Davar She'lo Ba Le'olam

Bava Batra (5:3) | Yisrael Bankier | 6 years ago

The Mishnayot this week have been focused on explaining what is implicitly included in various type of sales. One unique acquisition discussed refers to the purchase of the "fruit" or offspring of dovecote or beehive. The Mishnah places limits on the what the purchaser may take, in order not to comprise the dovecote or beehive itself.

One difficulty raised by the Rishonim on this Mishnah is how the acquisition can be effective at all. It would appear that one is attempting to acquire a davar she'lo ba le'olam – an object that is not yet present for purchase. In other words, since the offspring have not yet been born, how can they be purchase? Whether such acquisition work is the subject of debate; R' Meir maintains it can, while the Chachamim disagree. How then can the Mishnah rule that the acquisition works?

The Ritva (80a) explains that this is because at the time of the purchase the doves were in the dovecote, and it is these doves that are going to produce the offspring. Consequently, the sale is understood as purchasing the doves for their offspring. The sale is therefore comparable to purchasing a tree for its fruit, which everyone agrees works.

The Nimukei Yosef (40b, s.v "amar ha'mechaer) however explains that according to the opinion that one cannot acquire a davar she'lo ba le'olam the Mishnah is explaining what must be done in a specific case. That is if each party is happy to maintain their original agreement when the offspring are finally born. In other words, this case is no different to any other case of a davar she'lo ba le'olam and the original agreement is not binding unless they maintain their positions until the end. HaRav David Yaakov Ilan¹ suggest that the Nimukei Yosef is consistent with his explanation of why acquiring a davar she'lo ba le'olam does not work. In Bava Metzia he explains that such cases lack complete smichut daat – full resolve from the parties. If each party maintains their position once the offspring are born, then this is no longer a problem and the acquisition is binding.

The Rambam (Mechira 23:9) however explains that the sale works, because it is considered as if the dovecote is being sold for its produce. The Rambam compares this case to one that rents his stream, where the renter can enjoy anything he traps for the duration of the rental period. The Sema (ChM 213:1) explains that the Rambam prefers to compare our case with that of the stream, rather than the case where one sells a tree for its fruit. Otherwise, one might argue, that the case of the tree is different since the tree itself bares the fruit, whereas the same cannot be said for the dovecote and the young birds.

The Raavad however notes that one would need to explicitly state that he is selling the dovecote for the offspring and not as stated in our Mishnah. This is because in the case where one sells the fruit of his tree, we do not say that it is implied that he is selling the tree for its fruit, but rather that it is a classic case of a davar she'lo ba le'olam.

The Kesef Mishnah however understands that according to the Rambam, in the case of the dovecote, it is implied. Why are the cases of the dovecote and fruit-tree different?

The Kesef Mishnah provides two answers. In the second answer, the Kesef Mishnah explains that when considering what is implied in a sale, we need to assess what is the ikar (main part) and what is tafel (secondary). With respect to a tree, the tree (or field) is the ikar and the fruit is tafel. Consequently purchasing the fruit does not imply that he is purchasing the tree for the fruit it produces. However when considering a dovecote, the doves themselves are the ikar consequently the above terms are implied.²

The Perisha (213:1) explains that the answer is found in the how the Mishnah termed the sale. The cases were where one purchased the fruit or offspring of the dovecote and beehive. As pointed out by the Sema above, the dovecote does not bear any birds, it is doves themselves. The fact that the dovecote itself was referenced, implies that the dovecote was being sold for the offspring.

¹ Footnote 95, Ritva, Mosad HaRav Kook Bava Batra 80a.

² See Kesef Mishnah inside for his first answer that differentiates based on the assumed terms of each sale.

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