sold them] must buy himself a way thereto. So R. Akiba. But the Sages say: He need not. And R. Akiba agrees that if he had said, ‘Excepting these', he need not buy himself a way thereto. If he had sold them to another, R. Akiba says: He [that bought them] need not buy himself a way thereto. But the Sages say: He must buy himself a way thereto. This applies to him that sells [his field]. But if he gives it as a gift, he gives everything that is in it. If brothers who divided [a heritage] came into possession of a field, they come into possession of everything that is in it. If a man secured title by usucaption to the property of a proselyte and se¬ cured title to a field, he secures title to everything that is in it. If a man dedicated1 a field he has dedicated everything that is in it. R. Simeon says: If a man dedicated a field, [beside the ground] he has dedicated only grafted carob trees and cropped sycamores.
5. i. If a man sold a ship, he has sold also the mast, the sail, the anchor, and all the means for steering it; but he has not sold the slaves, the packing- bags, or lading. But if he had said, ‘It and all that is in it', all these are sold also. If a man sold a wagon he has not sold the mules; if he sold the mules he has not sold the wagon. If he sold the yoke he has not sold the oxen, and if he sold the oxen he has not sold the yoke. R. Judah says: The price makes it manifest: thus if one said to him, ‘Sell me thy yoke for 200 zuz\ it is manifest that no ‘yoke’ costs 200 zuz. But the Sages say: The price is no proof.
2. If a man sold an ass he has not sold its trappings. Nahum the Mede says: He has sold its trappings also. R. Judah says: Sometimes they are sold with it and sometimes not; thus, if the ass was before him and it bore its trappings and he said, ‘Sell me this ass of thine’, all the trappings are sold too; [but if he said, ‘Sell me] that ass of thine’, its trappings are not sold with it.
3. If a man sold an ass he has sold2 its foal also; if he sold a cow he has not sold her calf; if he sold a dungheap he has sold the dung thereon; if he sold a cistern he has sold the water therein; if he sold a bee-hive he has sold the bees; if he sold a dovecot he has sold the pigeons. If a man bought ‘the fruit of a dovecot’ from his fellow he must let go the first pair that are hatched;3 if ‘the fruit of a bee-hive’ he may take only three swarms and [then the seller can] render [the stock] unfruitful.4 [If a man bought] the honeycombs, he must leave behind two honeycombs. [If he bought] olive- trees to cut them down, he must leave two shoots.
4. If a man bought two trees in his fellow’s field he has not bought the ground [in which they grow]. R. Meir says: He has bought the ground [also]. When they grow he may not trim them. What comes up from the stem belongs to him, but what comes up from the roots belongs to the owner of the ground. And if they die the ground is not his.5 If he bought three trees he has bought also the ground [between them]. When they grow he may trim them, and what comes up whether from the stem or from the roots belongs to him. And if they die the ground is his.
5. With large cattle, if a man sold the head he has not sold the feet; if he 1 Lev. 271,fi. 1 Variant: ‘not sold’. 3 To prevent the parent birds from flying away.
4 Lit. ‘castrate’. One explanation is that the bees are given mustard-seed so that they cease to breed and devote themselves to storing honey; another is that the buyer takes only alternate swarms, or, after taking three, his bargain ends.
* i.e. he may not plant others there.
sold the feet he has not sold the head. If he sold the lungs he has not sold the liver, and if he sold the liver he has not sold the lungs. But with small cattle, if he sold the head he has sold the feet, but if he sold the feet he has not sold the head. If he sold the lungs he has sold the liver, but if he sold the liver he has not sold the lungs.
6. Four rules apply for them that sell. If a man has sold wheat to another as good wheat and it is found to be bad, the buyer can retract. If he sold it as bad and it is found to be good, the seller can retract. But if he sold it as bad and it is found to be bad, or good and it is found to be good, neither may retract. If he sold it as dark-coloured and it is found to be white, or as white and it is found to be dark-coloured, or if he sold wood as olive wood and it is found to be sycamore wood, or as sycamore wood and it is found to be olive wood; or if he sold aught as wine and it is found to be vinegar, or as vinegar and it is found to be wine, either of them may retract.
