And claimants come forth about [the ownership of the land] - We are discussing Reuven who sold a field to Shimon without accountability, which means that if the field is taken from Shimon, Reuven will not have to return the money. The Gemara relates that there were עסיקין about the field and Shimon wants to annul the sale. What exactly are עסיקין? The word lends itself to two meanings. A) Legal challenges to Reuven’s ownership, either because Reuven himself did not have legal title to the property or because the property was mortgaged for Reuven’s debts. B) People who want to steal the field illegally, by forcing the owner of the property to give up his rights to the field. Tosafot says that in our Gemara it specifically means only one (A) of the two. The meaning of עסיקין is challengers who argue that the field does not belong to Reuven at all. When Shimon hears that Reuven’s ownership is in doubt he wants to back out. But one should not say that the meaning of עסיקין is criminals who want to steal the field from Shimon illegally, for if that were so, even if the field was sold with accountability, when the buyer took possession why can he annul the sale as the Gemara will soon say that he can? Let the seller tell him it is your misfortune that caused the loss. The seller is only accountable for problems that come about because of his ownership. For example if Reuven sold a field that he did not own that is obviously Reuven’s fault. Or if the field is mortgaged for Reuven’s debts, he is responsible to pay Shimon if the field is taken away from him. However, if the field is stolen from Shimon or a flood destroys it, Reuven cannot be held accountable for that, since the problem has nothing to do with him. Hence עסיקין in our Gemara must mean contestant who argue that Reuven never owned the field and not criminals who want to steal the field.
Once he has taken possession [of the land], he cannot retract [his agreement]. Literally משהחזיק means when he took possession. There is a legal transfer called חזקה which is one of the ways to legally transfer ownership of real property from one owner to the next. When Shimon makes a חזקה in Reuven’s field, ownership is transferred to Shimon. See Mishna, Kidushin 26a. Generally this classical type of חזקה requires that one do some small act of improving the property. For example; adding a door, making an enclosure or removing an enclosure are acts that transfer ownership. Rashi holds that our Gemara is also discussing this classical type of חזקה, even though the Gemara suggests a slightly different way of performing the חזקה, such as improving the boundaries of the field by elevating them. See Rashi Bava Metzia 14b. Tosafot disagrees vehemently with Rashi’s explanation of our Gemara. In the first chapter of Bava Metzia (14b) Rashi explained that the חזקה under discussion is effective even though no payment was given for the field, because ownership of land can be transferred by חזקה. Obviously Rashi’s understanding of the חזקה that the Gemara is discussing is the classical legal transfer of acquiring a field. Tosafot has four difficulties with Rashi’s explanation. The first: And this is difficult: if we are simply discussing the legal transfer of ownership, why does the Gemara mention חזקה more so than an acquisition by money or a document which are also effective ways of transferring ownership. Since the connotation of חזקה here is a means of transferring ownership any of the legal transfers could have been mentioned, why did the Gemara specifically speak about חזקה? The second difficulty: And furthermore why does the Gemara ask: when is the חזקה effective? It is a Mishna in chapter Chezkas Habotim (Bava Batra 42a) that when one adds a door, or removes an enclosure or constructs an enclosure he becomes the legal owner of the property. It is very clear how a חזקה is made. The third difficulty: And furthermore, why does the Gemara raise this question here more so than in other places? This question is asked in the Gemara only in reference to this particular issue about the buyer who wants to annul the sale because of those who are contesting Reuven’s ownership. The fourth difficulty: And furthermore, the word דייש-treading, implies merely stepping as when one walks around the boundaries and not as Rashi explained that he improved the boundaries by elevating them. On account of these four difficulties Tosafot constructs an entirely new concept of חזקה in our Gemara that is not found elsewhere. This will explain why the Gemara’s questions about the חזקה are found exclusively in this particular situation. Tosafot will demonstrate that the חזקה discussed here is not the classical חזקה that is usually spoken about together with the other methods of acquiring a field, but rather a form of חזקה that is sometimes needed to finalize a sale in addition to the standard methods of acquiring ownership. And it appears that the explanation is that our Gemara is speaking of when the buyer purchased the field with an absolute act of acquisition such as by exchange, or a document or a proprietary act (חזקה) or plowing the field a bit. Generally, any of these acts of acquisition finalizes the transaction and there is no withdrawal after that point. However, it is within the psyche of a person, that even though he already purchased the field with an absolute act of acquisition, that if challengers will arise who contest his acquisition of the field, he may withdraw from the sale as long as he did not walk around the boundaries of the field, to its length and breadth to see the state of affairs of the field. And that is what is meant by treading on the boundaries. It is because of this understanding of human nature that our Gemara rules that finalizing the