Bava Metzia 29

Chapter 29

א שנטלוה מסיקין בא נגזל לגבות קרן גובה מנכסים משועבדים בא נגזל לגבות פירות גובה מנכסים בני חורין

1 bandits took away [the field from the person who acquired it unlawfully].<span class="x" onmousemove="('comment',' The robber was robbed (by heathen men of violence, against whom there is no redress). In such a case the first (Jewish) robber is responsible to the rightful owner, and he is made to pay the owner for his loss. Cf. B.K. 116b. ');">1

ב רבא לא אמר כרבה בר רב הונא הרי היא יוצאה מתחת ידו בדינא משמע ורבה בר רב הונא לא אמר כרבא הרי היא יוצאה מתחת ידו בעינא משמע

2 When the [original owner who was] robbed [of his field] comes to demand the capital [value of the field] he may exact payment from encumbered property. But if he comes to demand the value of the fruit he may exact payment from unencumbered property [only]. Raba does not give the same explanation as Rabbah son of R. Huna because it says, 'He has had to give it up again,' which obviously means through the [intervention of the] Court.<span class="x" onmousemove="('comment',' The term, 'He has had to give it up' (lit., 'It is made to go out from under his hand'), applied to the person who first robbed the field, indicates that this first robber is in possession of the field, and is made to give it up as a result of the intervention of the Court. It cannot therefore be assumed that bandits took it away. ');">2

ג רב אשי אמר לצדדין קתני כגון שגזל שדה מחבירו מלאה פירות ואכל את הפירות ומכר את השדה בא לוקח לגבות קרן גובה מנכסים משועבדים בא נגזל לגבות פירות גובה מנכסים בני חורין

3 And Rabbah son of R. Huna does not give the same explanation as Raba, because it says, 'He has had to give it up again,' which obviously means in its original condition [and not full of holes].<span class="x" onmousemove="('comment',' Rabbah son of R. Huna cannot accept the version that the robber dug pits etc. in the field, as the term 'It is made to go out etc.' implies that the field was intact when the court intervened to compel its return to the rightful owner. ');">3

ד בין לרבא בין לרבה בר רב הונא מלוה על פה הוא ומלוה על פה אינו גובה מנכסים משועבדים

4 R. Ashi said: It refers partly to one and partly to the other,<span class="x" onmousemove="('comment',' I.e., one part refers to the buyer of the field, and the other to the original owner. The former demands the cost of the field itself, and is entitled to exact payment from encumbered property, while the latter demands compensation for the produce of his field, and is entitled to exact payment from unencumbered property only. ');">4

ה הכא במאי עסקינן כשעמד בדין והדר זבין

5 viz., if one violently took away from a neighbour a field full of fruit, and ate the fruit and sold the field,<span class="x" onmousemove="('comment',' The Court then intervened and compelled the person who had bought the field to return it to the rightful owner, and it was given back in its original condition. ');">5

ו אי הכי פירות נמי כשעמד בדין על הקרן ולא עמד בדין על הפירות ומאי פסקא סתמא דמילתא כי תבע איניש קרנא תבע ברישא

6 when the buyer comes to demand the capital [value of the field itself] he may exact payment from encumbered property; when the robbed [neighbour] comes to demand [the value of] the fruit he may exact payment from unencumbered property [only]. [The question now arises:] Both according to Raba and according to Rabbah son of R. Huna this is [like] a debt contracted verbally,<span class="x" onmousemove="('comment',' As the claim of the robbed person is not based on any document, the payment which the robber has to make in compensation for the property he had seized is like the repayment of a loan granted without a note of indebtedness. ');">6

ז וסבר שמואל לוקח מגזלן לית ליה שבחא

7 and a verbally contracted debt does not entitle [the creditor] to exact payment from encumbered property? — Here we deal with a case where [the robber first] stood his trial and then sold [the field].<span class="x" onmousemove="('comment',' The reason why encumbered property is liable to be seized by the seller's creditor who has written evidence as to his claim is that the writing of the document ensures publicity, which should prevent people from advancing money on such property. A trial in Court has the same effect as regards publicity and the consequent warning to would-be mortgagees. ');">7

ח והא א"ל שמואל לרב חיננא בר שילת אמליך וכתוב שופרא שבחא ופירי

8 But if so, the produce [of the field should] also [be recoverable from encumbered property]? — [The case is one where the robber] has stood his trial as regards the capital [value of the field itself] but has not stood his trial as regards the produce. But how can this be determined?<span class="x" onmousemove="('comment',' How could it be said with certainty that cases would arise where a person who acquired a field wrongfully would be tried for seizing the field itself but not for appropriating its produce? ');">8

ט במאי אי בבעל חוב מי אית ליה פירי והאמר שמואל בעל חוב גובה את השבח שבח אין אבל פירות לא אלא לאו בלוקח מגזלן