7. If a man sold produce to his fellow and the buyer drew it1 towards him, even if the seller had not yet measured it the buyer has acquired possession of it. If the seller measured it but the buyer had not drawn it towards him, he has not acquired possession. If he is prudent-minded2 the buyer hires the place where the produce lies.3 If a man bought flax from his fellow he has not acquired possession until he has moved it from one place to another; if it was still ungathered and he plucked ought of it soever, he has acquired possession.
8. If a man sold wine or oil to his fellow and its value rose or fell, if [the price rose or fell] before the measure4 was filled up it belongs to the seller [and he may refuse to sell except at the higher price]; but if after the measure was filled up, it belongs to the buyer [and he may refuse to buy except at the lower price]. If there was a middleman between them, and the jar was broken, it is broken to [the loss of] the middleman. [After emptying the measure] the seller must let three more drops drip to the advantage of the buyer. If he then turned the measure over and drained it off, what flows out belongs to the seller. The shopkeeper is not bound to let three more drops drip. R. Judah says: [Only] on the eve of Sabbath as it becomes dark is he exempt.
9. If a man sent his child to a shopkeeper with a pondions in his hand and he measured him out an issar’s 6 worth of oil and gave him an issar in change and the child broke the flask and lost the issar, the shopkeeper is liable.7 R. Judah declares him exempt, since the father sent the child for this purpose. And the Sages agree with R. Judah that if the flask was in the child’s hand® and the shopkeeper measured the oil into it, the shop¬ keeper is exempt.
10. The wholesale dealer must clean out his measures once every thirty days and the householder once every twelve months. Rabban Simeon b.
* And is afraid that the seller will retract, and the produce is not such that he can ‘draw it’ into his possession.
1 Thus me produce is found in his possession and the purchase completed.
♦ This does not apply if it was the seller’s measure. According to the Gemara (87a) the Mishnah is dealing with a case where a middleman’s measure is being used.
s App. II, A. Some texts omit ‘with a pondion in his hand’.
* Half a pondion.
1 For the flask, the oil, and the issar, since the child, being under age, was not a responsible agent.
* And thus the shopkeeper had never been liable for its safe-keeping.
374 FOURTH DIVISION: NEZIKIN Gamaliel says: The contrary is the rule. The shopkeeper must clean out his measures twice in the week and polish his weights once a week and clean out his scales after every weighing.
ii. Rabban Simeon b. Gamaliel said: This applies only to liquid measures; with dry measures it is not necessary. Moreover he must let the scales sink down a handbreadth [to the buyer’s advantage]. If he gave him exact measure he must give him his overweight — a tenth for liquid measures and a twentieth for dry measures. Where the custom is to measure with small measures they should not measure with large, and where [the custom is to measure] with large measures they should not measure with small; [where the custom is] to smooth down [what is in the measure] they should not heap it up, and [where the custom is] to heap it up they should not smooth it down.
6. i. If a man sold grain1 to his fellow' and [after it w'as sown] it did not spring up, even if it was flax-seed he is not answerable. Rabban Simeon b. Gamaliel says: If it was garden-seeds, which are not used as food, he is answerable.
2. If a man sold grain to his fellow, the buyer must undertake to receive a quarter-&z6 of refuse with every seah; [if he bought] figs he must under¬ take to receive ten that are maggoty in every hundred; [if he bought] a cellar of wine he must undertake to receive ten jars gone sour in every hundred; [if he bought] jars in Sharon he must undertake to receive ten in every hundred in faulty condition.2 3. If a man sold wine to his fellow and it turned sour he is not answerable; but if it was known [to the seller] that his wine would [soon] turn sour, this is accounted a purchase made in error.3 If he had said to him, ‘I am selling thee spiced wine’, he is answerable for its remaining [good] until Pentecost.4 By ‘old wine’ is meant wine that remains from last year; by ‘very old’ is meant that which remains from the year before last.