transaction is extended somewhat beyond the act of acquisition until the purchaser walks around the field to examine it. Tosafot will now inform us of his opinion that this extension to the finalizing of the transaction is in effect only when money has not passed hands. Once he has paid for the field the buyer has shown that he intends to keep the field under any condition. The act of acquisition is final even though later, challengers contest Reuven’s ownership of the field. And the Gemara is speaking of when the buyer did not give any money and the sale was finalized by a document, exchange or a proprietary act. For if we are speaking of when the buyer gave money, even if the sale was with accountability, why may the buyer withdraw from the sale after he made the חזקה of walking around the field? Since he already made an act of acquisition, gave money and walked around the field, what else is there to do? Will he forever be allowed to withdraw from the sale? We must therefore conclude that our Gemara is speaking exclusively of when money was not yet paid. It is then that we say that a person who is purchasing a field has it within his psyche that he may withdraw from the sale if there will be challengers who contest the sale. Once the buyer paid, that is the finalization of the sale and there are no more extensions. And if you ask: Let the buyer who wants to withdraw from the sale, say to the seller take the land in return for your money. I do not want to accept the land; you take it in place of the money that I owe you. See Hagahos HaGro who questions the validity of Tosafot question. And we can answer: for example the price of land fell and the land is no longer worth the price that it was sold for. If the buyer can withdraw from the sale, he will receive his full purchase price in return. If he must accept the land for its present value he will lose money. Since he does not want to lose any money he must find a way of annulling the sale. Or perhaps, since there have arisen challengers who contest Reuven’s ownership of the field, it is no longer worth as much as it was worth when he bought it and Reuven will not be able to realize the amount of the purchase price by accepting the field in place of the money due him.
Rav Huna says - either money or best-quality [land]. On the surface it seems that Rav Huno’s statement is totally unrelated to the previous topic of discussion. Obviously, we must search for a reason why Rav Huno’s statement is mentioned in our Gemara. This is especially puzzling since the Gemara begins with רב הונא אמר. This introduction usually implies that there was a statement made before Rav Huno addressed the issue and now Rav Huno will offer his answer to the question. Had the Gemara began with אמר רב הונא it would imply that this is the beginning of a new discussion. On 7b the Gemara discussed the seeming contradiction of the verses that discuss the payment of damages. One requires a payment of the finest fields or vineyards and the other requires a payment of cash. Rashi explained that Rav Huno comes to answer the contradiction of the verses mentioned earlier (7b). According to this view we must say that after the initial answer of the Gemara earlier, the Gemara became involved with the ramifications of that solution. After that exchange was concluded, the Gemara returns to its initial question and Rav Huno presents his answer. However, if we turn back to 7b we will see that the Gemara initially asked about the contradiction between the verse that requires the finest and the Braita that says even bran is acceptable. In our Gemara it seems that Rav Huno is answering the seeming contradiction between the verse that requires the finest land and the verse that requires cash. The issue of bran is first raised after Rav Huno reconciled the issue of the finest versus cash. It does not seem that Rav Huno is answering the question raised in the Gemara on 7b. This seems to be a difficulty according to Rashi’s explanation. And one must say that Rav Huno always intended to reconcile the contradiction between the verse requiring the finest and the Braita that says bran is acceptable. He started by explaining the seeming contradiction between the finest and cash, but he did not get a chance to complete his words, and reconcile that contradiction before they asked him their question about the bran. There are those whose text is אמר רב הונא which implies that Rav Huno’s statement is the opening of a new discussion. And it refers to our Mishna that taught that payment for damages must be made with the finest land and Rav Huno said that the payment need not be exclusively the finest land; rather it can be with the finest or with cash. According to this text Rav Huno did not initially intend to reconcile the contradiction between the verse that requires the finest and the Braita that says bran is acceptable. That question was raised only after he stated that the finest and cash are both equally acceptable. Bran is actually not acceptable when one has either cash or the finest. It is only acceptable when the damager has nothing else with which to pay. On 7b, when the contradiction between the Mishna that insists on the finest and the Braita that accepts bran was raised, Rav Papa and Rav Huno the son of R’ Y’hoshua answered that all movable objects are considered the finest, since they can be transported to a place where they are valued. We will now see that according to the second text of our Gemara there is a dispute about this issue. Rav Huno of our Gemara disagrees with that conclusion. And in the book of Rav Alfas, he explains that Rav Huno the son of R’ Y’hoshua and Rav Papa mentioned earlier (7b) disagree with Rav Huno of our Gemara. For they hold that all movable