(Permission is granted to print and redistribute this material
as long as this header and the footer at the end are included.)


prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

Previous daf

Bava Basra 77

BAVA BASRA 76& 77- sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for the Torah and for those who study it.



(a) Ameimar rules 'Osiyos Niknos bi'Mesirah. Rav Ashi asked him him - whether this was a traditional ruling or a S'vara.

(b) When Ameimar replied that it was a tradition, Rav Ashi commented - that it was a S'vara too, since it is not logical for words to acquire words (only an action).

(c) In that case - it is not necessary for the seller to specifically state 'K'ni Lach ve'Chol Shibudeih' (which only applies to a Sh'tar).

(a) Rava bar Yitzchak Amar Rav describes 'two Sh'taros'. If someone asked two people to make a Kinyan on his field on behalf of a friend and to write him a Sh'tar, it is obvious that once the Kinyan has been made, the seller may no longer retract from the sale - though he is permitted to withdraw his instructions to write the Sh'tar.

(b) If he said *'al-M'nas* she'Tichtevu Lo es ha'Sh'tar' - then as long as he has not handed the purchaser the Sh'tar, he may retract even from the transaction.

(c) Even though we learned in Chezkas ha'Batim 'Kinyan bi'Fenei Sh'nayim ve'Ein Tzarich Lomar Kisvu, di'S'tam Kinyan li'Chesivah Omed' - that only means that we assume that to be the wish of the seller, but not if he states to the contrary.

(a) A seller - is permitted to write a Sh'tar on behalf of the buyer prior to the sale without first consulting him (as the Mishnah in Get Pashut teaches us).

(b) The Sh'tar is not Pasul because it is predated - either because they made a Kinyan that effects the transaction immediately, or like Abaye, who says that the transaction works retroactively, to take place from the date on the Sh'tar, assuming that the witnesses signed on that day.




(a) Based on the Mishnah in Get Pashut, Rav Chiya bar Avin Amar Rav Huna adds a third case of 'Sh'tar' to the previous two. If the seller wrote such a Sh'tar, following which the purchaser acquired the field with Kesef, Sh'tar or Chazakah - he acquires the Sh'tar too.

(b) We initially think that he acquires the Sh'tar - on the basis of the agreement alone.

(c) This poses a Kashya on Ameimar and Rav Ashi - who hold 'Osiyos Niknos bi'Mesirah' (and even a Sh'tar is not sufficient); whereas Rav seems to hold that one acquires a Sh'tar even with mere words alone, how much more so with a Sh'tar.

(d) We answer this - by confining Rav's ruling to a case of Kinyan Metaltelin Agav Karka, which anyway acquires Metatelin even with a Kinyan that would normally acquire them.

(a) We support this answer with the Din of Matbe'a, which can be acquired together with Karka, even by means of Kinyan Chalipin (despite the fact that Chalipin is disqualified from acquiring a coin [similar to a Sh'tar, which cannot normally acquire a Sh'tar]).

(b) And we know the Din of Matbe'a from a case of Rav Papa, who sent Shmuel bar Acha to claim his debt from Bei Chuza'a. He needed to be Makneh it to him with a Kinyan (otherwise known as a Harsha'ah) - because otherwise, the B'nei Chuza'ah would have refused to hand him the money, since they would have been liable for any O'nes that occurred on the return journey.

(c) He effected this Kinyan - by being Makneh it to him together with the threshold of his house (Metaltelin Agav Karka), which Rav Shmuel acquired with a Kinyan Chalipin (Rashi, Bava Metzi'a).

(d) When Rav Shmuel bar Acha returned with the money (twelve thousand Zuz) - Rav Papa was so happy, that he went as far as Tavach to greet him.

(a) Our Mishnah rules that if someone sells a cart, the mules are not automatically included in the sale - and the same will apply in the reverse case.

(b) The Tana also states that if someone sells the yoke as well as the wagon and the vessels that go with it - he has not sold the oxen that usually draw it, and vice-versa.

(c) Rebbi Yehudah qualifies the above ruling - confining it to where the sale tallies with the price.