4. If a man sold his fellow a place to build him a house (so, too, if a man received it from his fellow to build him a bridal-house for his son or a dower-house5 for his daughter), he must build it four cubits by six. So R. Akiba. R. Ishmael says: This is a cattle-shed! He that would build a cattle-shed should build it four cubits by six; a small house — six by eight; a large house — eight by ten; an eating-hall6 — ten by ten. The height thereof should be [the sum of] half its length and half its breadth. The Sanctuary affords proof7 for this. Rabban Simeon b. Gamaliel says: Should all [houses] be according to the building of the Sanctuary?
5. If a man has a cistern behind his fellow’s house, he may go in and out only at the time when others are accustomed to go in and out. And he may not lead his cattle and let them drink from his cistern, but he must draw water and let them drink outside. He and the owner of the house should each make himself a lock.
6. If a man has a garden behind his fellow’s garden, he may go in and out only at the time when others are accustomed to go in and out. And he 1 Without saying whether it was grain fit to sow or only grain for food.
1 Not fully baked and so easily broken. J Cf. Ket. 1*; 7*.
4 i.e. from vintage time (July) until the following May, after which he is not answerable if it spoils during the ensuing hot season. s Lit. ‘house of widowhood’.
7 1 Kings 6’1 ”, It was 40 cubits long (excluding the length of the porch), 20 wide, and 30 high.
may not bring in merchants, or enter through it into another field. [The owner of] the outer [garden] may sow seed on the pathway. But if with the other’s consent he has been given a path at the side [of the other’s garden] he may go in when he will and go out when he will; and he may bring in merchants, but he may not enter through it into another field; and neither of them has the right to sow seed on the path.
7. If a public path passed through a man’s field and he took it and gave them [another path] by the side of the field, what he has given he has given and what he has taken for himself does not become his. A private path is four cubits, and a public path sixteen cubits wide; the king’s highway has no prescribed measure;1 the path to a grave2 has no prescribed measure; the halting-places,3 according to the judges of Sepphoris, should be four kab’s space4 of ground.
8. If a man sold to his fellow a place in which to make a tomb (so, too, if a man received from his fellow a place in which to make him a tomb), he must make the inside of the vault four cubits by six, and open up within it eight niches, three on this side, three on that side, and two opposite [the doorway]. The niches must be four cubits long, seven handbreadths high, and six wide. R. Simeon says: He must make the inside of the vault four cubits by eight and open up within it thirteen niches, four on this side, four on that side, three opposite [the doorway] and one to the right of the door¬ way and one to the left. He must make a courtyard at the opening of the vault, six cubits by six, space enough for the bier and its bearers;5 and he may open up within it two other vaults, one on either side. R. Simeon says: Four, one on each of its four sides. Rabban Simeon b. Gamaliel says: All depends on the nature of the rock.6 7. i. If a man said to his fellow, ‘I will sell thee a kor’s space7 of soil’, and it contained rifts ten handbreadths deep or rocks ten handbreadths high, these are not included in the measurement; but if they were less than this they are included. If he said to him, ‘About a kor's space of soil’, even if it contained rifts deeper than ten handbreadths or rocks higher than ten handbreadths, they are included in the measure.
2. [If he said, ‘I will sell thee] a kor’s space of soil as measured by the line’, and he gave him any less, the buyer may reduce the price; and if he gave him any more the buyer must give this back. But if he said, ‘Be it less or more’, even if he gave the buyer a quarter-fcoA’j space less in every seah’s space or a quarter- kab's space more in every seah’s space,8 it becomes his; if [the error] was more than this, a reckoning must be made. What does he9 give him back? Its value in money; but if the seller so wished it, he must give him back land. And why have they said that he could give back its value in money? To strengthen the seller’s hand; for if, in a field [con¬ taining a kor’s space], there would still have remained to him nine kabs’ space, or, in a garden, a haif-AaA’i space (according to R. Akiba a quarter- 1 Sanh. 24; he has indisputable and unlimited rights of expropriation.
