MISHNAH: He who sells a ship sold the mast, and the sail, and the anchors, and all steering gear, but he neither sold the slaves, nor the storage bags [Cf. Chapter 4, Note 41. Containers in which the load is stored.] , nor the load [Greek ἐνθήκη.] . If he said, “it and all that is in it,” all is sold. He who sold a truck [Greek κάρρος, κάρρον, Latin carrus, carrum “two-wheeled cart”.] did not sell the mules; he who sold the mules did not sell the truck. He who sold the yoke did not sell the cattle [For ploughing.] ; he who sold the cattle did not sell the yoke. Rebbi Jehudah says, the price is an indicator. How is that? If he said to him, sell me your yoke and harness for 200 denars [In his time a sum whose possession disqualified one from receiving public assistance; Mishnah Peah 8:8.] , it is obvious that yoke and harness are not worth 200 denars. But the Sages say, the price is no indicator. He who sells a donkey did not sell its gear [The gear needed to fasten the animal.] . Nahum the Mede says, he sold the gear. Rebbi Jehudah says, sometimes it is sold, sometimes it is not sold. How is this? If a donkey was standing there with his gear on it and he said, sell me this donkey, his gear is sold; your donkey, for this one the gear is not sold. He who sells a donkey sold the foal [As long as the foal is dependent on its mother it cannot be separated from her.] ; he who sold a cow did not sell its young [Since a calf can be slaughtered, it represents an independent value.] . He who sold a dungheap sold the manure; he who sold a cistern sold its water. He who sold a beehive sold the bees; he who sold the dovecote sold the pigeons. He who bought the yield of a dovecote leaves the first brood to fledge, of a beehive takes three swarms and then intermittently [In order to preserve the population he takes only the second and all the odd-numbered swarms.] , honeycombs leaves two honeycombs [For the bees to survive the winter.] , olive trees to cut down leaves two handbreadths [Interpretation of Maimonides. One might translate “two twigs” but it is difficult to see how the tree could be cut down and two twigs be left standing. But on a trunk extending two handbreadths above the ground a new olive tree can be grafted.] .
HALAKHAH: “He who sells a ship.” etc. It was stated [Tosephta 4:1, Babli 73a.] : He who sells a ship sold the ladder [Latin scalae, -arum, f.; to enter the ship.] and the water tank in it but did not sell the sleeping gear, nor the mats, nor the barge [Greek σκάφος “ship; hull of a ship”.] nor the rowboat [A small boat used to reach the shore where there was no secure harbor. According to Rava in the Babli (l. c.), rowboat and fishing boat are one and the same, except that בוצית is Babylonian and דוגית Palestinian usage..] . Symmachos says, he sold the fishing boat.
[This is a shortened reformulation of Halakhah Kilaim 2:5, Notes 73–89. The conditions of land use attributed to Joshua are discussed in the Babli in Bava qamma 80b–82a. Since the distribution of land by Joshua was irrelevant for the Second commonwealth, a reference to “conditions of Joshua” is simply one to common law. In Tosephta Bava qamma Chapter 8, Joshua is not mentioned.] The conditions which Joshua imposed. Rebbi Levi ben Birai in the name of Rebbi Joshua ben Levi: four. One may collect grasses [As animal feed.] everywhere except from a field of fenugreek where it is forbidden because of robbery [Fenugreek stems are very thin and valuable; it is impossible to tear out weeds without also damaging some stems, which inflicts a loss on the owner of the field. If the owner harvests his field, he might use the weeds to tie bundles of fenugreek for retail sale.] . There [Mishnah Kilaim 2:5.] , we have stated: “Or fenugreek where grasses appeared, one does not require him to weed. [To avoid two different kinds growing on the field, which would be sinful.] ” So is the Mishnah: One does not require him to uproot. As one of Joshua’s conditions you say, one may collect grasses everywhere except from a field of fenugreek where it is forbidden because of robbery. This implies that he does not want them. He said, there if he sowed it to make sheaves, but here when he sowed it for seeds [If the fenugreek seeds are sold not as spice but as seeds, they are not sold on the stalk and, therefore, nothing is needed to bind the stalks; the weeds are unwanted in every respect and leaving them is not trespasssing the prohibition of kilaim.] . Did Joshua made conditions for the benefit of sinners [Since he forbade taking weeds from fenugreek even if they caused kilaim.] ? Rebbi Samuel bar Naḥman in the name of Rebbi Jonathan: He