1) WHEN A CONTRADICTORY STATEMENT IS NOT A RETRACTION

QUESTION: The Mishnah records the opinion of Ben Nanas in the case of conflicting terms in a sale. The expression "Midah b'Chevel" refers to when an exact amount is specified, and "Hen Chaser Hen Yaser" means an approximate amount ("more or less"). Ben Nanas states that when a seller states both of these terms when he sells a field, we follow the last term that he states. Rebbi Aba says that "his colleagues" disagree with Ben Nanas.

The Gemara asks that Rebbi Aba seems to teach nothing new, since it is clear from a Beraisa that the Rabanan disagree with Ben Nanas. The Beraisa discusses a case in which the wording of a rental contract was "twelve gold [Dinarim] per year, one gold Dinar per month," and the year turned out to be a leap year. Must the tenant pay a Dinar for the extra month? Raban Shimon ben Gamliel and Rebbi Yosi rule that the payment for the extra month is divided between the two parties, and thus the tenant pays only half of a Dinar for the extra month.

The Gemara explains that Rebbi Aba's statement is necessary. It is possible that in the rental contract the landlord merely intended to explain what he meant and he did not contradict himself. In the case of the Mishnah, in contrast, the two terms clearly contradict each other. Perhaps Rebbi Shimon ben Gamliel and Rebbi Yosi rule that the money is divided only when there is a possibility that the two terms do not contradict each other, but they agree that when the two terms contradict each other, the second term takes precedence. The RASHBAM (DH Ka Mashma Lan) adds that because the seller said two contradictory terms "Toch Kedei Dibur," it is unclear which one he really meant. This is why Rebbi Aba's statement, that Rebbi Shimon ben Gamliel and Rebbi Yosi disagree with Ben Nanas, is necessary.

The Rashbam explains that in the case of the Mishnah, the two contradictory terms were uttered "Toch Kedei Dibur." If this is the case, though, why do Rebbi Shimon ben Gamliel and Rebbi Yosi disagree with Ben Nanas? When a person utters a second statement within "Toch Kedei Dibur" which contradicts his first statement, it is logical to assume that his intention is to invalidate the first statement. Why do Rebbi Shimon ben Gamliel and Rebbi Yosi disagree with Ben Nanas?

ANSWER: The NIMUKEI YOSEF quotes a cryptic statement in the name of the RITVA, who explains that when a person contradicts himself, he usually says that he has made a mistake, or some other comment to that effect. The Ritva then writes that if a person merely says "the second statement and does not explain further that he regrets the second term and wants the first term."

The AYELES HA'SHACHAR writes that he did not understand the meaning of these words of the Ritva until he saw the TOSFOS RID. The Tosfos Rid explains that it is possible that when the person said the second term, his intention was to say a similar phrase that would express his first statement in a different way, but he ended up saying a phrase that was contradictory. This is what the Ritva means when he says that the person "regrets the second term and wants the first term." He may not have had in mind anything other than his first statement. (Y. MONTROSE)

105b----------------------------------------105b

2) THE OPINION OF RAV

OPINIONS: Rav Huna says that in the Yeshiva of Rav it was taught that if a seller states two contradictory amounts, one after the other, in the terms of a sale (for example, he says that he sells the item for "an Istera, 100 Ma'os," or "100 Ma'os, an Istera"), the second amount is binding.

The Gemara asks that Rav Huna does not seem to teach anything new, since Rav explicitly taught that the second statement takes effect. The Beraisa earlier (105a) discusses a case in which the wording of a rental contract was "twelve gold [Dinarim] per year, one gold Dinar per month," and the year turned out to be a leap year. Must the tenant pay a Dinar for the extra month? Raban Shimon ben Gamliel and Rebbi Yosi rule that the payment for the extra month is divided between the two parties, and thus the tenant pays only half of a Dinar for the extra month. Rav said that had the case been presented to him, he would have ruled that the landowner receives the money. Rav seems to maintain that the second statement is effective, and that is why the tenant must pay the owner an extra Dinar for the extra month. Why, then, does Rav Huna quote this ruling in the name of the "Yeshiva of Rav" and not in the name of Rav himself, and why does he express Rav's ruling in a different case? The Gemara answers that one might have thought "that he is merely explaining." What is the meaning of the Gemara's answer?

(a) The RASHBAM (DH Mahu) explains that in the case of the rental, it is reasonable to assume that the landlord meant the usual rent of twelve gold coins per year, and the reason why he added "one Dinar per month" was that he wanted to cover himself in case the year became a leap year. Accordingly, his two statements did not contradict each other at all. Perhaps this is the reason why Rav ruled that he would have awarded all of the money to the landlord (and not because we follow the second statement). However, in the case of one who says, "Istera Me'ah Ma'ei," although the terms seem contradictory, it is possible that the seller means to say that the item costs "an Istera which is almost one hundred Ma'ei." Consequently, one might have assumed that Rav would rule that the item's cost is one Istera. In order to prevent one from making such a mistake, Rav Huna states that Rav follows the view of Ben Nanas, that the second statement takes effect.

(b) The Rashbam quotes a different explanation in the name of RASHI in Bava Metzia (102b, DH Iy me'Hasam). Rashi explains that when the Gemara here says "that he is merely explaining," it refers to the cases of "Istera Me'ah Ma'ei" and "Me'ah Ma'ei Istera." In the former case, it is possible that the seller means that he wants a unit of coinage (Istera) which is worth more than the standard Istera (worth 96 Perutos). He wants a "large Istera" worth 100 Perutos. In the case of "Me'ah Ma'ei Istera," it is possible that the seller means that he will accept 100 old Perutos which are worth only an Istera. TOSFOS (DH Perushei) explains that Rashi maintains that Rav's statement -- that he "would have given everything to the landlord" -- is not a proof that he rules that the second statement always takes effect. It is possible that Rav ruled this way because he understands that a landlord has the right to keep whatever is known as his property until it is proven otherwise.

The Rashbam argues that this cannot be the explanation of the Gemara here. Tosfos also questions this explanation. The Mishnah later (165b) says that if a document states "100 Zuz which is 20 Sela," the Halachah is that the lesser amount, 20 Sela, is assumed to be the proper amount. Similarly, if the document states "100 Zuz that is 30 Sela," 100 Zuz, the lesser amount, is used. Since the Mishnah later says that the lesser amount is considered the proper amount and the two amounts are not assumed to be in agreement, why does Rav maintain that the first amount (Istera) is assumed to be in agreement with the second amount (Me'ah Ma'ei)?

Tosfos answers that the Mishnah later discusses a case in which the two contradictory terms are separated by other words, in contrast to the case of the Gemara here in which the two terms are stated consecutively. Since the two terms are consecutive, there is more reason to assume that they are not contradictory. Tosfos points out, however, that the Rashbam's explanation is more consistent with the flow of the Gemara. The Gemara's question is that Rav Huna did not need to teach the case of Istera, since Rav already expressed his opinion in the case of the rental of the bathhouse. The Gemara therefore needs to answer why the law in the case of the bathhouse does not teach what the law is in the case of Rav Huna. However, Rashi's approach seems more correct in Bava Metzia (102b), because the Gemara there asks the question the other way around. The Gemara there asks that Rav's ruling in the case of the bathhouse is redundant, since Rav Huna already reported that Rav taught this Halachah in the case of "Istera Me'ah Ma'ei." The Gemara there gives the same answer that it gives here. Rashi's explanation in Bava Metzia, therefore, is fitting, because the Gemara there attempts to explain the case of "Istera Me'ah Ma'ei" and not the case of the bathhouse. (Y. MONTROSE)

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