We are now beginning the fifth chapter of Tractate Bava Basra, chapter 5, Mishnah 1. The chapter is called "He Who Sells a Ship", and it is a conceptual continuation of the previous chapter. The previous chapter dealt with one who sells a house, courtyard, or city - what is included in that sale when the matter is not explicitly stated in the conditions of the sale. There, it spoke of things attached to the ground or the ground itself, real estate properties; whereas this chapter deals entirely with what is included in the sale of properties that are fundamentally movable objects.
We should preface by noting that this chapter is particularly challenging: the answer to the question of what is included in a sale is based on the accepted meaning of the word - what is supposed to be included in the term or concept - and this depends on an understanding of the custom of the place and time. Since we do not speak their language, and our words do not necessarily carry the meaning of their words and vice versa, it will be difficult for us to precisely determine the compelling logic underlying many of the cases. Therefore, we will find ourselves saying again and again that this is how things were in those days, and in some cases we will even leave room for wonder. Nevertheless, we will do our best.
"Hamocher Es Hasefinah":
The Mishnah begins: "Hamocher es hasefinah" - he who sells a ship - Reuven says to Shimon, "I am selling you my ship", Shimon agrees, and they set a price, but they do not specify which parts are included in the sale. What, then, is included in the sale?
"Machar es hatoren" - he has sold the mast - the large central pole rising from the body of the ship, to which the sails are attached. It is mentioned in the singular, like all the cases in this part of the Mishnah, even though in a large ship there may be two, three, or four masts.
"V'es hanes" - and the sail - the sails attached to the mast, which catch the wind in order to propel the ship.
"V'es ha'ogen" - and the anchor - which prevents the ship from moving when they want to drop anchor and keep it in place.
"V'es kol hamanhigin osah" - and all that steers it - everything used to control the ship and direct it, such as the rudder, which is essential for its navigation. Since it is part of the ship, it is included in its sale.
However, the following are not included in the sale:
"Aval lo machar lo es ha'avadim" - but he has not sold him the slaves - they are the ship's crew. It speaks specifically of slaves, since with hired workers there would be no reason to think they were sold with the ship; but the slaves, even though they are owned by the ship's owner and are the ones operating it, are not included in the sale.
"V'lo es hamartzufin" - and not the packing bags - the cargo sacks, those empty sacks in which they store the merchandise in the hold of the ship.
"V'lo es ha'antiki" - and not the cargo - the cargo itself, what is placed inside the sack. A ship transporting wheat overseas, even if it is loaded with it, and the seller and buyer agreed on its price - the wheat in its hold is not included in the sale, since it is not part of the ship.
The distinction between the two groups: the items in the first group are necessary to some extent for the functioning of the ship and are an inseparable part of it, and they have no other use besides this; whereas the items in the second group stand on their own - the wheat or the slaves can be used for other things besides propelling the ship.
"Uvizman she'amar lo: hi v'chol mah shebesochah" - and when he said to him, "it and everything that is in it" - if they stipulated that not only the ship is being sold, but also everything inside it, then "harei kulan mechorin" - they are all sold - and everything detailed above, including the slaves and the cargo, is included in the sale. This concludes the first case in the Mishnah.
Selling the wagon and the mules:
The second case in the Mishnah is almost a new mishnah, and in the Babylonian Talmud it is indeed counted as a mishnah in its own right. It involves a wagon pulled by mules, as described in Chasidic stories:
"Machar es hakaron, lo machar es haperados" - if he sold the wagon, he has not sold the mules - the mules are not included in the sale. The assumption is that they are not currently hitched to the wagon, and therefore it is a wagon standing on its own; but if they were hitched to it, since they are like a part of it, they would be included in the sale.
"Machar es haperados, lo machar es hakaron" - if he sold the mules, he has not sold the wagon - the wagon does not transfer with them, and even if it was hitched to them, this is because the mules stand on their own and are separate from the wagons.
