The Eri B. Sitt Edition, an audio series on the Talmud Bavli, Tractate Bava Batra, is dedicated by our good friend and pioneering student in the Daf Yomi class, Adam Azra, for the success of his dear children. May they grow up to bring him satisfaction, and may they have wisdom, understanding, and prosperity, and be a source of pride to him, his wife, and his entire family. Amen.
Today’s page has been studied in the merit of Raham ben Esther. Amen. We begin on page 83b, in the chapter “The One Who Sells Produce,” two lines from the bottom. We are discussing the laws of unfair pricing, which began in the Mishnah with Rav Chisda’s statement: If a person sold something worth five for six, there is unfair pricing.
The buyer was initially the one who suffered the unfair pricing because he overpaid: the item was worth five, and he paid six. That, however, is not the end of the story. In the interim, the price rose to eight. The actual market value became eight, and now the seller is the one who is suffering from unfair pricing. It began with the buyer being the injured party, and now the seller has become the injured party.
The question is: Who has the right to withdraw from the sale or demand a refund? The ruling is that the buyer may withdraw, but the seller may not. The buyer can tell the seller: “It is not fair. If you had not charged me unfairly, the sale would have been finalized. Once the sale was finalized, even if the price rose, you would not have been able to withdraw. Now you want to benefit from the fact that you charged me unfairly. Because you overcharged me, the sale remains open, and now that the price has risen, you want to withdraw. You cannot do that.”
If the seller had not overcharged the buyer, the sale would have been final, and the seller would not have been able to withdraw merely because the price subsequently rose. Since the seller did overcharge him, the sale remains open-ended; nevertheless, the seller cannot now take advantage of that fact and withdraw. That is the case discussed by Rav Chisda.
The Gemara asks whether our Mishnah supports Rav Chisda. The Mishnah discusses a person who promised to provide good-quality wheat, but it turned out to be inferior wheat. What does the Mishnah say? The buyer may withdraw, but the seller may not. The buyer was promised good produce and received inferior produce, so the unfairness was initially directed toward the buyer.
Before analyzing that proof, the Gemara asks: What is the novelty of this case? Is it not obvious? If a person promises someone good produce and gives him inferior produce, of course the buyer has been wronged and may withdraw. What is the Mishnah teaching us?
The novelty is that even though the price later rose, so that the seller is now the one who appears to be suffering from unfair pricing, the buyer was the first one to suffer the unfair pricing. Therefore, he has the upper hand and may demand a refund. The Mishnah is teaching that when good produce was promised and inferior produce was delivered, the buyer may withdraw even though the price subsequently rose and the seller has now become the injured party.
Rashbam explains the phrase “and the Mishnah supports this.” Our Tanna teaches that when a person promises good produce and inferior produce is found, the buyer may withdraw, but the seller may not. This remains true even though the prices later rose. Although the unfairness has reversed itself, the first party who suffered unfair pricing is the one who retains the power to withdraw.
Now the Gemara presents the reverse case. A person sold something worth six for five. Stop there: Who is suffering the unfair pricing? The seller. He sold something worth six for only five. If that were the end of the matter, the seller would be the injured party. But then the price declined to three. Now who is suffering? The buyer, because he paid five for something that is now worth only three.
Nevertheless, the seller may withdraw, but the buyer may not. The reason is that the seller was the one who suffered unfair pricing first, and therefore he controls the situation and may withdraw. The seller can tell the buyer: “If you had not charged me unfairly, the sale would have been binding, and you would not have been able to withdraw. Because you charged me unfairly, the sale remains open. Now that the price has fallen, you want to withdraw? We are not going to reward you for having charged me unfairly.”
In an ordinary sale, once the transaction is binding, it does not matter whether the price rises or falls. If someone sells an item worth five for five, the sale is complete. If the price later rises or declines, neither party may withdraw. Here, however, because the item was worth six and was sold for five, there was unfair pricing. As a result, the sale was not finalized in the ordinary manner. The buyer cannot now benefit from that fact and withdraw when the price falls.
This is the reverse case in the Mishnah: a person promised inferior wheat, but good wheat was found. Who suffered the unfair pricing? The seller. He promised inferior goods but delivered superior goods, so he gave the buyer something better than what he had promised. The seller may withdraw even though the price later fell. That is the novelty of the Mishnah.
