Bava Kamma 205

אין כופין את המוכר למכור זימנא אחריתי ואם אמר לו על מנת כופין את המוכר למכור

[such as] the Exilarch<span class="x" onmousemove="('comment',' [MS.M. omits 'the Exilarch'; in curr. edd. it is bracketed.] ');">¹</span> he cannot compel the vendor to sell it to him again. But if when buying it he explicitly made this stipulation he could compel the vendor to sell it to him again.<span class="x" onmousemove="('comment',' V. p. 596, n. 2. ');">²</span> The Master stated: 'If one man buys a field in the name of another [such as] the Exilarch, he cannot compel the vendor to sell it to him again'. But is this not quite obvious? — You might, however, have said that the vendee could argue: 'You very well knew that I was taking the field for myself, and that [in buying it in the name of the other person] I merely wanted protection, and as I was surely not prepared to throw away money for nothing I undoubtedly made the purchase on the understanding that a new deed should be drawn up for me [by you].' It is therefore made known to us that the vendor can retort to him: 'It is for you to make arrangements with the person in whose name you bought the field that he should draw up for you a new title deed.' 'But if when buying it he explicitly made this stipulation he could compel the vendor to sell it to him again.' But is this not obvious? — No, it is required to meet the case where the vendee said to the witnesses in the presence of the vendor: 'You see that I want another deed.' You might in this case think that the vendor could say to him: 'I thought that you referred to a deed to be drawn up by the one in whose name you bought the field'; it is therefore made known to us that the vendee can reply to him: 'It was for that purpose that I took the trouble and stated to the witnesses in your own presence, [to show] that it was from you that I wanted the other deed.'

אמר מר הלוקח שדה בשם חבירו אין כופין את המוכר למכור זימנא אחריתי פשיטא מהו דתימא מצי א"ל מידע ידעת דאנא לנפשאי שקילנא ופנחיא בעלמא הוא דקבעינא וזוזי בכדי לא שדינא אלא אדעתא דכתב ליה שטרא אחרינא קא משמע לן דאמר ליה עניינא עבדי לך בהדי ההוא דזבנת ליה בשמיה ויכתוב לך שטרא אחרינא

R. Kahana transmitted some money for the purchase of flax. But as flax subsequently went up in price, the owners of the flax sold it [on his behalf]. He thereupon came before Rab and said to him: What shall I do? May I go and accept the purchase money?<span class="x" onmousemove="('comment',' For which the flax was sold to the subsequent purchasers; would the acceptance of this increase not be a violation of the laws of usury; v. Lev. XXV, 36-37. Cf. also B.M. V, 1. ');">³</span> — He replied to him: If when they sold it they stated that it was Kahana's flax, you may go and receive the money,<span class="x" onmousemove="('comment',' For in this case they acted on your behalf and the purchase money received was given to become yours. ');">⁴</span> but if not you may not accept it.<span class="x" onmousemove="('comment',' For it would appear that for a smaller amount of money received from you, you were subsequently given a bigger sum, and this is against the spirit of the law of usury. ');">⁵</span> But was this ruling made in accordance with the view of the Western scholars who asked: 'Who was it that informed the vendor of the wheat so that he might transfer the ownership of his wheat to the owner of the money?<span class="x" onmousemove="('comment',' V. supra p 594. So that in this case too the purchase money received from the subsequent vendees was not automatically transferred to R. Kahana when his name was not mentioned at the time of the sale. ');">⁶</span>

ואם אמר לו על מנת כופין את המוכר למכור פשיטא לא צריכא דאמר להו לסהדי קמיה דידיה חזו דשטרא אחרינא קא בעינא מהו דתימא מצי א"ל אמינא שטרא מהיאך דקא שקלת בשמיה קאמרת קא משמע לן דאמר ליה להכי טרחי ואמרי להו לעדים קמך דמינך הוא דקא בעינא

