Bava Metzia 28

Chapter 28

א יכול לחזור בו משהחזיק בה אינו יכול לחזור בו דא"ל חייתא דקטרי סברת וקבלת מאימתי הויא חזקה מכי דייש אמצרי

1 may retract as long as he has not taken possession of it,1

ב ואיכא דאמרי אפילו באחריות נמי דאמר ליה אחוי טרפך ואשלם לך

2 but if he has taken possession of it he cannot retract,<span class="x" onmousemove="('comment',' Even if he has not paid yet, for the buyer acquires the land legally when he takes possession of it, and the purchase price, if not paid, becomes a debt due to the seller (Rashi). ');">2

ג איתמר המוכר שדה לחבירו ונמצאת שאינה שלו רב אמר יש לו מעות ויש לו שבח ושמואל אמר מעות יש לו שבח אין לו

3 for he [Reuben] may say to him [Simeon]: 'You bought a bag sealed with knots, and you got it.'3

ד בעו מיניה מרב הונא פירש לו את השבח מהו טעמא דשמואל משום דלא פירש שבחא והכא הא פירש לה או דלמא טעמיה דשמואל כיון דלית ליה קרקע מחזי כרבית א"ל אין ולאו ורפיא בידיה

4 When is he deemed to have 'taken possession'? When he has set his foot upon the landmarks.4

ה איתמר אמר רב נחמן אמר שמואל מעות יש לו שבח אין לו אע"פ שפירש לו את השבח מאי טעמא כיון דקרקע אין לו שכר מעותיו עומד ונוטל

5 But some say that even [when the field is sold] with a guarantee [the buyer may not retract]<span class="x" onmousemove="('comment',' Although in the end the seller must make good the buyer's loss, the buyer has no right to withdraw from the transaction on the plea that in the end his money will have to be refunded. ');">5

ו איתיביה רבא לרב נחמן אין מוציאין לאכילת פירות ולשבח קרקעות ולמזון האשה והבנות מנכסים משועבדים מפני תיקון העולם

6 for he [the seller] may say to him [the buyer]: 'Show me your document [legalising the seizure of the field and entitling you to demand your money back] and I shall pay you.'6

ז ממשעבדי הוא דלא מפקינן הא מבני חורין מפקינן וקתני מיהא לשבח קרקעות מאי לאו בלוקח מגזלן

7 It was stated: If one sells a field to his neighbour and it turns out not to be his own,7

ח לא בבעל חוב

8 — Rab says: He [the buyer] is entitled to [the return of the money [which he paid for the field] and to [compensation from the seller for the] improvement [which he made in the field].<span class="x" onmousemove="('comment',' If during his tenure of the field the buyer improved it by manure or by erecting a fence round it, he may claim compensation from the seller. The obvious question why the original (rightful) owner, who regains possession of his field, is not made to pay for the improvement, may be answered by referring to a case where the seller allowed the field to deteriorate after taking it away from the rightful owner, and the buyer only restored it to its original condition so that the original owner derives no actual benefit from the change (Rashi). ');">8

ט אי בבעל חוב אימא רישא אין מוציאין לאכילת פירות ואי בבעל חוב בעל חוב מי אית ליה פירי והאמר שמואל בעל חוב גובה את השבח שבח אין אבל פירות לא

9 But Samuel says: He is entitled to the money [he paid] but not to [compensation for the] improvement.

י אלא פשיטא בגוזל ונגזל ומדרישא בגוזל ונגזל סיפא נמי בגוזל ונגזל

10 R. Huna was asked: If he [the seller] expressly stated [that he would compensate the buyer for the] improvement [if the field were taken away], what is the law then? Is Samuel's reason [for withholding compensation] that [the seller] did not expressly state [that he would compensate the buyer for the] improvement? [Then it would not apply to this case, for] here [the seller] did state expressly [that he would compensate the buyer]. Or is Samuel's reason that, in view of the fact that he [the seller] really had no land [to sell, the money received by the buyer as compensation for the improvement] would appear like usury?<span class="x" onmousemove="('comment',' As the seller had no right to the field the transaction was entirely invalid, and there was no sale. The money handed over to the seller could therefore only be regarded as a loan, and when the seller returns to the buyer a larger sum than the purchase-price paid him, it appears like interest on the money. ');">9

