Bava Metzia 102
בְּגוּבְתָּא דְּקַנְיָא.
to insert a mezuza inside a hollow reed and then affix the whole arrangement to the doorpost.
תָּנוּ רַבָּנַן: הַמַּשְׂכִּיר בַּיִת לַחֲבֵירוֹ – עַל הַשּׂוֹכֵר לַעֲשׂוֹת לוֹ מְזוּזָה, וּכְשֶׁהוּא יוֹצֵא – לֹא יִטְּלֶנָּה בְּיָדוֹ וְיֵצֵא. וּמִנׇּכְרִי, נוֹטְלָהּ בְּיָדוֹ וְיוֹצֵא. וּמַעֲשֶׂה בְּאֶחָד שֶׁנְּטָלָהּ בְּיָדוֹ וְיָצָא, וְקָבַר אִשְׁתּוֹ וּשְׁנֵי בָּנָיו.
The Sages taught in a baraita: If one rents out a house to another, the responsibility to prepare a mezuza for it and affix it is upon the renter. And when he leaves, he may not take it in his hand and leave with it; rather, he must leave it there. But if he rented a house from a gentile, he may take it in his hand and leave with it. And there was an incident in which a renter took his mezuza in his hand and left with it, and as a punishment he eventually buried his wife and two sons.
מַעֲשֶׂה לִסְתּוֹר?! אָמַר רַב שֵׁשֶׁת: אַרֵישָׁא.
The Gemara asks: Was the incident cited to contradict the ruling immediately preceding it, which permits one to take the mezuza? Rav Sheshet said: The incident relates to the first clause.
הַזֶּבֶל שֶׁל בַּעַל הַבַּיִת, וְאֵין לַשּׂוֹכֵר אֶלָּא הַיּוֹצֵא מִן הַתַּנּוּר וּמִן הַכִּירַיִם בִּלְבַד. בְּמַאי עָסְקִינַן? אִילֵימָא בְּחָצֵר דַּאֲגִירָ[א] לֵיהּ לְשׂוֹכֵר וְתוֹרֵי דְּשׂוֹכֵר – אַמַּאי שֶׁל בַּעַל הַבַּיִת? אֶלָּא בְּחָצֵר דְּלָא אֲגִירָא לְשׂוֹכֵר וְתוֹרֵי דְּמַשְׂכִּיר, פְּשִׁיטָא!
§ The mishna teaches: The manure found in the courtyard of a rented house, is the property of the landlord, and the renter has rights only to the ashes that come out of the oven and the stove, which can also be used as a fertilizer. The Gemara asks: With what are we dealing? If we say that the mishna is referring to a courtyard that is rented out to the renter, or where the manure was produced by the oxen of the renter, then why should it be the property of the landlord? It is clearly the property of the renter. Rather, the mishna must be referring to a courtyard that is not rented out to the renter, and the manure was produced by the oxen of the landlord. The Gemara asks: But if so, the ruling is obvious and need not have been taught.
לָא צְרִיכָא: בְּחָצֵר דְּמַשְׂכִּיר, וְתוֹרֵי דְּאָתוּ מֵעָלְמָא קָמוּ בַּהּ.
The Gemara answers: No, the ruling is necessary in a case where the manure is in a courtyard of the landlord, and the source of the manure was oxen that came from the world at large and stood in the courtyard and produced the manure. The mishna rules that in such a case, the manure belongs to the landlord.
מְסַיַּיע לֵיהּ לְרַבִּי יוֹסֵי בְּרַבִּי חֲנִינָא. דְּאָמַר רַבִּי יוֹסֵי בְּרַבִּי חֲנִינָא: חֲצֵרוֹ שֶׁל אָדָם קוֹנָה לוֹ שֶׁלֹּא מִדַּעְתּוֹ.
The Gemara suggests: That ruling in the mishna that any manure deposited in the landlord’s courtyard belongs to him supports the ruling of Rabbi Yosei, son of Rabbi Ḥanina, as Rabbi Yosei, son of Rabbi Ḥanina, says: A person’s courtyard effects acquisition for him of an item placed in it, even without his knowledge.
