Avodah Zarah, Daf Ayin Bet, Part 1

 

Introduction

Today s sugya deals with a person who promised to sell a piece of land to one person and then went and sold it to someone else.

 

ההוא גברא דא"ל לחבריה אי מזביננא לה להא ארעא לך מזביננא לה. אזל זבנה לאיניש אחרינא

אמר רב יוסף קנה קמא

א"ל אביי והא לא פסק

 

A man once said to his fellow, If I sell this piece of land, I will sell it to you, but he went and sold it to another person.

R. Joseph said: The first one acquired it.

Abaye said to him: But he had not settled the price!

 

According to R. Joseph, the fact that he promised the land to the first person, means that the first person has acquired it. Abaye holds that unless they had set a price the first person has not acquired the land.

ומנא תימרא דכל היכא דלא פסק לא קנה דתנן המוכר יינו לעובד כוכבים פסק עד שלא מדד דמיו מותרין מדד עד שלא פסק דמיו אסורין

 

[R. Joseph asked:] And what is the source for your saying that wherever he had not settled the price he has not acquired it?

[He replied:] As we learn in our Mishnah: If [a Jew] sells his wine to a non-Jew if he set the price before he measured it out, the purchase-money is permitted;

But if he measured it out before he set the price, the purchase-money is prohibited.

 

Abaye uses the Mishnah that we have been learning to prove that once the price has been set the purchaser has acquired the goods. As long as the Jew sets the price before he measures it out, the non-Jew has acquired the wine and become obligated to pay before the wine becomes nesekh.

 

מאי הוי עלה מאי הוי עלה כדקאמרינן דלמא חומרא דיין נסך שאני

 

What is said about this? What is said about this ? It is as we said!

Perhaps the stringency of yayin nesekh makes this case different.

 

R. Joseph would argue that when it comes to yayin nesekh, the rule is more stringent. Generally speaking simply a promise to sell is sufficient for the buyer to acquire the goods. But with yayin nesekh a price must be set.

 

ת"ש דאמר רב אידי בר אבין עובדא הוה בי רב חסדא ורב חסדא בי רב הונא ופשטיה מהא דתנן משך חמריו ופועליו והכניסן לתוך ביתו בין פסק עד שלא מדד ובין מדד עד שלא פסק לא קנה ושניהן יכולין לחזור בהן

פרקן והכניסן לתוך ביתו פסק עד שלא מדד אין שניהן יכולין לחזור בהן מדד עד שלא פסק שניהן יכולין לחזור בהן

 

Come and hear: R. Idi b. Avin said: A similar case came before R. Hisda who referred it to R. Huna who solved it from that which is taught: If a man took possession of [the produce loaded onto another s] donkey-drivers [or produce carried by] his workmen and brought them [the people] into his own house, whether he settled the price before measuring [the produce] or measured it without having settled the price, he has not acquired them and both can retract.

If, however, he unloaded them and brought them into his house, then should he have settled the price before he measured them neither can retract, and should he have measured them before settling the price both can retract.

 

In the first half of this baraita, the buyer brings the worker s carrying the produce into his home. This does not count as meshikhah and therefore he does not acquire the produce, even if he sets a price.

However, if he unloads the produce, then he has performed meshikhah. In this case, if they set the price then neither can retract. This accords with Abaye. Setting the price is irrelevant if the buyer has not taken possession of the goods.