Bava Kamma 12a

Go and return [them] - The Gemara in Sanhedrin 33a discusses two errors that a judge might possibly make: A) Erring in a matter that is discussed in a Mishna. This is a blatant error and the judge can undo his decision. The money is returned from the winner to the loser and the judge need not pay anything. B) Erring in judgment. This is a more subtle error. The judge cannot retract the decision, but he must repay the losing party from his own pocket. Rav Nachman said: Go and retract your decision, even though it is not clear in any Mishna that slaves are considered movable objects and not realm property. Tosafot explains: Rav Nachman considered them, all the judges that disagreed with him, as erring in a matter discussed in a Mishna, even though it is not specifically clear from any Mishna that slaves are not to be considered as real property, Rav Nachman held that they can retract their decision and do not have to pay. His opinion is based on a Braita as the Gemara says. The Gemara in Sanhedrin adds that an error in a matter taught in a Braita and even one taught by the amoraim is also the same as erring in a Mishna. It is only when the error is one of judgment as the Gemara explains there that the judge cannot retract his decision and must pay from his pocket.

I know a Braita - It is true that this Braita does say that slaves are considered as movable, but this Braita is not the only Mishna or Braita that discusses this issue. Even though that in many places we find that slaves are treated like real property, for example in the matter of price fraud, and swearing, where it is clear in those Mishnayos that slaves are treated as land. For example: the laws of price fraud are not in effect when buying and selling land. So too, when buying and selling slaves the laws of price fraud are not in effect. One does not swear about a claim that involves land. So too, he does not swear about a claim that involves slaves. Why is Rav Nachman so certain that Avimi’s Braita is to be followed as halochoh and not the Mishnayos that deal with swearing and price fraud? R’I says: that here in our Gemara’s discussion of whether slaves are treated as real property or as movable objects, we are speaking only about what pertains to Rabbinical law, and to collect from heirs and from purchasers, whereas the laws governing price fraud and swearing are Torah law. And he holds that an automatic lien on a debtor’s property is not Torah law and one can collect only by Rabbinical ordinance. Rav Nachman compares the collection of debts from purchasers and heirs to the statutes of Pruzbul, which allows one to collect debts after the Sabbatical year, by Rabbinic injunction and the transfer of property called קנין אגב which is affecting a transfer of ownership of the movable together with the transfer of ownership of the real property. And for the issue of Pruzbul, which is clearly a Rabbinic law, and the transfer of movable objects ‘together’ with land, which are also of Rabbinical origin. And even though this law is derived from a verse about the fortified cities, which says that the movable objects were transferred ‘together’ with the land, if so, how can we say that it is Rabbinic law? That verse is merely offered as support of the Rabbinic ruling, but it is not actually the source of the law. Tosafot must now examine whether this hypothesis, that our Gemara is speaking only about the status of slaves in regard to Rabbinical laws is consistent with all of the cases discussed here in our Gemara. Towards the end of this page the Gemara introduces a contradiction of Braitas. One Braita says that when one takes possession of land he also takes possession of slaves. Another Braita says that he cannot take possession of the slaves together with the land. The Gemara reconciles this contradiction by saying the Braita that says one does take possession of the slaves is speaking of when the slaves are on the property, the Braita that says he does not take possession of the slaves is speaking of when the slaves are not on the property. Tosafot understands that the effective legal transfer in this case is because the slaves are considered as land and when one takes possession of one parcel of land he can take possession of many tracts of land in distant places. The Gemara asks: why should the same not apply to slaves? Since they are considered as land the transfer of one piece of land should be effective for any other parcel of land and in this case the slaves. And later when the Gemara says: according to that version that Rav Eeko son of Rav Amee said that slaves are similar to land, why is it necessary that they be standing in it, i.e. the parcel of land that is being transferred? Since the slaves are considered land, the transfer for one parcel of land should be effective for many parcels even though they are not attached. The Gemara is now working with the notion that the legal transfer for the slaves is effective because they are considered as land; they are included in the legal transfer of the actual land. This is a transfer by Torah law. However, according to Tosafot, since the legal transfer for the slaves that are sold together with land is one of Torah law, the slaves should be treated as land according to all opinions. It is only in regard to Rabbinical law that one opinion holds that the slaves are