מֵיתִיבִי: אִם אָמַר ״כׇּל מְצִיאוֹת שֶׁיָּבֹאוּ לְתוֹכוֹ הַיּוֹם תִּקְנֶה לִי חֲצֵרִי״ – לֹא אָמַר כְּלוּם. וְאִם אִיתָא לְהָא דְּאָמַר רַבִּי יוֹסֵי בְּרַבִּי חֲנִינָא חֲצֵרוֹ שֶׁל אָדָם קוֹנָה לוֹ שֶׁלֹּא מִדַּעְתּוֹ, אַמַּאי לֹא אָמַר כְּלוּם?
The Gemara raises an objection to this ruling from a baraita: If one says: Any lost items that come into my courtyard today, my courtyard should effect acquisition of them for me, he has not said anything of legal significance, and does not acquire those items. The Gemara explains the objection: And if it is so, that this ruling that Rabbi Yosei, son of Rabbi Ḥanina, says is correct, i.e., that a person’s courtyard effects acquisition for him of an item placed in it, even without his knowledge, then why has he not said anything of legal significance?
הָכָא בְּמַאי עָסְקִינַן – בְּחָצֵר שֶׁאֵינָהּ מִשְׁתַּמֶּרֶת.
The Gemara resolves the difficulty: With what are we dealing here in the baraita? We are dealing with a courtyard that is not secured, as the halakha is that such a courtyard does not effect acquisition of items for its owner.
אִי הָכִי אֵימָא סֵיפָא: יָצָא לוֹ שֵׁם מְצִיאָה בָּעִיר – דְּבָרָיו קַיָּימִין. וְאִי בְּחָצֵר שֶׁאֵינָהּ מִשְׁתַּמֶּרֶת, כִּי יָצָא לוֹ שֵׁם מְצִיאָה בָּעִיר, מַאי הָוֵי?
The Gemara questions this resolution: If so, say and try to explain accordingly the latter clause of the baraita that states: If knowledge of the existence of that lost item spread through the town, his statement stands and his courtyard acquires it. The Gemara explains the difficulty: And if the baraita is referring to a courtyard that is not secured, even where knowledge of the existence of that lost item spread through the town, what of it? Such a courtyard is unable to effect acquisition for its owner of items placed in it.
כֵּיוָן דְּיָצָא לוֹ שֵׁם מְצִיאָה בָּעִיר – מִיבְדָּל בְּדִילִי אִינָשֵׁי מִינַּהּ, וְהָוְיָא לַהּ כְּחָצֵר הַמִּשְׁתַּמֶּרֶת.
The Gemara answers: Once knowledge of the existence of that lost item spreads though the town, people withdraw themselves from it, as they assume that the owner of the courtyard will take it. Therefore, no one will even try to take it and the courtyard will be like a secured courtyard which can effect acquisition of items for its owner.
מֵיתִיבִי: זֶבֶל הַיּוֹצֵא מִן הַתַּנּוּר וּמִן הַכִּירַיִם וְהַקּוֹלֵט מִן הָאֲוִיר – הֲרֵי הוּא שֶׁלּוֹ, וְשֶׁבָּרֶפֶת וְשֶׁבֶּחָצֵר – שֶׁל בַּעַל הַבַּיִת. וְאִם אִיתָא לְהָא דְּרַבִּי יוֹסֵי בְּרַבִּי חֲנִינָא, דְּאָמַר חֲצֵרוֹ שֶׁל אָדָם קוֹנָה לוֹ שֶׁלֹּא מִדַּעְתּוֹ, קוֹלֵט מֵאֲוִיר אַמַּאי הֲרֵי הוּא שֶׁלּוֹ? אֲוִיר חֲצֵרוֹ הוּא!
