The Eri B. Sitt Edition and Audio Series of the Talmud Bavli, Massechet Bava Batra. This is the longest tractate in Shas, page-wise. It has been dedicated by our good friend and pioneer student in the Daf Yomi class, Adam Azra, for the success of his dear children: that they should grow up to give him nachat, that they should have wisdom, understanding, and knowledge, and that they should be a source of honor to him, his wife, and his entire family. Amen.
We begin on page 103b, in the chapter referred to here as Perek Bet Kur, with the Mishnah: “I am selling you a bet kur of earth, measured exactly.”
A bet kur is a particular measure of land; it happens to contain thirty se'ah. The seller says, “I am selling it to you according to the measurement.” In those days, land was measured with a rope. It sounds as though he is saying, “I am selling you precisely the measure of a bet kur, according to the measuring rope.”
The law of the Mishnah is that if he gives the buyer slightly less than a bet kur, the buyer may deduct from the price, because he did not receive the complete measure. If he gives him slightly more, he must return the excess. Since he explicitly said that the sale was according to the measurement, the measure must be exact. Anything above the stated measure must be returned, and for anything below it, the buyer may deduct money from the price.
Let us read the Rashbam. The seller is saying, “I am selling it to you in exact measure.” If the field is not one hundred percent complete, the seller must deduct from the price. The sale itself remains valid; we do not nullify the sale.
The Rashbam then raises a question. We learned in the case of a sale involving movable property that if the measured amount is either short or excessive, even by a small amount, the sale can be nullified. Why, then, should the sale here not be nullified?
He answers that this applies only to movable property. With land, we do not say that the sale is nullified. A person is willing to accept real estate even if it is slightly less than the stated measure, and the seller is likewise willing to accommodate him. That is the first case in the Mishnah.
Let us return to the Mishnah and examine the second case. Suppose the seller tells him at the outset, “I am selling you approximately a bet kur—more or less.” Even if the field turns out to be less than a bet kur, the sale is binding. For every se'ah that is missing, there may be a quarter-kav of variation. Since a bet kur contains thirty se'ah, this could amount to thirty quarter-kav measures. Conversely, he may have given an equivalent amount in excess. The sale remains binding, with no refund and no compensation, because he told the buyer from the beginning that the measurement was approximate.
The Rashbam explains that when the seller says, at the time of the sale, “I am selling you a bet kur of earth, with this amount either lacking or in excess,” and he does not say that the sale is according to an exact measurement, the words “more or less” apply in both directions. If he had said both that it was a bet kur and that it was according to the exact measurement, that would be a separate dispute, which we will encounter later.
How much is the permitted variation? There are four quarter-kav measures in a kav. Thirty quarter-kav measures therefore equal seven and a half kav. Thus, if the seller gave seven and a half kav less than the stated amount, the sale remains valid; and if he gave seven and a half kav more, the sale also remains valid, because he said “more or less.”
This is the reasoning: we assume that seven and a half kav in a bet kur is subject to waiver. When a person says “a bet kur,” he means something approximately the size of a bet kur. He means a little less or a little more, not an amount grossly different. If he intended a completely different quantity, why would he call it a bet kur? The term “bet kur” indicates that the field is in the general range of a bet kur, with a permitted variation of seven and a half kav in either direction.
The Mishnah then says that if the excess is greater than seven and a half kav, the parties must make an accounting. What does that mean? If the buyer received more than seven and a half kav beyond the agreed measure, he must pay for the excess. The buyer received additional land, so he must pay for it. The parties calculate the value of the additional land according to the price at which the bet kur was sold, and the buyer pays the seller that amount.
The buyer may also return the land itself if the seller agrees. But why does the Mishnah state that the buyer must return money? Why give the seller this advantage? We will see that the purpose is to benefit the seller.
Suppose the seller takes back the additional land. If the excess is only a small piece of land, it may be useless to him. In the first case of the Mishnah, for example, the seller said that he was selling the field exactly according to the measurement, and he ended up giving a little more. If the buyer returns that small piece, the seller may receive a parcel with which he can do nothing. Therefore, in that case, the law gives the seller the advantage: the buyer must pay money, unless the seller says that he wants the land itself returned.
