New York – It happens often. A fantastic real estate deal for some land in say, Nevada, comes to your table. It turns out that the land is filled with huge rocks, mountains, and is someway unusable. Ye the contract stated that he will sell you X amount of acres.
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Does the person have to sell you tillable land without rocks?
Our Mishna (Bava Basra 102b) in today’s Daf may shed some light on the question. The Mishna states that if someone tells his friend, “I am selling you a Bais Kur of earth” and there were pits ten handbreadths deep or rocks ten handbreadths high, this are ias not to be included in the original amount sold.
The Rashbam writes that the reason is because he specifically said the word “awfar- earth” which indicates that he meant to sell the purchaser tillable land. Tosfos argues, however. He states that even without use of this specific word the sale must go through with other tillable land. The reason why the Mishna used the word is to teach us that even if it specifically stated tillable land, if it is less than ten handbreadths, the sale goes through as is.
What is the final ruling – like the Rashbam or like Tosfos? The Shulchan Aruch rules (CM 218:1) like Tosfos that the sale must go through with tillable land. The question now arises whether the rise of Caterpillar equipment has altered this halacha. Nowadays, rocks can easily be removed and pits can easily be filled even if they are ten tefachim in height or depth, with the use of Caterpillar equipment.
Does this socio-technological change affect the halacha? To answer this question we must analyze why the seller in the Mishna must provide different land to the buyer. Seemingly, it is because all buyers want to buy tillable land that is useful. In the time of the Mishna, it involved an extraordinary amount of work to change the land. The way most people conversed and understood general sales excluded the notion of untillable land. Now, depending upon the cost, it is very likely that this perception has changed and the sale might go through as is.
This edition of VINDAF VIEWS has been sponsored LeZaicher Nishmas Rav Yakov Nyman z”l..
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Kinda like the land in romania everyone was grabbing a while back
I DON’T UNDERSTAND I ALWAYS THOUGHT THAT HARAV HOFFMAN SHLITA
HOLDS THAT WE ALWAYS ASSUME THE SHULCHON ARUCH APPLIES BIZMAN HAZEH AS WELL.
IF THE RAV SHLITA COULD SHED LIGHT ON THIS
VERY IMPORTANT ISSUE IT WOULD BE MOST APPRECIATED.