The Gemara raises an objection to Rabbi Yosei’s ruling from a baraita: Refuse of the oven and of the stove, i.e., ashes, and that which is collected in the renter’s vessel from the airspace of the courtyard, is the renter’s property. And refuse that is in the cowshed and in the courtyard, i.e., the manure, is the property of the landlord. The Gemara explains the question: And if it is so, that this ruling that Rabbi Yossi, son of Rabbi Ḥanina, says is correct, i.e., that a person’s courtyard effects acquisition for him of an item placed in it even without his knowledge, then with regard to refuse collected from the airspace of the courtyard, why is it the renter’s property? It was first in the airspace of the landlord’s courtyard, and should consequently be acquired by him immediately.
אָמַר אַבָּיֵי: בְּמַדְבִּיק כְּלִי בְּשׁוּלֵי פָרָה.
Abaye said: The baraita is referring to a case where the renter attached his vessel to a cow’s rear. Any manure produced by the cow would immediately enter the renter’s vessel, without first entering the airspace of the courtyard, and the renter would consequently acquire it.
רָבָא אָמַר: אֲוִיר שֶׁאֵין סוֹפוֹ לָנוּחַ – לָאו כְּמוּנָּח דָּמֵי.
Rava said: An item in the airspace of a courtyard that will not eventually come to rest in the courtyard itself is not regarded as though it had come to rest. Accordingly, even if the refuse traveled through the airspace of the courtyard, since it was always on course to enter the renter’s vessel, it is not acquired by means of the landlord’s courtyard.
וּמִי פְּשִׁיטָא לֵיהּ לְרָבָא? וְהָא מִיבְעֵי בָּעֵי לַהּ, דְּבָעֵי רָבָא: זָרַק אַרְנָקִי בְּפֶתַח זֶה וְיָצָאתָה בְּפֶתַח זֶה, מַהוּ? אֲוִיר שֶׁאֵין סוֹפוֹ לָנוּחַ כְּמוּנָּח דָּמֵי, אוֹ לָאו כְּמוּנָּח דָּמֵי?
The Gemara asks: And is this principle really so obvious to Rava? But didn’t he raise it as a dilemma? As Rava raised a dilemma: If one cast a purse through this doorway of a house and it went through the house and exited through that doorway, what is the halakha? Is an item in the airspace of a courtyard that will not eventually come to rest in the courtyard itself regarded as though it had come to rest, or is it not regarded as though it had come to rest?
הָתָם לָא מַיפְסֵק וְלָא מִידֵּי, הָכָא מַיפְסֵק כְּלִי.
The Gemara explains that Rava’s dilemma concerned a different case: There, in the case of the purse, nothing at all interposes between the purse and the floor of the house, and therefore Rava was unsure about the halakha. Here, where the renter’s vessel interposes, it was obvious to Rava that the renter’s vessel effects acquisition of the item.
וְשֶׁבָּרֶפֶת וְשֶׁבֶּחָצֵר, הֲרֵי אֵלּוּ שֶׁל בַּעַל הַבַּיִת. תַּרְתֵּי?
The Gemara analyzes the latter clause of the above cited baraita: And refuse that is in the cowshed and in the courtyard is the property of the landlord. The Gemara asks: Can these two statements coincide? By stating that the refuse in the cowshed belongs to the landlord, it indicates that the refuse in the courtyard belongs to the renter. How, then, can the baraita continue to rule that even the refuse in the courtyard belongs to the landlord?
אָמַר אַבָּיֵי, הָכִי קָאָמַר: וְשֶׁבָּרֶפֶת שֶׁבֶּחָצֵר – הֲרֵי אֵלּוּ שֶׁל בַּעַל הַבַּיִת. אָמַר רַב אָשֵׁי, זֹאת אוֹמֶרֶת: הַמַּשְׂכִּיר חֲצֵירוֹ סְתָם – לֹא הִשְׂכִּיר רֶפֶת שֶׁבָּהּ.