considered movable objects. Even according to the one who says that slaves are like movable objects, the Gemara could have asked this question: why must the slaves be on the property when the legal transfer is performed? For they are considered as movable objects only as far as matters that are Rabbinical law and the transfer of the slaves together with land is a Torah law, where all agree that slaves are considered as land. However, this is not a strong question, because anyhow the Gemara asks an excellent question. Tosafot will now deal with another Gemara that discusses whether slaves are similar to land or to movable objects: And that which the Gemara seeks to deduce in Chapter HaMochair Es HaBayis (Bava Batra 68a) whether slaves are like movable objects or like land from the Mishna that rules that if one sells a city all structures are included in the sale, but if the seller said “the city and all which is in it”, and there were slaves and animals in the city they are all sold. And the Gemara also cites this in Chapter Me Shemais (Ibid. 150a) in regard to one who says: “my movable objects are given to Plonee”. Did the giver include his slaves in this gift or not? Those two Gemaras are not relevant to the issue we are discussing here, because there it is dependent on people’s use of language. There are two issues to consider when we are attempting to determine what is included in a sale: A) What did the seller or giver, intend to sell or give? This is determined by how people express themselves. It is not dependent on the strict legality of what is considered as land and what is considered as movable. That is the issue discussed in Bava Batra 68a. B) What can the method of transfer accomplish? Can it legally transfer slaves or not? This depends on whether slaves are legally considered as slaves or as movable objects. This is the issue discussed in our Gemara.

A Pruzbul is effective where there is land - The debtor must have land for the Pruzbul to be effective. Tosafot in Gittin 37a says that usually loans are made to people that own land so that the loan will be secure. A loan that is made to a person who does not own land is unusual and the Rabonon did not institute their laws for unusual situations. We write a pruzbul only for a loan that is secured by something that cannot be destroyed; anything that can be destroyed is not adequate security for a loan. There seems to be a contradiction: And even though we do write a pruzbul upon a punctured flower pot (Gittin 37a), which could be destroyed, which seems to contradict the reason Tosafot offered for this ruling, however, since a punctured flower pot is considered land because of its connection to the earth via the hole, the Rabonon did not distinguish between one type of land and another.

[He] sold him slaves and land - There are two possible kinyonim that might be effective in making a legal transfer when one makes the kinyon in the courtyard and expects to take possession of the slaves with that very same kinyon: A) Kinyon of courtyard i.e. I take possession of things that are in my ‘חצר- courtyard’ by virtue of the fact that they are in my courtyard. B) The kinyon of taking possession of movable objects ‘אגב- together’ with land. I make the necessary kinyon for the land and the movable objects become mine ‘together’ with the land. Tosafot will prove that the Braita quoted in the Gemara must be speaking about the kinyon of ‘אגב- together’ and not about the kinyon of ‘חצר- courtyard’. One of the rules of the kinyon of ‘courtyard’ is that the items must be secure within the courtyard under the control of the owner of the courtyard who is seeking to take possession. If for example a deer is running through my courtyard and I cannot reach that deer, my courtyard will not take possession of the deer for me. It is only when the deer has a broken leg and I can reach the deer before it leaves my property that the kinyon of ‘courtyard’ is effective. This Braita that differentiates between when the kinyon is made for land and movable objects and when it is made for land and slaves is speaking about the kinyon of ‘אגב- together’, for if the kinyon the Braita is discussing is that the movable objects or the slaves are in the buyer’s ‘חצר- courtyard’, for as soon as the land becomes his, the slaves or movable objects are on his property, why does the Braita differentiate when one takes possession of the land, between when there are slaves or movable objects on the property? The halochoh should be the same for both. If the kinyon of ‘חצר- courtyard’ is effective for movable objects, it should also be effective for slaves. For if the objects in the courtyard are secure because of his being there, in either case, when acquiring the slaves or the movable objects, the kinyon is effective, and if the objects in the courtyard are not secure because of his being there, in either case the kinyon is not effective. There is no inherent difference between slaves and other movable objects as far as kinyon ‘חצר- courtyard’ is concerned. Why would the Braita differentiate between the two? If the kinyon we are discussing is ‘אגב- together’ then it stands to reason that there is a difference between slaves and movable objects. One may take possession of movable objects ‘together’ with land, but not of slaves that are like land together with land. See next Tosafot.

