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In this week’s ‘Daf Yomi,’ why the law is in the details

Adam Kirsch
May 09, 2017
Inset image: U.S. National Archives via Flickr
Inset image: U.S. National Archives via Flickr
Inset image: U.S. National Archives via Flickr
Inset image: U.S. National Archives via Flickr

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

As in all premodern societies, the economy of Talmudic-era Palestine and Babylonia was dominated by agriculture. Most Jews worked the land: They were literally am ha’aretz, people of the land, the term the Talmud uses to describe ignorant Jews whose observance of halakha is not to be trusted. The elite of this society—to which many, though not all, of the rabbis belonged—were landowners and merchants dealing in produce and livestock. It makes sense, then, that the longest tractate in the Talmud, Bava Batra, is the one dedicated to property transactions. Buying and selling produce and agricultural land was an activity every wealthy Jew could be expected to engage in, and such transactions could easily give rise to litigation.

In last week’s column, we saw that the rabbis laid down rules governing the sale of defective merchandise. A buyer of grain or seedlings or vine stocks had to expect that a certain proportion of them would be unusable, and the rabbis specified how high this proportion could be. This week, at the beginning of Chapter Seven of Tractate Bava Batra, a similar logic is applied to the sale of agricultural land. A field is purchased in order to sow it with grain, but fields are not perfectly uniform. Some part of the ground is likely to be too rocky or uneven to plant. What percentage of land does a buyer have to expect to be useless, and when does he have the right to demand a remedy from the seller?

The mishna in Bava Batra 102b explains that when it comes to measuring a field, “crevices 10 handsbreadths’ deep” and “rocks 10 handsbreadths’ high” are excluded from the measurement, while smaller crevices and rocks are included, because these are lesser obstacles to planting. However, in the Gemara, Rabbi Yitzhak specifies that there is a limit even for smaller obstacles. If the permissible crevices and rocks measure more than four kav per beit se’a—a proportion equivalent to about 2 percent—then they are deducted from the total. Thus the purchaser of a field can expect that 98 percent of the land he buys will be usable.

The mishna goes on to take account of the fact that the measurement of land was an imperfect science. The unit the Talmud uses for measuring land is the beit kor—that is, the amount of land needed to plant a kor of grain. Estimates of the volume of a kor range, according to the Koren Talmud, from 248 to 430 liters; a beit kor is equivalent to somewhere between 17,280 and 24,900 square meters. At the higher estimate, then, we are talking about 6 acres of land. But when you buy a beit kor, how precise does the measurement have to be? What if you end up with a bit more or less land than you expected?

The answer has to do with the exact language used in the sale. If the seller promises a beit kor “measured with a rope,” then he means to be very precise. In that case, any excess land must be returned to the seller, while any deficit in land must be made up to the buyer. If, on the other hand, the seller promises a beit kor “more or less,” there is some wiggle room: A deviation of about 4 percent is permissible in either direction. If the difference is greater than that, the buyer can demand to be given the extra land, or the seller can demand to have it returned. The rabbis note that the seller can also demand payment in cash, which puts him in a more advantageous position in the transaction.

But what if the parties used neither qualification, not “measured by the rope” nor “more or less”? What if the seller simply said, “I will sell you a beit kor”? Do we apply the stricter standard or the more lenient one? The Gemara observes that there is an equally good argument in either direction: “No inference is to be learned from the mishna.” Only after citing a relevant baraita do the rabbis conclude that an unqualified sale is treated leniently, as if the seller had said “more or less.”

Then again, the mishna in Bava Batra 104b asks, what if the seller is unclear in his language and uses both qualifications, saying, “I am selling you a plot of land measured with a rope, more or less,” or else “more or less, measured with a rope”? According to Ben Nanas, the final expression governs: Whichever phrase is used last determines whether the sale is to be measured strictly or leniently. But the Gemara takes issue with this ruling, bringing up an analogous case about the rental of a bathhouse. In that case, the owner charged “12 gold dinars a year, one gold dinar per month,” but forgot that the year in question was one that in the Jewish calendar had an extra, 13th month. (Because the Jewish calendar is lunar, an extra month must be added every few years to keep it in sync with the solar cycle.)

Must the renter pay an extra dinar for the extra month, since that was the last expression used? Ben Nanas would say yes; but when the case was brought before Rabbi Shimon ben Gamliel and Rabbi Yosei, they decided to split the difference, ordering the renter to pay half a dinar extra. Other sages have their own interpretations, however, and the Sages end up with the rule “Follow the least inclusive expression,” that is, the one that is least advantageous to the buyer. This is because, in Jewish law, the burden of proof is always on the claimant, and here it is the renter who is claiming the right to use the property from the owner. In general, it is clear that ambiguity is a fertile source of litigation—which explains why modern contracts, such as those endless terms-of-service agreements we all click on without reading, are so absurdly detailed.


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.

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