Inset photo: Jack Delano, 1941, Library of Congress
Inset photo: Jack Delano, 1941, Library of Congress
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Caveat Emptor

In this week’s ‘Daf Yomi,’ Talmudic sages ask what it is safe to assume in matters of transactions within the law, and what must be specifically proven

Adam Kirsch
May 02, 2017
Inset photo: Jack Delano, 1941, Library of Congress
Inset photo: Jack Delano, 1941, Library of Congress

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Tractate Bava Batra, the longest single tractate in the Talmud, covers a wide range of issues related to commercial transactions. This week, Daf Yomi readers began Chapter Six, which deals with the question of what happens when a buyer receives defective merchandise. Is there an implied warranty in a sale, so that the seller is obligated to take back the goods and return the money? What if the sale involves a quantity of produce—what percentage of the grain or seeds must be bad for the sale to be considered void?

In the course of this discussion, an interesting distinction emerges having to do with exactly what a transaction involves. One might think that a seller is simply handing over a piece of property to the buyer, so his obligation ends once the transaction is completed. This is the view implied in the ancient Latin phrase, which we still use, caveat emptor—let the buyer beware. If the item he purchased doesn’t fulfill his desires, that is the buyer’s problem, not the seller’s.

But the rabbis’ view is rather different because they take into account the buyer’s motive for entering into the transaction. He purchases the item because he wants to fulfill a certain desire or advance a certain project, and the seller is really promising to help him do this. If the goods delivered don’t fulfill the buyer’s desire, then the seller has broken an implicit promise and must take action to remedy it. We have seen in many areas of Jewish law that intention is a key concept: For instance, on Shabbat, items that one intends to use can be picked up, but items that one hasn’t previously intended to use are muktzeh and can’t be touched. Here, in the very different context of commercial law, intention once again turns out to be crucial: To know whether a sale is valid, we need to know why the buyer is entering into it.

This becomes clear in the first mishna in Chapter Six, which deals with the sale of produce. If a buyer acquires seeds or seedlings and plants them and then they fail to grow, can he demand a refund from the seller? The answer depends on what the plants were acquired for. Plants and seeds can be purchased for two reasons, the rabbis suggest: to eat them immediately or to plant them for the future. For this reason, the seller “does not bear financial responsibility” when plants fail to grow because he can claim that the goods he delivered were adequate for one purpose, eating, and he didn’t know the buyer intended to use them for a different purpose, planting. By the same token, however, if the plant at issue is a “garden plant, which [is] not eaten at all”—like a rosebush, perhaps—then it is clear that the buyer could only have wanted it for planting. In that case, if it fails to grow, then it is considered defective and the seller must compensate the buyer.

The Gemara brings up an analogous case having to do with the sale of livestock. As we saw extensively in Tractate Bava Kamma, an ox that habitually gores animals or people must be put to death. What happens, then, if someone buys an ox and only later learns that it is a “guilty” animal that must be slaughtered? Can he claim to have been sold a defective ox? Here again, the answer depends on intention. If the ox was purchased for its meat, then the buyer was going to slaughter it anyway, so he has suffered no damages. But if the ox was purchased as a beast of burden, to use in farming, then he has lost his investment and must be compensated by the seller.

The question then arises how the judges can determine the actual motive of the buyer. Evidently, his word alone is not enough; his pattern of behavior must also be considered. If he is “a man who purchases for slaughter”—that is, whenever he buys an ox it is for meat—then this sale too must be considered a purchase for slaughter; if he usually purchases oxen for plowing, then the reverse is true. Of course, this rule is no help if the man sometimes purchases for plowing and other times for slaughter. In that case, the Gemara says, we consider the price he paid: An ox purchased for farm work is an investment and commands a higher price than one that is to be killed immediately.

In a highly characteristic fashion, this initial question is transformed, through the Gemara’s dialogue of authorities, into a debate about a broader and more fundamental principle of Jewish law: what the rabbis call “following the majority.” In any given case, can the judges assume that a litigant’s motives are the same as the majority of people in his situation? In the case of oxen, Rav says, the majority of people purchase them for plowing, so the governing assumption should be that any given ox-buyer is also planning to use it for plowing. But Shmuel, Rav’s great antagonist, disagrees, saying that in financial transactions the principle of “following the majority” doesn’t hold.

Clearly, much depends on this question, because it is really a way of asking about what it is safe to assume in a court case and what must be specifically proved. To settle the issue, the Gemara goes on to bring up a number of examples from other areas of Jewish law to test how far “following the majority” can be taken. For instance, in Tractate Ketubot, the section of the Talmud dealing with marriage contracts, we read about a case in which a divorced woman claims the money due her under her marriage contract. In a standard contract, a bride who is a virgin at marriage is owed 200 dinars, while a bride who was a widow is owed only 100 dinars. (It is not clear whether this is a judgment of the cash value of virginity or a recognition that a widow is likely to have inherited property from her first husband.)

What happens, then, if the divorcing woman claims that this was her first marriage, while the husband insists it was her second? The law holds that witnesses to the wedding should be consulted. It was customary for a virgin bride to wear a veil and her hair loose; if the witnesses say that the bride was so attired, then she must have been a virgin and she is now owed 200 dinars. The Gemara notes, however, that the principle of “following the majority” could just as well have been applied in this case. After all, “the majority of women marry as virgins”: A first marriage is more common than a second marriage. Why not assume, then, that the marriage at issue was also a first marriage? Evidently, the rabbis conclude, the need for witnesses to bride’s virginity shows that the principle of “follow the majority” doesn’t hold in monetary transactions.

Later in the chapter, a fixed standard for defective merchandise is established. The mishna in Bava Batra 93b says that when purchasing grain in bulk, the buyer accepts “a quarter-kav of impurities” per se’a—a ratio that works out, if I’m doing the measurements correctly, to 1/24th impurity by volume. When buying figs or wine, the standard is looser: Up to 1/10th of these items can be spoiled. The Gemara goes on to ask an interesting question: If it’s discovered that there is excessive spoilage, does the seller have the duty to remove all the impurities or only to bring them down to the legally permitted level? Rav Huna says that all the impurities must be removed and replaced by good-quality merchandise, and the Gemara goes on to bring various challenges to this strict ruling. As always, the process of Talmudic reasoning is fascinating even if the issues themselves seem remote.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on Tablet’s complete archive of more than four years of columns, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.