We require [it to be] similar to fortified cities - The reason that when one makes a proper kinyon for the slaves he does not become the owner of the movable objects is because the kinyon of ‘אגב- together’ was taught only for such land that is similar to the ‘fortified cities in Judea’ that are not movable. Slaves, even though they are similar to land for many issues of Torah law, are not similar to the ‘fortified cities’, that are the source of the kinyon of ‘אגב- together’. But what about taking possession of slaves when one makes the kinyon on land? And when one takes possession of land, the kinyon is not effective for slaves, because one cannot take possession of land ‘אגב- together’ with land. The verse from which this kinyon is derived speaks only of taking possession of movable objects together with land and the kinyon is limited to what we can derive from its source. As the Gemara will soon discuss, a kinyon that is effective for one parcel of land is effective for many parcels of land even though they are not contiguous. We need to know why the same theory cannot be applied to one who makes a kinyon on land and wants to take possession of slaves at the same time.

The halakha is [that] where [a slave is] bound up - The Gemara cited two Braitas that contradict each other. A) The first Braita says that if one took possession of a slave he does not acquire movable objects together with the slave. B) The second Braita says that one does acquire ownership of the movable objects when taking possession of a slave. The Gemara offers two approaches to reconcile the contradiction. In the second approach Rav Eeko son of Rav Amee says: that both Braitas agree that slaves are like movable objects and the kinyon of ‘אגב- together’ is not effectual. However, the Braita that says one does acquire the movable objects is speaking about objects that are on the person of the slave, such as his clothing. He acquires those because the slave’s body is the equivalent of a ‘חצר- courtyard’. The Gemara asks: the slave is a ‘walking courtyard’ and is not capable of acquiring. Ultimately the Gemara says that we are speaking of a slave who is tied and cannot move. His body is considered a non-moving courtyard and is capable of acquiring movable objects. Tosafot will show that there is another condition that must be met for the kinyon to be effective. That is that the object that one is acquiring must be secure in the courtyard, under the control of the one who is acquiring the object. The Gemara in Masechet Gittin 78a discusses this requirement. And we must also say that it, the Braita that says one does acquire the movable objects on the slave, is speaking of a slave who is sleeping. There are two factors needed to make this kinyon work: Because, that the slave is tied, accomplishes that he is not a ‘walking courtyard’, and that he is sleeping accomplishes that the object being acquired is secure, under his control, as the Gemara says in Chapter HaZoraik (78a), in regard to one who wrote a divorce document for his wife and he placed it into the hand of her slave. If the slave is sleeping and she, the wife, is guarding it, the document, this is a divorce, she has taken possession of the document via the slave who is her ‘courtyard’ and she is legally divorced even though the document did not arrive in her hand. If the slave is awake, it is not a divorce, because the slave is a ‘courtyard’ that is secured, but not under her control. A slave who is awake is in control of himself and the divorce document. The Gemara there in Gittin is not satisfied with her acquiring the divorce document because the slave is sleeping. And the Gemara asks: when the slave is asleep, why is the divorce effective; the slave is a ‘walking courtyard’? The Gemara suggests: And if you should say: that when the slave is asleep, it is different because the slave cannot move while he is sleeping. But Rovo said: in any case where if the slave is walking, one could not acquire via the slave because he is a walking courtyard, even if he is standing or sitting one cannot acquire via the slave because he is still considered a walking courtyard, since he has the ability to walk away even if he is presently standing or sitting. The Gemara equates sleeping to standing and sitting and holds that when a slave is sleeping he is also considered a ‘walking courtyard’. The Gemara there answers: and the halochoh is that the kinyon is effective when the slave is tied and he cannot move when he wants to. The Gemara there added the requirement that the slave be tied to the previously mentioned condition that he be sleeping. We see that even though the Gemara ultimately interprets the Gemara as speaking of when the slave is tied, even so when he is awake, it is not a divorce. Two conditions must be met. The slave must be tied and sleeping. Tosafot suggests an alternate approach to understanding that Gemara so that we will not have to add the requirement that the slave is sleeping to our Gemara and then rejects this suggestion. And one should not explain that when the Gemara in Gittin says: the halochoh is so that the divorce is effective when the slave is tied, it means to say: when the slave is tied he is not considered as a ‘walking courtyard’, and he is not similar to a standing or sitting slave. And since tying the slave is effective, being asleep which is similar to being tied is also effective and the divorce is valid if the slave is sleeping even though he is not tied. For if it were so, that Rovo is speaking of when the slave is sleeping but not tied, why does Rovo say that if he, the slave, is awake it is not a valid divorce, because the slave is a courtyard that is secured, but not under her control? He should deduce that the divorce is not valid because the slave is a walking courtyard when awake. Rovo did not need to introduce the reason that it was not under her control. And so did Rashi explain in Chapter HaZoraik (Gittin 78a): ד"ה והלכתא בכפות, and Rashi says there: and it is in that case, when the slave is tied, that Rovo said that when he is awake the divorce is invalid. We see that Rashi holds that being tied is insufficient to make the divorce valid, the slave must also be asleep. And so too did Halochos G’dolos rule, that it is required that the slave be tied and asleep.

