QUESTION: The Mishnah discusses various cases in which a dispute arises between a buyer and a seller concerning the object that was purchased. The Mishnah says that in a case in which the buyer claims that he bought the larger object (such as the larger field), and the seller does not know which one he sold to the buyer, the buyer is entitled to take the larger field.

Why is the buyer entitled to take the larger field? Presumably, the Mishnah entitles the buyer to take it because his claim is a claim of certainty ("Bari"), while the seller has only a claim of doubt ("Shema"). The Halachah in such a case, however, is "Bari v'Shema Lav Bari Adif" -- when one person has a claim of certainty and the other has a doubtful claim, the claim of certainty does not prevail to take money or objects from the possession of the other. Why, in the case of the Mishnah here, does the buyer's claim prevail?

(a) In his first answer, the RA'AVAD explains that the rule of "Bari v'Shema Lav Bari Adif" applies only when the one with the claim of "Shema" is actually in possession of the object in doubt and thus has a "Chezkas Mamon" that counters the other person's claim of "Bari." If, however, the one with the claim of "Shema" is not in possession of the object (and he has only a "Chezkas Mara Kama" -- a Chazakah that, before this moment, he was known to be the owner -- to support his claim of ownership), the other person's claim of "Bari" overrides his claim of "Shema."

The Mishnah presumably discusses a case in which the seller is not in physical possession of the object. The previous case in the Mishnah, according to the Gemara, certainly refers to a case in which the cow is not in the physical possession of either the buyer or seller, but rather is in the marsh. It is reasonable to assume that the second case of the Mishnah also discusses such a situation. Since there is no proper "Muchzak," but only a Chazakah of "Mara Kama," the buyer's claim of "Bari" overrides the seller's claim of "Shema."

The RAMBAN (Bava Basra 34b), however, argues with the Ra'avad's assertion and maintains that even when the original owner is not in physical possession of the object and has only a Chazakah of "Mara Kama," the other person's claim of "Bari" does not prevail.

(b) The Ra'avad offers a second answer with which the Ramban agrees. He explains that the Mishnah refers to a case in which the seller was obligated to make a Shevu'ah of "Modeh b'Miktzas" to the buyer due to an additional element involved in the dispute that arose between them. Since the seller admits that he owes part of the buyer's claim, and -- with regard to the buyer's claim that he bought the larger field -- the seller responds that he does not know, the Halachah follows the standard rule that a person who is obligated to swear but cannot swear must pay. (This is similar to the case in the Gemara on 97b.) (Y. Marcus)

QUESTION: The Mishnah (100a) discusses various cases in which a dispute arises between a buyer and a seller concerning the object that was purchased. The Mishnah says that in a case in which the buyer claims with certainty that he bought the larger Eved (or larger field), and the seller claims with certainty that he sold the smaller Eved (or smaller field), the seller must swear that he sold the smaller Eved (and then the buyer receives only the smaller Eved). This Shevu'ah is a "Shevu'as Modeh b'Miktzas," since the seller admits that he did sell something.

The Gemara (100a) asks several questions on the Mishnah's ruling. The Gemara asks that this is not a case of "Modeh b'Miktzas" because the seller does not admit to any part of the buyer's claim. The buyer claims that he bought one Eved (or one field), and the seller claims that he sold a completely different Eved (or field). The case of "Modeh b'Miktzas" is a case in which the defendant admits to part of what the claimant actually claims is his. In the case of the Mishnah, the seller's admission relates to an entirely different item.

The Gemara then asks that this case should be considered a case of "Heilach," because when the seller denies that he sold a large Eved, he hands over the small Eved that he admits having sold. One opinion cited earlier (4a) maintains that one does not make a Shevu'ah of "Modeh b'Miktzas" in a case of "Heilach."

Finally, the Gemara asks that there is a rule that one does not swear about Avadim (or Karka'os, land). Why, then, does the seller have to swear?

Shmuel answers that in the Mishnah's case, the dispute is not over the Eved himself, but over the clothes of an Eved (or, in the case of the field, the sheaves of grain on the field). The buyer claims that he bought the clothing of a large Eved, while the seller claims that he sold the clothing of a small Eved. The subject of the dispute, therefore, is mobile property (Metaltelin) about which a Shevu'ah may be made (in contrast to Avadim and Karka'os). This answers the third question. It also answers the first question, as the Gemara itself explains, because the dispute involves one large piece of fabric from which the clothing is made. Thus, the seller indeed admits to part of the buyer's claim; the buyer claims that he is entitled to a large piece of fabric, while the seller maintains that only a portion of that fabric was sold.

How, though, does Shmuel's explanation answer the second question? The case still should be considered a case of "Heilach," because the seller readily gives to the buyer the part of the claim to which he admits (i.e. part of the clothing), and no Shevu'ah should be made. (RAN)

ANSWER: The RAN answers that the case is not a case of "Heilach" because the clothing in dispute is attached to one large piece of fabric, as the Gemara explains. Accordingly, the buyer does not claim a specific article of clothing, but rather he claims an amount (such as a length) of any part of the roll of fabric. Hence, when the seller agrees that he sold a smaller amount, there is no specific, identifiable object that the seller hands over as part of his admission. Rather, the seller now must choose which part of the fabric he will give to the buyer. Therefore, the seller's admission does not involve "Heilach." (Similarly, with regard to the sheaves in the field, the buyer claims a number of sheaves, but not any particular sheaves.) (Y. Marcus)