would like it if they were uprooted and lying before him [No farmer likes weeds in his field. The removal of weeds from fenugreek is impossible as explained in Note 18.] . And he mentions a vineyard field, as Rebbi Yannai [In Kilaim: R. Zeriqan in the name of the House of R. Yannai.] said: all spontaneous growth [In a Sabbaticall year; Lev.25:5,11.] is forbidden except for what appears on a fallow field, or a field ready to be ploughed under, a vineyard or a field grown for seeds [The last category is not mentioned in Kilaim.] . A fallow field, for he does not care. A field ready to be ploughed under, for he wants to improve his field [The ploughed-under aftergrowth will act as fertilizer.] . A vineyard, not to forbid his vineyard [Since produce growing in a vineyard will condemn the entire vineyard (cf. Introduction to Tractate Kilaim.)] . A field grown for seeds, for he does not want it; and if you say he does, he would like it if they were uprooted and lying before him.
[A parallel but quite different treatment of this subject is in Nazir 9:3, Notes 119–134. The Babli (Bava qamma 81a) notes that one of Joshua’s stipulations was that a “corpse of obligation”, an unattended corpse found far from any organized settlement, must be buried on the spot it was found.] There, we have stated [Mishnah Nazir 9:3.] : “If somebody find a corpse in original position, lying as usual [With his limbs stretched out, not in a compressed position which would characterize the corpse as Gentile.] , he takes him and his surroundings.” Rav Ḥisda said, this implies that it is permitted to remove a corpse of obligation, since we have stated: “he takes him [An unqualified statement.] and his surroundings.” And how much? Rebbi Samuel [He is R. Samuel ben Rav Naḥman.] in the name of Rebbi Jonathan: Up to three finger-breadths, the place where fluid penetrates. Rebbi Ze‘ira says, this is not reasonable; it is forbidden to remove a corpse of obligation. If you would say, it is permitted to remove him, since you are going to ruin the whole field [By digging a rather deep hole in the middle of somebody else’s field.] , would it be permitted to remove him? Since it is obvious for the Tanna that it is forbidden to remove a corpse of obligation, therefore, one needs the Mishnah [Since the Mishnah tells one to remove the corpse, it must be done with minimal disturbance of the field, which cannot refer to a corpse of obligation.] . Rav Ḥisda said, it follows him who said, it is permitted to remove a corpse of obligation; I am saying that he was buried on a permitted path [A “permitted path”, also mentioned in the next condition imposed by Joshua, is a path through a grain field between harvest and the early rains, when the field is empty and traditionally everybody has permission to walk through the field. R. Ḥisda now holds that the Mishnah does not prove anything about a corpse of obligation; it could have been that a person was buried there during the time of permission with the intention of removing it later to a cemetary, but that something then intervened; the people knowing about the corpse died, and the provisional grave was forgotten.] . But whould one not have to worry that maybe he was a corpse of obligation? Corpses of obligation are infrequent [Practically they never happen; the Mishnah certainly is not formulated for them.] .
One walks on permitted paths [A “permitted path”, also mentioned in the next condition imposed by Joshua, is a path through a grain field between harvest and the early rains, when the field is empty and traditionally everybody has permission to walk through the field. R. Ḥisda now holds that the Mishnah does not prove anything about a corpse of obligation; it could have been that a person was buried there during the time of permission with the intention of removing it later to a cemetary, but that something then intervened; the people knowing about the corpse died, and the provisional grave was forgotten.] from the moment the harvest is cleared up to the second rainfall [When the ploughing season starts (Babli Ta‘anit 6b).] , and one may take shoots to plant from everywhere [To start new trees.] except from olive trees and vines. From olives trees from the very young and the very old [Which do not bear olives. Cutting a twig of such a tree does not cause a loss to the tree’s owner.] , but if it was like a ṭrgwl [One might read פְרַגוֹל “whip”, Latin flagellum, for טרגול (Krauss). Possibly טרגול is forbidden as looking like something used at the Athenian festival of the Thargelia, at which first fruits and humans were sacrificed (E. G.)?] even from the very young it is forbidden.