Abaye said that this is what the baraita is saying: And refuse that is in the cowshed that is located in the courtyard rented out to the renter is the property of the landlord. Extrapolating from Abaye’s statement, Rav Ashi said: That is to say that one who rents out his courtyard without specification of what is included in the rental agreement has not rented out a cowshed that is located in it.
מֵיתִיבִי: יוֹנֵי שׁוֹבָךְ וְיוֹנֵי עֲלִיָּיה חַיָּיבוֹת בְּשִׁילּוּחַ, וַאֲסוּרוֹת בְּגָזֵל מִפְּנֵי דַּרְכֵי שָׁלוֹם.
The Gemara raises an objection to Rabbi Yosei’s ruling from another baraita: There is a mitzva to dispatch a mother bird if one wishes to take eggs from her nest (Deuteronomy 22:6–7). The mitzva applies only if the bird and eggs are ownerless. Doves of a dovecote and doves of an attic are subject to the obligation of dispatching the mother bird, as they are ownerless. Nevertheless, they are subject to the prohibition of robbery, due to a rabbinic ordinance to maintain the ways of peace.
וְאִם אִיתָא לְהָא דְּאָמַר רַבִּי יוֹסֵי בְּרַבִּי חֲנִינָא: חֲצֵרוֹ שֶׁל אָדָם קוֹנָה לוֹ שֶׁלֹּא מִדַּעְתּוֹ. קְרִי כָּאן ״כִּי יִקָּרֵא״ – פְּרָט לִמְזוּמָּן!
The Gemara explains the question: And if it is so, that this ruling that Rabbi Yosei, son of Rabbi Ḥanina, says is correct, i.e., that a person’s courtyard effects acquisition for him of an item placed in it even without his knowledge, then a dovecote or attic will effect acquisition for its owner of any eggs inside them. Accordingly, one should apply here the principle that the mitzva to dispatch the mother bird from upon her nest applies only: “If it happened before you” (Deuteronomy 22:6) which excludes a bird or egg that is readily accessible, such as one that one owns, from the mitzva to dispatch the mother. Yet the baraita rules that the mitzva does apply in this case.
אָמַר רָבָא: בֵּיצָה בִּיצִיאַת רוּבָּהּ הוּא דְּאִיחַיַּיבָה לַהּ בְּשִׁילּוּחַ, וּמִיקְנָא לָא קַנְיָא עַד דְּנָפְלָה לַחֲצֵרוֹ, וְכִי קָתָנֵי ״חַיָּיבוֹת בְּשִׁילּוּחַ״ – מִקַּמֵּי דְּתִיפּוֹל לַחֲצֵירוֹ.
Rava said: It is from the time of the emergence of the majority of an egg from a mother bird’s body that one becomes subject to the obligation of dispatching her from upon her eggs. And the owner of a courtyard does not acquire the egg until it fully emerges and falls into his courtyard. And therefore, when the baraita teaches that in the case of doves of a dovecote and of an attic, one is subject to the obligation of dispatching the mother bird, it is referring to a time before the egg falls into his courtyard.
אִי הָכִי, אַמַּאי אֲסוּרוֹת מִשּׁוּם גָּזֵל! אַאִמָּן.
The Gemara asks: If that is so, that the baraita is referring to a case where the egg has not fully emerged, why does the baraita rule that they are forbidden by rabbinic law for others to take due to the prohibition of robbery? The Gemara answers: That ruling of the baraita is referring to their mother, i.e., the mother bird.
וְאִיבָּעֵית אֵימָא: לְעוֹלָם אַבֵּיצִים, וּמִדְּנָפֵיק רוּבַּהּ דַּעְתֵּיהּ עִילָּוַהּ.
And if you wish, say instead: Actually, that ruling is referring to the eggs, and the reason the Sages enacted that taking them is robbery is because once the majority of an egg emerges, the dovecote or attic’s owner’s mind is upon the eggs to acquire them, although technically he will not acquire them until they fully emerge.
