כְּסוּת, מַה שֶּׁטְּעָנוֹ לֹא הוֹדָה לוֹ, וּמַה שֶּׁהוֹדָה לוֹ לֹא טְעָנוֹ. כִּדְאָמַר רַב פָּפָּא בִּדְלַיְיפִי – הָכָא נָמֵי בִּדְלַיְיפִי.
The Gemara challenges Shmuel’s interpretation: If the dispute is over which size garment was sold, the seller should not be required to take an oath, as that which the buyer claimed from him, the seller did not admit to at all, and that which the seller admitted to, the buyer had not claimed from him. The Gemara answers: Shmuel was referring to a case like that which Rav Pappa said below: The dispute is with regard to a garment that was formed from several pieces of cloth that were attached together. Here too, the dispute is with regard to a garment that was formed from several pieces of cloth that were attached together, and the disagreement was about how much of that garment was actually sold.
קַשְׁיָא לֵיהּ לְרַבִּי הוֹשַׁעְיָא: מִידֵּי ״כְּסוּת״ קָתָנֵי? ״עֶבֶד״ קָתָנֵי!
Rabbi Hoshaya found Shmuel’s interpretation difficult: Does the mishna teach: A garment? No, it teaches: A slave. How can Shmuel claim the dispute was about a garment?
אֶלָּא אָמַר רַבִּי הוֹשַׁעְיָא: כְּגוֹן שֶׁטְּעָנוֹ עֶבֶד בִּכְסוּתוֹ וְשָׂדֶה בָּעוֹמָרֶיהָ. וְאַכַּתִּי כְּסוּת, מַה שֶּׁטְּעָנוֹ – לֹא הוֹדָה לוֹ, וּמַה שֶּׁהוֹדָה לוֹ – לֹא טְעָנוֹ! אָמַר רַב פָּפָּא: בִּדְלַיְיפִי.
Rather, Rabbi Hoshaya said: The mishna is referring to a case where the buyer claimed a large slave along with his garment, or where he claimed a large field along with its sheaves. Since the seller admits to the part of the claim about the garment or sheaves, he is required to take an oath about them. Once he is required to take that oath, it can be extended to require him to take an oath even concerning the claim about the slave or field itself. The Gemara asks: But still, in the dispute over which type of garment was sold, that which the buyer claimed from him, the seller did not admit to at all, and that which the seller admitted to, the buyer had not claimed from him. The Gemara answers: Rav Pappa said: The dispute is with regard to a garment that was formed from several pieces of cloth that were attached together, and the dispute concerns how much of that garment was actually sold.
קַשְׁיָא לֵיהּ לְרַב שֵׁשֶׁת: זוֹקְקִין אֲתָא לְאַשְׁמוֹעִינַן?! תְּנֵינָא: זוֹקְקִין הַנְּכָסִים שֶׁאֵין לָהֶן אַחְרָיוּת אֶת הַנְּכָסִים שֶׁיֵּשׁ לָהֶן אַחְרָיוּת לִישָּׁבַע עֲלֵיהֶן.
Rav Sheshet found Rabbi Hoshaya’s interpretation difficult: Does the mishna come only to teach us the halakha of binding? But we already learned that halakha in a mishna (Kiddushin 26a): Generally, one is not obligated to take an oath concerning the denial of a claim with regard to land. In a legal dispute involving both land and movable property, if the defendant admits to part of the claim with regard to the movable property, thereby rendering himself obligated to take an oath denying any responsibility for the remaining property, the movable property binds the property that serves as a guarantee, i.e., the land, so that he is forced to take an oath concerning the land as well.
אֶלָּא אָמַר רַב שֵׁשֶׁת: הָא מַנִּי – רַבִּי מֵאִיר הִיא, דְּאָמַר: עַבְדָּא כְּמִטַּלְטְלִין דָּמֵי.
Rather, Rav Sheshet said: In accordance with whose opinion is this mishna? It is Rabbi Meir, who said: The legal status of a slave is like that of movable property. Even if the dispute is over the slave alone, the seller can be required to take an oath.
וְאַכַּתִּי: מַה שֶּׁטְּעָנוֹ – לֹא הוֹדָה לוֹ, וּמַה שֶּׁהוֹדָה לוֹ – לֹא טְעָנוֹ! סָבַר לַהּ כְּרַבָּן גַּמְלִיאֵל. דִּתְנַן: טְעָנוֹ חִטִּים וְהוֹדָה שְׂעוֹרִים – פָּטוּר, רַבָּן גַּמְלִיאֵל מְחַיֵּיב.