[This is an alternative version of the conditions imposed by Joshua; cf. Note 16.] Rebbi Tanḥum from Kefar Gun [He is R. Tanḥum bar Ḥiyya from Kefar Agin (Umm Jumia S. of Lake Genezareth), a third generation Amora.] in the name of Rebbi Eleazar ben Rebbi Yose: Four. One collects grasses from everywhere on condition that one not uproot. And one relieves himself behind a wall. [In an agricultural area, even if the field is sown up to the wall; Babli Bava qamma 81a.] Rebbi Eleazar ben Rebbi Yose in the name of Rebbi Tanḥum [The names here have to be switched; the last generation Tanna Eleazar ben R. Yose cannot speak in the name of the third generation Amora R. Tanḥum.] : Up to a place where he lets wind and is not heard [From the road.] . And one grazes in forests, even the tribe of Jehudah in the tribe of Naftali, and one gives Naftali an entire region South of the lake, as it is said, “lake and South of it he inherits, [Deut. 33:23; cf. Tosephta Bava qamma 8:18, Sifry Deut. 355, Babli Bava qamma 81b. Since the territory of Naftali was the North-East corner of the Land of Israel, Joshua could not have understood the verse to mean: “West and South he inherited.” The location of Naftali therefore is validly discussed among the rules attributed to Joshua.] ” the words of Rebbi Yose the Galilean. Rebbi Aqiba says, “lake” is Lake Samokhonites [Lake Huleh.] , “and South” is Lake Tiberias. [To avoid obstacles on the road, mainly in the rainy season on an unimproved road: Berakhot 2:9, Notes 347–353.] And one may step to one side. Rav Jehudah in the name of Rav: Even into a field full of saffron. How? Does one have to pay or not? Since Rav Jehudah said, even into a field full of saffron, that means, one pays [Reading of L. E: “one does not pay.” The next sentence shows that the reading of L is correct. The argument here is that saffron is so valuable that any stepping into the field causes considerable damage to the farmer; it is unconscionable that he should not be indemnified.] . Rebbi La said, since Rav Jehudah said, even into a field full of saffron, that means, one does not pay [If it is a right in common law, it cannot be disputed or subjected to payment. He holds that a very valuable crop should never be planted adjacent to a public road without leaving an ample shoulder at the side of the road.] . But one cannot deviate more than necessary. Let us hear from the following: [To avoid obstacles on the road, mainly in the rainy season on an unimproved road: Berakhot 2:9, Notes 347–353.] Rabban Gamliel and Rebbi Joshua were on the road [and stepped aside because of obstacles on the road] [From E, supported by the text in Berakhot.] when they saw Jehudah ben Pappos, who was sinking, coming towards them. Rabban Gamliël said to Rebbi Joshua: Who is this one who makes an exhibition of himself? He answered: This is Jehudah ben Pappos, all whose deeds are done for Heaven’s sake.
Rebbi Samuel in the name of Rebbi Jonathan: If one wants to build a new village, one gives him [The district administration is required to build roads to connect the village to the existing network of roads.] four roads to the four directions of the compass. Rebbi Ḥanina asked before Rebbi Mana, how? From four cubits to eight [A private road (Mishnah 6:7).] or from eight to sixteen [A highway. A road 16 cubits wide is the definition of “public domain” (Mishnah 6:7).] ? He told him, from eight to sixteen so that one truck may leave and the other come.
