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Bava Metzia 49

BAVA METZIA 49 - dedicated to the memory of Chana Elka Krieger, Z"L (Yahrzeit: 27 Teves) "Eshes Chaver" to Hagaon Rav Yisrael Avraham Abba Krieger (Rabbi in Russia and in Boston, Talmid of Hagaon Rav Yehoshua Leib Diskin and author of Yad Yisrael on the Rambam and other Sefarim). Dedicated by their son, Benayahu Krieger (presently of Yerushalayim).



(a) When Rav Kahana wanted to retract from the sale of flax for which he had already received a down-payment, because the price of flax had gone up, Rav instructed him - to give them the flax that they had paid for, and to retract from the rest.

(b) We already know that, according to Rav, there is no 'Mi she'Para' on the half that has not been paid for. He adds here that Rav Kahana was permitted to retract Lechatchilah - because retrating from a mere verbal undertaking is not considered a breach of trust.

(c) Rebbi Yochanan holds - that it is.

(a) We ask on Rav from Rebbi Yossi b'Rebbi Yehudah. The latter Darshens in a Beraisa from the Pasuk "Eifas Tzedek ve'Hin Tzedek" - that one's 'Yes' should be a 'Yes', and one's 'No', a 'No'. Otherwise, having written "Eifas Tzedek", why does the Torah need to add "Hin Tzedek"?

(b) There are six Hin in an Eifah (since there are twelve Lugin in a Hin, and seventy-two in an Eifah).

(c) Abaye reconcile Rav (who holds that words alone do not constitute a breach of contract) with ...

1. ... this Beraisa - by establishing the Beraisa when the person who is retracting initially intended to renege on his word; whereas Rav is speaking when he initially intended to keep his word, but now wants to retract because of a price-change that he did not anticipate earlier.
2. ... Rebbi Shimon, who specifically states that even where 'Mi she'Para' does not apply, the Chachamim are displeased with someone who retracts - by establishing this as a Machlokes Tana'im (and Rav will hold like the following Tana).
(a) Thinking that here we have a Tana who supports Rav, we cite the Mishnah in 'ha'Socher es ha'Po'alim'. When Rebbi Yochanan ben Masya hired workers and promised to feed them - his father objected on the grounds that, seeing as they were desendants of Avraham, Yitzchak and Ya'akov, there was no limit as to how much he would have to feed them. So he instructed him - to stipulate before they started working, that they would receive bread and legumes only.

(b) This seems to corroborate Rav's opinion - because, if words alone would constitute a breach of trust, how could Rebbi Yochanan ben Masya return to the workers, whom he already undertaken to feed without restrictions, and place restrictions on that undertaking.

(c) In fact, there is no proof from here - because the workers themselves, knowing that Rebbi Yochanan was employing them on behalf of his father, did not rely on his conditions anyway.

(d) Nevertheless, once they had begun working - he could no longer go back on his word, because at that stage, they assumed any conditions that he made with them to be binding.

(a) When Rabah bar bar Chanah said that if Reuven promises to give Shimon a gift, he can retract - he meant (not that he *can* retract, because that is obvious, but) that he may retract Lechatchilah (because a verbal undertaking does not constitute a breach of contract).

(b) Rav Papa reconciles this with Rebbi Yochanan, who said earlier that words alone are considered a breach of contract - by confining this ruling to a large gift (on which the recipient does not rely anyway), but not to a small one, on which he does.

(c) And he proves this from another statement of Rebbi Yochanan, whom Rebbi Avahu quotes as saying that if a Yisrael promises to give a ben Levi a Kur of Ma'aser - the ben Levi is permitted to declare that Kur, T'rumas Ma'aser on other Ma'aser Rishon which he has (because he may rely on the fact that 'a Jew will not lie' in any matter that concerns breach of promise).

(d) This must be speaking about a small gift and not a big one - because all that a Yisrael has in his Ma'aser is Tovas Hana'ah (the right to give it to whichever Levi he wishes), and Tovas Hana'ah is only worth a P'rutah or two.