The Gemara asks: But still, if the dispute is over which slave was sold, then that which the buyer claimed from him, the seller did not admit to at all, and that which the seller admitted to, the buyer had not claimed from him. The seller should not therefore be required to take an oath. The Gemara answers: The tanna of the mishna holds in accordance with the opinion of Rabban Gamliel, as we learned in a mishna (Shevuot 38b): If one claimed wheat from another, and the defendant admitted only to owing him barley, the defendant is exempt from having to take an oath; but Rabban Gamliel deems him liable.
אַכַּתִּי הֵילָךְ הוּא! אָמַר רָבָא: עַבְדָּא דִּקְטַע לִידֵיהּ, וְשָׂדֶה שֶׁחָפַר בָּהּ בּוֹרוֹת שִׁיחִין וּמְעָרוֹת.
The Gemara asks: Still, with regard to the small slave, this is a case of: Here you are, as the slave is immediately available to be taken. The small slave is not considered part of the buyer’s claim, as his claim is limited to the difference between the values of the slaves, and that amount is being entirely denied. Consequently, there should be no requirement to take an oath. To resolve this difficulty, Rava said: In the case of the slave, the mishna is referring to a case where, after the sale, the seller severed the slave’s hand, and in the case of the field, it is a case where, after the sale, the seller dug pits, ditches and caves in it, and therefore he cannot say: Here you are.
וְהָא רַבִּי מֵאִיר אִיפְּכָא שָׁמְעִינַן לֵיהּ, דִּתְנַן: גָּזַל בְּהֵמָה וְהִזְקִינָה, עֲבָדִים וְהִזְקִינוּ – מְשַׁלֵּם כִּשְׁעַת הַגְּזֵילָה. רַבִּי מֵאִיר אוֹמֵר: בַּעֲבָדִים אוֹמֵר לוֹ ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״!
The Gemara offers another challenge to Rav Sheshet’s interpretation: But didn’t Rabbi Meir teach us the opposite? As we learned in a mishna (Bava Kamma 96b): If one robbed another of an animal and it aged and declined in value while in his possession, or if one robbed another of Canaanite slaves and they aged, since they are no longer in the condition that they were in when he robbed them, he cannot return them in their current state to his victim; rather, he pays according to their value at the time of the robbery. Rabbi Meir says: With regard to slaves, he says to the victim: That which is yours is before you and no compensation is required. Apparently, Rabbi Meir holds that the legal status of a slave is like that of land, and not, as Rav Sheshet said, like that of movable property.
הָא לָא קַשְׁיָא, כִּדְמַחְלֵיף רַבָּה בַּר אֲבוּהּ וְתָנֵי, רַבִּי מֵאִיר אוֹמֵר: מְשַׁלֵּם כִּשְׁעַת הַגְּזֵילָה, וַחֲכָמִים אוֹמְרִים: אוֹמֵר לוֹ בַּעֲבָדִים ״הֲרֵי שֶׁלְּךָ לְפָנֶיךָ״.
The Gemara answers: That is not difficult. Rav Sheshet apparently holds like Rabba bar Avuh, who reverses the attribution of the opinions in that mishna and teaches: Rabbi Meir says: He pays according to their value at the time of the robbery. And the Rabbis say: With regard to slaves, he says to the victim: That which is yours is before you and no compensation is required.
אֶלָּא מִמַּאי דְּסָבַר רַבִּי מֵאִיר מַקְּשִׁינַן קַרְקַע לְעֶבֶד: מָה עֶבֶד נִשְׁבָּעִין – אַף קַרְקַע נִשְׁבָּעִין? דִּלְמָא אַעֶבֶד הוּא דְּנִשְׁבָּעִין, אֲבָל אַקַּרְקַע לָא!
Since Rav Sheshet interprets the mishna as referring to a case where the dispute is over the slave alone and interprets it to be in accordance with the opinion of Rabbi Meir, he apparently also assumes that Rabbi Meir holds that an oath is taken even with regard to a claim of land, as his explanation would need to account for the case in the mishna concerning a dispute over the small or large field. The Gemara questions this assumption: But given that Rabbi Meir said only that the legal status of a slave is like that of movable property, from where does Rav Sheshet learn that Rabbi Meir holds that we compare land to a slave, so that just as for a claim about a slave, an oath is taken, so too, for a claim about land, an oath is taken? Perhaps Rabbi Meir holds that an oath is taken only on a claim about a slave but not on a claim about land.
