Land Sold to Measure

Bava Batra (7:1) | Yisrael Bankier | 11 years ago

The Mishnah (7:1) teaches that if one sold a beit kur of soil, then large boulders (ten tephachim height) or deep ditches (ten tephachim) are not included when measuring out the land. The Bartenura explains that the person purchasing the  land deliberately used the term “soil” since he was interested in land that could be used for planting. Had he simply said an area of land, then the boulders and ditches would have been included in the measurement.¹

Now considering that areas of the boulders and ditches have not been considered when measuring, what is the status of those areas?

According to the Rashbam (102b) this is not even a question. He maintains that the seller must provide a single field that is clear of the large obstacles. He continues that a person does not want to purchase a single field and treat them as separate fields, as stated by Rav Papa in the Gemara (103a). The Rosh (102b) however explains that the buyer can only make this complaint if the boulders or ditches divide the field. If however he can navigate around the boulders when ploughing, then the areas are simply not included when measuring out the purchased land. According to this understanding, what is the law regarding these obstacles?

The Rambam (Mechira 28:1) explains that even though they were not measured, they still belong to the purchaser. The Yad Rama explains that this is similar to the yetzia of house, which we learnt, was included in the sale provided it was less than four amot wide. In other words, they are considered secondary and included in the sale.  

The Rashba however cites the Raavad that maintains they remain the property of the seller. He explains that those cases we learnt about in the earlier chapters that listed items that are included in a sale, are different. Those cases were not sold by a particular dimension or measure. Consequently we are careful to specify what is and what is not included. In this case however, since the field was sold by a particular measure and that measure was indeed delivered, the boulders and ditches that were excluded remain excluded. The Raavad continues that the purchaser must pay the seller for these items since they are considered “lost” in his field; they are effectively inaccessible. This is much like the continuation of the Mishnah that if too much land was given, but the excess was too small to be useful to the seller, we compel the purchaser to buy that excess. 

The Rashba however finds this difficult. Firstly, if being sold to measure is literal then even small palms and shrubs should be excluded. Secondly, it appears that according to the Raavad the only difference between whether the boulders are large or not is if the purchaser must pay for them. What does this payment have to do with the rational of the Gemara that purchaser does not want treat his purchase as separate fields? Finally, this rationale cannot be compared to the continuation of the Mishnah. There the extension is just that - it is part of the field. However in this case, anyone purchasing a field would like to avoid the boulders and ditches so how can we compel him to buy it?

In defense of the Raavad the Aruch HaShulchan (CM 219:2) explains that they are not required to pay the full amount but rather a severely deflated rate. Even though in the outsets they would have never purchased them, everyone knows (anan sahadei) that they are happy with them now and must pay some something²

¹ The Tosfot R’ Akiva Eigerhowever notes that this is only the opinion of the Rashbam. The Tosftot however explain that the term “soil” in the Mishnah is used to teach different law. The Mishnah continues that if the boulders are smaller or the ditches shallower then they are included when measuring the land. The novelty is that even if the person specifically stated soil, the law is unchanged. The Tosfothowever disagrees with the Rashbam who maintains that if he had simply said land, then even an area that is full of boulders would be included.

² See Ketubot 34b.

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