We are therefore dealing with cases in which the price fluctuated in the interim. The novelty is that even though the price later declined, the party who was first subject to unfair pricing retains the upper hand. Since the other party’s unfair pricing prevented the sale from becoming binding, he cannot now take advantage of that fact and withdraw after the market moves in his favor.
Rav Chisda’s ruling is therefore reflected in both cases of the Mishnah: good produce that turned out to be inferior, and inferior produce that turned out to be good. The principle is that where the unfair pricing began on one side and then shifted to the other, the first injured party has the right to withdraw, while the second party does not.
The Gemara asks what Rav Chisda’s statement adds. The Mishnah itself teaches these cases. Rav Chisda is teaching the broader principle: where there is unfair pricing on both sides at different stages, the first person who was subject to unfair pricing may withdraw, but the second person may not.
Without Rav Chisda, one might have interpreted the Mishnah differently. One might have said that whenever there is unfairness on both sides, either party may withdraw. The buyer always describes the merchandise as inferior, while the seller always describes it as superior. This is expressed in the verse, “The buyer says, ‘It is bad, it is bad,’ but when he leaves, he boasts.” The buyer tends to say that the merchandise is poor, while the seller tends to praise it.
Accordingly, if one learned only the Mishnah, one might understand the cases not as instances of unfair pricing but as cases of mistaken transactions. The price itself was agreed upon fairly. The issue was that one party promised good goods and delivered bad goods, or promised bad goods and delivered good goods. The Mishnah would then be teaching that the buyer may withdraw because he did not receive what he wanted, while the seller may not withdraw because the buyer can say that he knowingly accepted what was offered.
Consider the first case under that interpretation. The seller promised good wheat, but the buyer received inferior wheat. There was no unfair pricing in the monetary sense. The parties agreed on a fair market price for the goods that were actually delivered. The buyer did not overpay or underpay. His complaint is simply that he was promised good wheat and received inferior wheat.
The buyer says, “I do not want this produce. I wanted good wheat.” The seller may respond, “I also want to withdraw. This was a mistaken transaction. I promised good wheat and gave you inferior wheat.” The buyer answers that it was not truly a mistaken transaction, because buyers generally regard merchandise as inferior. The principle is that the buyer says, “It is bad,” but nevertheless acquires it. The buyer can therefore say, “I received what I expected. I knew that what you called good might be bad from my perspective. I simply do not want inferior wheat.”
Under that interpretation, the Mishnah’s novelty would be that only the buyer can withdraw, not the seller. The buyer can say, “You promised good produce and gave me inferior produce.” The seller cannot respond that the transaction was mistaken, because the buyer accepted the goods as inferior and received what he expected.
Now consider the reverse case. The seller promised inferior wheat, but it turned out to be good. There was again no unfair pricing, because the price was agreed upon. The seller may say, “I made a mistake. I did not intend to sell you this good-quality wheat.” He may withdraw because he delivered something different from what he intended to sell.
If the buyer now wants to withdraw because the price has fallen, the seller can respond: “I sold you what we agreed upon. I promised inferior goods, and you paid the agreed price. You cannot now withdraw merely because the market price declined.” The buyer received the good-quality wheat at the agreed price, and the seller cannot be forced to accept the buyer’s withdrawal based on the later fluctuation in price.
Thus, without Rav Chisda, one could have interpreted the Mishnah as dealing with mistaken transactions rather than unfair pricing. Rav Chisda teaches that the Mishnah is instead dealing with actual unfair pricing at the beginning of the transaction. For example, an item worth five was sold for six, so the buyer was initially subject to unfair pricing. Then the price rose, and the seller became subject to unfair pricing. The novelty is that the first party who suffered unfair pricing may withdraw, while the second party may not.
The Gemara then discusses the expression in the Mishnah, “red wheat.” There are two types of wheat in the market, red wheat and white wheat. The red wheat is described in connection with the sun. From the fact that one type is called white wheat, the Gemara infers that the other type is red, since there are only two types being discussed. This leads to a discussion of the color of the sun.
When one looks at the sun during the day, it does not appear red. It appears more orange or white. Nevertheless, the Gemara indicates that the true color of the sun is red. The proof is that when the sun rises in the morning and sets in the evening, the visible disk appears red. At those times, the eyes are able to perceive its distinct color.
During the day, the sun is too bright for the eyes to perceive its true color. At sunrise and sunset, when the light is less intense, the eyes can distinguish the color more clearly. Therefore, if someone asks what color the sun is, the answer according to the Gemara is red, even though it does not appear red throughout the day.
