Talmud - Mas. Baba Bathra 151a
a deed may be written for the seller though the buyer is not with him. [In this case,] as soon as [the buyer] takes possession of the ground he acquires [also] the deed, irrespective of the place in which it is kept. And this accords with what we have learnt [that] movable property may be acquired with landed property by means of money. deed and possession.1 Cattle are called property; for we learnt: If a person consecrated his property2 which contained cattle suitable [as sacrifices] for the altar; males are to be sold3 for4 burnt offerings, and females are to be sold for5 peace offerings.6 Birds are called property; for we learnt: If a person consecrated his property which contained things suitable [for sacrifices] for the altar, [such as] wines, oils and birds [etc.].7 Phylacteries are called property; for we learnt: If a person consecrated his property, [his] phylacteries [also] are taken away8 from him.9
The question was raised: What [is the law in the case of] a scroll of the Law; is [it] not [regarded as] property, since It is unsalable because it is prohibited to sell it, or, perhaps. since it may be sold in order to study Torah or to take a wife,10 it is [regarded as] property? - This is undecided.
(Mnemonic:11 Zutra, the mother of Amram of two sisters, R. Tobi and R. Dimi and R. Joseph.)
The mother of R. Zutra b. Tobia gave her property in writing. to R. Zutra b. Tobiah, because she intended to marry R. Zebid.12 She [duly] married, but was [subsequently] divorced. She [thereupon] appeared before R. Bibi b. Abaye.13 He said: [She made a gift of her property] because she desired to marry14 and, behold she married.15 R. Huna the son of R. Joshua said unto him, 'Because you are [yourselves] frail [beings] you speak frail words'.16 Even according to him who said [that a gift given by] a woman who wished to keep it away from her future husband is acquired [by the recipient], this law is only applicable17 [to a case] where [the woman] did not declare her reason. Here, however, she has [specifically] declared that [she made the gift] because she [wished] to marry. and, surely. [though] she married, she was [now] divorced.18
The mother19 of Rami b. Hama gave her property in writing to Rami b. Hama, in the evening; [but] in the morning she gave them in writing to R. 'Ukba b. Hama. Rami b. Hama came before R. Shesheth who confirmed him in the possession of the property. R. 'Ukba b. Hama, [however]. went to R. Nahman who [similarly] confirmed him in the possession of the property. R. Shesheth [thereupon] appeared before R. Nahman [and] said unto him, 'what is the reason [that] the Master has confirmed R. 'Ukba b. Hama in possession? Is it because she retracted? Surely she died'!20 He21 replied unto him: Thus said Samuel, 'Wherever a person may retract if he recovered,22 he may [also] withdraw his gift'.23 May it be suggested24 that Samuel said [this25 in the case only where the withdrawal was] for himself; did he, [however], say [this25 in the case where the withdrawal was in favour] of another person?26 He27 replied unto him,: Samuel distinctly stated, 'whether for himself or for another'.
The mother of R. Amram the pious had a case28 of notes [of indebtedness]. While she was dying she said, 'Let it be [given] to my son Amram'. His brothers appeared before R. Nahman [and] said to him, 'Surely he29 did not pull30 [the case of documents]'! He replied unto them: The instructions of a dying person [are regarded legally] as written and delivered.31
The sister of R. Tobi b. R. Mattenah gave her possessions, in writing. to R. Tobi b. R. Mattenah in the morning. In the evening, Ahadboi son of R. Mattenah came [and] wept before her, saying: Now [people will] say [that] one32 is a scholar33 and the other is no scholar. [So] she gave them in writing to him. He [subsequently] appeared before R. Nahman, [who] said unto him: Thus said Samuel, 'Wherever a person may retract if he recovers, he may [also] withdraw his gift'.34
The sister of R. Dimi b. Joseph had a piece of an orchard. Whenever she fell ill she transferred the ownership of it to him,
(1) Supra 77a, q.v., for notes.
(2) For the purposes of Temple repair.
(3) V. Shek. IV, 7: and cf. Bah a Rashb.
(4) Lit., 'For the requirements'. i.e., to persons who require burnt-offerings.
(5) Cf. previous note.
(6) Shek. IV, 7, Zeb. 150a, Tem. 20a, 31b.
(7) Shek. IV, 8.
(8) So R. Gersh. According to Rashb., 'they estimate for him', put them up to auction so that he might redeem them.
(9) 'Ar. 23b, B.K., 102b.
(10) Meg. 27a.
(11) The Following are key-words used as an aid in the recollection of the ensuing incidents.
(12) Who would, otherwise, have acquired the ownership of her property through their marriage. Cf. supra 150b.
(13) To claim the return of her property.
(14) When she presented the gift she specifically mentioned that it was made on account of her intended marriage.
(15) Since she carried out the intention upon which the gift depended, she can no longer reclaim the gift.
(16) Cf. supra 137b, q.v..for notes.
(17) Lit., 'these words'.
(18) As the reason for the making of her gift has now disappeared, she is entitled to the return of her property.
(19) Who was on her death-bed.
(20) A dying person who gave away all his property to another may withdraw it only if he recovers. Since this woman, however, died, her gift to Rami should remain valid as the gift of a dying person which cannot be withdrawn.
(21) R. Nahman.
(22) I,e., in the case where he gave away all his possessions.
(23) Even if he did not recover. Hence, in this case, the dying mother was within her rights when she, withdrawing the gift from Rami, gave it to R 'Ukba. The estate, therefore, rightly belonged to the latter.
(24) Lit 'say'.
(25) That a dying person may withdraw a gift he made.
(26) As in this case where the mother did not withdraw the estate for herself but for R.'Ukba.
(27) R. Nahman.
(28) מלוגא, (root, מלג, pluck), 'a bag made of hairless skins', From which the hair was plucked.
(29) R. Amram.
(30) And since there was no 'pulling', (meshikah v. Glos.), there was no legal acquisition of the bequest.
