Bava Basra - Daf 105
- Rav: Tannaim disagree if תפוס לשון אחרון or יחלוקו by "מדה בחבל הן חסר הן יתר"
The next Mishnah states that if the seller says: "מדה בחבל אני מוכר לך הן חסר הן יתר" – “I am selling you this size land as measured by a rope, whether it is less or more,” thereby using a contradiction of terms, בטל הן חסר הן יתר מדה בחבל – the phrase “whether less or more” nullifies the phrase “as measured by a rope,” and the second term is followed (allowing insignificant discrepancies). In the reverse case, we would follow the phrase “as measured by a rope” (requiring precise measurement). This Mishnah is Ben Nanas’’s opinion. Rav says the other Tannaim disagree with בן ננס, and consider it a safek about which term is primary, and would divide the disputed amount. This refers to a Mishnah about a bathhouse which was rented for “twelve gold [dinars] for a year, one gold dinar per month.” The year was a leap year, and a question arose if the thirteenth month was included in the price of “a year,” or must be paid separately at the “monthly” rate. Rabban Shimon ben Gamliel and Rebbe Yose ruled: יחלוקו את חדש העיבור – they divide the [extra] month. Rav explains that they consider it an uncertainty which phrase we should follow.
- Shmuel: Tannaim argue with בן ננס and follow the מוחזק
Shmuel also says Tannaim disagree with בן ננס, but he says they hold: הלך אחר פחות שבלשונות – follow the lesser of the two expressions, i.e., whichever term gives the buyer less. They also consider it a safek, but hold that the מוחזק is protected. Thus, where the seller was already paid, he gets the benefit of both phrases: If he gave too much land, we follow the "מדה בחבל" phrase and it must be returned; if he gave too little, we follow the "הן חסר הן יתר" phrase and allow the approximate measurement. The Gemara eventually proves that Shmuel himself rules like these Tannaim (and not בן ננס), because he explained that the case of the thirteenth rental month, where the Tannaim ruled יחלוקו, was בבא באמצע החדש – where [the landlord] came in the middle of the thirteenth month to demand pay. Therefore, the first half, which already passed, is considered in the renter’s “possession,” and the second half is considered in the landlord’s “possession.” Had the landlord come in the beginning of the month, he would collect full pay, and had he come at the end, he would collect nothing.
- Rav: איסתרא מאה מעי, מאה מעי
Rav Huna quoted Rav saying that if a seller offered a price of "איסתרא מאה מעי" – an istera, one hundred ma’os (the first term equaling 96 perutos, and contradicted by the second phrase of one hundred), מאה מעי – the buyer pays one hundred [perutos]. If he said the opposite, "מאה מעי איסתרא" then he only pays איסתרא, 96 perutos. Thus, Rav rules like בן ננס, that we follow the latter expression. The Gemara asks what Rav Huna is teaching, since Rav already informed us that he holds תפוס לשון אחרון, because he said: אי הואי התם – If I had been there by the incident of the thirteenth rental month, הוה יהיבנא כוליה למשכיר - I would have given it entirely to the landlord, following the latter expression of “a dinar per month”!? It answers that Rav’s ruling there could have been explained, not based on following the latter of two contradictory expressions, but that פרושי קא מפרש – [the landlord] was merely clarifying his first expression with his second, to account for a possible leap year and ensure he would be paid for the additional month. Rav Huna taught that Rav follows the לשון אחרון even where it contradicts the first.
