Study Bava Batra folio 38A with parallel Hebrew-English text, traditional commentary, and modern study tools. Free access to Babylonian Talmud online.
Text Excerpt
מתקיף לה רבא, ולימא ליה: כורכמא דרישקא זביני לך, עקור כורכמא דרישקא, וזיל! אלא אמר רבא: בבא מחמת טענה.
Rava objects to this ruling that the buyer of the tree acquires the land beneath it: And let the seller say to him: I sold you only the saffron crocus, a small plant normally uprooted by the buyer and taken with him. Therefore, uproot the saffron crocus and go. Rather, Rava said: This ruling is stated with regard to one who comes to court with a specific claim that the seller had stipulated that he would acquire the land. Without this specific claim he does not acquire the land beneath the tree.
אמר ליה מר קשישא בריה דרב חסדא לרב אשי: ואי כורכמא דרישקא זבין ליה, מאי הוה ליה למעבד? איבעי ליה למחויי.
Mar Kashisha, the son of Rav Ḥisda, said to Rav Ashi: And if, in fact, the seller sold him the saffron crocus, what was there for the seller to do to prevent the buyer from claiming the land beneath the tree, as the buyer could claim that there had been an explicit stipulation that he receive it? Rav Ashi answered: He should have protested during the first 3 years and publicized that the land was not included in the sale.
דאי לא תימא הכי, הני משכנתא דסורא – דכתב בהי הכי: ״במישלם שניא אלין, תיפוק ארעא דא בלא כסף״; אי כביש ליה לשטר משכנתא, ואמר: ״לקוחה היא בידי״ – הכי נמי דמהימן?! מיתקני רבנן מילתא דאתי בה לידי פסידא? אלא איבעי ליה למחויי; הכא נמי, איבעי ליה למחויי,
The assumption that lodging a protest would be effective must be correct, since if you do not say so, then in the case of these mortgages according to the custom in Sura, a city in Babylonia, the debtor will not have a way to prevent the creditor from keeping his land. As in mortgages of that type it is written like this: At the completion of these years this land will be released to its prior owner without any need for the prior owner to give money. If the creditor were to hide the mortgage document in his possession and say: This land is purchased and that is why it is in my possession, here is it also the case that he would be deemed credible? That cannot be, as is it reasonable that the rabbis would institute a matter, such as this type of arrangement, that people can be led by it to suffer a loss? Rather, in the case of the mortgage the debtor should have protested, and by not protesting, he causes his own loss. Here too, in the case of the tree, the owner should have protested.