The mishnah at the end of yesterday’s daf introduced the idea that when people buy various food products, they accept the likelihood that some percentage of the food has gone bad, or that some amount of waste product is mixed in. Up to this amount, which the mishnah establishes as a quarter of a kav out of each se’a of grain and ten percent for figs, we don’t require the seller to compensate the buyer. This means that if a buyer purchased 100 figs and only nine were infested, the buyer can’t demand they be reimbursed the cost of those nine figs.
In general, the mishnah assumes that some quantity of bad product isn’t a case of trickery on the part of the seller and they aren’t held liable for it. However, Rav Huna introduces us to another possibility:
Rav Huna says: If the buyer comes to sift, he sifts all of it. Some say this is the law, and some say it is a penalty.
The scenario here is one in which a buyer is examining produce and finds what seems to be a higher than expected proportion of waste. In that case, what happens? Rashbam explains that if the buyer sifts all the produce and finds, for example, more than a third of a kav of waste within a se’a of wheat, they can either insist it be exchanged for proper wheat or that the seller return the cost of that third of a kav. This position seems to contradict the mishnah, which stated that a certain ratio of waste is expected and forgiven by the buyer. Why then would Rav Huna require the seller to replace the entire volume of waste product, as opposed to just the amount over the accepted ratio?
The answer to this question will determine whether the rule Rav Huna stated is considered the law or is just a fine imposed by the rabbis. If it’s the former, then it means that in this case, the law requires that the seller reimburse a third of a kav of wheat or its value. If it’s the latter, the letter of the law requires the seller only to pay the difference between one-third and one-quarter kav of wheat, but the rabbis penalize him and require compensation for the full third.
The Gemara explains how we arrive at these different conclusions:
Some say that this is the law, as one who gives money gives it for good-quality produce. Where there is just a quarter kav of impurities per se’a, a person will not take the trouble (to sift the grain and remove it); but more than a quarter kav of impurities per se’a, a person will take the trouble, and once he takes the trouble, he takes the trouble (to sift) all of it.
According to those who think full compensation is the law, the assumption is that people don’t usually go to the trouble of sifting out a small ratio of waste from their produce, and so a seller isn’t liable to compensate for those impurities. But once the ratio passes a certain threshold, people will go to the trouble of removing this waste, and in doing so will remove the waste in its entirety. Since they no longer accept the possibility of any waste in their product, none of it can be considered forgiven, and the seller is liable to compensate for the full amount of waste product.
And some say it is a penalty. It is usual for a quarter kav of impurities to be present in each se’a. More is unusual, and (so the seller is suspected of having) mixed. And since the seller mixed, the sages penalized him (by requiring him to pay for) all of the impurities.
Those who believe that full compensation is the law were largely focused on the buyer’s perspective — i.e., what percentage of waste product have they accepted as a given and are willing to forgive. Those who believe Rav Huna’s ruling is a penalty are focused more on the seller and their seemingly duplicitous intentions. According to them, the issue here is not that we assume a change of heart in the buyer, but that we assume ill intent on the part of the seller. Since the buyer would still be willing to accept a quarter kav of impurities, according to the letter of the law the seller is only liable for an amount in excess of that. But since we suspect them of having acted deceitfully, we impose a penalty and require full compensation in the hopes of discouraging such practices.
Read all of Bava Batra 94 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 27, 2024. If you are interested in receiving the newsletter, sign up here.
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