Talmud - Bava Kamma 102b בבא קמא ק״ב ב׳

to purchase wheat for him, which he plans to sell at a profit, and instead the agent purchased barley with the money, or if he gave his agent money to purchase barley and instead he purchased wheat with the money, two baraitot issue discordant rulings with regard to the halakha. It is taught in one baraita that if there was a loss, the loss is for the agent, and if there was a profit, the profit is for the agent as well, as he is considered to have abrogated his status as an agent by deviating from the instructions. And it is taught in one baraita (Tosefta, Bava Metzia 4:20) that if there was an agreement that both parties would split the profits from the transaction, if there was a loss, the loss is for the agent, and if there was a profit, the profit goes to the middle, i.e., the agent and the investor split the profit.

To reconcile the baraitot, Rabbi Yoḥanan said: This is not difficult. This first baraita is in accordance with the opinion of Rabbi Meir, and this second baraita is in accordance with the opinion of Rabbi Yehuda.

Rabbi Yoḥanan explains his rationale: This first baraita is in accordance with the opinion of Rabbi Meir, who says that a change by an agent that deviates from the terms of his assignment means that the agent acquires the item in question for himself, as in the case of one who was paid to dye wool red but dyed it black. In this case as well, when the agent purchases wheat instead of barley, or vice versa, he acquires the grain for himself. And this second baraita is in accordance with the opinion of Rabbi Yehuda, who says that a change by an agent which deviates from the terms of his assignment does not mean that the agent acquires the item in question for himself. It is acquired by the one who appointed the agent, and they split the profits as agreed. But the agent is held responsible for any loss incurred, due to his deviation from the instructions.

Rabbi Elazar objects to this explanation: From where do you say that the dispute between Rabbi Meir and Rabbi Yehuda extends to the case of these baraitot? Perhaps Rabbi Meir says that a change by an agent from the terms of his assignment results in the acquisition of the item by the agent only with regard to an item that is fit for use by the one who appointed the agent himself, such as wool dyed the wrong color, which is now not usable for its intended purpose. But Rabbi Meir does not say his ruling with regard to an item purchased for subsequent sale as merchandise, since it is intended to be sold for a profit in any event, and the transaction would take effect as agreed upon initially, with the agent held responsible for any loss incurred.

Rather, Rabbi Elazar said: Both this baraita and that baraita are written in accordance with the opinion of Rabbi Meir, and it is not difficult. Here, in the first baraita, it is discussing grain purchased for eating, and since the one who appointed the agent desired wheat, he does not acquire the barley. There, in the second baraita, it is discussing grain purchased for subsequent sale as merchandise, and the transaction takes effect as agreed upon initially, with the agent held responsible for any loss incurred.

The Gemara notes that they laughed at it in the West, Eretz Yisrael, at the explanation of Rabbi Yoḥanan, who said that according to the opinion of Rabbi Yehuda, a deviation by an agent from the terms of his assignment does not result in the acquisition of the item for the agent himself: And who informed the owner of the wheat, i.e., the seller, that he should transfer the wheat to the owner of the money? If the seller was unaware that the agent was acting on someone else’s behalf, how would the one who appointed the agent acquire the wheat? Rav Shmuel bar Sasrati objects to this rationale: If so, then even in a case where the agent was sent to purchase wheat and he purchased wheat, the one who appointed the agent should not acquire the wheat, since the seller was unaware that the agent was acting on someone else’s behalf.

Rabbi Abbahu said: The case of an agent who was assigned to purchase wheat and purchased wheat is different, as the agent is performing his assignment and, as such, he is like the customer, i.e., the one who appointed him, and it is as though the latter has purchased the grain himself.

Rabbi Abbahu further explains: Know that the agent is viewed as an extension of the one who appointed him, as we learned in a mishna (Arakhin 24a): Concerning both one who consecrates his property and one who valuates himself by donating his fixed value to the Temple, the Temple treasury does not have any rights with regard to the donor’s wife’s clothing; and not with regard to his children’s clothing; and not with regard to new clothes colored with dye that the donor dyed for his wife or children; and not with regard to new sandals that the donor purchased for his wife or children. Presumably, the treasurer has no right to these items because they are for the personal use of the donor’s wife and children, and are considered as if owned by them.

Rabbi Abbahu continues: And why is it so, i.e., why is it that the wife is considered the owner of the dyed clothing for which the husband paid? Here also, let us say: Who informed the dyer that he should transfer his dye to the wife? Rather, is it not because we say that the husband is performing his assignment and, as such, he is like an extension of his wife’s hand? Here also, in the case of one who purchases grain for another, the agent is performing his assignment, and is like an extension of the customer’s hand.