When [the slaves] are standing within - Earlier the Gemara quoted a Braita that said one who takes possession of land does not acquire slaves ‘אגב- together’ with land. That very same Braita says that one does acquire movable objects in this manner. We will refer to this Braita as the first Braita. The Gemara cited a second Braita that says one can acquire slaves together with land. There seems to be a contradiction. The Gemara reconciles the contradiction by saying that the second Braita is speaking of when the slaves were on the land that was acquired. By extension we must say that the first Braita is speaking of when the slaves were not on the property at the time of the kinyon and that is why they were not acquired together with the property. That first Braita also says that one acquires movable objects when taking possession of the land. Just as the slaves in that first Braita were not on the property, those movable objects must also not be on the property that is being acquired. And that first Braita which says that one does not acquire slaves together with land, must be speaking when the slaves are not standing on it, the land. What does this teach us about the movable objects that are acquired together with land? And even so that first Braita teaches us that one does acquire movable objects, even though they too, perforce, are not on the land that is being acquired, because it is not required that movable objects that do not propel themselves be upon the land that is being acquired for the kinyon of ‘אגב- together’ to be effective. Tosafot is proving that it is evident within the first Braita that the movable objects need not be upon the land. A bit later the Gemara introduces this idea by saying “it is known to us” that the movable objects need not be upon the land. This introduction implies that this information is known to us from elsewhere. And later when the Gemara asks: “but it is known to us” that it is not required that the movable objects be upon the land, which implies that this information is from an outside source, the Gemara could have deduced this from the very Braita that we are discussing.

Why do I [need the slaves to be] standing within? Earlier the Gemara quoted a Braita that said one who takes possession of land does not acquire slaves ‘אגב- together’ with land. That very same Braita says that one does acquire movable objects in this manner. We will refer to this Braita as the first Braita. The Gemara cited a second Braita that says one can acquire slaves together with land. There seems to be a contradiction. The Gemara reconciles the contradiction by saying that the second Braita is speaking of when the slaves were on the land that was acquired. By extension we must say that the first Braita is speaking of when the slaves were not on the property at the time of the kinyon and that is why they were not acquired together with the property. That first Braita also says that one acquires movable objects when taking possession of the land. Just as the slaves in that first Braita were not on the property, those movable objects must also not be on the property that is being acquired. And that first Braita which says that one does not acquire slaves together with land, must be speaking when the slaves are not standing on it, the land. What does this teach us about the movable objects that are acquired together with land? And even so that first Braita teaches us that one does acquire movable objects, even though they too, perforce, are not on the land that is being acquired, because it is not required that movable objects that do not propel themselves be upon the land that is being acquired for the kinyon of ‘אגב- together’ to be effective. Tosafot is proving that it is evident within the first Braita that the movable objects need not be upon the land. A bit later the Gemara introduces this idea by saying “it is known to us” that the movable objects need not be upon the land. This introduction implies that this information is known to us from elsewhere. And later when the Gemara asks: “but it is known to us” that it is not required that the movable objects be upon the land, which implies that this information is from an outside source, the Gemara could have deduced this from the very Braita that we are discussing. Why do I [need the slaves to be] standing within? See introduction to the previous Tosafot. The Gemara is presently analyzing the second Braita that says that when one takes possession of land he also simultaneously acquires the slaves. The Gemara said that this second Braita is speaking of when the slaves are in the courtyard, whereas the first Braita is speaking of when they are not in the courtyard and that is why one who takes possession of the courtyard does not acquire the slaves. The Gemara now asks: we can understand that if you hold that slaves are considered as movable objects, there is a difference whether the slaves are in the courtyard or not, (the Gemara will soon challenge this assumption), but according to the version of Rav Eeko son of Rav Amee who holds that slaves are considered as land, why would the slaves