(31) Hence, R. Amram acquired possession of the bequest even though it had not been actually delivered to him.
(32) Lit 'master'.
(33) Since the estate was given to him.
(34) V., supra notes 3 and 4.
Talmud - Mas. Baba Bathra 151b
but as [soon as] she recovered she withdrew. On one occasion she fell ill and sent [word] to him, 'Come [and] take possession'. He replied,1 'I have no desire'. [Thereupon] she [again] sent [word] to him, 'Come [and] take possession in whatever manner you desire'.2 [Then] he went,left for her [some portion of the intended gift]3 and [symbolic] acquisition from her was [also] arranged.4 As she [again] recovered she retracted [and] came before R. Nahman.5 He sent for him.6 He, [however,] did not come, saying, 'Why should I come? Surely, [some portion of the estate] was left to her and [symbolic] acquisition from her [also] took place.'7 [Thereupon] he sent to him, [the following message]: 'If you do not come I will chastise you with a thorn that causes no blood to flow'.8 He9 asked the witnesses how the incident had occurred, [and] they told him [that when she sent for her brother] she exclaimed thus: 'Alas that I am dying'.10 He said unto them: If so, the disposal11 [of her estate was] due to [her expectation of] death, and he that gives instructions owing to [his expectation of] death, may retract.
It was stated: [In the case where] a dying man presented a part12 [of his estate], Raba13 said in the name of R. Nahman: It is like the gift of a man in good health and requires [symbolic] acquisition. The Rabbis reported the following,14 in the presence of Raba, in the name of Mar Zutra,son of R. Nahman, who reported in the name of R. Nahman: It is like the gift of a man in good health; and it is like the gift of a man who is dying. 'It is like the gift of a man in good health', in that if he recovered he [can] not retract; and 'it is like the gift of a man who is dying', in that no [symbolic] acquisition is required.15 Raba said unto them: Did I not tell you [that] you shall not hang empty jars on R. Nahman?16 Thus said R. Nahman: It is like the gift of a man in good health and requires [symbolic] acquisition.
Raba raised an objection against R. Nahman: [IF] HE LEFT [FOR HIMSELF] ANY LAND WHATSOEVER, HIS GIFT IS VALID.17 Does not [this refer to the case] where no [symbolic] acquisition from him took place?18 - No; where symbolic acquisition did take place. If so.explain the second clause: [IF. HOWEVER] HE DID NOT LEAVE [FOR HIMSELF] ANY LAND WHATSOEVER, HIS GIFT IS INVALID!17 Now if, [as you assert, our Mishnah refers to the case] where symbolic acquisition took place.18 why is his gift invalid? - He replied unto him: Thus said Samuel, 'If a dying man gave all his property, in writing, to strangers, although [symbolic] acquisition took place,19 he may retract if he recovered, because it is known that he disposed20 [of his estate] only on account of [his expectation of] death.
R. Mesharsheya raised an objection against Raba: The mother of the sons of Rokel once fell ill and she said, 'Let my brooch21 be given to my daughter', and it was worth twelve maneh,' and when she died they fulfilled her words?22 - There [it was a case] of an Instruction [clearly] given owing to [the expectation of] death.23
Rabina raised an objection against Raba: If a person said, 'Give this bill of divorce to my wife', or, '[Give] this writ of emancipation to my slave', and he died, it must not be delivered after [his] death.24 [If. however, he said.] 'Give a maneh to X, and he died, it is to be given [to X] after [the testator's] death!25 - And what reason is there to assume that no symbolic acquisition took place?26 - [Because it27 is obviously] similar to a bill of divorce;28 as a bill of divorce is not an object for [symbolic] acquisition.29 so this27 also [was not attended by] a symbolic acquisition!30 - There31 also [it is a case] of one giving instructions [clearly] on account [of his expectation] of death. R. Huna the son of R. Joshua replied: Elsewhere, an Instruction [given] owing to [the expectation of] death requires [symbolic] acquisition. but the Mishnayoth mentioned refer [to the case]32 of one who distributed all his estate,33 for in such a case it was given the same legal force as34 the gift of a dying man.35
And the law is [that where] a dying man presented a part [of his estate].36 [symbolic] acquisition is required although he [subsequently] died. [If. however] his instructions [concerning the gift] were due to [his expectation of] death, no [symbolic] acquisition is required. This, however, [only] when he died; [if] he recovered he [may] retract even though [symbolic] acquisition from him took place.37
(1) Lit., 'sent'.
(2) So that she shall not be able again to retract.
(3) In such a case the donor cannot withdraw, (Cf. our Mishnah, supra 146b.)
(4) Lit., 'and they (i.e., witnesses) acquired from her', by means of symbolic acquisition, on behalf of R. Dimi. Legal acquisition under such conditions prevents the testator from withdrawing the gift on recovery unless a specific declaration was made at the time making it evident that the presentation was due to the expectation of death.
(5) To reclaim her piece of orchard.
(6) Lit., 'to him, come'.
(7) Cf. supra note 4.
(8) He would place him under the ban.
(9) R. Nahman.
(10) Lit., 'that this woman is dying'.
(11) Lit., 'she was instructing'.
(12) Lit., 'a gift of. . .in part'.
(13) Cf.. Bah. a.l. Current texts read: 'The Rabbis said it before Raba in the name of Mar Zutra the son of R. Nahman who said it in the name of R. Nahman: It is like the gift of a man in good health and it is like the gift of a dying man. It is like the gift etc.
(14) Lit., 'they said it.'
(15) And if he died the recipient acquired its ownership .
(16) I.e. 'do not attribute to him such absurd views', v. supra p. 27. n. 2.
(17) Supra 146b.
(18) Lit., 'where they (i.e.. a court of law or witnesses) did not acquire From him', on behalf of the donee, by means of symbolic acquisition.
(19) Lit., 'they took possession from his hand'. Cf. previous note but one.
