בבא בתרא דף צב ע"ב

If there is nothing from which he can be repaid, let him hold back the ox for his money!^[1]

אי דליכא - if the seller has no money available from which the buyer can be repaid by the seller, why did Rav say it is a mistaken sale and the ox must be returned? Let him hold back the ox itself for his money.

As people say: From your debtor, collect even bran!

דאמרי אינשי כו' - we derive it from a verse, in the first perek of Bava Kamma (9a), where Rav Huna said: Either money he shall pay, or the best of his field; and Rav Nachman challenged Rav Huna: “He shall return” comes to include the equivalent of money,^[2] and he answered: here we are dealing with one who has no money available. But where he has none, is it not obvious? You might have said that we tell him: Go take the trouble, sell, and bring him money; it teaches us otherwise.

רשותך - the man against whom you hold a debt.

פארי - bran, at its value.

No, it is needed where there is something from which he can be repaid.

לא צריכא דאיכא - where the seller has money available from which the buyer can be repaid. Rabbeinu Chananel explained that we learn from this that where the borrower has money, he cannot push the lender off to be paid from other property, which requires appraisal; rather he pays him in money. This is unlike one who has no money, whose property the court appraises for him. And there is one who says: where those very coins, the price of this ox, are still in existence; and this needs study. So Rabbeinu Chananel explained. But this last version does not appeal to me at all, for what difference is there between these coins and others? As I explained Rav Huna’s statement, we do not say “he shall return, to include the equivalent of money” except where he has no money.

Rav said: It is a mistaken sale, since we follow the majority,^[3] and the majority buy for plowing.

ורובא - of oxen are bought for plowing.

And Shmuel would tell you: When do we follow the majority? In matters of prohibition; in monetary matters, no.

באיסורא - for example, nine shops sell the meat of properly slaughtered animals and one sells neveilah meat, where we say of meat that is found: follow the majority.

לא אזלינן בתר רובא - rather we follow the muchzak,^[4] the one in possession, if he has some claim.

(Mnemonic: woman, and slave, ox, oxen, and produce.)^[5]

They challenged from a beraisa: A woman who was widowed or divorced,

האשה שנתארמלה - and she claims: I lost my kesubah document; or else, in a place where they do not write a kesubah, as is explained in Kesubos.

and she says: I was married as a besulah,

בתולה נישאתי - and I am owed two hundred.

and he says: Not so, rather I married you as a widow

אלמנה נשאתיך - and you have only a maneh.

if there are witnesses that she went out with a hinuma and with her hair loose, her kesubah is two hundred.^[6]

שיצאה - from her father’s house to her husband’s house, when she entered the chuppah.

בהינומא - a canopy in which the bride dozes; or her hair loose in the street at the time she enters the chuppah, for that is the way of those who marry as besulos.

כתובתה מאתים - even though she has no witnesses testifying to her virginity, and it is not known whether she married as a besulah or as a be’ulah.

The reason is that there are witnesses; but if there are no witnesses, not.

כתובתה מנה - for the one who seeks to extract from his fellow bears the burden of proof.^[7]

But why? Let us say: Follow the majority of women, and the majority of women marry as besulos!

ורוב נשים - in the world who marry a husband are besulos. Rather, it must be that in monetary matters we do not follow the majority but the one in possession, like Shmuel, and this is difficult for Rav.

Ravina said: Because one can say: most women marry as besulos, and a minority as widows;

ומיעוט אלמנות - and of this one it can be said that she is of the minority, since she has no kol, as the Gemara goes on to explain.

and every woman who marries as a besulah has a kol, a public report;

יש לה קול - since there is rejoicing at the marriage of a besulah, people remember her.

and this one, since she has no kol, the majority is weakened for her.

If all who marry as besulos have a kol, then when there are witnesses, what of it?

כי איכא עדים - that she went out with a hinuma, what of it? Since they themselves do not know whether she married as a besulah or as a widow, it turns out that there is no kol here at all.

Since she has no kol, they are false witnesses!

סהדי שקרי - and they did not see her go out with a hinuma.

Rather: most who marry as besulos have a kol, and this one, since she has no kol, the majority is weakened for her.

איתרע לה רובא - the fact that most besulos who marry have a kol undercuts the force of that majority; and since one can argue this way and one can argue that way, the one who seeks to extract from his fellow bears the burden of proof.