need to be in the courtyard? The Gemara’s question presumes that the Gemara understands exactly how one could acquire slaves that are considered as land together with land and that this system is effective even if the slaves are not on the property at the time of the kinyon. What is this kinyon? Tosafot will explore the possibilities and tell us why some of them were rejected. At first glance the possible kinyonim are: A) The kinyon of ‘ חצר -courtyard’. B) The kinyon of ‘ אגב -together’. C) A kinyon that is operative for the land, which is effective for both land and slaves simultaneously, that is not one of the above. Tosafot will now analyze all the possibilities. The explanation of our Gemara that assumes the kinyon for the land and the slaves does not require that the slaves be on the land is as follows: we are compelled to say that it is not because of ‘ חצר - courtyard ’ that one acquires the slaves together with the land, because ordinarily slaves are not secured under the control of the owner of the courtyard, and even when the owner is standing on the side of his field, the slave is not considered secured under the control of the owner of the field, because the slave is comparable to a deer running normally, about which the Mishna says in Bava Metzia 11a that the owner of the field cannot take possession of the deer via the kinyon of ‘חצר-courtyard’ because the deer is not under his control. So too, a slave who has independent intelligence is not under the control of the owner of the land who is attempting to acquire him. Perhaps the kinyon the Braita is discussing is ‘ אגב -together’? And because of ‘ אגב - together ’ one can also not acquire slaves that are considered as land together with land, because land is not acquired ‘ אגב - together ’ with other land. The verse in Divrai Hayomim 2, 21, 3, that teaches us of the kinyon of ‘אגב-together’ speaks specifically of movable objects together with land, not of land together with land. Tosafot offers an example of this ruling that land cannot be acquired together with land through the process of ‘ אגב -together’: And even if one said: acquire the land that is adjacent to the boundary, and together with it acquire the upper land, where we now have a case of this parcel of land on top of this parcel of land, one does not acquire the upper land via the kinyon of ‘ אגב-together’. Tosafot has now rejected the notion that the kinyon the Braita is discussing might have been ‘ חצר -courtyard’ or ‘אגב- together ’. Is there another possibility? Rather, we are compelled to say that the reason one does acquire slaves together with the field, that is because the slaves are considered as attached to the land, just as one parcel of land is attached to another. Since the slaves are considered as land they are also considered as attached to actual land. The kinyon that is effective for one parcel of land is simultaneously effective for other parcels of land as the Gemara will now demonstrate from Shmuel’s statement on the subject. And if so, even when they, the slaves, are not standing in it, the courtyard, one should also acquire the slaves when taking possession of the land. For this is similar to ten fields in ten provinces, where the rule is that when one takes possession of one of them, the fields, he acquires all of them. The Gemara has concluded according to Tosafot’ understanding that the kinyon the Braita is discussing is not ‘אגב- together’ nor ‘ חצר- courtyard’, but it is any kinyon that is valid for acquiring the land which is simultaneously effective for other parcels of land. Tosafot now explains how the Gemara in Masechet Bava Batra 54a which seems to be contradicting our Gemara can be reconciled with our Gemara. The Gemara there is discussing a field that has definite boundaries and one is performing a kinyon of חזקה by doing some physical improvement for the field. Rav says: that as soon as he digs into the ground he has taken possession of the entire field. Shmuel disagrees. And that which Shmuel says in Chapter Chezkas HaBotim (Bava Batra 54a) that when digging in a field to take possession by חזקה, he only acquires the place where he dug into the ground, which seems to contradict Shmuel’s statement here that he can acquire even ten fields in ten provinces: That is true only for the property of a convert which is ownerless. A convert may have no heirs. If he had no children after becoming a convert and he did not make any provisions to dispose of his property upon his passing, it becomes ownerless upon his death. However, if another person is transferring it, the property to the one who is acquiring it, he acquires all ten fields in ten provinces. And that which the Gemara says there, Bava Batra 55a, that a natural boundary interrupts the power of the kinyon to acquire that which is beyond that boundary, that also is true only when the property is the estate of a convert, or for a sale and the purchaser did not pay them for all the fields, for it is required for this kinyon to be effective for all ten fields that he pays for all of the fields, as is evident in the first chapter of Kidushin (27b).