MISHNAH: He who buys two trees on another’s property did not acquire the land [On which the trees stand.] ; Rebbi Meїr says, he acquired the land. If they grew, he need not cut them [Anything that grows from the tree, neither new shoots nor expanding crowns which extend beyond the range they had at the time of sale.] . What grows from the stem is his, from the roots [A new tree coming out of the earth.] is the owner’s of the ground. If they died, he has no land [Cf. Chapter 4, Note 79.] . If he bought three, he bought the land. If they grew, he has to cut them [Anything which will grow into the original owner’s land is no different from trees growing in one orchard and overhanging another owner’s property (Halakhah 2:14).] . What grows from the roots is his. If they died, he has the land.
HALAKHAH: “He who buys two trees on another’s property,” etc. (The words) [Reading of L.] [In the House of] [Reading of E.] Rebbi Yannai they said, what sees the shadow is root, what sees the sun is stem [Babli 82a, in the name of R. Joḥanan. The question is, what is meant by “growth from the roots”? The entire tree grows from the roots. On the other hand, unless lifted by man, most roots will feed just one stem. Where does one draw the line between stem and roots at the bottom of the stem?] . Rebbi Ḥama bar Uqba in the name of Rebbi Yose: What grows from its roots and its stem is root, from its stem but not its roots is tree [Anything grown as a branch is the buyer’s; anything else is the landlord’s.] . Rebbi Joḥanan said [Babli 82a. It is understood that this only applies to trees which qualify for an orchard; i. e. that the distance between two trees be no larger than √250 = 15.81 cubits (cf. Ševi‘it 1:2, Note 18).] , he who buys three trees buys the land in between them, under them, and outside of them the width of the harvester and his bag [Four cubits around each tree (Chapter 2, Note 101; Ševi‘it 1:2 Note 19)] . Rebbi Eleazar said, while he has no access [Unless the trees are directly accessible from the road, buying the trees does not buy access. (But the person who only buys two trees rents the land and has free access as a renter; Babli 82b.)] , he has the width of the harvester and his bag outside of them.
MISHNAH: He who sells the head of a large animal [Cattle.] did not sell the feet; if he sold the feet he did not sell the head. If he sold the windpipe [With the lungs attached. {The use of קָנֶה “stick” for “reed, windpipe” might be induced by Latin canalis animae “windpipe” (Pliny) (E. G.)}] he did not sell the liver; if he sold the liver he did not sell the windpipe. But for a small animal [Sheep or goats.] , if he sold the head he sold the feet [Since the feet do not fetch much, it was customary to give them as a bonus to the buyer of the head. The upper part of the right leg had to be given to the Cohen in any case (Deut.18:3).] ; if he sold the feet he did not sell the head [The cheaper item is a gratuity for the more expensive one but not vice-versa.] . If he sold the windpipe he sold the liver; if he sold the liver he did not sell the windpipe.
HALAKHAH: “He who sells the head of a large animal,” etc. Rebbi Isaac asked: If he sold half of the head, did he sell half of the legs? If he sold half of the windpipe, did he sell half of the liver? [If he sold half of the liver,] [Reading of E, missing in L, required by the context.] did he sell half of the windpipe? Let us hear from the following [Reading of E, missing in L, required by the context.] : “If he sold him the entire foot, the entire head, the entire intestines, he gives to the Cohen and does not deduct from the price [Tosephta Ḥulin 9:8–9; Babli Ḥulin 132a.] . If he bought by weight, he gives to the Cohen and deducts from the price. [If parts of the animal were separately sold by the piece, not by weight, the price is a lump sum for what is usable for the buyer. Therefore, if some of the obligatory gifts to the Cohen (the jaw, the upper leg, and the first stomach) were parts of the animal sold, the price was never intended to cover these gifts; nothing can be deducted.] ”