לָא סָלְקָא דַּעְתָּךְ, דְּתַנְיָא: הַמַּחְלִיף פָּרָה בַּחֲמוֹר וְיָלְדָה, וְכֵן הַמּוֹכֵר שִׁפְחָתוֹ וְיָלְדָה,
The Gemara answers: It should not enter your mind that Rabbi Meir makes a distinction between slaves and land in this regard, as it is taught in a baraita: With regard to one who exchanges a cow for a donkey, such that by virtue of the cow owner’s act of acquisition on the donkey, the donkey’s erstwhile owner simultaneously acquires the cow, wherever it happens to be located, and afterward the cow is found to have calved; and similarly, with regard to one who sells his Canaanite maidservant, with the acquisition effected by the buyer giving him money, and afterward she is found to have given birth to a child, who will be a slave belonging to his mother’s master, at times it is uncertain whether the offspring was born before or after the transaction.
זֶה אוֹמֵר: בִּרְשׁוּתִי, וְזֶה שׁוֹתֵק – זָכָה.
If this seller says: The birth occurred while the cow or maidservant was still in my possession, and that buyer remains silent, the seller is entitled to take the offspring.
זֶה אוֹמֵר: ״אֵינִי יוֹדֵעַ״, וְזֶה אוֹמֵר: ״אֵינִי יוֹדֵעַ״ – יַחְלוֹקוּ.
If this one says: I do not know what happened, and that one says: I do not know what happened, they divide the value of the offspring between them.
זֶה אוֹמֵר: ״בִּרְשׁוּתִי״, וְזֶה אוֹמֵר: ״בִּרְשׁוּתִי״ – יִשָּׁבַע הַמּוֹכֵר שֶׁבִּרְשׁוּתוֹ יָלְדָה, לְפִי שֶׁכׇּל הַנִּשְׁבָּעִין שֶׁבַּתּוֹרָה נִשְׁבָּעִין וְלֹא מְשַׁלְּמִין, דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים: אֵין נִשְׁבָּעִין לֹא עַל הָעֲבָדִים וְלֹא עַל הַקַּרְקָעוֹת.
If this seller says: The birth occurred while the cow or maidservant was still in my possession, and that buyer says: The birth occurred after the cow or maidservant was already in my possession, then the seller takes an oath stating that the cow or maidservant gave birth in his possession and he is then entitled to take the offspring. This is because for anyone who takes an oath required by Torah law, he takes the oath and does not have to pay. This is the statement of Rabbi Meir. And the Rabbis say: One does not take an oath, not on a claim concerning slaves and not on a claim concerning land.
לָאו מִכְּלָל דְּרַבִּי מֵאִיר סָבַר נִשְׁבָּעִין!
The Gemara explains its proof from this baraita: Since the Rabbis replied to Rabbi Meir that an oath is not taken on a claim concerning slaves or land, is it not correct that by inference, Rabbi Meir holds that one can take an oath on a claim concerning either slaves or land?
מִמַּאי? דִּלְמָא ״כְּשֵׁם״ קָאָמְרוּ לֵיהּ: כִּי הֵיכִי דְּאוֹדֵית לַן בְּקַרְקָעוֹת – אוֹדִי לַן נָמֵי בַּעֲבָדִים.
The Gemara rejects this inference: But from where is this inferred? Perhaps the Rabbis are speaking to him utilizing the style of: Just as, and they are saying as follows: Just as you concede to us with regard to land, concede to us also with regard to slaves.
תִּדַּע, דִּתְנַן, רַבִּי מֵאִיר אוֹמֵר: יֵשׁ דְּבָרִים שֶׁהֵן כַּקַּרְקַע וְאֵינָן כַּקַּרְקַע. וְאֵין חֲכָמִים מוֹדִים לוֹ. כֵּיצַד? עֶשֶׂר גְּפָנִים טְעוּנוֹת מָסַרְתִּי לָךְ, וְהַלָּה אוֹמֵר: אֵינָן אֶלָּא חָמֵשׁ, רַבִּי מֵאִיר מְחַיֵּיב. וַחֲכָמִים אוֹמְרִים: כׇּל הַמְחוּבָּר לַקַּרְקַע – הֲרֵי הוּא כַּקַּרְקַע.