The Gemara raises another question from the laws of skin afflictions. The verse describes an affliction as appearing deeper than the skin. Rashbam explains that something bright appears deeper when it is placed next to something darker. When a light color is next to a dark color, the light area seems to recede more deeply.
The verse compares this visual effect to the sun: a bright area appears deeper than a shaded area. The sunny area is light, while the shaded area is dark, and the light area appears deeper in comparison. The skin affliction being discussed is white, and it is compared to the sun. But if the sun is white in this comparison, how can the Gemara say that the sun is red?
The Gemara answers that the comparison is not one of color. It is a comparison of contrast. Just as the sun creates a contrast between a bright area and a shaded area, so the skin affliction has a bright area and a darker area. The comparison does not mean that the sun and the affliction have the same color. It means that the visual relationship between light and dark is similar.
The initial assumption, however, was that perhaps the sun is white. Why would one think that? After all, at sunrise and sunset the sun appears clearly red. The Gemara answers that there are other factors contributing to the sun’s red appearance at those times.
One explanation is that in the morning, when the sun emerges, it is coming from the Garden of Eden and still has the redness of the roses of the Garden of Eden. In the evening, when the sun descends in the west, it is approaching Gehinnom, and the fires of Gehinnom are reflected in it. Some say that the locations are reversed, with the Garden of Eden in the west and Gehinnom in the east. In any event, according to that initial understanding, the red appearance at sunrise and sunset is caused by its surroundings rather than by the true color of the sun.
The final conclusion, however, is that the sun itself is red. The redness at sunrise and sunset is not proof that the sun is white with an external red reflection; rather, the sun is intrinsically red. The discussion about its comparison to a skin affliction concerns contrast and not color.
The Mishnah next discusses a person who sold wine, but vinegar was found, or who sold vinegar, but wine was found. In that case, both parties may withdraw. The reason is that wine and vinegar are considered two distinct products. Wine is wine, and vinegar is vinegar. What the seller sold was not what he intended to sell, and what the buyer purchased was not what he intended to buy. Therefore, both parties may rescind the transaction.
There is a famous dispute among the Tannaim regarding how to view wine and vinegar. Some view them as two separate products, while others view vinegar as wine that has deteriorated. This distinction has several practical consequences in Jewish law.
One consequence concerns terumah. Terumah must generally be taken from the same type of produce. If wine and vinegar are considered the same product, one may be able to take terumah from vinegar for wine. If they are considered different products, that would not work.
A second consequence concerns the law of partial admission. Suppose one person claims, “You owe me one thousand,” and the other responds, “I owe you only five hundred.” Since the defendant admits part of the claim and denies the remainder, the laws of partial admission apply, including an oath.
Now suppose someone claims, “You owe me wine,” and the other person responds, “I already repaid you with vinegar.” If wine and vinegar are considered the same product, the response may be treated as an admission to part of the same claim. But if wine and vinegar are two different products, then the person is not admitting part of the claim. The claimant demanded wine, and the defendant responded that he gave vinegar. That is a denial involving a different item, not a partial admission regarding the same item.
The third consequence concerns the sale itself. If wine and vinegar are considered one product, then the seller sold wine and the buyer received wine, although the wine had deteriorated. This would be similar to a case in which a person sold good wheat and inferior wheat was found. The buyer could withdraw, but the seller could not.
If wine and vinegar are considered two different products, however, then the transaction is a mistaken sale. The seller did not sell what he intended to sell, and the buyer did not receive what he intended to purchase. Therefore, both parties may withdraw, as the Mishnah states.
The Gemara asks whether our Mishnah follows Rabbi or the Rabbis. A baraita teaches that Rabbi and the Rabbis dispute whether wine and vinegar are one species. According to the Rabbis, wine and vinegar are considered one species. One practical example concerns a person who drinks one of them and knows that one of the two contains a problem. The fact that the baraita discusses the two together indicates that they are considered one species.
Rabbi, however, says that they are two distinct species. According to Rabbi, one may not take terumah from vinegar for wine. Similarly, if one person claims that the defendant owes him wine and the defendant responds that he gave him vinegar, there is no partial admission, because the defendant is speaking about a different item.
At first glance, our Mishnah must follow Rabbi, because it says that both parties may withdraw when wine and vinegar are exchanged. That would indicate that the two are separate products and that the sale is a mistaken transaction.