(a) In order to reject the above proof, we attempt to establish this latter statement - when the Levi received the Ma'aser from the owner and returned it to him for safekeeping (which explains why the latter cannot retract.

(b) We reject this suggestion however, from the second part of Rebbi Yochanan's statement, which states that (in spite of the first part of his statement) should the Yisrael subsequently give the Ma'aser to another Levi, the first Levi has nothing more than complaints on the Yisrael (but no monetary claim) - a clear indication that the Levi did not acquire the Ma'aser, because if he had, the Levi would have a monetary claim against the Yirael, too.

(a) When Reuven asked Shimon for the sesame-seeds for which he had already paid, and which had gone up in price, Shimon replied (falsely) - that he did not have any, and that Reuven should take his money back.

(b) After Reuven refused - the money was stolen.

(c) Rava ruled - that not only was Shimon not liable for ...

1. ... Geneivah va'Aveidah, because he was not a Shomer Sachar, but he was not even liable for ...
2. ... Peshi'ah either - because he was not even a Shomer Chinam.
(d) The Rabbanan asked him about a 'Mi she'Para, to which he replied - that Shimon's refusal to give Reuven his sesame-seeds would certainly earn him one.
(a) Rav Papi quoted Ravina regarding the above matter. Ravina quoted a certain Chacham whose name was either Rav Tavos or Rav Tivyumi - who claimed that in fact, he was the sesame-seed seller refered to in the above episode, only the previous version was not correct, since he would never lie, even if one were to offer him the big, wide world.


1. According to the Chacham's version, when a man came to purchase some sesame seeds from him one Erev Shabbos afternoon - that Chacham replied that he did not have any (which was the truth).
2. When the man asked whether he could leave his money with him over Shabbos, he told him that he was welcome to put it anywhere in his house.
(c) When the money was stolen - Rava absolved him from having to pay, even for Peshi'ah, because he was not even a Shomer Chinam, let alone a Shomer Sachar.

(d) When Ravina queried that Chacham's version of the story on the basis of the Rabbanan's She'eilah, whether he was not obligated to accept a 'Mi she'Para' (which made no sense according to that version), he replied - that they never asked such a question.




(a) We learned in our Mishnah that according to Rebbi Shimon, whoever has the money has the upper-hand and is permitted to retract. When the Tana of the Beraisa, explaining Rebbi Shimon's statement, says that if the seller has the money, and the buyer, the fruit, the buyer cannot retract because *he has the money*, he means (not the money, since we just said that it is the seller who has the money and not the buyer, but) the goods that he purchased with his money.

(b) The problem with this is - that we do not need a Mishnah to teach us that if the purchaser made a Meshichah, he cannot retract.

(c) Rava answers by establishing the Mishnah when the attic that contains the wheat belongs to the purchaser but has been rented to the seller. Consequently - the wheat is located in the purchaser's Chatzer, and should a fire break out, he will be able to save it himself (in which case, the reason for the Takanas Chachamim having replaced Meshichah with money is not applicable here).

(d) Rava cannot mean that the purchaser's Chatzer acquired the wheat on his behalf - because for the duration of the rental, the Chatzer does not belong to him, but to the seller.

(a) That man wished to retract from the purchase of the donkey for which he had already paid - because he heard that Bei Parzak Rufila (a Nochri strong-man) had his eyes on it.

(b) We might have thought that he would be forbidden to do so - because perhaps Chazal only instituted Meshichah for the seller to retract but not the buyer (like Rebbi Shimon).

(c) Rav Chisda ruled however - that just as they instituted Meshichah for the seller, so too, did they institute it for the buyer (like the Rabbanan. [And what's more, in this case, the purchaser, was able to retract without receiving a 'Mi she'Para', see Rosh Si'man 13]).

(a) Our Mishnah now begins to discuss the Dinim of Ona'ah. There are twenty-four Ma'ah in a Sela.