וְהַשְׁתָּא דְּאָמַר רַב יְהוּדָה אָמַר רַב: אָסוּר לִזְכּוֹת בַּבֵּיצִים כׇּל זְמַן שֶׁהָאֵם רוֹבֶצֶת עֲלֵיהֶם, שֶׁנֶּאֱמַר: ״שַׁלֵּחַ תְּשַׁלַּח אֶת הָאֵם״ וַהֲדַר ״אֶת הַבָּנִים תִּקַּח לָךְ״. אֲפִילּוּ תֵּימָא דִּנְפַלָה לַהּ לַחֲצֵרוֹ, כֹּל הֵיכָא דְּאִיהוּ מָצֵי זָכֵי לֵיהּ – חֲצֵרוֹ זָכְיָא לֵיהּ, וְכֹל הֵיכָא דְּאִיהוּ לָא מָצֵי זָכֵי לֵיהּ – חֲצֵרוֹ נָמֵי לָא זָכְיָא לֵיהּ.
And now that Rav Yehuda says that Rav says: It is prohibited to acquire the eggs as long as the mother bird is upon them, as it is first stated: “Send away the mother” and only then: “And take the young for yourself” (Deuteronomy 22:7), even if you say that the eggs fully emerged and fell into his courtyard, he will not acquire them, because in any case in which a courtyard owner is able to acquire an item by himself, his courtyard can effect acquisition of it for him, but in any case in which he is unable to acquire an item by himself, his courtyard cannot effect acquisition of it for him either.
אִי הָכִי: אֲסוּרוֹת בְּגָזֵל מִפְּנֵי דַּרְכֵי שָׁלוֹם? אִי דְּשַׁלְּחַהּ – גָּזֵל מְעַלְּיָא הוּא, אִי דְּלָא שַׁלְּחַהּ – הָא בָּעֵי שַׁלּוֹחַהּ!
The Gemara asks: If that is so, that the baraita is referring to a case where the courtyard cannot effect acquisition of the eggs for him, why does the baraita rule: They are subject to the prohibition of robbery, due to a rabbinic ordinance to maintain the ways of peace? If one dispatched the mother bird, in which case the courtyard would automatically effect acquisition of the eggs, then taking them would be full-fledged robbery, and if one did not dispatch the mother bird, doesn’t he need to dispatch her before it is permitted to take the eggs? Either way, one will have transgressed Torah law. Why, then, does the baraita refer to a rabbinic prohibition of robbery, rather than one by Torah law?
בְּקָטָן דְּלָאו בַּר שִׁילּוּחַ הוּא. קָטָן בַּר דַּרְכֵי שָׁלוֹם הוּא? הָכִי קָאָמַר: אָבִיו שֶׁל קָטָן חַיָּיב לְהַחְזִיר לוֹ מִפְּנֵי דַּרְכֵי שָׁלוֹם.
The Gemara answers: The baraita is referring to a minor, who is not subject to the mitzva of dispatching the mother bird. The Gemara challenges this answer based on the latter clause of the baraita: Is a minor subject to the rabbinic prohibition of robbery enacted to maintain the ways of peace? The Gemara explains: This is what the latter clause of the baraita is saying: The father of a minor who took such eggs is obligated to return them to the owner of the dovecote or attic, due to the rabbinic prohibition of robbery instituted to maintain the ways of peace.
מַתְנִי׳ הַמַּשְׂכִּיר בַּיִת לַחֲבֵירוֹ לְשָׁנָה, נִתְעַבְּרָה הַשָּׁנָה – נִתְעַבְּרָה לַשּׂוֹכֵר. הִשְׂכִּיר לוֹ לָחֳדָשִׁים, נִתְעַבְּרָה הַשָּׁנָה – נִתְעַבְּרָה לַמַּשְׂכִּיר.
MISHNA: In the case of one who rents out a house to another for a year and then the year was intercalated, adding an additional month to that year, the fact that it was intercalated is to the benefit of the renter. Since the rental was defined in terms of a year, the additional month is automatically included, and the renter need not pay additional rent for it. If a landlord rented out a house to another for a year, with the price set as a certain sum for each of the months, and then the year was intercalated, the fact that it was intercalated is to the benefit of the landlord.