2 i.e. the bearers of the corpse may trample over sown fields and ignore private property rights.
2 Where the mourners stop in the course of the funeral procession. Cf. Meg. 4*; Ket. 2“.
4 50 cubits by 33$. App. II, E. * Some texts omit 'and its bearers’.
6 Whether the stone is easily hewn out, or whether the outcrop of rock is suitable in shape to open up vaults on each side of the fore-court.
7 App. II, E. 8 i.e. one twenty-fourth less or more.
* The buyer.
376 FOURTH DIVISION: NEZIKIN kab’s space), the buyer must give it back to him in land;1 and not only must he give back the quarter-fojA’s space2 but all the surplus.
3. [If he said,] ‘I will sell thee [a kor's space of soil) as measured by the line, be it less or more’, the condition ‘be it less or more' makes void the condition ‘as measured by the line’; [and if he said,] ‘Be it less or more as measured bv the line’, the condition ‘as measured by the line' makes void the condition ‘be it less or more’. So Ben Nanos. [If he said, ‘I will sell thee a kor's space of soil as measured] by its marks and its boundaries’, and the difference was less than the sixth part, the sale holds good; if it ■was as much as3 a sixth the buyer may reduce the price.
4. If a man said to his fellow, ‘I will sell thee a half of the field’, it must be divided between them into portions of equal value,4 and the buyer shall take the half of the field [which the other allots to him]. [If he said, ‘I will sell thee] the half of it on the south’, it must be divided between them into portions of equal value, and the buyer takes the half of it on the south. He must undertake to provide the space5 for the [dividing] wall and the large and small ditches.6 How large is the ‘large ditch’? Six handbreadths. And the ‘small ditch’? Three handbreadths.
8. 1. Certain [near of kin] both inherit and bequeath property, some in¬ herit but do not bequeath, some bequeath but do not inherit, and some neither inherit nor bequeath. These both inherit and bequeath: a father inherits from his sons, and sons from their father and brothers by the same father, and they can bequeath property to them. A man inherits from his mother, and a husband from his wife and sisters’ sons, but they do not bequeath property to them. A woman bequeaths property to her sons, a wife to her husband and maternal uncles, but they do not inherit from them. Brothers by the same mother [but another father] neither inherit [from one another] nor bequeath property [to one another].
2. This is the order of inheritance: If a man die and have no son, then ye shall cause his inheritance to pass unto his daughter1 — the son precedes the daughter, and all the son’s offspring precede the daughter; the daughter precedes the brothers8 and the daughter’s offspring precede the brothers: brothers8 precede the father’s brothers and the brothers’ offspring precede the father’s brothers. This is the general rule: whosoever has precedence in inheritance, his offspring have also precedence. The father has precedence over all his offspring.9 3. The daughters of Zelophehad10 took three portions of the inheritance: the portion of their father who was of them that came out of Egypt, and * And not money, because such a parcel of land is still large enough to cultivate. Cf.
* That he has received in excess in every seah’s space (and which, according to R. Akiba, justified the seller in reclaiming the difference in land); but also the whole thirty quarter- kabs which were wrongly included in the kor’s space.
4 The more fertile portion being proportionately reduced, and the owner taking his first choice. Cf. Bekh. a*- 7 where the same expression occurs and where the choice is between two beasts. There the commentators take the expression to mean that the owner has first choice since ‘on him who would exact aught from his fellow lies the burden of proof’, i.e. the other must (and, in the circumstances, he cannot) prove his right to the better of the two.
s On his side of the common boundary.
6 A smaller one next to the wall and a larger one beyond, in order to prevent wild beasts clambering over the wall. ’• Nuui. 27*. * Of the deceased.
9 If none of these is the direct offspring of the deceased.
his portion among his brethren from the property of Hepher, who also, in that he was the firstborn, received a double portion.
