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Bava Basra, 88

1) EXAMINING AN OBJECT BEFORE PURCHASING IT

QUESTION: The Gemara states that when a potential buyer picks up an object to examine it before buying it, and the price of that object is known, he becomes responsible for it. If the object is stolen or destroyed, even through an Ones, while it is in the buyer's hands, he is obligated to pay for it as if he had purchased it.

The Gemara teaches further that when a potential buyer inspects vegetables (being sold by an Am ha'Aretz) in the market and decides to purchase a particular one, he may not change his mind and return the vegetable to its place without first separating Ma'aser (since the produce are being sold by an Am ha'Aretz, they are "Demai" and the Rabanan required Ma'aser to be separated from them). The Gemara explains that this applies only to a person who is particularly G-d-fearing and always acts in accordance with his inner intentions even when no others are aware of those intentions (the Gemara refers to Rav Safra as an example of such a person; see Background). A person who is not on such a level may return the vegetable without separating Ma'aser, since he has not actually purchased the vegetable (he simply *wanted* to purchase it). The RITVA adds that this Halachah applies only when the price of the vegetable is already known.

If the price of the vegetable is already known, and the potential buyer picked it up in order to purchase it, why is it permitted for him to return it without separating Ma'aser (if he is not like Rav Safra)? According to the teaching of the Gemara earlier, it seems that from the moment a person lifts an object with the intention of purchasing it, the object becomes his. If he returns it to the seller, then he is "reselling" it, and he must first separate Ma'aser of Demai!

ANSWER: It is clear from our Gemara that this principle -- that the act of examining merchandise is tantamount to purchasing it -- does *not* apply when the buyer examines an object and decides that it does *not* meet his standards and he chooses to return it. It is only when he does *not* return the object that the buyer becomes responsible for the object immediately. Therefore, when the buyer explicitly states that he does *not* want to purchase the object, the object does not become his and he is not responsible for it.

There are two ways to understand this distinction:

(a) The RASHBAM (DH v'Hani) gives two explanations for why the buyer's act of examining an object makes him responsible for any calamity that befalls it. According to one approach, the buyer is simply considered to have *borrowed* the object when he picked it up in order to examine it. It is not yet *his*, but rather he is a *Shomer*. He bears responsibility for the object and must pay for it if it becomes destroyed in accordance with the laws of Shomrim, and not because he purchased the object.

According to this approach, it is clear that the buyer is only *responsible* for the object, and not that it actually belongs to him (until he pays for it). If the buyer retracts and does not pay for it, he may return the object.

However, many Rishonim disagree with this approach and prove (from the incident that the Gemara relates about the gourds that were sold in Pum-Nehara) that the buyer indeed acquires the object by examining it and he is not just a Shomer. (See TOSFOS 87b, DH ha'Loke'ach, and Rishonim).

(b) The RASHBA and the RE'EM (cited by the SHITAH MEKUBETZES) explain that a person acquires an object through examining it only because we assume that the object will *probably* find favor in his eyes (since most merchandise is not defective). If the object becomes destroyed while in the hands of the buyer, the buyer must pay for it, since he did not retract from the purchase due to a deficiency in the object and he probably would have purchased it. However, if the buyer explicitly states that this is *not* what he wants to purchase (even if he thought at first that it *is* what he wanted), we do not consider him to have purchased the object, and therefore he may return it without separating Ma'aser.

QUESTION: The Gemara teaches that when a G-d-fearing person inspects vegetables that are being sold by an Am ha'Aretz in the market and decides to purchase a particular one, he may not change his mind and return the vegetable to its place without first separating Ma'aser of Demai (see above). However, by separating Ma'aser before returning the produce he will reduce the value of the produce, causing harm to the seller. He must therefore separate Ma'aser and compensate the seller for the loss incurred by the separation of Ma'aser from his produce.

What loss does the seller suffer when the buyer separates Ma'aser from the produce? Since one is obligated to separate Ma'aser from produce bought from an Am ha'Aretz (because it is assumed that he did not yet separate Ma'aseros), the true value of the produce is its value after Ma'aser Demai has been separated from it. The Am ha'Aretz cannot charge for the portion of the produce that must be separated as Ma'aser, since the buyer knows that he will simply have to separate it from the produce after he buys it, and thus the buyer will only pay what the Demai is worth after Ma'aser is separated!

The loss that the seller incurs because he could have sold it to a Nochri, or to another Am ha'Aretz -- who himself is not careful to separate Ma'aser and views the produce as already fit to eat, certainly cannot be considered a loss caused by the potential buyer. The extra amount that the Am ha'Aretz charges for the Ma'aseros in such a case is analogous to theft, since the Ma'aseros are not the seller's to sell. One certainly is not required to compensate the Am ha'Aretz for that type of loss!