The Gemara adds: Know that Rabbi Meir holds that one does not take an oath for a claim concerning land, as we learned in a mishna (Shevuot 42b): Rabbi Meir says: There are some matters that have a legal status like that of land, but nevertheless, with regard to oaths they are not treated like land and so one takes an oath with regard to them. But the Rabbis do not concede to Rabbi Meir that this is the halakha. How so? If one claims: I delivered ten vines laden with grapes to you, and the other says: There were only five; Rabbi Meir deems him liable to take an oath of one who admits to part of a claim. But the Rabbis say: Anything that is attached to the ground has a legal status like that of land, so no oath is taken with regard to them.
וְאָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא: עֲנָבִים הָעוֹמְדוֹת לִיבָּצֵר אִיכָּא בֵּינַיְיהוּ. דְּמָר סָבַר: כִּבְצוּרוֹת דָּמְיָין, וּמָר סָבַר: לָאו כִּבְצוּרוֹת דָּמְיָין.
The Gemara clarifies the scope of the dispute: And Rabbi Yosei bar Ḥanina says: The difference between them is only in a case of grapes that are ready to be picked, as one Sage, Rabbi Meir, holds: They are considered as though they were already harvested, meaning that they are regarded as movable property, with regard to which an oath is taken. And the other Sage, the Rabbis, holds: They are not considered as though they were about to be picked, meaning that they are regarded as land, with regard to which an oath is not taken. Evidently, Rabbi Meir agrees that an oath is not taken concerning land.
אֶלָּא לְעוֹלָם כִּדְרַבִּי הוֹשַׁעְיָא, וּדְקַשְׁיָא לָךְ זוֹקְקִין? אִיצְטְרִיךְ: סָלְקָא דַּעְתָּךְ אָמֵינָא כְּסוּת עֶבֶד כְּעֶבֶד דָּמֵי, עוֹמְרֵי שָׂדֶה כְּשָׂדֶה דָּמֵי, קָא מַשְׁמַע לַן.
Rather, actually the mishna can be explained only in accordance with the interpretation of Rabbi Hoshaya, cited above. And with regard to that which posed a difficulty to you, namely that according to his explanation, the novelty of the mishna is only that movable property binds land so that one can be required to take an oath with regard to it, and that halakha is already taught in the mishna in tractate Kiddushin, one can explain that it was necessary to also teach this in the mishna here, because it might enter your mind to say that the garment of a slave is like the slave himself, or that sheaves of a field are like the field itself. If so, there would be no basis to require an oath, even one based on the claims about the garment and sheaves themselves. Therefore, the mishna teaches us that they are considered distinct items and the claims concerning them require the seller to take an oath which can then be extended to require an oath for the claim concerning the slave or land.
זֶה אוֹמֵר: ״אֵינִי יוֹדֵעַ״, וְזֶה אוֹמֵר: ״אֵינִי יוֹדֵעַ״ – יַחְלוֹקוּ. הָא מַנִּי – סוֹמְכוֹס הִיא, דְּאָמַר: מָמוֹן הַמּוּטָּל בְּסָפֵק – חוֹלְקִין.
§ The Gemara analyzes one of the clauses of the baraita cited above: In a case in which it is unclear when the cow or maidservant gave birth, if this one says: I do not know what happened, and that one says: I do not know what happened, they divide the value of the offspring between them. The Gemara asks: In accordance with whose opinion is this? It is in accordance with the opinion of Sumakhos, who says: When there is property of uncertain ownership, the parties divide it equally between them.
אֵימָא סֵיפָא: זֶה אוֹמֵר ״בִּרְשׁוּתִי״ וְזֶה אוֹמֵר ״בִּרְשׁוּתִי״ – יִשָּׁבַע הַמּוֹכֵר שֶׁבִּרְשׁוּתוֹ יָלְדָה, וּלְרַבָּה בַּר רַב הוּנָא, דְּאָמַר: אִין, אָמַר סוֹמְכוֹס אֲפִילּוּ בָּרִי וּבָרִי, אַמַּאי יִשָּׁבַע מוֹכֵר? ״יַחְלוֹקוּ״ מִיבַּעְיָא!
The Gemara questions this attribution: If so, say and try to explain accordingly the latter clause of that baraita: If this seller says: The birth occurred while the cow or maidservant was still in my possession, and that buyer says: The birth occurred after the cow or maidservant was already in my possession, then the seller takes an oath stating that it gave birth in his possession, and he is then entitled to take the offspring. The Gemara explains the difficulty: But according to the opinion of Rabba bar Rav Huna, who says: Yes, Sumakhos said his ruling even in a case in which there is a conflict between a certain claim and a certain claim, why does the mishna rule that the seller takes an oath; the mishna should have ruled that they divide the value of the disputed offspring between them.
