OUTLINES OF HALACHOS FROM THE DAF
Prepared by Rabbi P. Feldman of Kollel Iyun Hadaf, Yerushalayim daf@dafyomi.co.il http://www.dafyomi.co.il
1) WHO CAN RETRACT FROM A MISTAKEN SALE?
(a) Gemara
1. (Mishnah): There are four laws of (retraction from)
a sale. If Reuven sold to Shimon (what was
understood to be) good wheat, and it was found to be
bad, Shimon can retract. If he sold bad wheat, and
it was found to be good, Reuven can retract. If it
was like it was understood to be, neither can
retract.
2. In the following cases, either can retract. He sold
red wheat, and it was found to be white, or olive
wood, and it was found to be sycamore, or wine, and
it was found to be vinegar, or (in any of these
cases) vice-versa.
3. (Rav Chisda): If Levi sold to Yehudah something
worth five for six, and its value increased to
eight, only Yehudah can retract, for he was
overcharged. He can say 'had you not overcharged me,
you could not retract. Now that you overcharged me,
can you retract?!'
4. Support (Mishnah): If Reuven sold good wheat, and it
was found to be bad, Shimon can retract.
5. Bava Metzia 50b (Beraisa - R. Noson): If the Ona'ah
is more than a sixth, the sale is void.
6. Rebbi says, whoever was deceived has the upper hand.
He can void the sale, or demand payment of the
Ona'ah.
(b) Rishonim
1. The Rif and Rosh (5:13) bring the Mishnah.
i. Ran (DH Yafos): When it was good (or bad) like
he sold, what is the Chidush that neither can
retract? Rav Hai Gaon says that even if they
were found to be the best that there are, the
seller cannot say that he was underpaid, since
he sold good. Even if they were found to be the
worst that there are, the buyer cannot say that
he overpaid, since he bought bad. The Rambam
says that the Chidush is, even if it was not
the worst or best that there is, neither can
retract. Both of these are true.
2. Rambam (Hilchos Mechirah 17:1): There are four laws
of sales. If Reuven sold good wheat, and it was
found to be bad, Shimon can retract. If he sold bad
wheat, and it was found to be good, Reuven can
retract. If he sold bad wheat and it was found to be
bad, or he sold good wheat and it was found to be
good, even if it was not the worst or best that
there is, and there is Ona'ah of a sixth, neither
can retract. He acquires, and the Ona'ah is
returned.
i. Hagahos Maimoniyos (1): The same applies if he
sold Stam (neither can retract, even if it was
found to be good or bad).
ii. Magid Mishneh: If he sold good and it was found
to be bad, even if the difference in value is
less than the Shi'ur of Ona'ah, Shimon can
retract, for this is Shinuy Shem; it is like a
small change in the item. Reuven cannot
retract, for it is not a totally different
item. Reuven can retract if he sold wheat and
Shimon told him that it is bad, and it was
found to be good.
3. Rambam (2): However, in the following cases, either
can retract. He sold red wheat, and it was found to
be white, or olive wood, and it was found to be
sycamore, or wine, and it was found to be vinegar,
or vice-versa. Either can retract, for it is not the
species he sold. The same applies to all similar
cases.
i. Hagahos Ashri (Bava Metzia 2:9): A case
occurred in which Levi bought (what was assumed
to be) tin from a Nochri smith, in order to
cover his roof. He sold it to David. It was
found to be silver covered with tin. The Re'em
exempted David, for Levi did not acquire the
silver, since he did not know about it. R. Tam
agreed.
ii. Mordechai (Bava Metzia 291): Reuven claims that
Shimon sold him a golden item and said that it
is gold, and he broke it and found that it is
of tin. He demands his money back, for the
Ona'ah is above the Shi'ur and it is Bitul
Mekach. Shimon says 'I did not promise anything
to you. I sold to you like I bought it. Also,
when I bought it from the Nochri who swindled
me, you wanted to buy it. When I sold it to
you, I did not know that I swindled you. If you
will swear that I promised that it is of gold,
I will return your money.' Rabbeinu Meir said,
even though he did not promise that it is of
gold, since externally it looks like gold, and
the price proves that he paid for gold, it is a
Mekach Ta'os. Even though Devarim sheb'Lev
(unspoken intentions) have no effect, and he
did not say that it is gold, it is as if he
said it, for we know that the sale was based on
the assumption that it is gold. This is like
one who sold, and he did not need the money.