(b) Four Ma'ah will constitute Ona'ah in a sale of an article worth a Sela.

(c) The buyer is permitted to retract - until he has had a chance to show the article to a merchant or to a relative to assess the article's real value. Note, that if he knew its value at the time of the sale, Ona'ah does not apply.

(d) The ruling of Rebbi Tarfon that made the merchants of Lud ...

1. ... happy and decide to follow his ruling was - that only eight Ma'ah in a sale worth a Sela constitutes Ona'ah, because they were astute merchants, accustomed to selling at an expensive price.
2. ... reconsider their initial elation and revert to the ruling of the Chachamim was - that the purchaser had the whole day to retract.
(a) Ona'ah applies when the excess charge is exactly one sixth. In the case where the seller charges ...
1. ... Ona'ah - whoever overcharged is obligated to return the Ona'ah (though the sale is valid), should the cheated party demand it.
2. ... more than a sixth in excess of the fixed price - the sale is considered void ([Bitul Mekach] should either party demand it).
3. ... less than a sixth more than the price - we assume that the cheated party is Mochel.
(b) Rav explains 'Sh'tus Mekach' in our Mishnah literally (a sixth of the article). According to Shmuel - it is either 'Sh'tus Mekach' or 'Sh'tus Ma'os' (a sixth of the money which he paid (which we will now explain).

(c) According to Rav, we will classify the sale of an article worth ...

1. ... six Dinrim for seven (by the seller) or for five (by the purchaser) - as Ona'ah (because it is Sh'tus Mekach).
2. ... five Dinrim for six - (by the seller) - as Bitul Mekach.
3. ... seven Dinrim for six (by the purchaser) - as Mechilah.
(a) Shmuel will argue with Rav - in the cases of five Dinrim for six and seven Dinrim for six, which he includes in Ona'ah.

(b) Shmuel confines Bitul Mekach and Mechilah - to where there is no sixth either of the article or of the money.

(c) We initially interpret our Mishnah 'ha'Ona'ah Arba'ah Kesef me'Esrim ve'Arba'ah Kesef le'Sela' to mean - that the seller sold an article worth twenty Ma'ah for twenty-four.

(d) This proves that we also say Sh'tus Ma'os (like Shmuel).

(a) Initially, we think that Rav will interpret 'ha'Ona'ah Arba'ah Kesef me'Esrim ve'Arba'ah Kesef le'Sela' to mean - that the seller sold an object worth twenty-four for twenty, in which case, it is the seller who has been cheated.

(b) We learned in the Seifa of our Mishnah that the time-limit for the purchaser to retract is the time it takes for him to show the purchased article to a merchant or to a family member; but as far as the seller is concerned - there is no time-limit.

(c) This poses a Kashya on Rav - inasmuch as we now see that the Seifa of our Mishnah refers exclusively to the cheating of the purchaser, whereas according to the way we just established Rav, the Reisha refers to the seller being cheated.

(d) So, according to Rav, we finally interpret ...

1. ... 'ha'Ona'ah Arba'ah Kesef me'Esrim ve'Arba'ah Kesef le'Sela' to mean - that he sells an object worth twenty-four Ma'ah for twenty-eight.
2. ... the Seifa 'Horeh Rebbi Tarfon be'Lud, ha'Ona'ah Shemoneh Kesef me'Esrim ve'Arba'ah Kesef le'Sela' to mean - that he sells an object worth twenty-four Ma'ah for thirty-two.
(a) The Tana says in a Beraisa that if someone sold an article worth ...
1. ... five Dinrim for six - then, seeing as it is the purchaser who has been cheated, he has the option of demanding either his money back or the Dinar that he was cheated.
2. ... six Dinrim for five - then it is the seller who has the option, either his article or the Dinar.
(b) Seeing as the Reisha is a clear-cut case of Sh'tus Ma'os, this Beraisa proves - that Shmuel is right.
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