things are considered the finest and even bran, and Rav Huno of our Gemara holds that the finest is either money or land. The Braita that teaches that bran is acceptable is only in the absence of the finest land or cash. And he, Rav Alfas, decides in favor of Rav Papa and Rav Huno the son of R’ Y’hoshua because they are later amoraim. Tosafot will now present Rabbeinu Tam’s opinion who disagrees with Rav Alfas. And Rabbeinu Tam does not hold the same as Rav Alfas, for he explains that there are three methods of payment for damages. One may pay with either a) cash or b) the finest of his fields, and if he does not have either of those he may pay even with c) bran. These are the three possibilities of payment for damages. While on the subject of how one pays for damages Tosafot tells us about some other obligations as well. Perhaps Tosafot teaches us about the payment of other obligations so we can see the contrast between damages and other obligations. And if a debtor has cash he cannot settle the debt with anything but cash. As is evident in the Gemara in Ketubot (86a) in regard to the person who had cash and land with which he could have paid his debt. He insisted that the cash belonged to a gentile. Eventually it was discovered that he was lying. By that time he truly did not have any more cash. The court insisted that the debtor sell the land and deliver the cash to the creditor. The Gemara explains: he did that which was wrong, by refusing to pay the cash to the creditor; therefore the courts did to him that which was wrong, by insisting that he sell the land and give the cash to the creditor. Ordinarily when one only has land with which to pay, that is not the procedure as Tosafot will now explain. And if the debtor has no cash, he the creditor, should not say to him; go to the trouble of selling the land and bring me cash. The creditor must accept the land as the Gemara says there. And a purchaser who found that his purchase was an erroneous purchase and the sale is annulled has the same rule as a creditor. He must be paid with cash and in the absence of cash he must accept whatever else is offered. He cannot demand that the seller’s assets be converted to cash by the seller. And a worker, if the employer has no cash with which to pay and is offering some other form of payment, may say to the employer, go to the trouble of selling whatever it is that you want to pay me with and bring cash, as is evident in Habayis v’Ho’aleeyoh (Bava Metzia 118a) where the Gemara says that the employer cannot say to the employee when he has no cash accept the work that you did as your payment.
[isn't that] obvious? [Is] this one a son and that one not a son? Rav Asi says that cash is equivalent to land. The Gemara is searching for the meaning of Rav Asi’s words. One suggestion is that Rav Asi is referring to two brothers who divided their father’s assets. Reuven accepted land and Shimon cash. Eventually their father’s creditor takes Reuven’s land in payment of his debt. Shimon who received cash must divide the cash with Reuven who had received the land because they are equally responsible for their father’s debts. This may have been what Rav Asi meant when he said that cash is equivalent to land. Both brothers share equally in the debts of their father despite what they received as their share of the inheritance. The Gemara challenges this explanation of Rav Asi’s statement because it is so simple that there is no need for him to teach us this law. The Gemara uses the term: certainly, is this one a son and that one not a son? They are both sons and should share equally in the debts of their father. Tosafot wonders why the Gemara is so sure about this. A bit later in the Gemara we see that Shmuel holds that if two brothers divided land and the land was taken from one of them by a creditor, he cannot demand a re-division of his the inheritance. What difference is there between the two cases? And if you ask: why is the Gemara so positive that the brother who received the land is entitled to a share of the cash? Shmuel soon says, about two brothers who divided land and a creditor came and took away the share of one of them he the brother from whom the creditor collected has foregone his inheritance. We see that there are cases where one brother does not have to re-divide his inheritance with the brother from whom the debt was collected. Why is the Gemara here so positive that the second brother who received the cash must re-divide his share with the brother who received the land? And we can answer: that Shmuel specifically said only when they both divided land, that the brother from whom the debt was collected has foregone his inheritance. For, they both stand equally in the same doubt, this one as that one since both brothers are equally liable to the possibility that their land might be collected by a creditor Shmuel believes that each one accepted his portion with the understanding that he may lose his portion if the debt is collected from it and he may gain if his brother’s portion is collected by the creditor. And it is with this understanding that they divided the land; that the brother who will lose will lose. Beside the possibility that he may lose, there is also the possibility that he may gain. However, here, in the case of one brother receiving land and the other receiving cash where the one who receives the land assumes the possible loss and not the one who received the cash, because the movable assets of orphans including cash are not mortgaged for their father’s debts, it is positively understood that it was with this understanding that they divided; that if the one who received the land would lose he will go back to the one who received the cash to re-divide the inheritance.