Even though he sold Stam, it is a Mekach Ta'os
and the item and money are returned. In many
such cases, Devarim sheb'Lev count. However, if
Shimon does not believe that the inside was
tin, he swears that he does not know that there
was tin inside, and he is exempt. Even though
the Gemara did not answer whether there is a
time limit to claim Bitul Mekach due to Ona'ah
above a sixth, here it is surely Mekach Ta'os,
like one who bought red and it was found to be
white. There, some prefer white. Here, all
prefer gold!
iii. Poskim
4. Shulchan Aruch (CM 233:1): If Reuven sold a kind of
Peros and gave a different kind, there is no sale.
Either can retract. E.g. if he sold white wheat, and
it was found to be red, or wine, and it was found to
be vinegar, or olive wood, and it was found to be
sycamore, or vice-versa.
i. SMA (1): Even if what he received is worth more
or less than what was supposedly sold, either
can retract, for it is a different species.
However, if he sold good and it was found to be
bad, since it is the same species and all
prefer good, only the buyer can retract. If he
sold bad and it was found to be good, only the
seller can retract.
5. Shulchan Aruch (ibid): However, if he sold good
wheat, and it was found to be bad, Shimon can
retract, even if there was no Ona'ah regarding the
amount. Reuven cannot retract, even if the price
rose.
i. SMA (2): This is because some want to buy only
good, even if it is expensive, and not bad,
even if it is cheap.
6. Shulchan Aruch (ibid): If he sold bad wheat, and it
was found to be good, even if there was no Ona'ah
regarding the amount, Reuven can retract. Shimon
cannot retract, even if the price dropped. If he
sold bad wheat and it was found to be bad, or he
sold good wheat and it was found to be good, even if
it was not the worst or best that there is, and
there is Ona'ah of a sixth, neither can retract. He
acquires, and the Ona'ah is returned.
7. SMA (4): When worse ones are found, one might have
thought that the buyer can retract and say 'since
these are not the ones I bought, I retract', for any
reason that he wants to retract. We learn that this
is not so.
8. Nesivos ha'Mishpat (Bi'urim 2): When worse ones are
found, one might have thought that the seller can
retract!
9. Rema: If he sold meat assumed to be from a castrated
ram, and it was found that it was not castrated, the
sale stands and he returns the Ona'ah, unless it is
known that the buyer is finicky and eats ram meat
only if it was castrated. The same applies to all
similar cases.
i. Source: Terumas ha'Deshen 322, cited in Beis
Yosef DH Kasuv.
ii. Gra (3): This is even though most people have
no preference, like we find in Bava Basra 23a
(the Halachah is concerned for what finicky
people are concerned for).
10. Rema: If he sold refined silver, and it was found to
have impurities, the sale stands and he returns the
Ona'ah, for it is all the species of silver.
i. Beis Yosef (DH v'Chosav): Avi'asaf says that he
cannot retract unless there is a Shi'ur of
Ona'ah (for Bitul Mekach).
ii. Question (Shach 1): Why is this different than
a sale of good, and it was found to be bad?
Perhaps the Rema means 'do not say that either
can retract, rather, only the the buyer can
retract.' Perhaps the text should say 'the
seller cannot retract.' Ra'avan explicitly says
so. Rashdam says that Avi'asaf is a lone
opinion.
iii. Answer (Gra 4): Avi'asaf holds that in our
Mishnah, the buyer can retract due to Ona'ah.
This is like R. Noson (it seems that this
should say 'Rebbi', or 'Rebbi, who argues with
R. Noson'), who says that he has the upper
hand. Rav Chisda supports this, but the Rashbam
says that all agree to our Mishnah, and the
Rambam says that our Mishnah is even when there
is no Ona'ah.
Other Halachos relevant to this Daf:
WHO MAY RETRACT WHEN THERE WAS ONA'AH? (Bava Metzia 50)
A MISTAKEN SALE IN WHICH THE ITEM CANNOT BE RETURNED (Bava Basra 93)
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