There are certain measures that are too small to be planted or used effectively. In such a case, the seller benefits from receiving money, while the buyer benefits from retaining the small piece of land. The buyer is not losing anything significant, and the seller receives the value of the excess. Thus, one benefits and the other does not suffer.
When the additional land reaches a significant measure, however, the buyer may return the land itself. The Gemara will define that measure. Once the parcel is large enough to be useful—to plant on it or use it independently—the buyer may return the land rather than paying for it.
Let us now examine the Rashbam on this passage. If the buyer received more than a quarter-kav for every se'ah, that means he received more than seven and a half kav beyond the bet kur, since a bet kur contains thirty se'ah. Up to seven and a half kav, the excess is considered waived. Anything beyond that requires an accounting.
The buyer must calculate the entire excess beyond the bet kur and pay for it, even if the excess itself is composed of several small parcels. The parties calculate the value of the bet kur and determine, according to that proportion, how much the additional kav measures are worth. The buyer then pays the seller.
This assumes that the value of the land remained stable. If the price of land changed between the time of the sale and the time when the buyer pays for the excess, a more complicated question arises. Let us assume, for the moment, that the price stayed the same.
If the price declined, the buyer cannot be forced to pay the new, higher price. He can say, “You are asking me to pay for additional land that I did not request. I will pay according to the lower price at which I originally bought the field, but you cannot charge me according to a later, more expensive price.” Similarly, if the price rose, the buyer can say that he should not have to pay according to the higher current price. The calculation is therefore based on the original price, assuming the circumstances remained unchanged.
When the price remains stable, the seller has the advantage. If the seller says that he wants money, the buyer must give him money. This is a rabbinic enactment. What would the seller do with a small piece of land in the middle of another field? It is not a significant field, and therefore the buyer is compelled to pay instead. The buyer benefits by keeping the land, and the seller receives its value.
If the seller says that he wants the land itself returned, however, the buyer must return it. Strictly speaking, the buyer is supposed to return the land; the enactment was made only to benefit the seller by allowing him to demand money for a small and unusable parcel. If the seller says that he wants the land back, the land must be returned.
This discussion concerns an excess greater than seven and a half kav but less than nine kav. If the excess is less than seven and a half kav, we apply the first case of the Mishnah: the buyer simply deducts from the price or pays according to the exact measurement, and there is no separate return of land. Once the excess is significant, however, the buyer may return the land itself.
The Mishnah continues: Why did the Sages say that the buyer returns money, thereby benefiting the seller? If the excess in a field is nine kav, or in a garden half a kav, then the excess is already significant. In that case, the buyer may return the land itself.
The Rashbam explains that when the excess is merely a small piece of land, the seller should receive money rather than the land, because the land is not useful to him. Once the excess in a field reaches nine kav, however, it is a significant parcel. The buyer can return it, and the seller can plant on it or use it independently. Thus, the critical measure in a field is nine kav.
Up to seven and a half kav, the excess is waived. From seven and a half kav until nine kav, the buyer must pay for the excess, unless the seller chooses to take the land itself. Once the excess reaches nine kav, the buyer may return the land, because nine kav is already a significant piece of property.
In a garden, the measure is smaller. Rabbi Akiva says that in a garden, a quarter-kav is already significant. The general principle is that a smaller parcel is considered useful in a garden than in an ordinary field. The entire excess, not merely the last portion, is returned once it reaches the significant measure.
The Mishnah’s basic rules are therefore these: seven and a half kav are waived; from seven and a half kav until nine kav, the buyer makes an accounting and pays for the excess; and at nine kav, he returns the land itself. In a garden, the corresponding measures are smaller. A quarter-kav may be significant according to Rabbi Akiva, and two levat measures equal half a kav.
The Gemara now asks a question about the ordinary case. When a person says, “I am selling you a bet kur of earth,” without adding “according to the exact measurement,” what did he mean? We have two cases in the Mishnah. In one, he says that the sale is according to the measurement, in which case there is no room for variation. In the other, he says “more or less,” in which case there is a permitted variation. What is the law when he says only “a bet kur” without clarifying?
