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Babylonian Talmud: Tractate Baba Mezi'a
but [the vendor] nevertheless has a claim of fraud against him.1 'He acquires a title thereto,' — even though he did not take possession thereof [sc. of the article]: since he [the other party] was not particular [as to the exact amount of money], he [the former] acquires it, for it partakes of the nature of barter. 'Nevertheless, he has a claim of fraud against him,' — because he had said to him, 'Sell it me for these coins.'2 R. Abba said in R. Hunas name: [If A said to B.] 'Sell [it] me for these coins,' he acquires a title thereto, and he [the vendor] has no claim of fraud against him.3
Now, it is certain [if money or an article is delivered as] payment, but he [the recipient] is not particular [that the value shall correspond] — then we have just said that he [the giver] acquires title, for it partakes of the nature of barter. But what if it4 is delivered as barter, and he [the recipient] is particular?5 — Said R. Adda b. Ahaba: Come and hear: If one was standing with his cow [in a market], and his neighbour came and asked him, 'Why [have you brought] your cow [hither]?' — 'I need an ass,'[he replied]. 'I have an ass which I can give you [in return for your cow].' 'What is the value of your cow?' 'So much.' 'What is the value of your ass?' 'So much.'6 If the ass-owner drew the cow into his possession, but before the cow-owner had time to draw the ass into his possession it [the ass] died, he [the ass-owner] acquires no title thereto [the cow]. This proves that in the case of barter, where each is particular, no title is gained [unless both take possession]. Said Raba: Does then [the general law of] barter apply only to imbeciles, who are not particular? But indeed in all cases of barter they are certainly particular; nevertheless, title is acquired [when only one party takes possession].7 Here however it means that one said, '[I give you] my ass in return for a cow and a lamb,' and he drew the cow into his possession but not the lamb,8 in which case the meshikah was not completed.9
The Master said: '"Sell it me for these [coins]." He acquires title thereto, yet he [the vendor] has a claim of fraud against him.' Shall we say that in R. Huna's opinion coin may effect a barter? — No. R. Huna agrees with R. Johanan, who ruled: Biblically speaking, [the payment of] money effects a title. Why then was it said that only meshikah gives possession? As a precautionary measure, lest he say to him, 'Your wheat was burnt in the loft.' Now, the Rabbis enacted a preventive measure only for a usual occurrence, but not for an unusual occurrence.10
Wherewith is a title effected?13 — Rab said: With the utensil of the receiver; for the receiver wishes the bestower to take possession,14 so that he [the latter] in his turn may determine to give him possession. Whilst Levi said: With the utensil of the bestower, as will be explained anon. R. Huna of Diskarta15 said to Raba: Now, according to Levi, who maintained that it is with the utensil of the bestower, one will be able to acquire land in virtue of a garment, which is tantamount to secured property being acquired along with unsecured, whereas we learnt the reverse: Unsecured chattels may be acquired along with secured chattels!16 — Said he to him: Were Levi here, he would have smitten you17 with fiery lashes! Do you really think that the garment gives him possession? [Surely not! but] in consideration of the pleasure he [the bestower] experiences in that the receiver accepts it from him, he wholeheartedly transfers it to him.18
This19 is disputed by Tannaim: Now this was the manner in former times in Israel concerning redeeming and concerning changing, For to confirm all things; a man drew off his shoe, and gave it to his neighbour;20 'redeeming' means selling, and thus it is written, It shall not be redeemed;21 'changing' refers to barter, and thus it is written, He shall not alter it, nor change it;22 for to confirm all things; a man drew off his shoe, and gave it to his neighbour. Who gave whom? Boaz gave to the kinsman. R. Judah said: The kinsman gave to Boaz.23
It has been taught: Acquisition may be made by means of a utensil, even if it is worth less than a perutah. Said R. Nahman: This applies only to a utensil, but not to produce.24 R. Shesheth said: [It may be done] even with produce. What is R. Nahman's reason? — Scripture saith, 'his shoe': implying, only 'his shoe' [i.e., a utensil], but nothing else. What is R. Shesheth's reason? Scripture saith, for to confirm all things.25 But according to R. Nahman too, is it not written, to confirm all things?-That means, to confirm all things the title to which is to be effected by means of a shoe.26 And R. Shesheth too: is it not written, 'his shoe'?- R. Shesheth can answer you: [That is to teach,] just as his shoe is a clearly defined object, so must everything [used in this connection] be a clearly defined object, thus invalidating half a pomegranate or half a nut, which may not be [employed].27
R. Shesheth, the son of R. Iddi, said: In accordance with whom do we write nowadays, 'with a utensil that is fit for acquiring possession therewith'?28 'With a utensil' — that rejects the view of R. Shesheth, who maintains: A title may be effected by means of produce. 'That is valid' — this excludes Samuel's dictum, viz.: Possession can be obtained
Baba Mezi'a 47b
by means of maroka.1 'For gaining possession' — this rejects Levi's view, that the utensils of the bestower [are required]:2 therefore it teaches us: to obtain possession, but not to confer possession.3 'Therewith' — R. Papa said: It is to exclude coins. R. Zebid — others state, R. Ashi — said: It is to exclude objects the benefit of which is forbidden.
