QUESTION: Rav and Shmuel disagree about the law in the case of a person who sold an ox which turned out to be a goring ox. Rav says that the sale is invalid; the buyer may claim that he intended to buy an ox to work his field, but this ox cannot be left alive and is good only for its meat. Shmuel says that the sale is valid, because the seller may claim that the buyer bought the ox for its meat, and thus the fact that it has a habit of goring is inconsequential to the sale.

The Gemara first suggests that research be done into the facts of the case. If the seller usually sells oxen for meat, then the seller's claim is justified and the sale should be valid. If the seller usually sells oxen for work, then the buyer's claim is justified and the sale should not be valid. The Gemara answers that the dispute between Rav and Shmuel applies to a case in which the seller conducts both types of sales.

The Gemara then asks that the price that was paid for the ox should reveal the purpose for which the ox was purchased. An ox sold for plowing fields is more expensive than an ox sold for meat. The Gemara answers that the dispute between Rav and Shmuel applies to a case in which the price of meat-oxen had risen to a level comparable with the price of work-oxen.

TOSFOS (DH v'Lichzi) asks that the Gemara's question (that the price paid for the ox should reveal the purpose for which the ox was purchased) is contrary to the position of the Rabanan quoted earlier (77b). The Rabanan state, "Ein ha'Damim Ra'ayah," one cannot determine the nature of a sale based on the price. The Rabanan there argue with Rebbi Yehudah who states that the price may be used to determine the nature of a sale ("Damim Modi'im"; see Insights to Bava Basra 61:2). Why does the Gemara here seem to follow the view of Rebbi Yehudah, whose opinion is not the Halachah?

(a) TOSFOS answers that the Rabanan maintain "Ein ha'Damim Ra'ayah" only in a case like the one mentioned in the Gemara earlier (77b). In that case, the buyer explicitly said that he is purchasing the Tzemed (yoke), even though the price for the yoke was high. The sale took place in an area where most people call a Tzemed a Tzemed and do not include the oxen in the sale of a Tzemed. Since there is a Rov (that most people call a Tzemed a Tzemed) and a Chazakah (that the money is in the hands of the seller), the Rabanan rule that the price cannot reveal anything about the nature of the sale. In contrast, in the case of the Gemara here, most people in the place of the sale sell oxen for plowing, which means that there is a Rov that supports the claim of the buyer, but the seller has a Chazakah because he is in possession of the money. The Rabanan agree in such a case that the price may be used as a determining factor to decide the case. This is also the explanation given by the YAD RAMAH.

(b) The RASHBA quotes the RI MI'GASH who explains that when the Rabanan earlier say "Ein ha'Damim Ra'ayah," they mean only that the money is not proof of what was sold, such as whether or not the oxen were included in the sale of the Tzemed. However, the Rabanan agree that when an item was sold, and both parties agree that the actual item delivered was the item described, but they disagree about whether the item fits the specifications that the buyer claims to have wanted, the price that was paid may be used as proof for whether the seller intended to meet the buyer's claimed specifications. (See a similar answer quoted by the Rashba in the name of the RA'AVAD.)

(c) RABEINU CHANANEL explains that from the fact that the Gemara does not answer this question by saying simply that the price is not a proof, one may infer that the Gemara in fact maintains that even the Rabanan agree that the price sometimes may serve as proof to invalidate a sale. Rabeinu Chananel concludes that the Gemara here must be referring to any case in which the price clearly indicates what was sold. (Y. MONTROSE)

OPINIONS: The Gemara teaches that if a person sold a slave to his friend and the slave turned out to be a thief or a Kuvyustus (a kidnapper or gambler; see Background to the Daf), the sale is valid. If the slave was found to be an armed robber or wanted by the government, the sale is invalid and the buyer may return the slave for a full refund.

The SHULCHAN ARUCH (CM 237:10) explains the reasoning of the Gemara's ruling, based on the Gemara in Kesuvos (58a). In the first two cases, the fact that the slave is involved in unsavory activities does not render the sale to have been made under false pretenses. All slaves are suspected of stealing, and therefore the fact that the purchased slave steals is nothing out of the ordinary Moreover, the slave's involvement in thievery does not necessarily interfere with his work (he may steal at night, when he is not expected to be working). As long as the slave does his job, he is a fitting slave and the sale is valid. However, if he is an armed robber or wanted by the government, the buyer will soon have no slave, since the slave is slated for execution. This certainly interferes with the purpose for which he purchased the slave, and thus the sale is invalid.

The CHAVOS YA'IR (#211) was asked about a case of a woman who was sold by her brother as a slave, and it was later revealed that she was a Zonah. Is this type of blemish considered grounds to invalidate the sale?

(a) The brother of the woman claimed that since she can do her work in the normal manner, her involvement in promiscuity should not invalidate the sale. She also is not pregnant, and thus she is fit to work as normal.

(b) The Chavos Ya'ir writes that the sale is invalid. The fact that she was a Zonah provides reason to assume that she will have a tendency to return to her illicit behavior, and she thus will spend time away from work in this pursuit. Moreover, her former profession will draw unwanted people to her master's house. However, the Chavos Ya'ir differentiates between a girl who was a Zonah and a girl who was known to be a modest girl who was enticed to behave sinfully. In the latter case, the master should keep her and be watchful that she does not leave the house without permission or supervision.

The Chavos Ya'ir's position is difficult to understand. The Gemara says that being a thief is not considered a blemish for an Eved. Similarly, being a Zonah should not be considered a blemish. The Chavos Ya'ir's arguments that the woman will end up spending time away from work and that she attracts a bad crowd would seem to apply equally to an Eved who is a thief.

(c) The SHEVUS YAKOV (1:174) questions the entire discussion of the Chavos Ya'ir. The case of the Chavos Ya'ir involved a Jewish girl who was hired out by her brother as a "slave." The Gemara's discussion about the sale of a slave refers to an Eved Kena'ani and a Shifchah Kena'anis, not to Jewish slaves. A Jewish slave is certainly not suspected of stealing any more than any other Jew. It is clear that if a Jewish worker was hired out by someone and found to be a thief, the deal is null and void, since Jews are not suspected of being thieves. He proves this from the Gemara in Bava Kama (28a) which states that a master is allowed to force an Eved Nirtza to leave his house when the Yovel year arrives (since he is no longer allowed to be his Eved), and the master is exempt from any liability for his use of force. The Gemara there says that this Halachah refers to an Eved who steals from his master. (The Gemara there explains that the servant wants to continue living in his master's home after the Yovel year, without being a real Eved. The master is concerned that the former Eved will start stealing from him.) The Shevus Yakov adds that it is clear from many sources that a Shifchah Kena'anis is presumed to be a Zonah (see, for example, Avos 2:8: "Marbeh Shifchos Marbeh Zimah"), and thus a Shifchah's occupation with promiscuity is not a reason to invalidate her sale (since the buyer presumably knows that she is a Zonah). The Shevus Yakov therefore disagrees with the conclusions of the Chavos Ya'ir. (Y. MONTROSE)