(20) Lit., 'instructed', or (cf. Bah) 'symbolic acquisition took place', v. infra p. 660.
(21) כבינה, 'brooch, 'buckle', or 'a wrap that is pinned on' (Jast.); [or 'veil', v. Krauss, op. cit. I, 188.]
(22) V. infra 156b. The brooch or wrap was certainly a gift of a portion only of the estate, and there was no symbolic acquisition! Had there been some legal form of acquisition, an expression other than 'her words' would have been used.
(23) I.e., she stated distinctly the reason of the gift she was making. An instruction given in such circumstances, if followed by the death of the testator, requires no symbolic acquisition whether a portion of, or all the estate was presented.
(24) Since a divorce or the liberation of a slave does not take effect until actual delivery of the respective documents has taken place, and by that time the husband or master is dead and be can neither divorce nor liberate.
(25) Git. 13a. Even though, apparently, there was no symbolic acquisition. How, then, can Raba maintain that such acquisition is required?
(26) Lit., 'and from that that they did not acquire of him'. Cf. supra p. 656, n. 4.
(27) The disposal of the maneh.
(28) With which it was mentioned in the same context.
(29) Actual delivery of it being required.
(30) Cf. supra p. 656, n. 4.
(31) The case of the maneh.
(32) Lit., 'and when those Mishnayoth were taught'.
(33) In which case no symbolic acquisition is required. [The words that follow do not occur in some MSS. and are best left out.]
(34) Lit., 'they made it'.
(35) Which requires no symbolic acquisition.
(36) Lit., 'a gift. . .in part'.
(37) Cf. supra p. 656, n. 4 and 5.
Talmud - Mas. Baba Bathra 152a
It was stated: [As to] the gift1 of a dying man [in the deed of] which was recorded [symbolic] acquisition. the school of Rab in the name of Rab reported [that the testator] has [thereby] made him2 ride on two harnessed horses;3 but Samuel said: I do not know what decision to give on the matter. The school of Rab reported in the name of Rab, that he made him ride on two harnessed horses, for it is like the gift of a man in good health4 [and] 'it is [also] like the gift of a dying man. 'It is like the gift of a man in good health', in that, if he recovered, he [can] not retract, [and] 'it is like the gift of a dying man' in that, if he said [that] his loan5 [shall be given] to X, his loan [is to be given] to X.6 Samuel, however, had said, 'I do not know what decision to give on the matter' since it is possible that7 he decided not to transfer possession to him8 except through the deed,9 and no [possession by means of a] deed [may be acquired] after [the testator's] death.10
A contradiction was pointed out [between one statement] of Rab and another statement of his,11 and [between one statement] of Samuel and another statement of his.12 For Rabin sent in the name of R. Abbahu: Be [it] known to you that R. Eleazar had sent to the Diaspora in the name of our Master13 [that] where a dying man said, 'Write14 and deliver a maneh to X', and he died,15 they must neither write [the deed] nor deliver [the maneh], because it is possible that [the testator]16 had decided not to transfer possession to him17 except through the deed,18 and no [possession by means of a] deed [may be acquired] after [the testator's] death.19 And Rab Judah said in the name of Samuel [that] the law is that one may both write and deliver.20 [Does not this present] a contradiction [between one statement] of Rab and another statement of his [and between one statement] of Samuel and another statement of his?21 - There is no contradiction between the two statements of Rab.22 One23 [deals with the case] where symbolic acquisition took place;24 the other23 where no symbolic acquisition took place.25 There is [also] no contradiction between the two statements of Samuel,26 [because in the latter case the reference is to one] who [specifically] strengthened his27 claims.28
R. Nahman b. Isaac sat behind Raba while Raba was sitting before R. Nahman when he addressed to him the [following] enquiry: Did Samuel say. 'since it is possible that he decided not to transfer possession to him except through the deed, and no [possession by means of a] deed [may be acquired] after [the testator's] death'? Surely Rab Judah said in the name of Samuel, 'If a dying man gave all his property, in writing, to strangers. although [symbolic] acquisition took place. he may retract if he recovered
(1) That is where be distributed all his estate (Rashb.).
(2) The recipient.
(3) I.e., his claim has a double force. That of the gift of a dying man and that of legal acquisition.
(4) Owing to the symbolic acquisition that took place.
(5) Which someone owes him.
(6) Although the money was not, at the time, in his possession and the gift was not made in the presence of the three parties concerned (v. 144a).
(7) By the unnecessary mention of symbolic acquisition.
(8) The donee.
(9) And not merely by virtue of his instructions, being a dying man.
(10) Hence it was difficult for Samuel to give a decision on the matter. It may be added that the same difficulty would also arise even where no deed was written and symbolic possession was accompanied by verbal instructions only, or where a deed alone was written unattended by any symbolic acquisition. The mere Fact that the testator had recourse to the unnecessary symbolic form of acquisition raises the question whether his intention thereby was not to annul his first transfer (that of a dying man) and postpone until after his death the donee's acquisition of the gift. Had he wished him to acquire immediate possession there would have been no need For the additional symbolic acquisition. His mere word as a dying man would have done that. Once the possibility of postponement until after death is granted, the donee can no more acquire possession, because as soon as death had taken place the entire estate of the dead man had passed over into the ownership of his legal heirs. (So Rashb.; v. however Tosaf. s.v. מתנת.)
(11) Lit., 'on that of Rab'.
(12) CF. previous note.
(14) I.e., the deed.
(15) Before the deed was written or the maneh delivered to X.
(16) By his demand that a deed also be written which, since his mere verbal instruction as a dying man would have been sufficient, was unnecessary.
(17) The donee.
(18) CF. supra p. 658, n.10.
(19) Supra 135b, q.v. notes a.l. The legal force given to the word of a dying man extends only to monetary gifts but not to the delivery of a deed.
(20) It is assumed that the testator's request for a written document was for the purpose of strengthening the donee's claim; not to weaken it.