9 — It is the usual practice: When a person sues, he sues first for the principal.9

י אמר רב יוסף הכא במאי עסקינן כגון שיש לו קרקע

10 But does Samuel [really] hold the view that he who bought [a field] from a robber is not entitled to [compensation for the] improvement [he made in the field]? Did not Samuel say to R. Hinena b. Shilath [the scribe]:10

יא א"ל אביי וכי מותר ללות סאה בסאה במקום שיש לו קרקע

11 Consult [the seller, when drawing up a deed of sale], and write, 'best property, improvement, and produce'?<span class="x" onmousemove="('comment',' V. supra 14a. The guarantee given to the buyer in the deed of sale is to include a clause entitling the buyer to recover his loss, in the event of the property being claimed by creditors, by exacting payment from the seller's best property, as compensation for the original value of the field as well as for the improvements he made and for the produce of the field. ');">11

יב א"ל התם הלואה הכא זביני

12 Now, to what [kind of transaction does this apply]? If [it applies] to a creditor [claiming the field for his debt], is he entitled to the produce of the field? Has not Samuel said: The creditor exacts payment from the improvement, [which means] from the improvement only, but not from the produce? It must therefore [be said that it applies] to one who bought [a field] from a robber!<span class="x" onmousemove="('comment',' [In which case the formula provides for compensation in respect of the improvement made by the buyer in the field.] How then could Samuel have said that the person who has bought a field from a robber and has to return it to the rightful owner cannot claim compensation for the improvement he made in it? ');">12

יג איכא דאמרי אמר רב יוסף הכא במאי עסקינן כגון שקנו מידו

13 — R. Joseph said: Here we deal with a case where [the robber] owns land.<span class="x" onmousemove="('comment',' The robber repays with land, not with money, and therefore the additional amount paid for the improvement does not appear as usury given for borrowed money; cf. supra 24b. ');">13

יד א"ל אביי וכי מותר ללות סאה בסאה במקום שקנו מידו

14 Said Abaye to him: Is it permitted to borrow a measure [of corn and to repay the loan] with [the same] measure,14

טו א"ל התם הלואה והכא זביני:

15 when [the borrower] has land? — He [R. Joseph] answered him: There [it is] a loan; here [it is] a sale.15

טז גופא אמר שמואל בעל חוב גובה את השבח אמר רבא תדע שכך כותב לו מוכר ללוקח אנא איקום ואשפי ואדכי ואמריק זביני אילין אינון ועמליהון ושבחיהון ואיקום קדמך וצבי זבינא דנן וקביל עלוהי

16 Some say: R. Joseph said: Here we deal with a case where there was a formal act of acquisition [whereby the seller pledged himself to be immediately responsible to the buyer for the improvement].16

יז א"ל רב חייא בר אבין לרבא אלא מעתה מתנה דלא כתיב ליה הכי ה"נ דלא טריף שבחא א"ל אין

17 [But] Abaye said to him: Is it permitted to borrow a measure [of corn and to repay the loan] with [the same] measure, when there was a formal act of acquisition [whereby the borrower pledged himself to be immediately responsible to the lender for an increase in price]? — He [R. Joseph] answered him: There [it is] a loan; here [it is] a sale.

יח וכי יפה כח מתנה ממכר א"ל אין יפה ויפה

18 [To revert to] the above text: Samuel said: 'A creditor exacts payment from the improvement.' Said Raba: You may know [that this view is correct], for the seller writes [in the deed of sale] the following [guarantee] to the buyer: 'I shall confirm, satisfy, clear, and perfect these purchases<span class="x" onmousemove="('comment',' I.e., the seller undertakes to satisfy all claims against the property and to be responsible for any loss the buyer may sustain because of previous claims against the property or for any other reason. The guarantee refers to 'produce and improvement' as well as to the original value of the property sold. ');">17

יט אמר רב נחמן הא מתניתא מסייע ליה למר שמואל והונא חברין מוקים לה במילי אחריני דתניא המוכר שדה לחבירו והרי היא יוצאה מתחת ידו כשהוא גובה גובה את הקרן מנכסים משועבדים ושבח גובה מנכסים בני חורין

19 — them, the gains resulting from them, and the improvements to be made in them — and I shall stand [as surety] for you, and this purchaser agrees [to it] and accepts it.'<span class="x" onmousemove="('comment',' As the seller is thus responsible to the buyer, the creditor enforces his claim against the property acquired by the buyer and the produce it has yielded, and the latter then seeks redress from the seller. ');">18