Perhaps the loss suffered by the Am ha'Aretz is the "Tovas Hana'ah" (the right to distribute the Ma'aseros to any Kohen or Levi of his choice), since the buyer, and not the Am ha'Aretz, is distributing the Ma'aseros. If that was the loss, though, then it would suffice for the buyer to return to the Am ha'Aretz the Ma'aseros and let the Am ha'Aretz distribute them as he wishes. The Am ha'Aretz would not be suffering any loss! What, then, is the loss incurred due to the separation of Ma'aseros from the produce?

ANSWERS:

(a) The RITVA explains that even after the Ma'aser is separated, future potential buyers of the produce will not believe the Am ha'Aretz's claim that Ma'aser was separated from the produce earlier. Therefore, they will pay only the price of Demai for the produce, and they will not pay the normal price of Chulin for it. This is the loss that the Am ha'Aretz incurs.

One may ask that if this is the loss, then the Am ha'Aretz can simply take back the Ma'aseros from the person who separated it when he takes back the rest of the produce. He will then display the Ma'aser along with the produce to prove that Ma'aser was indeed separated from this produce. Once he declares some of the produce that he is selling to be Ma'aser he should certainly be trusted to say that Ma'aser was separated from his produce, since he gains nothing by falsely declaring his produce Ma'aser if it was not actually separated as Ma'aser.

Perhaps the Ritva means that even if the Am ha'Aretz does declare part of the produce to be Ma'aser, he is not trusted. That produce might be Ma'aser that was separated for other produce, but not for the produce that he is selling now.

(b) The RITVA also points out that there are some people who pay a normal price (and not less) for produce that is Tevel, even though they are still required to separate Ma'aser from it. Tevel is worth more to a Kohen, Levi, or a poor person, since each one knows that he may eat the Terumah, Ma'aser, or Ma'aser Ani, respectively, once he has separated it from the produce. The produce has more value to them than just the "Tovas Hana'ah." However, if the Terumah or Ma'aser is separated already, the Am ha'Aretz may no longer sell them to a Kohen, Levi, or poor person for a higher price, since he is obligated to deliver it to them free of charge! This difference in price constitutes the loss that the buyer has caused to the Am ha'Aretz by separating Ma'aser from the produce.

(c) The RASHBAM might be offering an original answer to this question. The Halachah of Demai is that one must separate from the produce of an Am ha'Aretz its Terumas Ma'aser and Ma'aser Sheni, and these must be given to the Kohen and eaten in Yerushalayim, respectively. (Terumah Gedolah, because of its stringency, is presumed to have already been separated by the Am ha'Aretz.) Ma'aser Rishon and Ma'aser Ani are also separated from the produce of an Am ha'Aretz. However, since it is possible that the Am ha'Aretz already separated all of the Ma'aser from his produce (most Amei ha'Aretz actually do separate Terumos and Ma'aseros from their produce before selling it; see Sotah 47b), the doubtful Ma'aser Rishon and Ma'aser Ani may be eaten by the owner of the produce himself (who separated them) and not given to the Levi or the poor person, in keeping with the principle of "ha'Motzi me'Chaveiro Alav ha'Re'ayah." (This principle does not apply to Terumas Ma'aser -- which is prohibited to a non-Kohen -- or to Ma'aser Sheni -- which is prohibited to be eaten outside of Yerushalayim -- because a Torah prohibition, and not just a monetary issue, is involved.)

Accordingly, in the case of our Gemara, we would expect the buyer to separate Ma'aser Rishon and Ma'aser Ani and *keep it for himself*. The Rashbam, though, writes otherwise. The Rashbam (DH Me'asran) and RABEINU GERSHOM write that the potential buyer must separate not only Ma'aseros of Demai, but he must give these Ma'aseros to a Levi or poor person! Why must he give them away, if they are only Ma'aseros out of doubt? (See RASHASH.)

The answer might be that the person who separates Ma'aser is doing so on in order to exempt the vegetable of an *Am ha'Aretz* (i.e. the part of the vegetable that he is *not* buying) from Demai, and not to exempt his own vegetable. Normally, one does not have to deliver Ma'aser Rishon of Demai to a Levi since it is possible that Ma'aser Rishon was already separated and given to a Levi by the Am ha'Aretz. However, this argument does not apply to the Am ha'Aretz himself; he knows for certain whether or not Ma'aseros have already been separated from his produce. If, in truth, he has not yet separated Ma'aser, then he is not exempt from his obligation to separate Ma'aser until he actually *gives* the Ma'aser to the Levi.

