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Bava Metzia, 108

BAVA METZIA 106-108 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


OPINIONS: The Gemara teaches that when a buyer overpays for a plot of land (for example, he pays 200 Zuz when the field is worth only 100 Zuz), the owner of the land adjacent to the field being sold may take it from him in accordance with the laws of "Bar Metzra," but only if he pays the buyer the full amount that the buyer himself paid (even though the buyer overpaid). The Gemara explains that even though the first buyer is considered to be the Shali'ach of the Bar Metzra in buying the land, and, normally, a person is not required to reimburse a Shali'ach who overpaid, nevertheless in our case he must reimburse the Shali'ach. The reason for this is because "Ein Ona'ah l'Karka'os" -- the law of "Ona'ah" (overcharging) does not apply to land.

What is the reason for "Ein Ona'ah l'Karka'os," and how does it answer our Gemara's question concerning why the Bar Metzra must reimburse the Shali'ach even though he overpaid?

(a) The RASHBAM in Bava Basra (61b, end of DH b'Bik'ah Gedolah) says that the reason why there is no law of "Ona'ah" for land is because land has unlimited value. There is no absolute market price for land, and thus when a person pays more than what seems to be a fair price, he is not considered to be overpaying.

(b) TOSFOS in Bava Basra there (DH Shema Minah) disagrees with the Rashbam and asserts that there is no logical reason for why there is no law of "Ona'ah" for land -- it is a Gezeiras ha'Kasuv without any apparent logic behind it. Most Rishonim agree with Tosfos.

The TOSFOS HA'ROSH in our Sugya points out that our Gemara -- which says that "Ein Ona'ah l'Karka'os" is the reason why the Bar Metzra must reimburse the Shali'ach even though the Shali'ach did not benefit him with his Shelichus -- seems to support the view of the Rashbam. The Gemara is saying that the Shali'ach, in essence, did *not* overpay, since the purchase value of land has no limit, and thus the Shali'ach did not do a disservice to the Bar Metzra when he paid a lot of money for the land.

According to the opinion of Tosfos, however, who says that "Ein Ona'ah l'Karka'os" is a Gezeiras ha'Kasuv, how does the Gemara answer its question by citing the rule of "Ein Ona'ah l'Karka'os?" The Shali'ach still overpaid for the land, and thus the Bar Metzra should be able to claim that the Shali'ach did for him a disservice and therefore was not acting in the capacity of a Shali'ach!

The Tosfos ha'Rosh explains that in our Gemara's case of a "Bar Metzra," since the Shali'ach (the first buyer of the land) intended to buy the land for himself, the Bar Metzra -- when he decides to utilize his right of Bar Metzra -- has no claim that the Shali'ach did a disservice to him by paying so much for the land. At the time of the purchase, the first buyer had no intention of being the Shali'ach of the "Bar Metzra." Consequently, if the Bar Metzra decides to take it, he must take it at the existing terms and for the price that was paid.

The Tosfos ha'Rosh cites proof to this explanation of the Gemara (in contrast to the Rashbam's explanation) from the Gemara in Kesuvos (99b). The Gemara states that despite the fact that "Ein Ona'ah l'Karka'os," if a Shali'ach overpays for land that he is buying for the one who appointed him, the sale is invalid. We see from there that the purchase value of land *does* have a limit (not like the Rashbam) and that is why the laws of "Ona'ah" invalid the sale. If land had an unlimited value, then even in the case of a Shali'ach who overpays for land, the laws of "Ona'ah" would *not* apply. It must be, explains that the Rosh, that only in our case of Bar Metzra is there no claim against the Shali'ach, because at the time of the sale the first buyer intended to buy it for himself. In general, though, a Shali'ach who overpaid is at fault and the sender does not have to reimburse him. (Y. Marcus)


QUESTION: The Gemara says that when a Jew sells his property to a Nochri, the law of Bar Metzra does not apply (since a Nochri cannot be forced to fulfill the dictum of "v'Asisa ha'Yashar v'ha'Tov" and let the Jewish neighbor buy it). However, we place a decree of excommunication upon the seller until he accepts full responsibility for any damage that occurs to the Jewish neighbor as a result of the Nochri.

Why do we excommunicate the seller immediately when he sells his property to a Nochri, when no damage has been done yet (and might not be done)? We should wait until the Nochri causes damaged to the Jewish neighbor and *then* we should force the seller to pay for the damages, or excommunicate him if he refuses to pay! (ROSH)


(a) The ROSH answers that we penalize the seller by requiring him to write a "Shtar Shi'abud" right away -- a contract in which he commits all of his property to the debt that will occur if the Nochri causes damage to the neighbor. Then, if the Nochri causes damage to the neighbor, the neighbor may collect the property of the seller from the time of the writing of the Shtar.

(b) The TORAS CHAIM answers that we excommunicate him immediately as a form of punishment for acting inappropriately by selling his property to a Nochri.

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