(21) In the report above it was stated that any unnecessary addition of a deed to the verbal instructions of a dying man was according to Rab assumed to be in favor of the donee and according to Samuel against him, while here the reverse is reported!
(22) Lit , 'that of Rab upon Rab, there is no difficulty'.
(23) Lit., 'that'.
(24) Lit , 'where they acquired of him'. In such a case the testator obviously wished to improve the donee's claims.
(25) CF. previous note. It is possible, therefore, that the testator desired acquisition of the gift effected by means of a deed and since he died the deed is no longer of any avail.
(26) Cf. supra n. 12.
(27) The donee's.
(28) Lit., 'power'; by the inclusion of the formula given below.
Talmud - Mas. Baba Bathra 152b
because it is known that the [symbolic] acquisition took place1 only on account of [his expectation of] death'!2 He answered him3 by [a wave of] his hand and remained silent.4 When he rose, R. Nahman b. Isaac asked Raba, 'What did he indicate to you?' [Raba] replied to him,' That Rab Judah's report refers to the case] where [the testator] strengthened the donee's claims.'5 In what manner [is it indicated that one wished to] strengthen the donee's claims? - R. Hisda replied: [By including in the deed the formula]. 'And we6 acquired from him7 in addition to this [presentation of the] gift.'8
[It is] obvious [that where a dying man] gave [all his estate] in writing to one man9 and [subsequently] to another10 the [law is the] very same as [that which] R. Dimi enunciated when he came, [vis., one] will annuls [another] will.11 [If. however.] he wrote [a deed of the gift] and handed1 it12 to one13 and [subsequently] wrote [a deed of the gift] and handed1 it2 to another,13 Rab said: The first acquires [its] ownership; while Samuel said: The second acquires [its] ownership. Rab said, 'the first acquires [its] ownership' for14 it is like the gift of a person in good health;15 while Samuel said, the second acquires [Its] ownership', for it is like the gift of a dying man.16
But surely their17 difference of opinion on the [principle] has [already] once been expressed in [the case of] the [deed of a] gift of a dying man, in which symbolic acquisition was entered!18 [Both are] required. For if [their dispute] had been stated [in connection] with the first case,19 [it might have been assumed that] in that [case only] Rab adheres20 to [his opinion], because symbolic acquisition took place;21 but in this case,19 where no symbolic acquisition took place, it might have been suggested [that] he agrees with Samuel.22 And if [their dispute] had been stated [in connection] with the second case,19 [it might have been assumed that] in that [case only] Samuel adheres20 to [his opinion];23 but in that [case]'24 it might have been suggested [that] he agrees with Rab. [Hence both were] required.
At Sura they taught as above.25 At Pumbeditha they taught as follows.25 R. Jeremiah b. Abba said: [The following enquiry] was sent from the academy26 to Samuel. 'Will our Master instruct us [as to] what [is the law in the case where] a dying man gave all his estate to strangers, in writing; and symbolic acquisition [also] took place,27 [but was not entered in the deed]?'28 He replied29 to them: 'After [symbolic] acquisition no withdrawal is of any avail'.30
(1) Cf. p. 656. n. 6.
(2) From this it follows that if the testator did die the donee acquires possession after the death of the testator though a deed was written. How, then, could it be said in the name of Samuel that where a deed was written there can be no acquisition after death?
(3) LIt., 'showed.' 'told'.
(4) [Or 'he (Raba) remained silent', having understood what R. Nahman meant to signify by the wave of his hand.]
(5) Lit., 'his power'. In such a case the donee acquires possession after death even where the testator ordered the writing of a deed.
(6) I.e., 'witnesses'.
(7) I.e.,From the testator on behalf of the donee, by means of symbolic acquisition.
(8) Supra 136a.
(9) Lit., 'this'.
(10) Lit., 'and he wrote to this'.
(11) Supra 135b. Hence the second donee acquires the ownership of the gift.
(12) Lit., 'caused him to merit', i.e., to acquire the right of 'ownership', by means of delivering to him the deed.
(13) Lit., 'this', presenting to him all his estate.
(14) Owing to the delivering of the deed to the donee, which Rab holds has the same effect as symbolic acquisition.
(15) Which cannot be withdrawn.
(16) And since it can be withdrawn if the testator recovered, it may also be withdrawn while he is still on his deathbed. Hence it was within the rights of the testator to present it to the second who, consequently, acquires its ownership.
(17) Rab and Samuel.
(18) Supra 152a top. Why, then, should they express the same principles again?
(19) Lit., 'in that',
(20) Lit., 'said'.
(21) Lit., 'they acquired for him'. And since the donee's claim has a double force, that of the gift of a dying man and that of symbolic acquisition, the gift cannot be withdrawn.
(22) Hence the second case was necessary.
(23) Since there was no symbolic acquisition.
(24) Where symbolic acquisition did take place.
(25) Lit,, 'thus',
(26) [Or, 'from the school of Rab', after Rab's death in 247.]
(27) Cf. supra p.656,n.4 and 5.
(28) And subsequently the estate was presented to a second person. (Cf. R. Gersh.) The question is whether, under such circumstances, the first or the second acquires the ownership of the estate.
(29) Lit., 'sent'.
(30) Lit., 'there is nothing'; and the first donee acquires the legal ownership of the gift. Samuel's view, supra, that the existence of a deed in addition, to symbolic acquisition may imply a desire, on the part of the testator to postpone until after his death the donee's acquisition of the gift does not apply to this case, since here symbolic acquisition had not been entered in the deed itself. (CF. R. Gersh.). [V. however' Rashb., who refers the question back to the case of זיכה where the deed was delivered to the first donee.]
Talmud - Mas. Baba Bathra 153a
They understood him to mean [that] this decision1 [applied only to the case of withdrawal in favour] of a stranger but not for himself. R. Hisda, [however]. said unto them: When R. Huna came from Kafri2 he explained it [to mean]. 'whether for himself or for others'.