Come and hear: One who sells a slave to his fellow, and he is found to be a thief or a kuvyustus, it has come to him;

נמצא שהיה גנב - previously, a thief of money.

קוביוסטוס - a kidnapper.

הגיעו - it has come to the buyer, and this is not a mistaken sale.

an armed bandit, or one condemned by the government, he says to him: Here is yours before you.

לסטים מזויין - one who kills people, and in the end he will be executed.

או מוכתב למלכות - to be executed.

הרי שלך לפניך - for he sold him a man as good as dead.

The first clause

Tosafos

אי דליכא לאישתלומי מיניה - The Ri says that the reading “if those coins are no longer in existence” is correct. And what the Rash challenged from that passage in Bava Kamma (9a) is no refutation, for we can say that we hold like Rav Pappa and Rav Huna son of Rav Yehoshua, who hold there (7b) that anything counts as “the best”: even if he has money, he may give him even bran. And although with a creditor, if the debtor has money he cannot pay him off with other things, as it says in Perek HaKosev (Kesubos 86a, see there), where it says: One who has land and money, and owes a woman’s kesubah and a creditor, pays off the creditor with money and the woman with land, and so on; and it also says there: Surely you said in the name of Rav Nachman that one who is owed money by his fellow, where the debtor has land and no money, we tell him: Go take the trouble, sell, and bring money? He said to him: That man was hiding his money with a gentile, and he acted improperly; therefore we act improperly with him; which implies that when he has money he must give him money. We can distinguish between the buyer here and the creditor there: there, he lent him on the understanding that he would repay him in money; but the buyer here, where it was a mistake, need not repay him in money when those coins are no longer in existence, even if he has other money, for when he spent those coins he was like one who damaged his fellow’s money, and his law is that of damages. And Rabbi Chaim Kohen, of blessed memory, explained that even a creditor, although the debtor has money, is paid only with what the debtor wishes, for anything counts as “the best”; for he is no better than damages, since damages by Torah law are paid from the best land, which is not so with a creditor. And that passage in HaKosev means: That man was hiding his money with a gentile, that is, at first, when they asked him, he said that all his property belonged to a gentile, both the land and other things, and now he says that this land is his. Therefore, because he acted improperly, they tell him to sell it, lest it is not his but another’s and he wishes to free himself with other people’s property; so they tell him: Since you say it is yours, sell it and bring money. And where it says there that he pays off the creditor with money, there certainly, since he has money, it is better that he give money to the creditor than to the woman, as it concludes there: more than a man wishes to marry, and so on. And here, if those coins are in existence, he must return them, since it is a mistaken sale; and it is unlike a loan, for a loan is given to be spent. And Rabbeinu Tam would often say that there are three laws. With a creditor: if the debtor has money he can pay him off only with money, and if he has none, we do not tell him: Take the trouble and bring money. With damages: even if he has money, he can pay him off with whatever he wishes, for anything counts as “the best,” like Rav Pappa and Rav Huna son of Rav Yehoshua. And with a worker: even if he has no money, we tell him: Go take the trouble and bring money, as we learned in HaBayis VeHaAliyah (Bava Metzia 118a): One who hires a worker to work with him in straw and stubble, and says to him: Take what you made as your wages, we do not listen to him; and that is even where he has no money, for it says in the Gemara that it was needed to teach us that we do not say “from your debtor, collect bran,” and that is where he has no money, since with a creditor, if he has money, he cannot pay him off with other things, as stated in HaKosev. Rabbeinu Tam.

ואמאי לימא הלך אחר רוב נשים כו' - And if you ask: let us say that he is believed by a migo,^[8] since had he wished he could have said: I paid. And necessarily we are dealing with a case where there is no kesubah document, for if there is a kesubah, let us see what is written in it. One may answer that they argue according to Rav, who says at the end of HaKosev (Kesubos 89a, see there) that the get collects the main kesubah and the kesubah document collects the additional sum.