And he came and took [the] portion of one of them - The Gemara discusses two brothers who divided land and the creditor collected the land of one of the brother’s. Tosafot wonder how this happened. And if you ask: The law is that each one of the brothers is liable to pay the debts of their father, and a creditor cannot collect the portion of one brother since they are equally liable, as is taught in chapter Yesh Nochalin (Bava Batra 124a). The Mishna there discusses brothers who divided an inheritance and the firstborn received a double portion, if a document of a loan is presented against them, the firstborn must give a double portion towards payment of the debt. Since he receives twice as much as any of the brothers he must pay twice as much as the other brothers. We see that all brothers share in the debts of the father in accordance with the share of the inheritance that they received. And we can answer: that we are speaking here of when the property of one of the brothers was made a specific mortgage for the debt. Usually a creditor’s lien is against a debtor’s property in general, and all brothers must share in the payment. The property of only one of the brothers cannot be seized by the creditor. When a specific mortgage is made, it is only that property that can be used to satisfy the debt and no other. The brother who received that property must surrender his portion. Whether there will be a re-division of the inheritance depends on the dispute in our Gemara.
And Rav says the division is voided - Rav says that when two brothers, Reuven and Shimon, divided land that they inherited from their father and a creditor seized Reuven’s property, the original division of the estate is annulled and the remaining property is to be re-divided between the two brothers. It seems that Shimon, the brother in possession of his land cannot settle with Reuven, the brother whose property was seized, for money, by paying him half the value of the remaining land. This can be seen because the Gemara uses the term, the division is annulled. Annulled implies that the remaining property is to be re-divided as if the original division never happened. In order to understand Tosafot next question we must be fully aware of Rav Asi’s position in the coming Gemara and Rashi’s two explanations of Rav Asi. Rav Asi says that when the property of Reuven was seized he receives from Shimon רביע בקרקע ורביע במעות. The literal translation of these words is usually, a quarter cash and a quarter lands. Sometimes the connecting “ ו” of ורביע במעות can be translated as “or”. Rashi offers two explanations of Rav Asi’s statement: a) There is a doubt if the transaction is thought of as a division of an inheritance or a sale. The sale as Shmuel says is without accountability. If we ruled that it was an inheritance the shares are re-divided and each of the brothers receives twenty five percent of the original inheritance. If we rule that the transaction is a sale without accountability Reuven, the brother whose property was seized, receives nothing. Rav Asi rules that it is a doubt and therefore he receives only twelve and a half percent of the original inheritance which is equal to twenty five percent of his own original share. According to this explanation, ורביע במעות means or a quarter of his original share in cash. The brother in possession has the option of paying his brother twelve and a half percent of the original inheritance with cash or with land. b) There is a doubt that the transaction is an inheritance or a sale. According to this second explanation, if it is a sale, it is a sale with accountability. In either case Reuven, whose portion was seized, will receive fifty percent of his original share; the doubt is only whether he receives it in land as the result of an annulment of the original division or in cash as the result of a purchase for which the seller is accountable. The word ורביע במעות mean and a quarter of his original share in cash. And this is bewildering. Why is this different than Rav Asi’s ruling, which holds that Shimon, the brother in possession, can settle with cash for that quarter that Reuven receives because of inheritance? And we can answer: that Rav Asi holds that even if we view the brothers as heirs who divided an inheritance, Shimon, can settle Reuven, for cash, because he can say to him, I would have settled with the creditor for cash and I would not have allowed him to collect the property. The fact that the property was seized is strictly your fault and I need not suffer for your mistake. And Rav is not concerned with that rationale. Rav holds that since the property was taken away from him legitimately he is not penalized for not having sufficient funds with which to settle with the creditor. See Rashbo. Tosafot just answered that Rav Asi holds that the brother in possession can argue; I would have settled with the creditor for cash. In the previous Tosafot we said that our Gemara is speaking of where there was a specific mortgage and only that property can be used to satisfy the debt. How can Tosafot now say that the brother in possession could argue; I would have settled for cash? And even though, our Gemara is speaking of when the property seized was made a specific mortgage, if so, how can one claim that he would have settled with the creditor for cash? Our Gemara is not speaking of a mortgage as strong as the mortgage of Ham’kabail (Bava