There was a certain [man]3 from whom [symbolic] acquisition was taken, who came before R. Huna.4 [The latter] said, 'What can I do for you [in such a case] where you did not transfer possession as [other] people do?'5
There was a certain [deed of] a gift6 in which there was entered,7 'in life and in death'.8 Rab said: Behold it is [to be treated] like the [usual] gift of a dying man;9 and Samuel said: Behold it is [to be treated] like the gift of a man in good health.10 Rab said, 'Behold, it is like the gift of a dying man - since it contains the entry. 'in death', [the testator] meant [thereby] the donee [to acquire possession] after death, while the insertion,11 'in life', was just for good luck;12 and Samuel said, 'Behold, it is like the gift of a man in good health' - since it contained the entry, 'in life', [the testator thereby] meant [to transfer possession] while he was alive, while his entry13 of, 'and in death', [is only] like one saying. 'from now and for evermore'.
The scholars of Nehardea stated: The law is in accordance with [the decision] of Rab.
Raba said: If, however, the deed contains the entry.14 'from life', [the donee] acquires [immediate] possession.15 Amemar said: The law is not according [to the view] of Raba. Said R. Ashi to Amemar: [Is not this] obvious, seeing that the scholars of Nehardea distinctly said [that] the law was in accordance with [the decision] of Rab! - It might have been assumed [that where the entry was]. 'from life', Rab agrees,16 hence it was necessary to teach us [otherwise].
There was a certain [person] who once came [with an enquiry]17 to Nehardea before R. Nahman, [but] he sent him to Shumtamya before R. Jeremiah b. Abba,18 declaring.19 'This is Samuel's province;20 how could we act in accordance with [a decision] of Rab!'21
There was a certain [woman] who once came before Raba [to ask for his ruling].22 [As] Raba gave his decision23 in accordance with his traditional [teaching]24 she worried him.25 He [consequently]26 said to R. Papa. the son of R. Hanan, his scribe: Go, write for her [a statement [ but add to it,'He may hire at their expense27 or deceive them'.28 She29 called out, 'May your30 ship sink! Are you trying to fool me?' Raba's clothes were soaked in water;31 and yet he did not escape the drowning.
MISHNAH. IF HE HAS NOT ENTERED IN IT32 [THAT] HE WAS LYING SICK, [AND] HE [NOW] PLEADS, 'I WAS LYING SICK',33 AND THEY PLEAD, 'YOU WERE IN GOOD HEALTH,34 HE MUST PRODUCE EVIDENCE THAT HE WAS A DYING MAN;35 [THESE ARE] THE WORDS OF R. MEIR. THE SAGES, HOWEVER, SAY: HE WHO CLAIMS FROM THE OTHER36 MUST PRODUCE THE PROOF.
GEMARA. Once a [deed of a] gift contained the entry, 'As he was lying sick in his bed', but not,37 'And as a result of his illness he departed from the world'.38
(1) Lit 'these words'.
(2) [A place in Babylonia, south of Sura. R. Hisda held a school there before his appointment as Head of the Academy at Sura.] Current texts read, 'Kufri', perhaps 'Cyprus'.
(3) Who, while on his death-bed, had presented his estate to a stranger.
(4) Desiring, on recovery, the return of his estate.
(5) Lit., cause to acquire'. Had he presented his estate without allowing symbolic acquisition to take place be could retract on recovery. After symbolic acquisition one has no right to withdraw.
(6) Of a dying man who presented all, or part of his estate, and 'symbolic acquisition' was entered on the deed.
(7) Lit., 'written',
(8) 'The gift is to belong to the donee',
(9) Possession of which by the donee is not acquired until after the death of the testator who, if he recovers, may withdraw the gift.
(10) Possession of which is acquired immediately, and no withdrawal is possible even if the gift consisted of the testator's entire estate.
(11) Lit., 'and that that he wrote'.
(12) Lit., 'a mere omen of life' (v. Rashb.)
(13) V. p. 662, n, 12.
(14) Lit., 'it is written therein'.
(15) 'From life' (unlike, 'in life') is regarded as a definite indication that the testator desired to transfer possession while he was still alive, i.e., at once.
(16) That, unlike 'in life', possession is acquired at once as if the gift had been made by a man in good health.
(17) To ask For R. Nahman's ruling on the legality of withdrawing a gift in the deed of which was enacted 'in life and in death',
(18) A disciple of Rab.
(19) Lit., 'he said',
(20) Samuel was the head of the College at Nehardea and a native of that town,
(21) Though the Nehardean scholars themselves decided the law to be in accordance with Rab's view, R. Nahman did not consider it proper to give a ruling contrary to Samuel's view in the place where Samuel had enjoyed supremacy and preferred to send the case to a place under Rab's jurisdiction.
(22) On a deed of a gift in which she wrote 'from life', and now wished to withdraw the gift.
(23) Lit., 'did'.
(24) Telling the woman that she was not entitled to withdraw the gift.
(25) She demanded a written statement that (in accordance with the view of Rab) she was entitled to withdraw the gift.
(26) To put an end to the disturbance she created.
(27) Lit., 'upon them'.
(28) This is an extract from a Mishnah (B.M. 75b), dealing with workmen who broke the arrangements entered into with their employers. 'Deceive them', was expressly to be inserted in order to indicate that the statement dictated by Raba was to be of no value whatsoever to the woman, its only object being to make her believe that it contained a decision in her favour and that, consequently, the disturbance she created might come to an end.
(29) Perceiving the subterfuge.
(30) Lit., 'his'.
(31) To ward off thereby the imprecation. IF the curse was to be fulfilled the soaking of the clothes might form a substitute For the drowning of their wearer or of any of his possessions.
(32) In the deed of a gift be made of his entire estate.
(33) At the time the gift was made and, consequently, be claims his right to retract.