יא מידי אריא הא כדאיתא והא כדאיתא

11 R. Huna answered: Yes and No, for he was hesitant.10

יב והא לא תני הכי לשבח קרקעות כיצד הרי שגזל שדה מחבירו והרי היא יוצאה מתחת ידו כשהוא גובה גובה את הקרן מנכסים משועבדים ושבח גובה מנכסים בני חורין

12 It was taught: R. Nahman said in the name of Samuel: He [the buyer] is entitled to [have returned to him] the money [paid for the field], but not to [compensation for] improvement, even if he [the seller] stated expressly that [he would compensate the buyer for the] improvement, the reason being that, in view of the fact that he [the seller] really had no land to sell, he [the buyer] would be taking profit for his money.<span class="x" onmousemove="('comment',' As the seller had no right to the field the transaction was entirely invalid, and there was no sale. The money handed over to the seller could therefore only be regarded as a loan, and when the seller returns to the buyer a larger sum than the purchase-price paid him, it appears like interest on the money. ');">9

יג היכי דמי אילימא כדקתני גזלן ממאן גבי אלא לאו כגון שגזל שדה מחבירו ומכרה לאחר והשביחה

13 Raba then asked R. Nahman [from the following Mishnah]: We may not collect from encumbered property for the purposes of usufruct, the improvement of land, the alimentation of wife and daughters, out of consideration for the public good.<span class="x" onmousemove="('comment',' Cf. Git. 48b. The reason why one may not hold encumbered property liable for such purposes is that it would prevent people from buying land, as such obligations are so common that they would arise in nearly every case. [This is apart from the fact that the amount involved is not fixed; v. n. 1.] ');">11

יד א"ל לאו תרוצי קא מתרצת תריץ נמי בבעל חוב

14 [This would show that] it is only from encumbered property that we do not collect, but we do collect from unencumbered property, and it is stated [that this law applies] to the improvement of land. Now may it not be assumed that it refers to [land] bought from one who acquired it wrongfully?<span class="x" onmousemove="('comment',' And has improved it before the original owner seized it again. The buyer may then collect the purchase price from the seller's encumbered property even if this property has been sold after the purchase of that field, for as long as the deed of sale contains a guarantee clause the claim involved has priority. The compensation for the improvement, however, can only be collected from unencumbered property — 'out of consideration for the public good' — as at the time when the deed of sale was written, and the guarantee clause inserted, no one knew what the compensation for improvements would amount to, and it is not in the interests of the public to allow such claims. In any case, this shows that the buyer is entitled to compensation from the seller, who had no title to the land, for the amount he spent on improvements. ');">12

טו ת"ש לאכילת פירות כיצד הרי שגזל שדה מחבירו והרי היא יוצאה מתחת ידו כשהוא גובה גובה את הקרן מנכסים משועבדים ופירות גובה מנכסים בני חורין

15 — No, [it refers to land seized by] a creditor.<span class="x" onmousemove="('comment',' The seller was entitled to sell, but the seller's creditors were entitled to seize the property, in which case the buyer is certainly entitled to the return of the money he spent on improvements, and if he receives a larger amount than the price he paid for the field it does not appear like interest on a loan, as the original sale was valid, and the return of the field is a new transaction. ');">13

טז היכי דמי אילימא כדקתני גזלן ממאן גבי אלא לאו כגון שגזל שדה מחבירו ומכרה לאחר והשביחה

16 But note the first part: 'We may not collect [etc.] for the purpose of usufruct.' Now if it refers [to land seized by] a creditor, is the creditor entitled to the produce [of the land]? Has not Samuel said: 'A creditor collects [his debt from] an improved field,'14