The Gemara answers that even the Rabbis can agree with our Mishnah. The Rabbis say that wine and vinegar are considered one species only with regard to terumah. Their position is derived from the verse that states, “When you raise your terumah, you shall not incur sin.” The verse implies that if a person takes inferior produce as terumah in place of superior produce, he has acted improperly, but the terumah nevertheless takes effect. If the act had no effect at all, it would not be described as a sin.
Thus, according to the Rabbis, for purposes of terumah, wine and vinegar are considered one product. If a person takes vinegar as terumah for wine, he should not have done so, but the terumah is effective.
Business transactions, however, are judged differently. In a sale, the particular nature and taste of the product matter. Some people want wine, while others want vinegar. It is not enough to say that both are made from grapes or that one is simply a deteriorated form of the other. Wine has one taste, and vinegar has another. In a commercial transaction, they are therefore treated as distinct items.
This is similar to wheat and barley. Both are grains, but no one would say that they are the same product for purposes of a sale. Someone who wants wheat does not want barley merely because both are grains. Similarly, someone who wants wine does not necessarily want vinegar. Therefore, even the Rabbis can agree that in the context of buying and selling, wine and vinegar are separate products and both parties may withdraw.
The Mishnah then moves to the acquisition of produce. If a person sells produce to another, when does the buyer acquire it? The Mishnah states that if the buyer performs pulling, the sale is effective even if the produce has not yet been measured. Measuring is not the act of acquisition. It is relevant only to determine how much produce was sold and how much money is owed.
If the produce was measured but not pulled, the buyer has not acquired it. The act of acquisition is pulling the produce, not measuring it. Counting or measuring establishes the quantity, but it does not complete the acquisition.
The Gemara asks how a buyer can acquire a large quantity of produce without having to pull every individual item. Suppose there are two hundred apples. It would be difficult to move every apple in order to perform the act of pulling. The buyer can instead rent the place where the produce is located. Once he rents that place, the produce is situated in his property, and items located in a person’s property are acquired by him.
In this way, rather than moving all the produce, the buyer acquires the area beneath it. Once that area becomes his property, the produce located there is acquired through the acquisition of the property. This is a method of acquiring produce without individually pulling it.
The Mishnah then discusses produce that can be lifted. When a person purchases bundles or items that can be moved, he acquires them by lifting them and bringing them into his possession. It is not enough merely to pull something if the particular item must be lifted. Once he uproots produce that is attached to the ground, he acquires it. The act of uprooting it from the ground is the relevant acquisition.
The price must also have been established. If the market price is one dollar per pound, and the buyer performs the act of pulling in a place where pulling is effective—either in a private domain or in a courtyard belonging to both parties—the sale is complete even if the produce was not measured. Measuring only determines how many pounds were sold and how much money the buyer owes.
If the price was not established, however, there is a problem. Even if the buyer pulled the produce and measured it, the transaction is not binding until the price is agreed upon. The seller may say, “I am charging you fifteen dollars per pound,” while the buyer may say, “I am willing to pay only ten cents per pound.” Until they agree on the price, neither side is committed.
Thus, the Mishnah is discussing a case in which the price was already established. The buyer may have measured the produce while it was still in the seller’s sack, and then moved it into the seller’s property. Merely counting or measuring does not acquire the produce. The buyer must perform the act of pulling in a place where that act is effective.
If the buyer is clever and does not want to pull all the produce, he can rent the property where it is located. But the Gemara later clarifies that this solution works only when the place belongs to the seller or to one of the parties. One cannot rent a public domain from the public and thereby acquire produce located there.
The Gemara now returns to the Mishnah’s statement that measuring without pulling does not acquire the produce. Rav Asi said in the name of Rabbi Yohanan that if the seller measured the produce and placed it in a side area, a shared semi-private area, the buyer acquires it even though the buyer himself did not perform an act of pulling.
What is this side area? It is a place that is not fully private but is used by individuals to place their possessions temporarily. It is more private than a public domain, and people have rights to use it. Rabbi Yohanan teaches that if the produce is measured and placed there, the buyer acquires it, because the area is treated as the buyer’s domain for this purpose.
Rabbi Zeira challenged Rabbi Asi’s report. Perhaps Rabbi Yohanan’s statement applies only when the produce is placed in the buyer’s vessel, such as the buyer’s basket. A person’s vessel functions like his courtyard and acquires objects placed inside it. But if the seller merely places the produce on the ground of the shared side area, where is the act of acquisition? There was no pulling and no placement in the buyer’s vessel.