מַעֲשֶׂה בְּצִיפּוֹרִי בְּאֶחָד שֶׁשָּׂכַר מֶרְחָץ מֵחֲבֵירוֹ בִּשְׁנֵים עָשָׂר זָהָב לְשָׁנָה, מִדִּינַר זָהָב לְחֹדֶשׁ,
An incident occurred in Tzippori involving one who rented a bathhouse from another where they stated that the rent would be: Twelve gold dinars per year, a gold dinar per month, and then the year was intercalated.
וּבָא מַעֲשֶׂה לִפְנֵי רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְלִפְנֵי רַבִּי יוֹסֵי, וְאָמְרוּ: יַחְלוֹקוּ אֶת חֹדֶשׁ הָעִיבּוּר.
And this incident came to court before Rabban Shimon ben Gamliel and before Rabbi Yosei, and they said: The two expressions have contradictory implications, and it is uncertain which expression should be followed. Therefore, the landlord and the renter should divide the intercalary month between them, i.e., the renter should pay half a gold dinar for it.
גְּמָ׳ מַעֲשֶׂה לִסְתּוֹר?! חַסּוֹרֵי מְחַסְּרָא וְהָכִי קָתָנֵי: וְאִם אָמַר לוֹ בִּשְׁנֵים עָשָׂר זְהוּבִים לְשָׁנָה מִדִּינַר זָהָב לְחֹדֶשׁ – יַחְלוֹקוּ. וּמַעֲשֶׂה נָמֵי בְּצִיפּוֹרִי בְּאֶחָד שֶׁשָּׂכַר מֶרְחָץ מֵחֲבֵירוֹ בִּשְׁנֵים עָשָׂר זְהוּבִים לְשָׁנָה מִדִּינַר זָהָב לְחֹדֶשׁ, וּבָא מַעֲשֶׂה לִפְנֵי רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְלִפְנֵי רַבִּי יוֹסֵי, וְאָמְרוּ: יַחְלוֹקוּ אֶת חֹדֶשׁ הָעִיבּוּר.
GEMARA: The Gemara asks: Was an incident cited to contradict the mishna’s initial ruling? The Gemara explains: The latter clause is incomplete and this is what it is teaching: But if the landlord said to the renter that the rent would be: Twelve gold dinars per year, a gold dinar per month, and then the year was intercalated, the intercalary month should be divided between them. And in addition, an incident like this occurred in Tzippori involving one who rented a bathhouse from another, and they stated that the rent would be: Twelve gold dinars per year, a gold dinar per month, and then the year was intercalated. And this incident came to court before Rabban Shimon ben Gamliel and before Rabbi Yosei, and they said: The landlord and the renter should divide the intercalary month between them.
אָמַר רַב: אִי הֲוַאי הָתָם, הֲוָה יָהֵיבְנָא לֵיהּ כּוּלֵּיהּ לְמַשְׂכִּיר.
Rav said: If I had been there, as a judge, I would have given the entire month to the landlord and ruled that the renter must pay for it. Rav understood that the statement defining the rent should be understood based on the final expression used, i.e., a gold dinar per month.
מַאי קָא מַשְׁמַע לַן? ״תְּפוֹס לָשׁוֹן אַחֲרוֹן״!
The Gemara asks: What is Rav teaching us? Could he be teaching that when a statement consists of two expressions with contradictory implications one should attend only to the last statement?
הָא אָמַר רַב חֲדָא זִימְנָא. דְּאָמַר רַב הוּנָא, אָמְרִי בֵּי רַב: ״אִסְתֵּירָא מְאָה מָעֵי״ – מְאָה מָעֵי. ״מְאָה מָעֵי אִסְתֵּירָא״ – אִסְתֵּירָא.