(34) And that, consequently, he cannot retract.
(35) When he made the gift. If no such proof is forthcoming, the donee is entitled to the gift.
(36) The donee. The gift is regarded as being in the possession of its original owner until proof to the contrary is produced.
(37) As was customary to enter in a deed of a gift that was written after the death of the testator, to indicate that the gift was made by a dying man and that, having died from that same illness, he did not retract.
(38) Lit., 'to the house of his world', i,e., eternity.
Talmud - Mas. Baba Bathra 153b
Rabbah said: Behold, he is dead and his grave indeed proves this.1 Abaye [however] said to him: [How] now! If [in the case of] a ship [that sank], where most of the passengers2 are doomed to perish, [we] apply to the victims3 the restrictions of living4 men and the restrictions of dead5 men, how much more [ought we to do] so6 [in the case of] sick men, of whom most do recover.
R. Huna, the son of R. Joshua. said: In accordance with whose [view] may that reported statement of Rabbah be justified?7 In accordance with [the view of] R. Nathan. For it was taught:8 Who takes away from whom?9 He10 takes away of their11 possession without proof, but they [can] not take away of his possession except by [the production of] proof; these are the words of R. Jacob. R Nathan, [however]. said: If he10 was in good health,12 he must produce proof that [at the time the gift was made] he was lying sick;13 if he was lying sick,12 they11 must produce proof that [at the time the gift was made], he was in good health.
R. Eleazar said: As regards [Levitical] uncleanness also [they14 differ in their views on the same principles]15 as in [this] dispute. For we learnt: A [walled] valley in the summer [is subject to the laws of] a private domain in respect of the Sabbath16 and [to those of] a public domain17 in respect of [Levitical] uncleanness.18 In the rainy season19 it is regarded as a private domain20 in both respects.21
Raba said: This22 has reference only23 [to the case] where a winter has not passed over it,24 but [where] a winter has passed over it, [it is regarded as] a private domain in all respects.25
THE SAGES, HOWEVER, SAY: HE WHO CLAIMS FROM THE OTHER HAS TO PRODUCE THE PROOF.
(1) Lit., 'upon him'. Since there is no evidence that the testator recovered from the illness during which be made the gift, the fact that be is dead is sufficient ground for the assumption that be died from that illness.
(2) Lit., 'most of whom'.
(3) Lit., 'upon them'.
(4) If among the victims there was, for example, an Israelite who had married the daughter of a priest, it is assumed that he remained alive, and his wife is, consequently. forbidden to eat of the heave-offering. Had it been assumed that her husband was dead she, as the daughter of a priest, would have regained her right to eat of the heave-offering (cf. Git. 28b).
(5) If a priest who had married the daughter of an Israelite (and who had, thereby. conferred upon her the right of eating of the heave-offering) was among the passengers, it is assumed that he is dead, and his wife is henceforth deprived of the privilege he had conferred upon her (cf. Git. ibid.).
(6) To assume that the testator recovered from the illness during which be made the gift.
(7) Lit , 'goes'.
(8) In the case of a deed wherein the gift is recorded but in which there is no entry as to whether the donor was sick or in good health at the time the gift was made.
(9) The donor From the donee or vice versa,
(10) The donor.
(11) The donees.
(12) At the time the case is heard in court,
(13) So that the gift was made by a dying man.
(14) R. Jacob and R. Nathan.
(15) Whether a decision is to be formed on the basis of the conditions in which a person or an object is found at the time the decision had to be given or on the basis of the condition in which be or it was presumed to be.
(16) And nothing may be removed from the valley into a public domain and vice versa.
(17) Since in the summer the crops have been removed from it, and the public use it as a thoroughfare.
(18) Any doubtful case of uncleanness in a public domain, is treated as 'clean'.
(19) When the valley is sown.
(20) Because the public abstain from using it on account of its growing crops.
(21) Lit 'to here and to here'; as regards the Sabbath (v. supra p. 665, n.15), and as regards 'doubtful Levitical uncleanness' which in a private domain is regarded as unclean. Consequently. if a person entered the valley and is not certain whether he entered it in summer or in winter he should, according to R. Nathan, be regarded as clean if his case was dealt with by the court in the summer, and as unclean if dealt with in the winter. According to R. Jacob, who does not take into consideration the time the decision is given, the person would always be regarded as clean whatever the season in which his case is dealt with (since a person is presumed to be usually clean), unless witnesses testified that they saw him enter the valley in winter.
(22) That a walled valley in the summer season is subject to the laws of a public domain in respect of Levitical uncleanness.
(23) Lit., 'they did not teach but',
(24) Since the time when a wall was put round it.
(25) Even in the summer season. Once it has acquired the status of a private domain it retains that status permanently.
Talmud - Mas. Baba Bathra 154a
In what [manner is] proof [produced]?1 - R, Huna said: Proof [is produced] by witnesses.2 R. Hisda and Rabbah, son of R. Huna, said: Proof3 [is produced] by the attestation of the deed.4 R. Huna said, 'Proof [is produced] by witnesses' [for he holds that] they5 differ on [the same] principles6 [as those] of R. Jacob and R. Nathan;7 (Mnemonic: Meniah)8 R. Meir [is of the same opinion] as R. Nathan9 and the Rabbis10 [are of the same opinion] as R. Jacob.11 R. Hisda and Rabbah, son of R. Huna, said, 'Proof [is produced] by the attestation of the deed,' [because] they differ [on the question whether, in the case] where a person admitted that he wrote a deed, [independent] attestation12 is required;13 for R. Meir is of the opinion [that] where one admitted that he wrote a deed,14 no [independent] attestation is required15 and the Rabbis16 are of the opinion [that], where one admitted that he wrote a deed, [independent] attestation [also] is required.17
But [did] they18 [not], however, once dispute on this [question]?19 For it was taught [in a Baraitha]: They20 are not believed [so far as] to invalidate it;21 these are the words of R. Meir.22 But the Sages say: They are believed!23 - [Both are] required. Because if [their] dispute] had been stated [in connection with] that [alone],24 [it might have been assumed that] in that [case only] did the Rabbis say [that attestation of the witnesses was necessary] because the witnesses are all-powerful and they themselves impair [the validity of] the document,25 but here,26 where all [the force of the document] does not depend on him,27 it might have been assumed [that he is] not [believed].28 And if [their dispute] had been stated in [connection with] this [alone], [it might have been assumed that] in this [case only] did R. Meir say [that the donor is not believed], but in that [case] it might have been assumed [that] he agrees with the Rabbis. [Hence both were] required.