The Gemara attempts to bring a proof from a Baraita. The Baraita says: “I am selling you a bet kur of earth according to the measurement.” If it is short by any amount, the price is reduced; if it is in excess by any amount, the excess is returned. The Gemara infers that only because the seller used the language of exact measurement is every deviation significant. If he had simply said “a bet kur,” perhaps that would mean approximately a bet kur, allowing some variation.
The Gemara then tries to bring a second proof from the end of the Baraita. It says that if the seller says “more or less,” then the buyer and seller accept a variation in either direction. This appears to establish three cases: “a bet kur,” “a bet kur according to the measurement,” and “more or less.” If so, the first, unspecified case would mean approximately a bet kur.
The Gemara rejects the proof. Perhaps the Baraita is not listing three separate cases. It may be presenting one case and explaining it. What is a bet kur? Something that is like a bet kur. The Baraita is asking for an example of a statement in which “a bet kur” means “approximately a bet kur.” The answer is: when the seller says, “I am selling you a bet kur, with this amount either lacking or in excess.” The words “more or less” may therefore be explaining the first case rather than establishing a separate case.
That explanation is difficult, however, because the Baraita seems to say “I am selling you” after each expression, suggesting that these are three distinct cases. It sounds as though the Baraita is deliberately distinguishing between an unspecified bet kur, a bet kur sold according to an exact measurement, and a bet kur sold with an explicit allowance for more or less.
The Gemara therefore concludes that the Baraita may indeed provide a proof. The first case is that the seller says, “I am selling you a bet kur,” and the law is like the case of “more or less.” Accordingly, when a seller uses the ordinary expression “a bet kur” without specifying an exact measurement, the statement allows some variation in both directions.
The Gemara then returns to the question of money. Suppose the seller said “more or less” and gave more than seven and a half kav. The buyer has to pay for the excess. Why does the buyer have to pay money rather than return the land? The Mishnah says that this is to benefit the seller.
The Gemara asks whether we are concerned only with the seller’s advantage. Perhaps we are also concerned with the buyer’s advantage. A Baraita appears to say that when the excess is greater than seven and a half kav, we compel the seller to sell and the buyer to purchase. What does that mean?
The Rashbam explains that if the seller gave the buyer more than seven and a half kav, and the buyer wants to retain the excess, the seller cannot simply demand the land back. The seller is compelled to sell the excess to the buyer. It seems, then, that just as the law benefits the seller by requiring payment in certain cases, it also benefits the buyer by allowing him to retain the land when he wants it.
For example, the buyer purchased a large field, and the seller’s additional parcel lies within it. If the seller takes back the small parcel, the buyer may be left with the seller’s land cutting through the middle of his field. The buyer may want to purchase that parcel so that the entire field remains under his control. Why, then, does the Gemara say that the enactment benefits only the seller? It seems that the buyer also receives an advantage.
The Gemara answers that the Baraita is discussing a specific case. In general, when the price remains stable, the seller has the advantage: if he wants money, he receives money; if he wants the land back, he receives the land back. The buyer cannot force him to sell the land merely because the parcel lies in the middle of the buyer’s field.
The specific case in which the buyer has an advantage involves a change in the price of the land. Suppose the land was expensive at the time of the original sale and is now cheaper. The seller says, “You must pay for the additional land according to the original, expensive price.” The buyer can respond, “I did not ask you to give me this additional land. If I must pay for it, I will pay according to the lower price.” In that situation, the seller is compelled to accept the cheaper price.
Conversely, if the land was cheap at the time of the sale and later became more expensive, the buyer cannot be forced to pay the newer, higher price. He pays according to the earlier price. Thus, the buyer’s advantage in the Baraita concerns the price used for the accounting when the value of the land fluctuates. It does not mean that the buyer can compel the seller to leave the land with him whenever he prefers it.
Accordingly, in an ordinary case in which the value of the land has not changed, the advantage belongs to the seller. If he wants the land back, he may take it back. If he wants money, the buyer must pay money. The reason for requiring money rather than the return of a small parcel is that the parcel may be useless to the seller.
When the Baraita says that we compel the seller to sell, it means that we compel him with respect to the price. If the buyer pays for the additional land, and the price has fluctuated, the seller must accept the appropriate lower price, whether that is the current price or the price at the earlier time. It does not mean that the seller is compelled to leave the land with the buyer against his will.