יז אמר רבא הכא במאי עסקינן כגון שגזל שדה מחבירו [מלאה פירות ואכל את הפירות וחפר בה בורות שיחין ומערות בא נגזל לגבות קרן גובה מנכסים משועבדים בא נגזל לגבות פירות גובה מנכסים בני חורין

17 and does it not mean that [he] only [collects it from] an improved field but not from the produce [of the field]? It is therefore obvious that it refers to one who acquired [a field] wrongfully and to the one who has been deprived of it,<span class="x" onmousemove="('comment',' The produce of the field or the improvement therein may be claimed by the original owner who was robbed of his property, no matter whether the produce was there when the field was first taken away, or not. The owner can always claim the land with all its improvements, except that the buyer may demand back his outlay which brought about the improved condition of the field, provided that the sum demanded by the buyer does not exceed the amount by which the value of the field was increased as a result of the improvements. ');">15

יח רבה בר רב הונא אמר כגון

18 and seeing that the first part deals with one who acquired a field wrongfully and one who has been deprived of it, the second part [surely] also deals with such a case!16 — How does it follow? This [first part] deals with one case,17 and this [second part] deals with another case.18 But are we not taught differently [in a Baraitha relating to the above Mishnah]: How [does it happen that payment is exacted for] improvement of the land? If one has taken away a field by violence from a neighbour, and he has had to give it up again [in consequence of legal action], then the one that is entitled to compensation may collect the original value [of the field] from encumbered property, and the value of the improvement [may be collected] from unencumbered property.19 Now, how is this to be understood? If we say that [it is to be understood] as stated,20 what right has the person who acquired the field wrongfully to claim compensation from anybody? It must therefore be [understood as referring to a case] where a person wrongfully took away a field from a neighbour and sold it to another person, and [this other person] has improved it!<span class="x" onmousemove="('comment',' The Court compels the buyer to return the field to the rightful owner, who is also entitled to demand from the seller the value of the improvement. From this we would infer that the buyer collects the value of the improvement from the seller who had no title to the field — a contradiction to the view of R. Nahman. ');">21 — [R. Nahman] answered him: Had you not to remove the difficulty [in the Baraitha] by explaining [that it refers to an unlawfully acquired field]? You may as well remove the difficulty [by saying that it refers to a field seized] by a creditor [after it has been improved by the buyer]. Come and hear: How [does it happen that payment is exacted as compensation for] the use of the produce [of the field]? If one has wrongfully taken away a field from a neighbour, and he has had to give it up again [in consequence of legal action], then the one that is entitled to compensation may collect the capital [value of the field itself] from encumbered property, and the value of the produce [may be collected] from unencumbered property. Now, how is this to be understood? If we say that it is to be understood as stated,22 what right has the person who has acquired [the field] wrongfully to claim compensation from anybody? It must therefore be [understood as referring to a case] where one wrongfully took away a field from a neighbour and sold it to another person, and [this other person] has enhanced its value [by producing fruit]!<span class="x" onmousemove="('comment',' The original (rightful) owner is not expected to pay for the produce of the field, with the exception of the buyer's outlay in looking after the field, as he is entitled to the produce of his own land. The buyer is therefore entitled to compensation from the person who sold him the field unlawfully, and from him the buyer can claim the value of the field as well as the value of the produce, which he may collect from unencumbered property — again a contradiction to the view of R. Nahman. ');">23 — Raba answered: We deal here with a case where one wrongfully took away from a neighbour a field full of fruit and ate the fruit, and then dug in it pits, ditches and hollows. When the robbed [neighbour] comes to demand the capital [value of the field itself] he may exact payment from encumbered property, but when he comes to demand [the value of] the fruit he may exact payment from unencumbered property [only]. Rabbah son of R. Huna said: [It refers to a case] where

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