But didn’t Rav already say that one time before, as Rav Huna said with regard to a case in which a seller fixed the price for an item using two different expressions that indicate different amounts and the buyer agreed and took the item: They say in the study hall of Rav that if the seller said: An asteira, one hundred coins, i.e., copper perutot, then the buyer must pay him one hundred coins, despite the fact that an asteira is a coin worth ninety-six perutot. And if the seller said: One hundred coins, an asteira, the buyer must pay him an asteira. It is already apparent from this ruling that Rav holds that one should rule according to the final expression. Why did he restate his opinion with regard to the case of the intercalary month?
אִי מֵהָתָם, הֲוָה אָמֵינָא: פָּרוֹשֵׁי קָא מְפָרֵשׁ, קָמַשְׁמַע לַן.
The Gemara explains: If Rav’s opinion were known from there, I would say that the second expression is explaining the first, and that is the reason to follow it. But one would still not know the halakha in a case in which the second expression undeniably contradicts the first. Therefore, Rav teaches us that in all cases one acts in accordance with the final expression.
וּשְׁמוּאֵל אָמַר: בְּבָא בְּאֶמְצַע חֹדֶשׁ עָסְקִינַן. אֲבָל בָּא בִּתְחִלַּת חֹדֶשׁ – כּוּלֵּיהּ לְמַשְׂכִּיר, בָּא בְּסוֹף חֹדֶשׁ – כּוּלֵּיהּ לְשׂוֹכֵר.
And Shmuel said in explanation of the ruling of Rabban Shimon ben Gamliel and Rabbi Yosei: In the mishna, we are dealing with a case where the landlord came before the court in the middle of the month. Only in that case is the disputed month divided between them. But if he came at the beginning of the month, the entire month’s rent would be awarded to the landlord, and if he came at the end of the month, the entire month’s rent would be awarded to the renter. The reason is that it is uncertain whether or not one always acts in accordance with the final expression, and, consequently, whether the renter must pay for the extra month. With regard to upcoming days of rental, since the landlord has possession of the property, he can demand rent. And with regard to days that have already passed, where the question is whether the renter must pay for them, since he is in possession of his money, he cannot be made to pay. Shmuel does not hold that only the second statement is followed.
מִי אָמַר שְׁמוּאֵל לָא אָמְרִינַן ״תְּפוֹס לָשׁוֹן אַחֲרוֹן״? וְהָא רַב וּשְׁמוּאֵל דְּאָמְרִי תַּרְוַיְיהוּ: כּוֹר בִּשְׁלֹשִׁים אֲנִי מוֹכֵר לָךְ – יָכוֹל לַחֲזוֹר בּוֹ אֲפִילּוּ בִּסְאָה אַחֲרוֹנָה! כּוֹר בִּשְׁלֹשִׁים, סְאָה בְּסֶלַע אֲנִי מוֹכֵר לָךְ – רִאשׁוֹן רִאשׁוֹן קָנָה.
The Gemara asks: Did Shmuel actually say that we do not say that one should attend only to the last statement? But don’t Rav and Shmuel both say: If a seller says to a buyer: I am selling you a kor of grain for thirty sela, then he can renege on the sale even while transferring to him the last se’a of grain. As a kor is equal to thirty se’a, it is apparent that each se’a is being sold for one sela, but since that breakdown was not made explicit, the sale of the entire kor is considered as a single entity. Until the entire kor has been transferred, the sale does not take effect. If the seller used two expressions: I am selling you a kor of grain for thirty sela, a se’a per sela, then the buyer acquires each of the thirty se’a of grain one by one, immediately upon each being transferred to him, and the seller cannot renege on the sale of any se’a that has taken place. Although the implications of the seller’s two expressions are contradictory, Shmuel rules that one should act in accordance with the final expression.
הָתָם טַעְמָא מַאי – מִשּׁוּם דְּתָפֵיס, הָכָא נָמֵי קָא תָפֵיס.