4. The son and the daughter1 are alike concerning inheritance, save that the [firstborn] son takes a double portion of the father’s property, but he does not take a double portion of the mother’s property; and the daughters receive maintenance from the father’s property but not from the mother's property.
5. If a man says, ‘Such-a-one, my firstborn son, shall not receive a double portion’, or ‘Such-a-one, my son, shall not inherit with his brethren’, he has said nothing, for he has laid down a condition contrary to what is written in the Law.2 If a man apportioned his property to his sons by word of mouth, and gave much to one and little to another, or made them equal with the firstborn, his words remain valid. But if he had said that so it should be ‘by inheritance’, he has said nothing. If he had written down, whether at the beginning or in the middle or at the end [of his testament], that thus it should be ‘as a gift’, his words remain valid. If a man said, ‘Such a man shall inherit from me’, and he has a daughter;3 or ‘Mv daughter shall inherit from me’, and he has a son, he has said nothing, for he has laid down a condition contrary to what is written in the Law. R. Johanan b. Baroka says: If he said this of one that was qualified to inherit from him, his words remain valid, but if of one that was not qualified to inherit from him his words do not remain valid. If a man assigned his goods to others and passed over his sons, what he has done is done, but the Sages have no pleasure in him. Rabban Simeon b. Gamaliel says: Yet if his sons had not behaved aright, it should be accounted to his credit.
6. If a man said, ‘This is my son’, he may be believed.4 If [he said], ‘This is my brother’, he may not be believed;5 yet the other may join with him in his portion. If he died the property returns to its place;6 if he in¬ herited property from elsewhere the other’s brothers inherit it together with him.7 If a man died and a testament8 was found bound to his thigh, this counts as nothing.9 But if [he had delivered it and] through it granted title to another, whether of his heirs or of such as were not his heirs, his words remain valid.
7. If a man assigned his goods to his sons he must write, ‘From to-day and after my death’. So R. Judah. R. Jose says: He need not do so. If a man assigned his goods to his son to be his after his death, the father cannot sell them since they are assigned to his son, and the son cannot sell them since they are in the father’s possession. If his father sold them, they are sold [only] until he dies; if the son sold them, the buyer has no claim on them until the father dies. The father may pluck up [the crop of a field which he has so assigned] and give to eat to whom he will, and if he left anything already plucked up, it belongs to [all] his heirs. If he left elder sons and younger sons, the elder sons may not care for themselves [out of the common inheritance] at the cost of the younger sons, nor may the 1 When there i* no son.
* Dent. 2i Cf. Ket. 9*; B.M. 7U. > And still more if he has a son.
* He thereby frees his widow from the levirate bond (p. 218, n. t).
» He thereby binds his widow to levirate marriage. Or, for example, Reuben said to his brother Simon, ‘This man Levi is our brother and must share in our inheritance’, he is not to be believed to the extent of reducing Simon’s inheritance, but Levi can share Reuben's inheritance. 6 To Reuben.
7 Simon (and any other brothers) share with Reuben in property left by Levi, * The sense here is a deed of gift.
* He may have changed his rrund after writing it.
378 FOURTH DIVISION: NEZIKIN younger sons claim maintenance at the cost of the elder sons, but they all share alike. If the elder sons married [and drew upon the common in¬ heritance] the younger sons may marry [and draw in like manner]. If the younger sons said, ‘We will marry [on the like scale] as ye married [when our father was yet alive]’, they do not listen to them; for what their father had given to them, he has given.
8. If he left elder daughters and younger daughters, the elder daughters may not care for themselves at the cost of the younger daughters, nor may the younger daughters claim maintenance at the cost of the elder daughters, but they all share alike. If the elder daughters married [and took each her dowry from the common inheritance] the younger daughters may marry [and take each a like dowry]. If the younger daughters said, ‘We will marry [and take the like dowry]1 as when ye married [in our father’s life¬ time]’, they do not listen to them. Herein greater stringency applies to daughters than to sons, since daughters can claim maintenance at the cost of the sons, but they cannot claim maintenance at the cost of [other] daughters.