וזו הואיל ואין לה קול איתרע לה רובא - And if you ask: we learned in the second perek of Kesubos (28a, see there): These are believed to testify when grown about what they saw when minors: I remember that so-and-so went out with a hinuma and her hair loose; and the Gemara said: What is the reason? Since most women marry as besulos, it is a mere revealing of the matter. Now according to Rav, what is the case? If she has a kol, why do I need witnesses, as the Gemara challenges here? And if she has no kol, why is it a mere revealing of the matter, when the majority is weakened for her, as it says here? And how do we extract money on the word of a minor and the adult with him? And one cannot say that in that case the witnesses, the minor and the adult with him, are themselves the kol, for here the Gemara challenges: since there is no kol, these are false witnesses; and it does not say that these witnesses are the kol. According to Shmuel, who does not follow the majority, it works well: even where there is a full majority, a revealing of the matter is still needed. One may answer that although the majority is weakened for her, nevertheless the majority that most women marry as besulos outweighs the majority that whoever marries as a besulah has a kol, and a mere revealing of the matter suffices.

קוביוסטוס - Rashi explained it everywhere as a kidnapper, but here that is not implied, for the Gemara concludes that all of them are like this; are all of them kidnappers? However, from the first perek of Bechoros (5a, see there) there is no difficulty for his explanation, where it says concerning the shekalim that Kontrokos asked Rabban Yochanan ben Zakkai: Moshe your teacher, was he a thief, or a kuvyustus, or was he not expert in accounts?; for since the shekalim stood for the people of Israel, he calls him as if he stole persons. And the explanation of Rabbeinu Chananel seems correct, who explains kuvyustus as one who plays at dice. And what it says in Perek Gid HaNasheh (Chulin 91b), that Yaakov said to the angel: Are you a thief or a kuvyustus, that you fear the dawn?, can also be reconciled with the explanation of Rabbeinu Chananel: since he owes many people and has nothing with which to pay, he fears lest they claim from him.

לסטים מזויין או מוכתב למלכות אומר לו הרי שלך לפניך - From here there is a difficulty for Rashi’s explanation, who explained in Perek Af Al Pi (Kesubos 58a, see there), on what the Gemara challenges: But if so, a kohen’s slave whom he bought from a Yisrael should not eat terumah, because of a simpon,^[9] and it answers: there is no simpon with slaves, for if the defect is outside, he sees it, and if it is inside, what does he care? He wants him for work, and so on. What can you say, an armed bandit or one condemned by the government? Those have a kol. Rashi explained: and he knew and accepted it. But one cannot say so, for here it says explicitly that it is a mistaken sale. Rabbeinu Tam explains there: those have a kol, and since no kol went out, it is an uncommon thing and we are not concerned about it. And what it says in HaMegaresh (Gittin 86a, see there): Rav Yehudah instituted in the document of slaves: This slave is sound, free and clear of all claims of king and queen, that is, he is not condemned by the government; even if he did not write it, it would be a mistaken sale, as it says here, but Rav Yehudah instituted it for the elegance of the document. Rabbeinu Tam.

Notes

1. 1. A mekach ta’us, a mistaken sale, is a sale made under a mistake about the thing sold; it is void from the start, so the buyer returns the item and the seller returns the money. In the case under discussion, an ox was sold that proved to be a gorer, fit only for slaughter, and Rav ruled that the sale is a mekach ta’us.
2. 2. Shaveh kesef, the equivalent of money: one who causes damage may pay with anything of value, not only with coins. In Bava Kamma the Gemara limits this to where he has no money readily available.
3. 3. Rov, the majority: where a case is in doubt, it is assumed to follow the majority of cases. Here: most people who buy an ox buy it for plowing, so this buyer too is assumed to have bought it for plowing.
4. 4. The muchzak is the one who holds the money or property. In monetary law it is not taken from him without proof, the principle known as hamotzi mechavero alav hara’ayah, the one who seeks to extract from his fellow bears the burden of proof.
5. 5. A mnemonic for the sources the Gemara brings one after another on whether the majority is followed in monetary matters: a woman, a slave, an ox, oxen, and produce.
6. 6. The kesubah of a woman who marries as a besulah (a virgin) is two hundred zuz; that of a widow or divorcee is a maneh, one hundred zuz. Going out to the chuppah with a hinuma and with her hair loose was the custom of a virgin bride, so witnesses to it show that she married as a besulah.
7. 7. That is: where there are no witnesses, her kesubah is only a maneh, since the husband holds the money and she is the one seeking to extract it from him.
8. 8. A migo is a claim that is believed because the claimant could have made a stronger claim and been free. Here: the husband could have said, I paid her.
9. 9. A simpon is a hidden defect discovered after a sale, on account of which the sale is void. A kohen’s slave eats terumah only if he truly belongs to the kohen; if the sale may yet be voided, he is not the kohen’s.