ז׳ בניסן ה׳תשע״ז (April 3, 2017)

Bava Batra 71a-b: Selling Vs. Giving

Is there any reason to assume that an owner who sells land to a purchaser has different intent than someone who gives his land away as a present?

According to the Mishna on today’s daf there is a difference between a sale and a present. The Mishna teaches that generally speaking, someone who sells a field – even if he agrees that the sale includes the field and all that it contains – does not include independent entities that are on the field, e.g. a gat – a stone vat that is part of the wine-press or a shovakh – a dovecote. If the field was given as a gift, however, then it would include those objects (although it would not include other things that are on the field but are foreign to it).

The Gemara asks why we should distinguish between a sale and a gift. Its conclusion is that someone who gives a gift gives it be-ayin yafah – in a generous manner – while the seller can be assumed to be more miserly about what he is offering.

One suggestion raised by the Gemara is that in one case he should have clarified the situation and in the other case there was no need for the situation to be clarified.

The Rashbam offers two explanations for this statement:

  1. If someone who gives a gift wants to keep something for himself, he should have clarified his intent, since ordinarily a gift is given generously. A seller, on the other hand, is understood to desire to minimize what he is selling (the Gemara assumes that real estate sales are usually made because of financial distress) so we know that he will offer few details in the hope that he can keep as much for himself as possible.
  2. In the case of a sale, we anticipate that the purchaser will demand as much information as possible and will make his interests and desires clear. Since he is paying for the field, he is well within his rights to make as many demands as he can to get the most for his money. Thus, anything that is not specified remains the property of the seller. If someone is receiving a gift, however, he is embarrassed to make demands, since he recognizes that he is receiving the field without any payment. Therefore, if the person giving the gift wants to retain any of it for himself, he must specify what he wants to keep.
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