Rabbah likewise stated [that the] proof29 is by witnesses. Abaye said unto him: What is the reason?30 If it be said31 'Because in all [deeds]32 it is entered,33 "As he was [able] to walk about34 in the street", and in this [deed] no such entry is made,35 [therefore] it is to be concluded [that when the gift was made] he was a dying man', [it may be retorted], 'On the contrary! Since in all [deeds]36 it is entered,33 "As he was lying sick in his bed,", and [in] this [deed] no such entry is made,35 [therefore] it is to be concluded [that when he made the gift] he was in good health!' - As one inference is just as reasonable as the other,37 [replied Rabbah,] the money38 is to remain in the possession of its [original] owner.39
And [the following are] in the [same] dispute.40 For R. Johanan said: Proof [must be produced] by witnesses; and R. Simeon b. Lakish said: Proof [consists] in the attestation of the deed. R. Johanan pointed out [the following] objection against R. Simeon b. Lakish: It once happened at Bene-Berak that a person sold his father's estate, and died. The members of the family, thereupon,41 protested [that] he was a minor at the time of [his] death.42 They43 came [to] R. Akiba and asked whether the body might be examined.44 He replied to them: You are not permitted to dishonour him; and, furthermore, [the] signs [of maturity] usually undergo a change after death.45
(1) This question may apply to the statements of both R. Meir and the Sages.
(2) Who testify as to the state of the health of the donor at the time the gift was made.
(3) Required by the Sages. (For the proof required by R. Meir, v, infra.)
(4) The signatures of the witnesses on the deed must be verified before a court, and only when the validity of the deed had been established, independently of the donor's admission, have the donees established their right to the ownership of the gift.
(5) R. Meir and the Sages in our Mishnah.
(6) Lit., 'in dispute'.
(7) Supra 153b. V. p. 665, n. 14.
(8) As an aid to memory in pairing the Tannaitic authorities. M = Meir, N = Nathan, I (Y) = Jacob, H = Hakamim, the Sages, the Rabbis.
(9) That the condition of the person at the time the lawsuit is before the court is the determining factor. And since the donor is then in good health it is assumed that he was in a similar condition when the gift was made. Hence it is for him to bring witnesses who could testify that at that time he was lying sick.
(10) The Sages of our Mishnah.
(11) Who maintains that the gift cannot be taken out of the confirmed possession of its original owner (the donor), unless witnesses can be brought by the donee to testify that at the time the gift was made he was in good health.
(12) Before a court.
(13) So that the validity of the deed shall not in any way be dependent on the donor's own word.
(14) And he only disputes its present force, by pleading, for instance, in the case of a deed of a gift, that he was lying sick when he made the gift, or, in the case of a note indebtedness, that he repaid the debt.
(15) Hence, the deed spoken, of in our Mishnah is valid, and the donor must bring witnesses as proof that he was a sick man at the time the gift was made.
(16) V. n. 3, supra
(17) Hence it is incumbent upon the donee to procure the necessary attestation.
(18) R. Meir and the Sages.
(19) Whether a deed acknowledged by its writer as genuine, also requires attestation before a court.
(20) Witnesses who identified their signatures on a deed.
(21) By asserting that they signed under compulsion or when they were minors.
(22) Who requires no attestation of a document on the part of the witnesses in a case where the debtor himself admitted that he wrote it. The validity of the deed, which has been acknowledged by the debtor, cannot, therefore, be impaired by the statements of the witnesses.
(23) A document, though admitted by the debtor to be genuine, requires the attestation of the witnesses before a court; and since the witnesses are, accordingly, the sole authorities for its validity, they are also to be believed when they declare it to be disqualified. Now, since the dispute between R. Meir and the Sages in the Baraitha depends on the same principles as those underlying their dispute in our Mishnah, why should a repetition be necessary?
(24) The Baraitha.
(25) Hence the debtor's admission is disregarded.
(26) Our Mishnah.
(27) The donor.
(28) When, after admitting that he wrote the deed, he states that he was a sick man when he made the gift.
(29) Referred to in our Mishnah.
(30) Why do the Sages require the donee, and not the donor, to produce the proof?
(31) Lit., 'we shall say'.
(32) Given by a man in good health.
(33) Lit., 'in all of them it is written'.
(34) Lit., 'walking on his feet'.
(35) Lit., 'it is not written in it',
(36) That are given by dying men.
(37) Lit., 'it may be said thus and it may be said thus'.
(38) Or property.
(39) Hence the gift cannot be taken away from the donor unless reliable proof is produced by the donee.
(40) I.e.,they differ on the same points as R. Huna on the one hand, and R. Hisda and Rabbah, son of R. Huna, on the other, supra.
(41) Lit., 'and stood up' Cf Rashb.
(42) A minor, under twenty years of age, is not eligible to sell any of his father's estate. Hence, the property he sold should belong to the surviving members of the family. [The words 'of his death' do not occur in some MSS.; v.D.S].
(43) I.e., 'the buyers'. This is the present assumption of R. Johanan. V. answer of R. Lakish, infra.
(44) Lit., 'what is he to examine him'; to exhume him, so as to ascertain his age by a post-mortem.
(45) Cf. Semahoth IV, 12; infra 155a. Hence the examination could not produce any reliable evidence of his age.