Others state: 'Therewith' excludes coins.4 'That is fit'; R. Zebid — others state, R. Ashi — said: That excludes objects whose use is forbidden.5 But as for maroka, It Is unnecessary [to exclude that].6
UNCOINED METAL [ASIMON]7 ACQUIRES COINED. What IS ASIMON? — Said Rab: Coins that are presented as tokens8 at the baths.9 An objection is raised: The second tithe may not be redeemed by asimon, nor by coins that are presented as tokens at the baths; proving that ASIMON is not coins that are presented as tokens at the baths.10 And should you answer that it is a definition,11 surely the Tanna does not teach thus; [for we learnt:] The second tithe may be redeemed by 'asimon', this is R. Dosa's view. The Sages maintain: It may not. Yet both agree that it may not be redeemed with coins that are presented as tokens at the baths.12 But, said R. Johanan. What is 'asimon'? A disk.13 Now, R. Johanan follows his views [expressed elsewhere]. For R. Johanan said: R. Dosa and R. Ishmael both taught the same thing. R. Dosa: the statement just quoted. And what is R. Ishmael's dictum? — That which has been taught: And thou shalt bind up the money in thine hand;14 this is to include everything that can be bound up in one's hand — that is R. Ishmael's view. R. Akiba said: It is to include everything which bears a figure.15
E. G., IF [A] DREW INTO HIS POSSESSION [B' s] PRODUCE, WITHOUT PAYING HIM THE MONEY, HE CANNOT RETRACT, etc. R. Johanan said: By Biblical law, [the delivery of] money effects possession. Why then was it said meshikah effects possession? Lest he [the vendor] say to him [the vendee]. 'Your wheat was burnt In the loft.'16 But after all, whoever causes17 the fire must make compensation! — But [for fear] lest a fire accidentally break out. Now, if the ownership is [still] vested in him [the vendor],18 he will wholeheartedly take pains19 to save it; if not, he will not do so.
Resh Lakish said: Meshikah is explicitly provided for by Biblical law. What is Resh Lakish's reason? — Scripture saith, And if thou sell aught unto thy neighbour, or acquire aught of thy neighbour's hand20 — i.e., a thing 'acquired' [by passing it] from hand to hand.21 But R. Johanan maintains, 'of [thy neighbour's] hand' is to exclude real estate from the law of fraud.22 And Resh Lakish?23 — If so,24 Scripture should have written, 'And if thou sell aught unto thy neighbour's hand, ye shall not defraud:' why state, 'or acquire aught'? This proves that its purpose is to teach the need of meshikah. And R. Johanan: how does he utilise 'or buy'? — He employs it. even as was taught: 'And if thou sell aught … ye shall not defraud:' from this I know the law25 only if the purchaser was defrauded. Whence do I know it if the vendor was cheated? From the phrase. 'or acquire aught…ye shall not defraud.' And Resh Lakish?26 — He learns both therefrom.27
We learnt, R. SIMEON SAID: HE WHO HAS THE MONEY IN HIS HAND HAS THE ADVANTAGE. [This means,] only the vendor can retract, but not the purchaser.28 Now, should you say that [by Biblical law the delivery of] money effects possession, it is well; therefore the vendor can retract, but not the vendee.29 But if you say that [the delivery of] money does not effect a title [even by Biblical law], then the purchaser too should be able to retract!30 — Resh Lakish can answer you: I [certainly] did not state [my view] on the basis of R. Simeon's opinion, but according to the Rabbis.
Now, as for Resh Lakish, it is well: for precisely therein do R. Simeon and the Rabbis differ.31 But according to R. Johanan, wherein do R. Simeon and the Rabbis differ? — In respect to R. Hisda's dictum, viz.: Just as they [sc. the Rabbis] enacted the law of meshikah in respect of the vendor, so did they institute it in respect to the vendee.32 Thus, R. Simeon rejects this dictum of R. Hisda, whilst the Rabbis agree therewith.
We learnt: BUT THEY [SC. THE SAGES] SAID: HE WHO PUNISHED THE GENERATION OF THE FLOOD AND THE GENERATION OF THE DISPERSION, HE WILL TAKE VENGEANCE OF HIM WHO DOES NOT STAND BY HIS WORD. Now, if you say that the delivery of money effects a title, it is well: hence he is subject to the 'BUT etc.'. If, however, you maintain that money does not effect a title, why is he subject to 'BUT'?33 — On account of his words.34 But is one subject to 'BUT' on account of [mere] words? Has it not been taught:
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