Ma'aser,
or Ma'aser Ani, respectively, once he has separated it from the produce. The
produce has more value to them than just the "Tovas Hana'ah." However, if
the Terumah or Ma'aser is separated already, the Am ha'Aretz may no longer
sell them to a Kohen, Levi, or poor person for a higher price, since he is
obligated to deliver it to them free of charge! This difference in price
constitutes the loss that the buyer has caused to the Am ha'Aretz by
separating Ma'aser from the produce.
(c) The RASHBAM might be offering an original answer to this question.
The Halachah of Demai is that one must separate from the produce of an Am
ha'Aretz its Terumas Ma'aser and Ma'aser Sheni, and these must be given to
the Kohen and eaten in Yerushalayim, respectively. (Terumah Gedolah, because
of its stringency, is presumed to have already been separated by the Am
ha'Aretz.) Ma'aser Rishon and Ma'aser Ani are also separated from the
produce of an Am ha'Aretz. However, since it is possible that the Am
ha'Aretz already separated all of the Ma'aser from his produce (most Amei
ha'Aretz actually do separate Terumos and Ma'aseros from their produce
before selling it; see Sotah 47b), the doubtful Ma'aser Rishon and Ma'aser
Ani may be eaten by the owner of the produce himself (who separated them)
and not given to the Levi or the poor person, in keeping with the principle
of "ha'Motzi me'Chaveiro Alav ha'Re'ayah." (This principle does not apply to
Terumas Ma'aser -- which is prohibited to a non-Kohen -- or to Ma'aser
Sheni -- which is prohibited to be eaten outside of Yerushalayim -- because
a Torah prohibition, and not just a monetary issue, is involved.)
Accordingly, in the case of our Gemara, we would expect the buyer to
separate Ma'aser Rishon and Ma'aser Ani and *keep it for himself*. The
Rashbam, though, writes otherwise. The Rashbam (DH Me'asran) and RABEINU
GERSHOM write that the potential buyer must separate not only Ma'aseros of
Demai, but he must give these Ma'aseros to a Levi or poor person! Why must
he give them away, if they are only Ma'aseros out of doubt? (See RASHASH.)
The answer might be that the person who separates Ma'aser is doing so on in
order to exempt the vegetable of an *Am ha'Aretz* (i.e. the part of the
vegetable that he is *not* buying) from Demai, and not to exempt his own
vegetable. Normally, one does not have to deliver Ma'aser Rishon of Demai to
a Levi since it is possible that Ma'aser Rishon was already separated and
given to a Levi by the Am ha'Aretz. However, this argument does not apply to
the Am ha'Aretz himself; he knows for certain whether or not Ma'aseros have
already been separated from his produce. If, in truth, he has not yet
separated Ma'aser, then he is not exempt from his obligation to separate
Ma'aser until he actually *gives* the Ma'aser to the Levi.
The same applies to the person who separates Ma'aser on behalf of the Am
ha'Aretz. He does not exempt the Am ha'Aretz from his obligations unless he
actually gives the Ma'aser to the Levi -- due to the possibility that the Am
ha'Aretz has not yet given it. In this case, the principle of "ha'Motzi
me'Chaveiro Alav ha'Re'ayah" does not apply, since it is the buyer's
interest not only to permit the food to be eaten, but to exempt the Am
ha'Aretz from *his* obligations of Ma'aseros. Therefore, he must give the
Ma'aser to the Levi or poor person.
(The Gemara in Nedarim 36b discusses who has the "Tovas Hana'ah," the right
of distribution, when a person separates Ma'aser from *his own* produce in
order to exempt the produce of *another person* from Ma'aseros. Our
explanation might apply even if the one who separates the Ma'aser has the
right of "Tovas Hana'ah.")
According to our explanation, if the buyer must actually give the Ma'aser to
a Levi or poor person, unlike normal Demai, it is clear why the buyer is
causing a loss to the Am ha'Aretz. Had the buyer not separated Ma'aser
Rishon or Ma'aser Ani, the Am ha'Aretz could have sold the produce for a
much higher price, since the eventual buyer would be required only to give
away the Terumas Ma'aser and Ma'aser Sheni; he would keep the Ma'aser Rishon
and Ma'aser Ani for himself. Now that the potential buyer has given away the
Ma'aser Rishon and Ma'aser Ani, the Am ha'Aretz is losing money. That is why
the buyer must reimburse the Am ha'Aretz for the loss he incurs through the
separation of Ma'asros. (M. Kornfeld)
3) A PUNISHMENT OF "ELEH" IS WORSE
AGADAH: The Gemara teaches that the punishment for one who uses dishonest
measures is worse than the punishment for one who transgresses the
prohibitions of Arayos. The Gemara proves this from the fact that the Torah
refers to the prohibitions of Arayos as "El" (referring to a high degree of
severity), while it refers to the prohibitions of using dishonest measures
as "Eleh," (with a "Heh" at the end of the word), implying an even greater
degree of severity.
How does the extra "Heh" allude to a greater degree of severity? (See
commentary of RAV SAMSON RAFAEL HIRSCH to Devarim 25:16.)
(a) The MAHARSHA explains our Gemara based on the Gemara in Menachos (29b).
The Gemara in Menachos teaches that Olam ha'Zeh, the world in which we live,
was created with the letter Heh. This teaches that just as the bottom of the
Heh is open, so, too, it is easy to "drop out from the bottom" of this world
(by corrupting oneself through sinning and though abandoning the Mitzvos).
The Heh has an opening on top as well, in order to "allow in" the penitent
person who "raises himself" back up to this world, through Teshuvah.
The Gemara there explains that the opening on the bottom of the Heh is not
sufficient to provide a "return entrance" to the world from which the sinner
has fallen, because once a person has sinned it is difficult for him to
return by using the same path with which he strayed. He must find a new
"entry point" if he wishes to return to his former position.
We thus see that the letter Heh alludes to the difficulty of repentance
after one has sinned. That is why the letter Heh is used to indicate the
severity of using dishonest measures. Indeed, our Gemara states that the
reason for the profound severity of the sin of using dishonest weights is
the same reason mentioned in Menachos for why an extra entrance is required
for the person who does Teshuvah: once a person has sinned with dishonest
measures, it is very difficult to do Teshuvah.
(b) The TORAS CHAIM explains that the Gemara is alluding to the Midrash
(cited by Rashi in Vayikra 19:35) which teaches that one who sells
merchandise by weights or measures is compared to a judge, and if he uses
inaccurate measuring devices he is like a judge who passes an unjust ruling.
For doing so, *five* epithets are used to describe his corruption ("Avel,
San'uy, Meshukatz, Cherem, To'evah") and the *five* consequences indicated
for the corruption of justice will come into effect (Eretz Yisrael will
become defiled, the Holy Name will become desecrated, the Shechinah will
depart, the people of Yisrael will fall by the sword, and ultimately they
will go into exile).
The Heh of "Eleh" is alluding to the *five* epithets and consequences which
make the corruption of measures such a severe sin.
The BEN YEHOYADA adds that our Gemara gives us new insight into a verse in
Tehilim (107:43): "Whoever is wise enough to observe these (Eleh), they will
perceive the kindness of Hashem!" The Gemara later (89a) teaches that if one
maintains honest measures in his home, then Hashem will reward him with
wealth. Accordingly, the verse in Tehilim may be read as saying that one who
carefully observes the Torah's directives regarding "Eleh" (honest measures)
will be rewarded by having the kindness of Hashem manifest itself in his