כ והונא חברין מוקים לה במילי אחריני בלוקח מגזלן

20 R. Hiyya b. Abin then said to Raba: If this is so, [would you say that] in the case of a gift, regarding which [the donor] writes no such [guarantee], [a creditor who has a previous claim to the property] may indeed not appropriate the improvement?<span class="x" onmousemove="('comment',' As there is no guarantee given by a donor as regards previous claims against the property given away, the recipient is not entitled to compensation from the donor, and if the former loses the improvements he has made in the property he has no redress. For this reason the creditor of the donor ought not to be entitled to the improvement made by the recipient, as the loss would be the latter's, not the debtor's. ');">19

כא תניא אידך המוכר שדה לחבירו והשביחה ובא בעל חוב וטרפה כשהוא גובה אם השבח יותר על היציאה נוטל את השבח מבעל הקרקע והיציאה מבעל חוב ואם היציאה יתירה על השבח אין לו אלא הוצאה שיעור שבח מבעל חוב

21 — He [Raba] answered him: Yes. But [R. Hiyya then asked]: Does a gift confer a greater right [on the recipient] than a sale [does on the buyer]?20

כב והא שמואל במאי מוקים לה אי בלוקח מגזלן קשיא רישא דאמר שמואל לוקח מגזלן לית ליה שבחא אי בבעל חוב קשיא רישא וסיפא דאמר שמואל בעל חוב גובה את השבח

22 — [The former] answered: Yes, it undoubtedly does.<span class="x" onmousemove="('comment',' Lit., 'It is better and better.' The creditor has no right to inflict a loss upon the recipient of the gift by taking away the improvement made by the recipient. As the recipient cannot reclaim the loss from the donor, whose debt is the cause of the creditor's action against the recipient of the gift, there is no reason why the latter should lose more than the value of the gift itself, which was originally accepted by the creditor as security for his loan. ');">21

כג איבעית אימא בלוקח מגזלן כגון שיש לו קרקע אי נמי בשקנו מידו

23 R. Nahman said: The following Baraitha corroborates the view of Mar Samuel, but our colleague Huna explains it as referring to a different matter. For it was taught: If one has sold a field to a neighbour and then [the buyer] has to surrender it [to another claimant], he [the buyer] may, when seeking redress, exact repayment of the capital [value of the field itself] from encumbered property, and the [refund of the cost of the] improvement he collects from unencumbered property. But our colleague Huna explains it as referring to a different matter, [viz.], to that of one who has bought [a field] from a person who acquired it wrongfully.<span class="x" onmousemove="('comment',' According to R. Huna the rightful owner of the field has a right to claim the improvement, as the field, which was taken away from him wrongfully and sold illegally, never became the property of the buyer. But a creditor who seizes a field for a debt due to him from the seller has no right to claim the improvement made in it by the buyer, for the latter acquired the field legally, and, until the creditor seized it, it was his property. ');">22

כד איבעית אימא בבעל חוב ולא קשיא כאן בשבח

24 Another [Baraitha] taught: If one has sold a field to his neighbour, and he [the buyer] has improved it, and then a creditor [of the seller] comes and seizes it, he [the buyer], when seeking redress,is entitled, in a case where [the value of] the improvement is greater than the cost [thereof], to collect [the value of] the improvement from the owner of the land and the cost thereof from the creditor.<span class="x" onmousemove="('comment',' The buyer is entitled to compensation from the seller to the amount by which the value of the improvement exceeds the expense incurred in making the improvement, as the improvement helped to pay the seller's debt. But the cost of the improvement the creditor has to refund to the buyer, who spent his money on improving the field before the creditor seized it. ');">23 But in a case where the cost [of the improvement] is greater than the [value of that] improvement, he [the buyer] is only entitled to collect from the [seller's] creditor the amount of the cost which corresponds to the [value of the] improvement.24 Now, how does Samuel explain this [Baraitha]? If [he explains it as referring] to one who bought [the field] from a person who acquired it wrongfully, then the first part [of the Baraitha]25 contradicts him, for Samuel said [above]: 'He who buys [a field] from a person who acquired it wrongfully is not entitled to [compensation for] the improvement [he made in the field].' [And] if [he explains it as referring] to [the seller's] creditor [seizing the field], then both the first part and the second part [of the Baraitha] contradict him,<span class="x" onmousemove="('comment',' As it is laid down in both parts of the Baraitha that the creditor has to refund the cost of the improvement, while Samuel teaches that the creditor may collect his debt from the improvement, without repaying the cost incurred by the buyer. ');">26 for Samuel said [above]: 'A creditor exacts payment from the improvement [made in the field by the buyer]'?If you like, I shall say [that Samuel will explain the Baraitha as referring] to one who bought [the field] from a person who acquired it wrongfully, and where the latter owns land,27 or where there was a formal act of acquisition [whereby he pledged himself at the sale that he would pay for the improvement].28 [And] if you like, I shall say [that Samuel will explain the Baraitha as referring] to [the seller's] creditor [seizing the field]. [Nevertheless] there is no contradiction [to Samuel's views]. [For] here [the reference is] to an improvement

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