MISHNAH: Four situations for sellers. If one contracted to sell high quality wheat and it turned out to be low quality, the buyer may annul the contract. Low quality and it turned out to be high quality, the seller may annul the contract. Low quality and it turned out to be low quality, high quality and it turned out to be high quality, neither of them may annul the contract [If the seller is unable to fill the contract as written, the party which would be disadvantaged can annul the contract without penalty or censure.] . Brown grain and it turned out to be white grain, white grain and it turned out to be brown grain [White grain is better quality than brown; the former is human food, the latter animal feed. If the delivery does not satisfy the buter’s needs, he need not accept delivery.] , olive wood and it turned out to be sycamore wood, sycamore wood and it turned out to be olive wood [Olive wood is more valuable than sycamore wood, but olive wood is for furniture and sycamore wood for building.] , wine and it turned out to be vinegar, vinegar and it turned out to be wine, either of them may annul the contract. If somebody sold produce to another and this one moved it without measuring, he took possession [Moving merchandise after taking title always gives possession, Mishnah Qiddušin 1:5; Bava meṣia‘ 4:2.] . If he was measuring without moving, he did not take possession. If he is intelligent, he rents its place [If he is worried whether the seller may annul the sale, since real estate always conveys possession of what was acquired by its owner, Mishnah Qiddušin 1:5.] . If somebody buys flax from another he he did not take possession until he moved it from place to place; [If he starts moving it, i. e., lifting it.] but if it still was standing on the ground and he plucked anything, he took possession. If somebody sold wine or oil to another [And the contract specified that it was sold at the market price on delivery.] and it rose or fell in price, if it was before the measure was filled it is for the seller, after the measure was filled for the buyer. If a broker was involved [Who transports the amphora from the seller to the buyer. A standard contract implies delivery f.o.b.] and the amphora broke, it broke for the broker. He [If less than an entire barrel is sold, the seller has to empty the measuring vessel into the buyer’s vessel and after the flow has stopped has to wait until three single drops drip into the buyer’s vessel. The fluid which then still clings to the seller’s vessel remains his property.] is obligated to let it drip three drops. If he tilted and emptied it, [the remainder] is for the seller. The grocer does not have to let it drip three drops [If he has many clients and the time spent in waiting for the three drops would seriously interfere with his business. (Mishnah Yom Tov 3:8 reports that a grocer who was a holy man never emptied measuring cups into his client’s vessel but gave them his measuring vessel so they could pour themselves and take all the time to empty the vessel to the last drop.)] . Rebbi Jehudah says, Friday evenings close to sundown he is not liable [The retail grocer is required to wait until three drops drip exept for Fridays late in the afternoon when everybody is trying to get home quickly for the Sabbath.] .
HALAKHAH: “Four situations for sellers.,” etc. How is this? If the measuring vessel belonged to the seller, he has the property rights, if to the buyer, he has the property rights [This refers to Mishnah 10. Why should it make any difference when the measuring vessel was full? As long as the fluid is in the seller’s vessel it is not delivered.] . Rav [This has to be read here.] Jehudah in the name of Samuel, Rebbi La [In the Babli, 97a, he identifies the third person as the broker. The passage is missing in E.] in the name of the Great Rebbi Jehudah, so is the Mishnah: If the measuring vessel belonged to a third person. It was stated: Rebbi Jehudah says, Friday evenings close to sundown he is not liable since he has permission, but the Sages say, in any case he is liable [This baraita contradicts the Mishnah which frees the retail grocer from the obligation to wait for three drops.] . What is the reason for what Rebbi Jehudah said? “If he is hired, it is paid for by his wages. [Ex. 22:14. The quote has nothing to do with the preceding baraita but refers to the sentence in the Mishnah which holds the broker responsible for the delivery; in Tosephta 5:2 this is R. Jehudah’s opinion. The verse quoted states that if a hired animal dies, the fee paid for it represents indemnification. The fee paid to the broker is indemnification for the risk which he assumes. Pseudo-Jonathan translates the verse: “If he works for a fee, his loss is covered by his fee.”] ”
