Bava Batra 105aבבא בתרא ק״ה א
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105aק״ה א

בטל מדה בחבל הן חסר הן יתר דברי בן ננס:

the words: Measured precisely with a rope, nullify the words: More or less, since the principle is that in all cases, one should attend to the final expression; this is the statement of ben Nanas.

גמ׳ אמר רבי אבא בר ממל אמר רב חולקין עליו חביריו על בן ננס מאי קא משמע לן תנינא מעשה בציפורי באחד ששכר מרחץ מחבירו בשנים עשר זהובים לשנה דינר זהב לחדש

GEMARA: Rabbi Abba bar Memel says that Rav says: Ben Nanas’s colleagues disagree with him with regard to his ruling that one should attend to the final expression. The Gemara asks: What new halakha is Rav teaching us? Don’t we already learn that they disagree from a mishna (Bava Metzia 102a): There was once an incident in Tzippori involving one who rented a bathhouse from another, and it was stated that the rental fee would be twelve gold dinars [zehuvim] a year, one gold dinar per month, and the year was later intercalated, an extra month being added.

ובא מעשה לפני רבן שמעון בן גמליאל ולפני רבי יוסי ואמרו יחלוקו את חדש העיבור

The incident came before Rabban Shimon ben Gamliel and before Rabbi Yosei for a decision as to whether the intercalated month is included in the words: Twelve gold dinars a year, or whether an additional payment must be made for that month, as the agreement stipulated: One gold dinar per month. And they said: The landlord and the tenant should divide the intercalated month between them, and so the tenant should pay only half a gold dinar for it. This indicates that these Sages ruled that the meaning of an agreement containing two contradictory expressions is in doubt, and therefore the parties divide the disputed amount between them. From here it follows that they disagree with the opinion of ben Nanas, who says that in such a case one should attend to the final expression.

אי מהתם הוה אמינא התם הוא דאיכא למימר מיהדר קא הדר ביה ואיכא למימר פרושי קא מפרש אבל הכא דודאי קא הדר ביה אימא לא קא משמע לן

The Gemara replies: If the Sages’ opinion was derived only from there, I would not know that they disagree with the opinion of ben Nanas in all cases, as I would say that it is only there that the Sages say that the parties divide the disputed sum between them. As it is possible to say that the landlord retracted his first statement and set the rental fee at one gold dinar per month, but it is also possible to say that he is explaining his earlier statement. That is to say, he did not mean to relate to the intercalated month; rather, he was clarifying that payment was to be made not with a lump sum at the end of the year, but in monthly installments. Since there is uncertainty with regard to his intention, the parties divide the contested sum between them. But here in the mishna, where the seller certainly retracted his first statement, one might say that the Sages do not disagree with ben Nanas. Therefore, the mishna teaches us that in all cases the Sages disagree with ben Nanas.

אמר רב יהודה אמר שמואל זו דברי בן ננס אבל חכמים אומרים הלך אחר פחות שבלשונות

Similar to what was cited above in the name of Rav, Rav Yehuda says that Shmuel says: This is the statement of ben Nanas, who says with regard to a case of contradictory expressions that one should attend to the final expression; but the Sages say: Follow the least inclusive expression, the one that is the least advantageous to the buyer, in keeping with the principle that in a case of uncertainty, the burden of proof rests upon the claimant.

זו ולא סבירא ליה והא רב ושמואל דאמרי תרוייהו כור בשלשים אני מוכר לך יכול לחזור בו אפילו בסאה האחרונה

The Gemara asks: Did Shmuel mean to say that this is the statement of ben Nanas, but he, Shmuel, does not agree with him? But don’t Rav and Shmuel both say: If the seller said to the buyer: I am selling you a kor of grain, an amount equivalent to thirty se’a, for the sum of thirty sela, he can renege on the entire sale even while measuring out the last se’a. Since the seller stipulated that he was selling a full kor of grain, as long as he has not yet measured out the full amount, he may still renege, as the sale is not yet complete.

כור בשלשים סאה בסלע אני מוכר לך ראשון ראשון קנה אלא זו וסבירא ליה

But if the seller said to the buyer: I am selling you a kor of grain for thirty sela, each se’a for a sela, the buyer acquires each se’a one by one as it is being measured out to him. Since the seller specified the price per sela, he has indicated that he is ready to sell each sela on its own. This seems to indicate that Shmuel maintains that in a case of contradictory expressions, one should attend to the final expression. Rather, Shmuel’s formulation: This is the statement of ben Nanas, must be explained as follows: This is the statement of ben Nanas, and he, Shmuel, agrees with him that one should attend to the final expression.

ומי סבירא ליה והאמר שמואל בבא באמצע החדש עסקינן אבל בא בתחלת החדש כולו למשכיר בסוף החדש כולו לשוכר

The Gemara asks: And does Shmuel actually agree with him? But doesn’t Shmuel say: Concerning the ruling of the Sages that the landlord and the tenant should divide the intercalated month between them, we are dealing with a case where the landlord came to collect the rent in the middle of the month. Only in that case is the disputed rent divided between them. But in a case where he came to collect the rent at the beginning of the month, the entire sum goes to the landlord who is demanding payment, since he is in possession of the property. And if he came at the end of the month, the entire sum goes to the tenant who is refusing payment, since he is in possession of the money. This indicates that Shmuel maintains that in a case of contradictory expressions, one should not attend to the latter expression. Rather, the case is viewed as one of uncertainty, and the burden of proof rests upon the claimant.