מוֹדֶה סוֹמְכוֹס הֵיכָא דְּאִיכָּא שְׁבוּעָה דְּאוֹרָיְיתָא, וּדְקַטְעַהּ לִידַהּ כִּדְרָבָא.
The Gemara answers: Sumakhos concedes that where there is a requirement for one of the parties to take an oath required by Torah law, that the disputed amount is not divided. And furthermore, this is not a case in which the seller could say: Here you are, because the case is where after the sale, the seller severed the slave’s hand, just like in the explanation of Rava above.
מַתְנִי׳ הַמּוֹכֵר זֵיתָיו לְעֵצִים, וְעָשׂוּ פָּחוֹת מֵרְבִיעִית לַסְּאָה – הֲרֵי אֵלּוּ שֶׁל בַּעַל הַזֵּיתִים.
MISHNA: In the case of one who sells his olive trees to another so he can chop them down and use them for their wood, and before he chopped them down they yielded olives, if the olives are of a quality that could provide the value of less than a quarter-log of oil per se’a of olives, these olives are the property of the new owner of the olive trees, i.e., the buyer.
עָשׂוּ רְבִיעִית לַסְּאָה, זֶה אוֹמֵר: ״זֵיתַי גִּדֵּלוּ״, וְזֶה אוֹמֵר: ״אַרְצִי גִּדֵּלָה״ – יַחְלוֹקוּ.
If they yielded olives that could provide the value of a quarter-log or more of oil per se’a of olives, and this one, the buyer, says: My olive trees yielded the olives and so I have a right to them, and that one, the seller, says: The nourishment from my land yielded the olives and so I have a right to them, then they divide the olives between them.
שָׁטַף נָהָר זֵיתָיו וּנְתָנָם לְתוֹךְ שְׂדֵה חֲבֵירוֹ, זֶה אוֹמֵר: ״זֵיתַי גִּדֵּלוּ״, וְזֶה אוֹמֵר: ״אַרְצִי גִּדֵּלָה״ – יַחְלוֹקוּ.
In the event that a river swept away one’s olive trees and deposited them in the field of another, and they took root there and yielded olives, this one, i.e., the owner of the trees, says: My olive trees yielded the olives and so I have a right to them, and that one, i.e., the owner of the field, says: The nourishment from my land yielded the olives and so I have a right to them, then they divide the olives between them.
גְּמָ׳ הֵיכִי דָּמֵי? אִי דַּאֲמַר לֵיהּ קוֹץ לְאַלְתַּר – אֲפִילּוּ פָּחוֹת מֵרְבִיעִית נָמֵי לְבַעַל הַקַּרְקַע. אִי דַּאֲמַר לֵיהּ כֹּל אֵימַת דְּבָעֵית קוֹץ – אֲפִילּוּ רְבִיעִית נָמֵי לְבַעַל זֵיתִים!
GEMARA: The Gemara asks: What are the circumstances of the sale? If this is a case where before the sale the seller said to the buyer: Cut down the trees immediately, then clearly he is particular that the buyer not derive benefit from the nourishment provided by his land. Therefore, even if the olives yielded could provide less than the value of a quarter-log of oil per se’a of olives, they will belong to the owner of the land, i.e., the seller. Conversely, if the case is where he said to him: Cut down the trees whenever you want, then it is clear that he is not particular about the buyer deriving benefit from the nourishment provided by his land. Therefore, even if the olives yielded could provide the value of a quarter-log or more of oil per se’a of olives, they will belong to the owner of the olive trees, i.e., the buyer.
לָא צְרִיכָא, דַּאֲמַר לֵיהּ סְתָמָא: פָּחוֹת מֵרְבִיעִית – לָא קָפְדִי אִינָשֵׁי, רְבִיעִית – קָפְדִי אִינָשֵׁי.
The Gemara explains: No, the ruling is necessary in a case where the seller said to him to cut down the trees, without specification about when he should do so. Accordingly, if the olives yielded produce less than the value of a quarter-log of oil per se’a of olives, then since people are generally not particular to receive their share of such olives, the buyer may keep them. But where the olives yielded produce the value of a quarter-log or more of oil per se’a of olives, people are generally particular to receive their share of such olives; consequently, they divide the olives between them.
אָמַר רַבִּי שִׁמְעוֹן בֶּן פַּזִּי: וּרְבִיעִית שֶׁאָמְרוּ –
Rabbi Shimon ben Pazi says: And the value of the quarter-log that they mentioned in the mishna