9. 1. If2 a man died and left sons and daughters, and the property was great, the sons inherit and the daughters receive maintenance; but if the property was small the daughters receive maintenance and the sons go a-begging. Admon says: [The son may say:] ‘Must I suffer loss because I am a male?’ Rabban Gamaliel said: I approve the words of Admon.
2. If a man left sons and daughters and one that was of doubtful sex, if the property was great the males may thrust such a one among the females; if the property was small the females may thrust such a one among the males. If a man said, ‘If my wife shall bear a male he shall be given 100 zuz', and she bore a male, he is given the 100 zuz. [If he said,] ‘If she shall bear a female she shall be given 200 zuz’, and she bore a female, she is given the 200 zuz. [If he said,] ‘If a male, 100 zuz, and if a female, 200 zuz’, and she bore both a male and a female, the male takes 100 zuz and the female 200 zuz. If she bore one that was of doubtful sex it is given nothing. But if he had said, ‘Whatsoever my wife shall bear shall be given so much’, then it shall be given so much; and if it was the only heir it inherits everything.
3. If a man left elder sons and younger sons, and the elder sons improved the property, they improve it to the common advantage; but if they said, ‘See, what our father has left us, lo, [on that] we will labour and [from that] we will eat’, they improve it to their own advantage. So, too, if the widow improved the property she improves it to the common advantage, but if she had said, ‘See, what my husband left to me, lo, [on that] I will labour and [from that] I will eat’, she improves it to her own advantage.
4. If brothers were jointholders and a public office fell to one of them,3 it falls to the common advantage. If one [of them] fell sick and needed healing, his healing is at his own charges. If certain of the brothers in their father’s lifetime had made a present as groomsmen [at theirfather’s charges], and [after his death] the present was restored to them, it is restored to the common advantage, for the groomsmen’s gift [counts as a loan and] can be recovered through a court of law. But if [one of the brothers in his father’s lifetime] sent his fellow jars of wine or jars of oil, they cannot be 3 As the representative of his family.
recovered through a court of law, since they count [not as a loan but] as a charitable deed.
5. If a man sent espousal-gifts to his [prospective] father-in-law’s house, and he sent there ten thousand denars' worth and there consumed an espousal-meal of but one denar’s worth, [and he afterward divorced his wife] they cannot be reclaimed, but if he did not eat the espousal-meal, they can be reclaimed. If he had sent many espousal-gifts to be returned with her to her husband’s house, these can be reclaimed; but if the espousal-gifts were few and to be used in her father’s house, they cannot be reclaimed.
6. If one that lay sick1 assigned his goods to others [as a gift] and kept back any land soever, his gift remains valid; but if had kept back no land soever, his gift does not remain valid. If it was not written therein, ‘while that he lay sick’, but he said that he lay sick, whereas they said that he was in health, he must bring proof that he lay sick. So R. Meir. But the Sages say: On him that would exact aught from his fellow lies the burden of proof.2 7. If a man apportioned his goods by word of mouth, R. Eliezer says: Whether he was in health or at the point of death, property for which there is security3 can be acquired only by money or by writ4 or by usucaption; that for which there is no security can be acquired only by the act of draw¬ ing into possession.5 They said to him: It once happened that the mother of Rokhel’s sons was sick and said, ‘Give my veil to my daughter’, and it was worth twelve hundred denars; and she died and they fulfilled her words. He said to them, ‘May their mother bury the sons of Rokhel!’6 The Sages say: On a Sabbath his words remain valid,7 since he cannot write;8 but not on a weekday. R. Joshua says: If they have said [that he can assign property] on a Sabbath, how much more so on a weekday! In like manner they may acquire possession on behalf of a minor but not on behalf of one that is of age. So R. Eiiezer.9 R. Joshua says: If they have said [that it is permitted] on behalf of a minor, how much more so on behalf of one that is of age.