MISHNAH: Somebody sent his son to a grocer who measured him oil for an assarius and he gave him the assarius; if he [The child. The majority hold that if a child is sent to the grocer, the sender only intends to give the grocer a message that he should deliver the goods to the sender’s house, not give them to the child.] broke the flask and lost the assarius [It is difficult to see where the coin comes in. Rashbam reports that his grandfather Rashi changed the text of the Mishnah to the effect that the child was sent with a dupondius, to get oil for an assarius and an assarius in change. But the ms. evidence and Maimonides’s text do not support the emendation.] , the grocer is liable. Rebbi Jehudah holds him not liable since for that he sent him [In the Tosephta, 5:2, R. Jehudah explains that anybody sending money and a breakable vessel by a child expects the money to be lost and the vessel broken.] . The Sages agree with Rebbi Jehudah that if the flask was in the child’s hand and the grocer measured into the flask, the grocer is not liable [If he never took the vessel into his hand, he never became responsible.] . The wolesaler cleans his measuring vessels once every thirty days, the householder every twelve months. Rabban Simeon ben Gamliel says, it is the other way around [He holds that the wholesaler uses his measuring vessels all the time; nothing will stick and, since each vessel is always used for the same commodity, no customer is disadvantaged. But the householder who only sells sporadically must clean his vessels lest some leftover fluid clot and diminish the volume.] . The retail grocer cleans his measuring vessels twice a week, wipes his weights clean once a week, and cleans his scales after each weighing. Rabban Simeon ben Gamliel said, when has this been said? For fluids, but for dry matter it is not necessary; he has to let [the scales] bend down a handbreadth [The scales holding the merchandise have to be visibly lower than the weights.] . If he weighed strictly by eyesight [The lever of the balance being exactly parallel to the ground.] he has to give him surplus, one tenth for fluids and one twentieth for dry products [Which method is chosen will depend on local usage.] . At a place where one is used to small measures he should not use large ones, to large measures he should not use small ones, to level one must not heap, to heap one must not level.
HALAKHAH: “Somebody sent his son to a grocer,” etc. Rebbi Abba bar Mamal said, for the tenths he has to let bend down a handbreadth [In the Babli, 88b, R. Abba bar Mamal explains that the bending down of the scales should correspond to 1/10 of a pound for every 10 pounds, or 1%.] . It is written [Lev. 19:36.] : “Fair scales, fair weights.” From here [It is not from here but from Deut. 25:15: “A full and fair weightstone you shall have, a full and fair ephah you shall have, that your days be prolonged on the land which the Eternal, your God, gives to you.”] the Sages said that any commandment whose reward is noted, the court is not warned about. “You shall have, [Deut. 25:15; in Lev. 19:36 the plural is used, יִהְיֶה לָכֶם. It is a generally accepted talmudic principle of interpretation that a commandment formulated in the plural is addressed to every individual. In Lev. 19:36, the verse ends: I am the Eternal, your God, I Who took you out from the land of Egypt, on which Sifra Qedošim Pereq8(10) notes: “On condition that you accept the obligation of fair measures, for every person who accepts the obligation of fair measures confirms the Exodus, and everyone who violates the obligation of fair measures negates the Exodus.” But commandments in the singular are considered as commandments in the collective, addressed to the community.] ” appoint market overseers [Greek ἀγορανόμος. In Demay2:1 (23c l. 26, Note 22) the transliteration is אגורנימום.] over this [Babli 89a, Sifry Deut. 294. This inference clearly contradicts the prior statement that oversight over measures is not a public duty.] . Rebbi Abun bar Ḥiyya said, so is the baraita: Any commandment whose reward is noted the court is not punished about. Rav was appointed market overseer by the Head of the Diaspora [Over Jewish markets in Babylonia.] ; he intervened about measuring vessels but not prices [In the Roman Empire, price control was introduced by Diocletian. But Rav was trained in Galilee under the Severans, almost a century before Diocletian. In Demay also, control of prices is described as an anomaly.] . The Head of the Diaspora jailed him. Rav Qarna went to see him and said, the market overseer about whom they spoke was for measures but not prices. He answered, but you had stated: the market overseer is for both measures and prices [In the Babli, 89a, it is reported that Qarna taught this against the explicit instructions of Samuel; and that in consequence a horn grew on his forehead for which he was called Qarna.] . He said to him, go out and tell them, the market overseer is for measures but not prices. He went out and said to them, a person who teaches hidden things they send to jail!
At a place where one is used to small measures he should not use large ones, to large measures he should not use small ones, to level one must not heap, to heap one must not level.