[But what comparison is there?] Had R. Kahana given four to receive eight [so that it were usury]? Was it not his flax<span class="x" onmousemove="('comment',' After it had legally been transferred to him. ');">⁷</span> which had by itself gone up in price and which was definitely misappropriated [by the vendors],<span class="x" onmousemove="('comment',' Who sold it in his absence. ');">⁸</span> and regarding this we have learnt that 'All kinds of robbers have to pay in accordance with the value at the time of the robbery'?<span class="x" onmousemove="('comment',' Supra 93b. And the value of the flax at the time of robbery in this case was exactly the amount of the purchase money received for it at the second sale. ');">⁹</span> — It may, however, be said that there it was a case of advance payment.<span class="x" onmousemove="('comment',' I.e., when the vendors received the money from R. Kahana they were not yet in possession of flax at all, but acted in accordance with B.M. 72b. ');">¹⁰</span>

רב כהנא יהב זוזא אכיתנא לסוף אייקר כיתנא זבניה מרוותיה דכיתנא אתא לקמיה דרב א"ל מה אעביד איזיל אישקיל זוזאי א"ל אי כי קא זבני אמרי האי כיתנא דכהנא הוא זיל שקול ואי לא לא תשקול

and R. Kahana had never pulled the flax [to acquire title to it],<span class="x" onmousemove="('comment',' In accordance with Kid. I, 5 and B.M. IV, 2. ');">¹¹</span> and Rab was following his own reasoning, for Rab [elsewhere] stated: Advance payment<span class="x" onmousemove="('comment',' I.e., when the vendors received the money from R. Kahana they were not yet in possession of flax at all, but acted in accordance with B.M. 72b. ');">¹⁰</span> [at present prices] may be made for [the future delivery of] products,<span class="x" onmousemove="('comment',' I.e., where the very products stipulated for are to be delivered. ');">¹²</span> but no advance payment [at present prices] may be made [if the value of the products will subsequently be paid] in actual money<span class="x" onmousemove="('comment',' As this case would amount to the handing over of a smaller sum of money to be paid by a bigger amount and would thus appear to act against the spirit of the prohibition of usury. ');">¹³</span>

כמאן כבני מערבא דאמרי מי הודיעו לבעל חטין שיקנה חטין לבעל מעות

[in lieu of them]. <b><i>MISHNAH</i></b>. IF ONE MAN ROBBED ANOTHER TO THE EXTENT OF A <i>PERUTAH</i><span class="x" onmousemove="('comment',' A small coin (v. Glos.); this being the minimum amount of pecuniary value in the eyes of the law. ');">¹⁴</span> AND TOOK [NEVERTHELESS] AN OATH<span class="x" onmousemove="('comment',' Falsely. ');">¹⁵</span> [THAT HE DID NOT DO SO], HE WOULD HAVE TO CONVEY IT PERSONALLY TO HIM<span class="x" onmousemove="('comment',' In accordance with Lev. V. 24. ');">¹⁶</span>

אטו מי יהיב רב כהנא ארבע ושקיל תמני כיתנא ממילא הוא דאייקר מיגזל גזלוה ותנן כל הגזלנין משלמין כשעת הגזלה

