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Bava Metzia, 100

1) WHEN A CLAIM OF "BARI" OVERRIDES A CLAIM OF "SHEMA"

QUESTION: The Mishnah discusses various cases in which a dispute arises between a buyer and a seller concerning the object that was purchased. The Mishnah says that in a case in which the buyer claims that he bought the larger item (such as the larger field), and the seller claims that he does not know which one he sold to the buyer, the buyer is entitled to take the larger field.

Why should the buyer be able to take the larger field? Presumably, the Mishnah entitles the buyer to take what he claims because his claim is a claim of certainty ("Bari"), while the seller has no certain of certainty but only a claim of doubt ("Shema"). We have learned, however, that in such a case the Halachah is "Bari v'Shema *Lav* Bari Adif" -- when one person has a claim of certainty, and the other has a doubtful claim, the claim of certainty does *not* prevail to take money or objects from the possession of someone else. Why, then, in the case of the Mishnah here, does the buyer's claim prevail?

ANSWERS:

(a) The RA'AVAD answers first that the rule of "Bari v'Shema *Lav* Bari Adif" applies only when the one with the claim of "Shema" is actually holding the object in doubt and thus has a "Chezkas Mamon" that counters the other person's claim of "Bari." If, however, the one with the claim of "Shema" is not actually holding the object (and he only has a "Chezkas Mara Kama" -- a Chazakah that, before this moment, he was known to be the owner -- to support his claim to ownership), then the other person's claim of "Bari" overrides his claim of "Shema."

Our Mishnah, presumably, is discussing a case in which the seller is not in physical possession of the object. The Gemara explains that the first case in the Mishnah is certainly referring to when the cow in question is not in the physical possession of either the buyer or seller, but rather is standing in the marsh. It is reasonable to assume that the second case of the Mishnah is also discussing such a situation, and there is no proper "Muchzak," but only a Chazakah of "Mara Kama," and that is why the buyer's claim of "Bari" overrides the seller's claim of "Shema."

The RAMBAN (Bava Basra 34b), however, argues with the Ra'avad's assertion and says that even when the original owner is not in physical possession of the object and has only a Chazakah of "Mara Kama," the other person's claim of "Bari" is not enough to prevail.

(b) The Ra'avad offers a second answer, with which the Ramban agrees. He explains that the Mishnah is discussing a case in which the seller was obligated to make a Shevu'ah of "Modeh b'Miktzas" to the buyer due to an additional element involved in the dispute that arose between them. Since the seller admits that he owes part of the buyer's claim, and -- with regard to the buyer's claim that he bought the larger field -- the seller claims that he does not know, the rule that "since he is obligated to swear but he cannot swear, he must pay" applies. (This is similar to the case in the Gemara on 97b.) (Y. Marcus)

100b

QUESTION: The Mishnah (100a) discusses various cases in which a dispute arises between a buyer and a seller concerning the object that was purchased. The Mishnah says that in a case in which the buyer claims with certainty that he bought the larger Eved (or larger field), and the seller claims with certainty that he sold the smaller Eved (or smaller field), the seller must swear that he sold the smaller Eved (and then he may give to the buyer only the smaller Eved). This Shevu'ah is a "Shevu'as Modeh b'Miktzas," since the seller is admitting to part of the claim of the buyer.

The Gemara (100a), however, asks several questions on the Mishnah's ruling. First, it asks that this is not a case of "Modeh b'Miktzas," because the seller is not admitting to any part of the buyer's claim. The buyer claims that he bought one Eved (or one field), and the seller claims that he sold a completely different Eved (or field); this is not "Modeh b'Miktzas!"

Second, this is a case of "Heilach," because when the seller denies owing a large Eved, he is handing over the small Eved to which he admits owing. One opinion cited earlier (4a) maintains that one does not make a Shevu'ah of "Modeh b'Miktzas" in a case of "Heilach!"

Third, there is a rule that one does not swear about Avadim (or Karka'os, land). Why, then, does the seller have to swear?

Shmuel answers these questions by explaining that the Mishnah is referring to a case in which the dispute involves not the Eved himself, but the *clothes* of an Eved (or, in the case of the field, the sheaves of grain on the field) -- the buyer claims that he bought large clothing, while the seller claims that he sold small clothing. The subject of the dispute, therefore, is mobile property (Metaltelin) for which a Shevu'ah may be made (in contrast to Avadim and Karka'os). This answers the third question. In addition, it answers the first question, as the Gemara itself explains, because the dispute involves one large piece of fabric from which the clothing is made. Thus, the seller is indeed admitting to part of the claim of the buyer.

How, though, does Shmuel's explanation answer the second question? It is still a case of "Heilach," because the seller is readily giving to the buyer the part of the claim to which he admits (i.e. part of the clothing)! (RAN)

ANSWER: The RAN answers that since the clothing that the buyer and seller are disputing is attached to one large piece of fabric, as the Gemara explains, the case is no longer a case of "Heilach." The is because the buyer is not claiming a specific article of clothing, but rather he is claiming an *amount* (such as a length) of any part of the roll of fabric. Hence, when the seller agrees to selling a smaller amount, there is no specific, identifiable object that the seller is handing over as part of his admission. Rather, the seller now has to choose what part of the fabric to give to the buyer. Therefore, the seller's admission does not involve "Heilach." (Similarly, with regard to the sheaves in the field, the buyer is claiming an *amount* of sheaves, and not any sheaves in particular.) (Y. Marcus)