The Gemara rejects this explanation. Rabbi Abba said: No, the reason for the ruling of the mishna is that the intention of anyone who consecrates his property is not upon the clothing of his wife and his children, i.e., he does not intend to consecrate those items.

Rabbi Zeira objects to Rabbi Abba’s explanation: And is it the intention of a person who consecrates his property to do so upon his phylacteries? Presumably not. And we learned in a mishna (Arakhin 23b) that with regard to one who consecrates all of his property, his phylacteries are evaluated for him and consecrated. Apparently, lack of intent to consecrate a particular item does not prevent its consecration. Abaye said to Rabbi Zeira: Yes, the intention of a person who consecrates his property is upon his phylacteries, because one who consecrates his property thinks to himself: I am performing a mitzva, and he therefore intends to include his phylacteries; but the intention of a person is not upon the clothing of his wife and his children, due to the enmity that would be engendered if he consecrated their clothing.

Rav Oshaya also objects to Rabbi Abba’s explanation: But is it not so that the matter of those who are obligated in valuations was taught here in the mishna, and we learned in a mishna (Arakhin 21a): Concerning those who are obligated in valuations, the Temple treasury seizes collateral from them to force them to fulfill their vow.

And is the intention of a person upon himself to allow the treasurer to seize collateral from him? Presumably not. Nevertheless, collateral is seized from him, proving that one’s intention does not prevent consecration. Accordingly, even if it is assumed that he does not intend to consecrate the clothing of his wife or children, the clothing should nevertheless be consecrated. Why, then, is the clothing of his wife or children not consecrated?

Rather, Rabbi Abba also holds that the reason the clothing is not consecrated is not due to his intent, and he said a different explanation: Anyone who consecrates his property becomes as one who transferred his wife’s and his children’s clothing to them at the outset. Therefore, the clothing did not belong to him at the time that he consecrated his property.

§ The Gemara presents another situation in which one makes a purchase involving a third party. The Sages taught: In the case of one who purchases a field in the name of another, he is not compelled to sell it. But if he said to him at the time of the sale: I will purchase the field on the condition that he will sell it to me, he is compelled to sell it.

Noting the ambiguity of this statement, the Gemara asks: What is it saying? Rav Sheshet said that this is what it is saying: With regard to one who purchases a field from another, claiming that he is acting in the name of the Exilarch or another dominant figure, so that others will be discouraged from contesting the sale, the Exilarch is not compelled to sell it to him, i.e., the Exilarch is not required to provide the purchaser with documentation that the field belongs to the purchaser. But if the purchaser said to the seller: I will purchase the field on the condition that the Exilarch will provide me with that documentation, the Exilarch is compelled to sell it to him, i.e., to provide him with the documentation.

The Gemara questions Rav Sheshet’s interpretation. The Master said: With regard to one who purchases a field in the name of the Exilarch, the Exilarch is not compelled to sell it to him. Since the baraita teaches only that the Exilarch is not required to provide the purchaser with documentation that the field is his, it can be understood by inference that the purchaser has nevertheless acquired the field for himself. Let us say that this interpretation of the baraita disagrees with the statement of the residents of the West, Eretz Yisrael, who say: And who informed the owner of the wheat that he should transfer the wheat to the customer? Since the seller assumed he was selling the field to the Exilarch, the Sages of Eretz Yisrael would hold that the sale does not take effect.

The Gemara rejects this: If it is due to this inference that it is surmised that the baraita is in conflict with the opinion of the Sages of Eretz Yisrael, it is not difficult, as it can be said that the baraita is discussing a case where the purchaser informed the owner of the field and informed the witnesses that he intends to purchase the field for himself.

The Gemara rejects Rav Sheshet’s interpretation for a different reason. Rather, say that the latter clause is difficult, as it states that if the purchaser said to the seller: I will purchase the field on the condition that the Exilarch will sell it to me, the Exilarch is compelled to sell it to him. Why should the Exilarch be compelled to provide the purchaser with documentation? But let the Exilarch say: I do not desire your esteem nor do I desire your disgrace, i.e., I am not involved in your affairs. Since the Exilarch had not been party to the negotiations, how can a stipulation stated by the purchaser render him obligated?

Rather, Abaye said: This is what the baraita is saying: With regard to one who purchases a field in the name of his friend, the Exilarch,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bava Kamma 102b explores agency law disputes, contrasting Rabbi Meir and Rabbi Yehuda on liability and profit-sharing when an agent deviates from instructions.