[EVEN AS FAR AS] TO MEDIA.<span class="x" onmousemove="('comment',' Even where silver and gold are not of great importance; cf. Isa. XIII, 17. also Kid. 12a. ');">¹⁷</span> HE MAY GIVE IT NEITHER TO HIS SON NOR TO HIS AGENT, THOUGH HE MAY GIVE IT TO THE SHERIFF OF THE COURT OF LAW. IF THE PLAINTIFF DIED, THE ROBBER WOULD HAVE TO RESTORE IT TO THE HEIRS. IF HE REFUNDED TO HIM THE PRINCIPAL BUT DID NOT PAY HIM THE [ADDITIONAL] FIFTH,<span class="x" onmousemove="('comment',' Lev. V, 24. ');">¹⁸</span> OR IF THE OTHER EXCUSED HIM THE PRINCIPAL THOUGH NOT THE FIFTH, OR EXCUSED HIM BOTH ONE AND THE OTHER, WITH THE EXCEPTION, HOWEVER, OF LESS THAN THE VALUE OF A <i>PERUTAH</i> ON ACCOUNT OF THE PRINCIPAL, HE WOULD NOT HAVE TO GO AFTER HIM.<span class="x" onmousemove="('comment',' As the payment of the Fifth is not an essential condition in the process of atonement. ');">¹⁹</span> IF, HOWEVER, HE PAID HIM THE FIFTH BUT DID NOT REFUND THE PRINCIPAL, OR WHERE THE OTHER EXCUSED HIM THE FIFTH BUT NOT THE PRINCIPAL, OR EVEN WHERE HE REMITTED HIM BOTH ONE AND THE OTHER, WITH THE EXCEPTION, HOWEVER, OF THE VALUE OF A <i>PERUTAH</i> ON ACCOUNT OF THE PRINCIPAL, HE WOULD HAVE TO CONVEY IT PERSONALLY TO HIM.<span class="x" onmousemove="('comment',' V. p. 598, n. 12. ');">²⁰</span>

אמרי התם אמנה הואי ולא משכיה רב כהנא לכיתנא ורב לטעמיה דאמר רב עושין אמנה בפירות ואין עושין אמנה בדמים:

IF HE REFUNDED TO HIM THE PRINCIPAL AND TOOK AN OATH<span class="x" onmousemove="('comment',' v. p. 598. n. 11. ');">²¹</span> REGARDING THE FIFTH,<span class="x" onmousemove="('comment',' Lev. V, 24. ');">¹⁸</span> HE WOULD HAVE TO PAY HIM A FIFTH ON TOP OF THE FIFTH AND SO ON UNTIL THE PRINCIPAL BECOMES REDUCED TO LESS THAN THE VALUE OF A <i>PERUTAH</i>. SO ALSO IS THE CASE REGARDING A DEPOSIT, AS IT IS STATED: IN THAT WHICH WAS DELIVERED HIM TO KEEP, OR IN FELLOWSHIP, OR IN A THING TAKEN AWAY BY VIOLENCE, OR HATH DECEIVED HIS NEIGHBOUR, OR HATH FOUND THAT WHICH WAS LOST AND LIETH CONCERNING IT AND SWEARETH FALSELY,<a rel="footnote" href="#103b_1">¹</a> HE HAS TO PAY THE PRINCIPAL AND THE FIFTH AND BRING A TRESPASS OFFERING.<a rel="footnote" href="#103b_2">²</a>

<big><strong>מתני׳</strong></big> הגוזל את חבירו שוה פרוטה ונשבע לו יוליכנו אחריו למדי לא יתן לא לבנו ולא לשלוחו אבל נותן לשליח בית דין ואם מת יחזיר ליורשיו

<b><i>GEMARA</i></b>. This is so [apparently] only where the robber had taken an oath against him, but if he had not yet taken an oath this would not be so. But would this be not in agreement either with R. Tarfon or with R. Akiba? For we have learnt: If a man robbed one out of five persons without knowing which one he robbed, and each one claims that he was robbed, he may set down the misappropriated article between them and depart. This is the view of R. Tarfon. R. Akiba, however, said that this is not the way to liberate him from sin; for this purpose he must restore the misappropriated article to each of them.<a rel="footnote" href="#103b_3">³</a> Now, in accordance with whose view is the ruling of our Mishnah? If in accordance with R. Tarfon, did he not say that even after he had sworn he may set down the misappropriated article among them and depart?<a rel="footnote" href="#103b_4">⁴</a> If again in accordance with R. Akiba, did he not say that even where no oath was taken he would have to restore the [value of the] misappropriated article to each of them? — It might still be in accordance with R. Akiba; for the statement of R. Akiba that he would have to pay for the misappropriated article to each of them was made only where an oath was taken, the reason being that Scripture stated: And give it unto him to whom it appertaineth in the day of his being guilty.<a rel="footnote" href="#103b_5">⁵</a> R. Tarfon, however, held that though an oath was taken, our Rabbis have still made an enactment to facilitate repentance, as indeed taught: R. Eleazar b. Zadok says: A general<a rel="footnote" href="#103b_6">⁶</a>