The Gemara now returns to the measure of nine kav. The Mishnah indicates that nine kav is a significant amount: the buyer may say to the seller, “Take back your nine kav.” He cannot be required merely to pay for it, because nine kav is useful land.
Rav Huna asks whether the measure of nine kav is relative to the size of the field. The Mishnah is discussing a bet kur, which contains thirty se'ah. Perhaps nine kav is significant only in relation to a field of that size. If the seller sold a much larger field—two kur or ten kur—perhaps the amount that the buyer may return should increase proportionally.
Rav Huna says that nine kav is a fixed measure. It does not matter how much land the seller sold. Even if he sold a very large field, once the excess reaches nine kav, the buyer may return the land itself.
The Rashbam explains that this could apply even if the seller sold ten kur. Although nine kav is a much smaller percentage of ten kur than it is of one bet kur, nine kav remains a significant parcel in its own right. Once the excess reaches nine kav, it is considered useful land and may be returned.
Rav Huna’s reasoning is that a quarter-kav for every se'ah is subject to waiver only within the ordinary measure of a bet kur. A bet kur contains thirty se'ah, and a quarter-kav per se'ah amounts to seven and a half kav. Beyond that, the buyer must make an accounting. When the excess reaches nine kav, the buyer may return the land itself.
Even if the seller sold two kur or ten kur, Rav Huna does not allow the buyer to retain a proportionally larger amount. One might have thought that if a quarter-kav per se'ah is waived, then a larger sale should allow a proportionally larger amount of excess. Rav Huna rejects that possibility. The nine-kav measure is the maximum significant measure for this purpose.
Rav Nachman disagrees. He says that the measure is seven and a half kav for every kur. In other words, the waiver is proportional. For every thirty se'ah, the buyer may retain seven and a half kav. If the seller sold a thousand kur, the calculation would be made according to that ratio.
The difference between Rav Huna and Rav Nachman is clear. According to Rav Nachman, the rule is one quarter-kav per se'ah, and that ratio applies to every amount sold. Anything beyond the proportional amount requires an accounting. According to Rav Huna, the measure of waiver is tied to the ordinary field, and the significant measure of nine kav is fixed. Even in a much larger field, the buyer does not receive a proportionally greater allowance.
Rav Nachman’s view is that seven and a half kav are waived for every bet kur. Once the excess goes beyond that proportional amount, the buyer must pay for it. However, once the excess reaches the significant measure of nine kav, the buyer returns the land itself rather than paying for it.
The Rashbam explains that if there is even a small amount more than a quarter-kav for every se'ah, the waiver disappears entirely. The buyer does not retain the quarter-kav and return only the additional amount. Once the permitted measure has been exceeded, the buyer must make an accounting. Once the excess reaches nine kav, the buyer returns the land itself, because there is no longer a reason to enact that the buyer pay money for a parcel that is useful land.
The enactment requiring payment applies when the additional land is too small for the seller to use. But once the excess has reached a significant measure, the seller cannot insist on money. The buyer returns the land, and the seller can use it himself.
The Mishnah’s rule concerning nine kav is therefore understood in relation to the measure under discussion. In a bet kur, seven and a half kav are waived according to the ratio of one quarter-kav per se'ah. Between seven and a half and nine kav, the buyer pays for the excess. At nine kav, he returns the land. Rav Huna maintains that the nine-kav measure is fixed even in a larger field, while Rav Nachman maintains that the seven-and-a-half-kav allowance is proportional to every kur.
The Gemara raises a difficulty against Rav Nachman. The Mishnah says that if the excess in a field is nine kav, the buyer returns the land. It does not say that this applies only when the seller sold one kur. The wording sounds as though nine kav is a fixed measure regardless of how much land was sold, which supports Rav Huna rather than Rav Nachman.
The Gemara answers that the Mishnah is speaking about a sale of one kur. In a one-kur field, nine kav is the relevant significant measure according to both opinions. The Mishnah does not establish what the rule would be in a larger sale.
The Gemara then raises a similar question from the law of a garden. The Mishnah says that in a garden, half a kav is already considered significant. This sounds as though the rule is fixed, regardless of the amount of garden sold.