The same applies to the person who separates Ma'aser on behalf of the Am ha'Aretz. He does not exempt the Am ha'Aretz from his obligations unless he actually gives the Ma'aser to the Levi -- due to the possibility that the Am ha'Aretz has not yet given it. In this case, the principle of "ha'Motzi me'Chaveiro Alav ha'Re'ayah" does not apply, since it is the buyer's interest not only to permit the food to be eaten, but to exempt the Am ha'Aretz from *his* obligations of Ma'aseros. Therefore, he must give the Ma'aser to the Levi or poor person.

(The Gemara in Nedarim 36b discusses who has the "Tovas Hana'ah," the right of distribution, when a person separates Ma'aser from *his own* produce in order to exempt the produce of *another person* from Ma'aseros. Our explanation might apply even if the one who separates the Ma'aser has the right of "Tovas Hana'ah.")

According to our explanation, if the buyer must actually give the Ma'aser to a Levi or poor person, unlike normal Demai, it is clear why the buyer is causing a loss to the Am ha'Aretz. Had the buyer not separated Ma'aser Rishon or Ma'aser Ani, the Am ha'Aretz could have sold the produce for a much higher price, since the eventual buyer would be required only to give away the Terumas Ma'aser and Ma'aser Sheni; he would keep the Ma'aser Rishon and Ma'aser Ani for himself. Now that the potential buyer has given away the Ma'aser Rishon and Ma'aser Ani, the Am ha'Aretz is losing money. That is why the buyer must reimburse the Am ha'Aretz for the loss he incurs through the separation of Ma'asros. (M. Kornfeld)

88b

AGADAH: The Gemara teaches that the punishment for one who uses dishonest measures is worse than the punishment for one who transgresses the prohibitions of Arayos. The Gemara proves this from the fact that the Torah refers to the prohibitions of Arayos as "El" (referring to a high degree of severity), while it refers to the prohibitions of using dishonest measures as "Eleh," (with a "Heh" at the end of the word), implying an even greater degree of severity.

How does the extra "Heh" allude to a greater degree of severity? (See commentary of RAV SAMSON RAFAEL HIRSCH to Devarim 25:16.)

ANSWERS:

(a) The MAHARSHA explains our Gemara based on the Gemara in Menachos (29b). The Gemara in Menachos teaches that Olam ha'Zeh, the world in which we live, was created with the letter Heh. This teaches that just as the bottom of the Heh is open, so, too, it is easy to "drop out from the bottom" of this world (by corrupting oneself through sinning and though abandoning the Mitzvos). The Heh has an opening on top as well, in order to "allow in" the penitent person who "raises himself" back up to this world, through Teshuvah.

The Gemara there explains that the opening on the bottom of the Heh is not sufficient to provide a "return entrance" to the world from which the sinner has fallen, because once a person has sinned it is difficult for him to return by using the same path with which he strayed. He must find a new "entry point" if he wishes to return to his former position.

We thus see that the letter Heh alludes to the difficulty of repentance after one has sinned. That is why the letter Heh is used to indicate the severity of using dishonest measures. Indeed, our Gemara states that the reason for the profound severity of the sin of using dishonest weights is the same reason mentioned in Menachos for why an extra entrance is required for the person who does Teshuvah: once a person has sinned with dishonest measures, it is very difficult to do Teshuvah.

(b) The TORAS CHAIM explains that the Gemara is alluding to the Midrash (cited by Rashi in Vayikra 19:35) which teaches that one who sells merchandise by weights or measures is compared to a judge, and if he uses inaccurate measuring devices he is like a judge who passes an unjust ruling. For doing so, *five* epithets are used to describe his corruption ("Avel, San'uy, Meshukatz, Cherem, To'evah") and the *five* consequences indicated for the corruption of justice will come into effect (Eretz Yisrael will become defiled, the Holy Name will become desecrated, the Shechinah will depart, the people of Yisrael will fall by the sword, and ultimately they will go into exile).

The Heh of "Eleh" is alluding to the *five* epithets and consequences which make the corruption of measures such a severe sin.

The BEN YEHOYADA adds that our Gemara gives us new insight into a verse in Tehilim (107:43): "Whoever is wise enough to observe these (Eleh), they will perceive the kindness of Hashem!" The Gemara later (89a) teaches that if one maintains honest measures in his home, then Hashem will reward him with wealth. Accordingly, the verse in Tehilim may be read as saying that one who carefully observes the Torah's directives regarding "Eleh" (honest measures) will be rewarded by having the kindness of Hashem manifest itself in his house!