נתן לו את הקרן ולא נתן לו את החומש מחל לו על הקרן ולא מחל לו על החומש מחל לו על זה ועל זה חוץ מפחות שוה פרוטה בקרן אינו צריך לילך אחריו נתן לו את החומש ולא נתן לו את הקרן מחל לו על החומש ולא מחל לו על הקרן מחל לו על זה ועל זה חוץ משוה פרוטה בקרן צריך לילך אחריו

enactment was laid down to the effect that where the expense of personally conveying the misappropriated article would be more than actual principal, he should be able to pay the principal and the Fifth to the Court of Law and thereupon bring his guilt offering and so obtain atonement. And R. Akiba?<a rel="footnote" href="#103b_7">⁷</a> — He argues that the Rabbis made the enactment only where he knew whom he robbed, in which case the amount misappropriated would ultimately be restored to the owner,<a rel="footnote" href="#103b_8">⁸</a> whereas where he robbed one of five persons and does not know whom he robbed, in which case the amount misappropriated could not be restored to its true owner, our Rabbis did surely not make the enactment. R. Huna b. Judah raised an objection [from the following]: R. Simeon b. Eleazar said that R. Tarfon and R. Akiba did not differ in regard to one who bought [an article] from one out of five without knowing from whom he bought it, both holding that he may put down the purchase money among them and depart.<a rel="footnote" href="#103b_9">⁹</a>

נתן לו את הקרן ונשבע לו על החומש

Where they differed was regarding one who robbed one out of five persons without knowing whom he robbed, R. Tarfon maintaining that he may leave the value of the misappropriated article among them and depart, whereas R. Akiba says that there could be no remedy for him unless he pays for the misappropriated article to each of them.<a rel="footnote" href="#103b_10">¹⁰</a> Now, if you assume that an oath was taken here, what difference is there between purchasing and misappropriating?<a rel="footnote" href="#103b_11">¹¹</a> Raba further objected [from the following]: It once happened that a certain pious man bought an article from two persons without knowing from whom he had bought it, and when he consulted R. Tarfon, the latter said to him: 'Leave the purchase money among them and depart', but when he came to R. Akiba he said to him: 'There is no remedy for you unless you pay each of them.' Now, if you assume that a [false] oath was taken here, would a pious man swear falsely?<a rel="footnote" href="#103b_12">¹²</a> Nor can you say that he first took an oath and subsequently became a pious man, since wherever we say that 'it once happened with a certain pious man,' he was either R. Judah b. Baba or R. Judah b. Il'ai,<a rel="footnote" href="#103b_13">¹³</a> and, as is well known, R. Judah b. Baba and R. Judah b. Il'ai were pious men from the very beginning!<a rel="footnote" href="#103b_14">¹⁴</a> — [The ruling of the Mishnah] must therefore be in accordance with R. Tarfon, for R. Tarfon would agree where a false oath was taken,<a rel="footnote" href="#103b_15">¹⁵</a> the reason being that Scripture stated, And give it unto him to whom it appertaineth in the day of his trespass offering.<a rel="footnote" href="#103b_16">¹⁶</a> but R. Akiba maintained that even where no oath was taken, a fine has to be imposed. Now, according to R. Tarfon, let us see. Where he took an oath he would surely not be subject [to the law]<a rel="footnote" href="#103b_17">¹⁷</a> unless he admitted his guilt.<a rel="footnote" href="#103b_18">¹⁸</a> Why then only in the case where HE TOOK AN OATH? Would not the same hold good even where no oath was taken, as indeed taught: 'R. Tarfon agrees that if a man says to two persons, I have robbed one of you and do not know whom, he would have to pay each of them a <i>maneh</i><a rel="footnote" href="#103b_19">¹⁹</a>