The Gemara answers that the Mishnah is discussing a garden measuring one se'ah. When one se'ah of garden land is sold, the proportional measure is a quarter-kav, or, in the relevant calculation, half a kav for half a se'ah. Once the excess reaches the significant measure, the buyer returns the land.
Rabbi Akiva’s position in the Mishnah must also be understood carefully. In a garden, the amount subject to waiver is smaller than in a field. If the seller says, “I am selling you approximately a se'ah of garden,” the buyer may retain the permitted excess. Once the excess becomes a significant amount—such as a quarter-kav according to the case being discussed—the buyer returns the land, because it is useful as garden land.
There must also be an intermediate case in which the buyer pays money. Every set of rules contains three possibilities: an amount that is waived and remains with the buyer; an amount that is too small to be useful and therefore must be paid for; and an amount large enough to be useful, which is returned as land.
The Rashbam explains that the intermediate case in Rabbi Akiva’s ruling involves the sale of half a se'ah of garden land. The proportional amount subject to waiver is half a quarter-kav. If the excess is greater than that but has not yet reached a full quarter-kav, the buyer pays money. Once it reaches a full quarter-kav, the buyer returns the land.
Thus, in the case of half a se'ah of garden land, the three stages are: an excess of half a quarter-kav, which is waived; more than half a quarter-kav but less than a full quarter-kav, for which the buyer pays; and a full quarter-kav or more, which is returned as land.
The Gemara then asks: What happens if the character of the land changes? Suppose a person purchased a field, and afterward it became a garden; or he purchased a garden, and afterward it became an ordinary field. The measures for a field and a garden are different, so which measure applies?
The Gemara gives an example. The seller sold two se'ah of field land. Originally it was ordinary agricultural land. In the middle of the process, a spring emerged, and the land became suitable for a garden. The parties measure the excess and discover that the buyer received an additional kav. Since two se'ah are involved, this amounts to half a kav per se'ah. That is a substantial ratio if the land is treated as garden land.
If we evaluate the property according to its original status as a field, the excess is less than nine kav, so the parcel is not significant. The buyer would therefore be compelled to pay for it, because the seller cannot use such a small piece independently. If we evaluate it according to its current status as a garden, however, even a much smaller measure may be significant, and the buyer should be able to return the land itself.
Which status determines the law—the status at the time of the sale or the status at the time of the dispute? The Gemara leaves this question unresolved.
The Gemara then discusses a related case. Suppose the excess is less than nine kav, but it is directly adjacent to the seller’s existing field. Although the piece would ordinarily be too small to use independently, the seller can attach it to his own field and benefit from it. In that case, the buyer returns the land rather than paying money, because the parcel is useful to the seller by virtue of its location.
What if a small boundary separates the parcel from the seller’s field? Perhaps there is a stream, a public road, a path used by the public, or a row of trees. If the separation is minor, perhaps the land is still considered contiguous with the seller’s field and should be returned. Alternatively, perhaps the separation makes it an independent parcel, in which case the buyer must pay money because the land is not useful by itself. The Gemara leaves this question unresolved as well.
The Gemara returns to the final wording of the Mishnah. Suppose the excess is greater than the permitted measure. How much must the buyer return? The Mishnah says that he does not return only the additional amount; he returns the entire excess.
The wording seems difficult. It says, “He does not return only the quarter-kav; rather, he returns the entire excess.” This makes it sound as though the novelty is that the buyer must return the additional amount beyond the quarter-kav. But that is not the real novelty. Once the buyer has exceeded the permitted measure, it is obvious that the additional amount must be returned. The real novelty is that he must also return the quarter-kav that would ordinarily have been subject to waiver.
The Mishnah should therefore be understood in the reverse order: the buyer does not return only the additional amount; he returns even the quarter-kav itself. Once the permitted measure has been exceeded, the buyer loses the waiver that would otherwise have applied to that amount. The entire excess must be returned.
Thus, the final ruling is that when the permitted measure is exceeded, the buyer does not retain the portion that was ordinarily subject to waiver and return only what went beyond it. He must return the entire excess, including the amount that would ordinarily have been waived.