(d) The Chachamim do not go after the price at all - because sometimes a person pays a little more in the form of a gift, or because the excess was indeed paid in error and must be returned, only it does not negate the sale (as we will see in the Sugya).

(a) The problem with the Beraisa that Rav Tachlifa bar Ma'arva cited in front of Rebbi Avahu, 'Machar es ha'Karon, Machar es ha'Perados' is - that it contradicts our Mishnah, which rules ' ... Lo Machar es ha'Perados'.

(b) Rebbi Avahu nevertheless instructed him to leave the Beraisa intact (and not to scrap it) - because he established our Mishnah when the oxen were not hitched to the wagon; whereas the Beraisa speaks when they were.

(a) The Machlokes between the Tana Kama and Rebbi Yehudah in our Mishnah 'Machar es ha'Tzemed Lo Machar es ha'Bakar', cannot be speaking when ...
1. ... everyone calls a Tzemed a Tzemed and an ox an ox, because then - how could Rebbi Yehudah go after the price of the Tzemed (since it is clear that he only sold him the Tzemed [irrespective of the price]).
2. ... everyone sometimes refers to an ox as Tzemed - how could the Rabbanan not use the aspect of price as a decisive factor to determine that the owner must have sold the oxen too?
(b) The case in which Rebbi Yehudah and the Tana Kama argue must therefore be - when some people sometimes refer to an ox as Tzemed (though most people don't).

(c) The basis of their Machlokes is - whether the excessive price indicates that the seller must be from those who sometimes refer to an ox as Tzemed (Rebbi Yehudah) or not (the Rabbanan).

(d) The Rabbanan decline to use the price as an indicator - because they hold 'Yad Loke'ach al ha'Tachtonah' (the onus lies on the purchaser [who is Motzi from the seller] to prove that the latter is from those who refer to an ox as Tzemed).

(a) In a case where the seller charges the purchaser more than a sixth above the regular price - the entire transaction is nullified.

(b) The problem with our Mishnah is - with the Chachamim, who say 'Ein ha'Damim Re'ayah', which suggests that the sale is fully valid even if the seller charged the purchaser the price of an ox over and above that of a Tzemed alone (which is certainly more than a sixth above the regular price), so why is the sale valid? Why is the sale not Bateil (or at least the seller ought to return what is in excess of the going price)?

(c) When we suggest that perhaps the Rabbanan do not hold of Bitul Mekach - this incorporates Ona'ah (which they will not hold of either).

(a) Rebbi Yehudah, in a Mishnah in ha'Zahav holds that there is no Ona'ah on a Sefer-Torah, an animal or a jewel - because people do tend to sell these things for way above their normal price.

(b) The Rabbanan however, said to him - that it is only Avadim, Sh'taros and Karka'os that are not subject to Ona'ah (but these things are).

(c) The Rabbanan do it seems, hold at least of Ona'ah (if not of Bitul Mekach). So we establish 'Ein ha'Damim Re'ayah' to mean - that on the one hand, the price is not sufficient proof that the seller has included the oxen in the sale, and on the other, he must return the excess money to the purchaser.

(d) Alternatively, we might even take the words of the Rabbanan in our Mishnah literally, and the money remains where it is - because Ona'ah and Bitul Mekach only applies to small discrepancies in price, but not to huge price hikes (such as here), where the purchaser must know that the amount he is being charged is way above the going price, in which case, he obviously gave the excess as a gift.

(a) In actual fact, we asked initially 'Le'havi Bitul Mekach'? and continued 've'Chi Teima Bitul Mekach le'Rabbanan Leis Lehu'. However, it is impossible to explain this literally. The Sugya can only be referring to Ona'ah (as we explained) and not Bitul Mekach - because the proof that we bring from the Rabbanan in ha'Zahav has nothing to do with Bitul Mekach, only with Ona'ah.

(b) Although we are concerned with Ona'ah, we nevertheless use a Lashon of Bitul Mekach - because the original Kashya concerns paying for the oxen as well as for the Tzemed, an amount which is far more than a sixth, giving it the outward appearance of Bitul Mekach.

Next daf


For further information on
subscriptions, archives and sponsorships,
contact Kollel Iyun Hadaf,