The Gemara explains: There, in the case of the grain, Shmuel’s ruling was not due to the fact that we attend to the final expression, since it is uncertain whether or not we do. Rather, what is the reason for his ruling? It is due to the fact that the buyer has already taken hold of the grain and consequently has presumptive ownership of it. Here too, in the case of the bathhouse, each party is holding onto the basis of his claim, i.e., the landlord has possession of his property and the renter has possession of his money, and it is only due to this reason that Shmuel rules as he does.
וְרַב נַחְמָן אָמַר: קַרְקַע בְּחֶזְקַת בְּעָלֶיהָ קַיֶּימֶת. מַאי קָא מַשְׁמַע לַן – ״תְּפוֹס לָשׁוֹן אַחֲרוֹן״, הַיְינוּ דְּרַב? אַף עַל גַּב דְּאָפֵיךְ מֵיפָךְ.
And Rav Naḥman said: I would have ruled that since the halakha is that land is always in its owner’s possession, even when rented out, the landlord is entitled to the entire month’s rent. The Gemara asks: What is Rav Naḥman teaching us? Could his ruling be based on saying that one should attend only to the last statement? But then this is identical to the ruling of Rav. The Gemara clarifies: Rav Naḥman’s ruling is unlike Rav’s, as Rav Naḥman would award the extra month to the landlord even where the order of the two expressions is reversed. Rather, as he explained, his ruling is based on the fact the landlord has possession of the property.
בְּעוֹ מִינֵּיהּ מֵרַבִּי יַנַּאי: שׂוֹכֵר אָמַר נָתַתִּי, וּמַשְׂכִּיר אָמַר לֹא נָטַלְתִּי – עַל מִי לְהָבִיא רְאָיָה?
§ The Sages raised a dilemma before Rabbi Yannai: If a renter says to his landlord: I already gave the rental fee to you, and the landlord says: I did not take any payment from you, upon whom is the burden of proof?
אֵימַת? אִי בְּתוֹךְ זְמַנּוֹ – תְּנֵינָא, אִי לְאַחַר זְמַנּוֹ – תְּנֵינָא. דִּתְנַן: מֵת הָאָב בְּתוֹךְ שְׁלֹשִׁים יוֹם – בְּחֶזְקַת שֶׁלֹּא נִפְדָּה עַד שֶׁיָּבִיא רְאָיָה שֶׁנִּפְדָּה. לְאַחַר שְׁלֹשִׁים יוֹם – בְּחֶזְקַת שֶׁנִּפְדָּה, עַד שֶׁיֹּאמְרוּ לוֹ שֶׁלֹּא נִפְדָּה.
The Gemara clarifies the dilemma: When did the renter make his claim? If it was during his rental period, we already learned the halakha in this case and the Sages would not have asked about it. Similarly, if it was after his rental period, we already learned the halakha in that case as well. As we learned in a mishna (Bekhorot 49a): A father is obligated to redeem his firstborn son after the son is thirty days old by paying five shekels to a priest. If the father died within thirty days of the birth, the son has the presumptive status of being unredeemed, until he brings a proof that he was redeemed. If he died after thirty days, the son has the presumptive status of having been redeemed, until people tell him that he was not redeemed. It is apparent from this mishna that a person is presumed not to pay money before he must, and he is presumed to have paid money once he is required to do so. This logic can be applied to the paying of a rental fee.
לָא צְרִיכָא: בְּיוֹמָא דְּמִשְׁלַם זִמְנֵיהּ. מִי עֲבִיד אִינִישׁ דְּפָרַע בְּיוֹמָא דְּמִשְׁלַם זִמְנֵיהּ, אוֹ לָא?
The Gemara explains: No, it is necessary to raise the dilemma in a case where the renter makes his claim on the day on which his rental period is completed. The dilemma is whether a person is apt to pay his debts on the very day on which the period in which to pay them is completed, or he is not.
אֲמַר לְהוּ רַבִּי יוֹחָנָן, תְּנֵיתוּהָ:
Rabbi Yoḥanan said to them: Also this, you have already learned in a mishna (111a):
