Here we'll talk about a field that was sold for a certain measurement but was found to be either bigger or smaller than the agreed-upon size. We'll talk about a beit kor. A beit kor is about 180 kav (a dry measure) in what it would produce. We'll see how the halacha (Jewish law) changes based on what type of language was used in the transaction.
The Mishnah says: Somebody told his friend, “I'm selling you a beit kor of land as measured by the line.” When he says “by the line,” that means he intends to sell him exactly 180 kav. If, after they measured the field, it was even a little bit less than the beit kor, the 180 kav, they would deduct from the sale price in order to reflect the appropriate ratio of what was paid and what is owed. If there was more land than the 180 kav, then the buyer would give back whatever was extra beyond the beit kor, the 180 kav.
But if the seller said, “I'm selling you a beit kor of earth, even a little bit more or a little bit less, afilu pachat rova lese'ah (a measure of volume) (even if he was short a quarter per se'ah),” then even if the measurement of the land afterward is a quarter kav per se'ah less or a quarter kav se'ah more than it should be—which basically tells us—I'm going to avoid all the math—but it's about 4% more or less than was agreed upon—we say higi'u: the buyer keeps the field, no refund is made. The seller's statement was “more or less.” That means he's including a little bit of discrepancy, a little bit of not being exact. Therefore, 1/24 of the total is what you could be off. It was acceptable, and therefore the sale stands without any adjustment to the price.
But if the extra land or the missing land in the transaction is more than seven and a half kav, which again is around 4%, then we make an adjustment. We see how much is extra and how much is missing, and therefore we make a change to the sale. If the land was found to be smaller than required—not 180 kav, but more than seven and a half kav less than that—then it's around 172 kav or less. What happens in that situation? The seller then has to refund some of the sale price to the buyer because he didn't give him enough land.
But if there's more land, and the buyer realizes he took more than the 180 kav—we're talking about more than seven and a half kav extra, so he took over 187 and a half kav—what happens depends on what the seller wants to do, as the Mishnah will now tell us. What does the buyer have to return to the seller? If the land is bigger than a beit kor, he has to return him ma'ot. He has to return him money. The buyer has to pay the seller the extra money for the extra land, and the buyer keeps the land with the rest of the field. But if the seller wanted to, he could obligate the buyer to return the extra land, and the buyer would have to give back the extra piece of land.
What we're saying here is that the seller has the choice. He can allow the buyer to keep the extra piece of land and get paid in money for it, or he could take back that extra land if he'd like to. Why do we give the seller the choice? Why do we give him the advantage in this case? We would think that we should just say, “Okay, the buyer only agreed to buy 180 kav, which is one beit kor. So anything extra should just be given back to the seller.” Why are we giving the seller the choice between money and the karka, the land?
The Mishnah says: Why do we say that the buyer has the obligation to return money to the seller for the extra land if the seller wants money back? Why don't we just say, “Return the land”? The answer is in the Mishnah: This is in order to give the upper hand to the seller. We're nervous that if the seller now has the extra piece of land returned to him, it could be a tiny piece of land that would have no use. It would have nothing; it's useless to him. So we want to protect the seller and make sure he doesn't have a financial loss, because he can't do anything on that tiny little parcel of land. The buyer, on the other hand, already has a beit kor, and by adding to his beit kor he could do something big with. Therefore, we require the buyer to purchase the land if that's what the seller wants.
But the seller doesn't have this option if the extra land has use on its own. We just said that the buyer's obligation to pay for the extra pieces of land applies only if there's no use for them. But if the land has use, then the seller can't require the buyer to pay. The option of forcing the buyer to pay for the land doesn't exist if the extra land left over after the full beit kor was handed over is nine kav or more. In other words, if the total piece of land was 189 kav from the beginning, 180 were handed off to the buyer, and now there are nine kav left, we don't force the sale to the buyer.
If we're talking about a garden, then a piece of land that's a half kav in size. According to Rabbi Akiva, if the extra garden land was a quarter kav in size, then the buyer returns the extra land to the seller. We don't make him buy it. A grain field that's nine kav is big enough to plant on its own, and therefore the seller could keep that land. He won't suffer a loss, and he'll do something with it; he'll produce something with that piece of land. Therefore, we don't need to force the buyer to pay for it. In the case of a garden, a garden that's a half kav in size, or according to Rabbi Akiva even a quarter kav in size, can also be useful. Therefore, we wouldn't force the buyer to pay for this extra piece of land. We would just return it to the seller.
We mentioned the din (law) that if there was a discrepancy of seven and a half kav per beit kor, then it's acceptable, and that no matter how much the discrepancy is, the deal goes through because we weren't being medakdek—we weren't being exacting in size. But whenever we have a case that's more than seven and a half, either more or less, then the money goes back to the right place or the land is returned to the rightful owner. We make sure that things are settled up.
The question becomes: If it's more than seven and a half, let's say it's nine, and the seller gave 189 kav to the buyer, then we said that if it was less than seven and a half, it doesn't count; everyone forgives each other. If it's more, then the land goes back to the seller. So what goes back? Is it the difference between 187.5 and 189? Does that one and a half amot (cubits) go back, while 187 stays with the buyer? Or, once we're giving land back, does the full amount past the beit kor go back?
So we say: He doesn't only return the extra piece of land of the quarter kav per se'ah. In other words, the extra land above and beyond the seven and a half kav per beit kor. Not only that, but the extra piece of land above and beyond the seven and a half kav per beit kor—not only the land beyond the seven and a half kav that the buyer has to return in this case; rather, he has to give back all extra land. What we're saying here is that when extra land is given back because it's more than seven and a half kav, it's not just whatever is extra after seven and a half kav that is given back. Rather, the seller is forgiving nothing, and all of the extra land has to be returned to him. Since some land is being returned, we say everything above the 180 is being returned to him, and that he was being exacting. The buyer only keeps 180 kav and returns anything above that, including the first seven and a half and obviously everything afterward.