Metzia 110b), where it seems that the purchaser of the property could not settle with the creditor for cash. Rather, the specific mortgage of our Gemara may be paid with cash. If the debtor was not able to pay cash then the debt would be paid only from that specific property. The debtor could not insist on paying from any other property. (Tosafot has now established that there are two levels of ‘specific mortgages’: A) A specific parcel of land is set aside to be used as payment if the lender will not be able to pay with cash. If the lender sells this property, the buyer may redeem settle with the creditor for cash. This is the case of our Gemara. Therefore, Shimon can say to Reuven: I would have paid the creditor with cash and not have allowed him to collect the property, so too, I will pay you with cash. B) In addition to specifying that a specific parcel will be used to pay the debt if the lender does not have cash, the lender adds: You will be paid only from this property. In this case which is the case of the Bava Metzia 110b, the purchaser of said property cannot redeem the property for cash. See Shulchon Oruch C.M. 117, 1, for other differences between these two specific mortgages.) The Gemara rules in Bava Metzia 35a, that if a property is taken from a debtor to satisfy a debt, the debtor can redeem the property forever. And if you ask: In any case, Reuven, the brother from whom the property was seized should pay the money he receives from Shimon to the creditor and redeem the land. For it is well established in chapter Hamafkid (ibid. 35a) that land that was collected to satisfy a debt can be redeemed forever. See אוצר התוספות note 1569, who quotes Ritvo of Bava Metzia 35b, who says that only in the case of ‘specific mortgage A)’ can the land be redeemed forever, but in the case of ‘specific mortgage B)’, once the land is collected by the creditor it can no longer be redeemed. If so, why is there any issue at all whether he will be paid with cash or land he can always convert the cash he receives into the land that was seized from him? And we can answer: that the difference is when the creditor sold the land to another party or he died and it was inherited by his heirs. The Gemara there says that it cannot be redeemed after it was sold or inherited. It is in this situation where Reuven wants to collect land from Shimon. Otherwise Reuven would be perfectly happy to do as Tosafot suggested in his question, to take the cash from Shimon and redeem the land from the creditor.
Similar to heirs - The Gemara says that Rav’s decision that the division is annulled is based on his belief that the original transaction dividing the property is not a sale of each brother’s share to the other but a division of inheritance. For if the original transaction is the equivalent of a sale with accountability, why is the division annulled, the brother in possession should pay the brother whose property was seized with cash.
Rav Asi [is] uncertain, etc - See ד"ה ורב אמר בטלה מחלוקת תוס' for a lengthy discussion of Rav Asi’s position and Rashi’s two explanations of Rav Asi’s position. In the first explanation Rashi explained that he, Reuven, receives his portion in land or cash because he is in doubt whether they are similar to heirs and the division is annulled or they are similar to purchasers without accountability and the brother in possession owes his brother nothing. And this is difficult to understand. How does the Gemara know that Rav Asi is in doubt about them being treated as heirs at all? Perhaps he is positive that they are not heirs, but his doubt is whether they are similar to purchasers with accountability and the brother whose property was seized must be reimbursed or they are similar to purchasers without accountability and he need not be reimbursed? Therefore, it appears like the last explanation. That the doubt is whether they are similar to heirs and the brother whose property was seized is entitled to be reimbursed with land, or whether he is similar to a purchaser with accountability and he can be paid out with cash. The decision is that because of the doubt he is paid with half land and half cash.
Therefore, he takes a quarter in land and [he takes the other] quarter in money. This decision seems to follow the rule that when there is a doubt about money matters we divide the money between the two sides. Here too, we are giving each side half of the advantageous position. One brother wants to receive all land and the other wants to pay only cash. We give each brother half of what he wants, thus Reuven is paid with half land and half cash. Is this in fact a ruling that we always divide funds in doubt, between the two sides, as opposed to the opinion that when there is a doubt in money matters we favor possession and the one who wants to extract money from the possessor must prove that he is right, otherwise he receives nothing? Tosafot says that this is not the case. This position does not oppose the concept of ruling in favor of possession. For it is not possible to apply the rule; he who wants to extract money from his neighbor, the burden of proof is upon him. If there is a doubt whether one brother owes the other brother or not, we apply the rule favoring the one in possession. However, when one brother definitely owes the other brother and the question is the vehicle of payment, the law favoring the one in possession is not applicable.