Rabbi Asi responded that Rabbi Zeira was raising an unnecessary question. It is obvious that if the produce is placed in the buyer’s vessel, the buyer acquires it. A vessel belonging to the buyer is like his courtyard, and there would be no need for Rabbi Yohanan to teach such a simple law. Rabbi Yohanan must therefore be discussing the more difficult case, in which the produce is placed on the ground of the shared side area.
The question is whether Rabbi Zeira accepted this response. The Gemara brings a statement of Rabbi Yannai: In a shared courtyard, both partners acquire objects placed there. Each person can acquire an item through the shared courtyard.
Perhaps this proves that the produce can be acquired when it is placed on the ground of the shared side area. Since both parties have rights in the area, placing the produce there may be sufficient to make it the buyer’s acquisition. Rabbi Zeira had a connection to Rabbi Yannai’s tradition, and this statement might therefore support his understanding.
But the Gemara responds that the statement of Rabbi Yannai is not conclusive. When Rabbi Yannai says that a shared courtyard acquires for both partners, he may be referring to produce placed in a vessel located in the courtyard rather than produce placed directly on the ground. The statement does not necessarily prove that the ground itself acquires the produce.
Another statement of Rabbi Yohanan resolves the matter. If produce was measured and placed directly in the shared side area, the buyer did not acquire it. This appears to contradict the earlier statement that measuring and placing produce in the side area is sufficient.
The Gemara resolves the contradiction by distinguishing between the two cases. The earlier statement refers to produce placed in the buyer’s vessel. In that case, the vessel acquires the produce. The later statement refers to produce placed directly on the ground of the side area. In that case, the buyer does not acquire it merely by measuring and placing it there.
We therefore conclude that when the produce is placed in a vessel belonging to the buyer, it is acquired through the buyer’s vessel. When it is placed directly on the ground, there is no acquisition unless the buyer performs the necessary act of pulling or otherwise establishes possession in a manner recognized as an acquisition.
The Gemara brings a further proof from the Mishnah: “He measured but did not pull; he did not acquire.” Perhaps the Mishnah is referring to produce that was measured and placed in the shared side area. If so, the Mishnah would teach that placing it there is not sufficient.
The Gemara rejects this proof. The Mishnah could be referring to produce measured in a public domain. Pulling does not acquire an item in a public domain, but the Mishnah may be describing a case in which the buyer did not perform the act of pulling from the public domain into the side area.
The Gemara explains that pulling is effective in a private domain or in a shared side area, but not in a public domain. Another form of acquisition, delivery, can be effective in a public domain or in a property that belongs to neither party. Pulling, however, is effective in a side area or in a shared courtyard.
Therefore, when the Mishnah says that the buyer measured but did not pull, it does not necessarily mean that he measured and placed the produce on the ground of the side area. It may mean that he measured it in the public domain, where measuring alone is insufficient and pulling is not effective until he moves the produce into a place where pulling is effective.
The Gemara then clarifies the wording. When it speaks of pulling from the public domain to the side area, it does not mean that pulling in the public domain acquires the produce. Pulling in the public domain does nothing. Rather, the buyer begins moving the produce in the public domain and completes the act of pulling once the produce enters the side area. The effective portion of the pulling occurs in the side area.
Thus, the Mishnah’s case can be understood as follows: The produce began in the public domain, and the buyer moved it into the side area without completing the act of pulling in a manner that establishes acquisition. Alternatively, the produce was measured but remained in the public domain. In either event, measuring alone is not sufficient.
The Gemara returns to the case of a clever buyer who does not want to pull all the produce. If the produce is located in the seller’s private property, the buyer can rent the property beneath it. Once he rents that place, it becomes his domain, and the produce can be acquired through the property.
If the produce is located in the public domain, however, the buyer cannot rent that area. There is no individual from whom he can rent the public domain. The suggestion to rent the place applies only when the produce is located in property belonging to the seller or in another property that can be legally rented.
In the case of produce located in the seller’s property, the buyer can say, “I do not want to pull all the produce. I will rent the area where it is situated.” Once the rental takes effect, the produce is in the buyer’s domain, and he acquires it through that domain.
The Gemara will continue by discussing the acquisition that takes place when produce is placed in a vessel, and the difference between acquiring through a vessel, acquiring through a courtyard, and acquiring through the ground of a shared side area. We will stop here and continue next time.
May the words of Torah be a merit for everyone studying, and may we continue with success. Amen.