Selling the Yoke and the Cattle:
A "tzemed" is a yoke - a wooden beam placed upon the necks of two oxen, holding them together while they pull the plow. And thus we learned:
"Mechar es hatzemed - lo mechar es habakar" - if one sold the yoke, he has not sold the cattle, meaning the oxen are not sold with it.
"Mechar es habakar - lo mechar es hatzemed" - if one sold the cattle, he has not sold the yoke, meaning the yoke on their necks does not go with them, as these two things each stand on their own.
It is worth clarifying: There are places where the term "tzemed" clearly does not include the cattle, and there are places where it clearly does include them, and in both of these situations there is no dispute as to what is included in the sale. The case under discussion is a place where most of the time the word "tzemed" refers to the yoke, to the piece of wood alone, but there are some who use it to refer not only to the wood but also to the animals harnessed to it.
Rabbi Yehudah disagrees with the Tanna Kamma on this. The Tanna Kamma holds - and this is the halachah - that one who sold a "tzemed" sold the wood alone, since most of the time in that place, when people say "tzemed," they mean the piece of wood and not the animals with it. "Rabbi Yehudah omer: Hadamim modi'in" - Rabbi Yehudah says the money serves as proof; the sale price testifies to the intentions of the parties, and it can be proven from the context whether there was an intention to buy the animals as well.
"Keitzad?" - how so? "Amar lo: Mechor li tzemedcha b'masayim zuz" - if he said to him, "Sell me your yoke for two hundred zuz." A standard yoke costs about one zuz, and it is clear that the buyer is not coming to buy the wood alone but the animals with it, "sheharei ein hatzemed b'masayim zuz" - since the yoke is not worth two hundred zuz. Everyone knows that this is not the price of a piece of wood alone, and therefore the sale also included the animals.
"Vachachamim omrim: Ein hadamim re'ayah" - but the Sages say the money is no proof. We cannot bring proof from the price, since we are dealing with a place where most people call the piece of wood alone a "tzemed" and the animals are not included. The case discussed is as follows: Reuven asked Shimon to buy his yoke, Shimon quoted two hundred zuz, Reuven agreed and lifted the yoke. Afterward, a dispute erupted between them regarding whether the animals were included in the sale. Shimon claims, "We never spoke about the animals, and the word 'tzemed' does not include them; we agreed on the price, and he took the yoke." And Reuven claims, "I certainly intended for the animals to be included."
Rabbi Yehudah holds that the price proves the intention, but the Sages say that this is not conclusive proof. Sometimes a person wishes to give a gift to his friend, and since he feels uncomfortable giving it openly and directly, he buys an object from him at an exorbitant price, sparing him the shame of receiving a gift. Even though this is unusual, since we are in a place where the term "tzemed" generally does not include the animals, we cannot bring proof regarding his intention, and we cannot obligate the seller to give his animals - for the burden of proof rests on the one seeking to extract property from his fellow.
A Side Question - The Law of Ona'ah:
We could seemingly ask a question: We learned in Bava Metzia the law of ona'ah (overcharging) - one who charges his fellow more than a sixth above the fair market price, this is ona'ah, akin to exploitation, and the sale is void. If so, here too, no person pays two hundred zuz for a piece of wood, and this should be considered ona'ah.
However, this law does not apply in our case. Even though the prohibition of ona'ah, charging an exorbitant price, remains in effect, the rabbinic decree that the sale is void was only stated in a case where a person might be deceived, and it serves to protect him - whether it is the buyer who might be defrauded or the seller. But when everyone knows very well that this is not the market price, and the parties are not entering the transaction with their eyes closed but clearly understand that the payment is completely exorbitant, such as two hundred zuz for a piece of wood - this is not ona'ah. He knew exactly what was before him and the true market price, and he has no claim of deceit, and therefore there are no grounds to void the sale.
Nevertheless, the halachah here follows the Sages: The burden of proof rests on the one seeking to extract property from his fellow. In a place where the matter is in doubt and only the word "tzemed" was stated, the buyer acquires and retains nothing but the piece of wood alone.