Talmud - Mas. Baba Bathra 154b
[Now]. according to my interpretation1 [of our Mishnah that] evidence [is produced] by [the testimony of] witnesses, one can well understand why, when he2 asked the buyers [to] bring witnesses and they [could] not obtain [them]. they came to ask him whether the body might [not] be examined. But according to your interpretation3 that evidence [consists] in the attestation of the deed, why should they [wish] to examine [the body]? Let them procure the attestation of their deeds and [thus] gain possession of the property!4 - Do you think, [replied R. Lakish], that the property was in the possession of the members of the family and that the buyers came to protest? [This was not the case.] The property was in the possession of the buyers, and the members of the family came and protested.5 Logical reasoning also [supports] this [view]. Since when he6 said to them, 'You are not permitted to dishonour him', they remained silent. If it is granted [that] the members of the family protested, one can well understand why they remained silent;7 if, however, it be assumed [that] the buyers protested, why [it may be asked] did they remain silent? They should have replied to him, 'We paid him money; let him be dishonoured!'8 - If [only] because of this9 [there would be] no argument. [for R. Akiba may] have said to them10 thus: In the first place,11 [a post mortem must not be held] because you are not permitted to dishonour him; and, furthermore, in case you might say. 'He took [our] money. let him be dishonoured', the signs [of maturity] usually undergo a change after death.
R. Simeon b. Lakish enquired of R. Johanan: With reference12 to what has been taught in the Mishnah of Bar Kappara13 [that], 'If a person was enjoying14 [the usufruct of] a field on the strength15 of the current belief that it [was] his, and someone lodged16 a protest against him claiming.17 "It is mine"; and the first18 produced his deed, stating,17 "You sold it to me" or "You gave it to me as a gift",if [the latter] said, "I never saw this deed",19 the deed is to be attested by those who signed it;20 if, [however], he said, "It was a deed of trust21 or a deed [given on] trust22 [for something] which I sold you but [for which] you did not pay me the price", then if witnesses23 are available, one must be guided by24 witnesses, but if [they are] not [available] one is to be guided by23 the deed.'25 Are we to assume [asked Resh Lakish, that] this26 is [in accordance with the opinion of] R. Meir, who stated that where one admits that he wrote the deed, attestation is not required, but not [in accordance with the view of] the Rabbis?27 - He [R. Johanan] replied to him: No; because I maintain [that] all28 agree29 [that where] one admitted that he wrote a deed no attestation is required. But, surely, [Resh Lakish rejoined,] they30 are actually in dispute [on this question]; as it was taught, 'They are not believed [so far as] to invalidate it; these are the words of R. Meir. But the Sages say: They are believed'!31 - He replied to him: [Should] he, because32 witnesses are all-powerful and [may] impair [the validity of] a deed,33 [have the same power as if] all depended on him!34 But, Resh Lakish asked him again, in your [own] name it was reported that, 'the members of the family have justly protested'!35 - He replied to him, 'This [was] said [by] Eleazar;36 I have never said such a thing.'
R. Zeira said: If R. Johanan could contradict his disciple R. Eleazar,37 would he contradict his master R. Jannai? For R. Jannai said in the name of Rabbi: [Though] one admits that he wrote a deed, attestation is [nevertheless] required. And R. Johanan said to him: 'Is not this, Master, [the law enunciated in] our Mishnah [where it is stated] AND THE SAGES SAY: HE WHO CLAIMS FROM THE OTHER HAS TO PRODUCE THE PROOF, [and] proof [can be produced] only through the attestation of the deed?'38 Acceptable, however, are the words of our master Joseph. For our Master Joseph, in the name of Rab Judah in the name of Samuel, said: 'This39 is the view of the Sages. but R. Meir said: [Though] one admits the writing of a deed, attestation is [nevertheless] required;40 and [as to the expression] 'all agree',41 [the words] of the Rabbis in relation to [those of] R. Meir [may be described as] the words of all. But, surely, we learnt the reverse: AND THE SAGES SAY: HE WHO CLAIMS FROM THE OTHER HAS TO PRODUCE THE PROOF?42 - Reverse [the order].43 But, surely. it was taught. 'They are not believed [so far as] to invalidate it; these are the words of R. Meir. And the Sages say: They are believed'?44 - Reverse [the order]. But, surely, R. Johanan said: Proof [must be produced] by witnesses?45 - Reverse [the order].46 Is it [then] to be assumed [that] the objection also is to be reversed?47 - No;
(1) Lit., 'to me, that I said'.
(2) [Var. lec., 'they', i.e., the members of the family.]
(3) Lit., 'to you, that you said'.
(4) Witnesses would not sign a deed of sale unless they were satisfied that the seller has attained the legal age. Their attested signatures would, consequently, supply sufficient evidence that the sale was legally valid.
(5) Since the members of the family did not, of course, possess the deed, the question of their procuring attestation of the deed cannot possibly arise,
(6) R. Akiba.
(7) They had consideration for the honour of their relative.
(8) Lit., 'let him be . . .' (bis). Would strangers consent to lose their purchase money out of consideration for the corpse of the men who appropriated their money?
(9) If this argument had been the only proof that it was the relatives who protested.
(10) The buyers.
(11) Lit., 'one'.
(12) Lit., 'this'.
(13) [Bar Kappara was known as the author of a Mishnah which has not been preserved. On its character, see Weiss, Dor ii, 219.Cf. however Halevy, Doroth ii, 123-125.]
(14) Lit., 'eating'.
(15) Lit., 'and he came'.
(16) Lit., 'called'.
(17) Lit., 'to say'.
(18) Lit., 'this (one)'.
(19) I.e., it is a forged document.
(20) The witnesses.
(21) Heb., שטר פסים (cf., pistis, פיסטים Gr. **, trust), a deed of a feigned sale that the other had arranged with him for the purpose of making people believe that he is a landowner or a wealthier man than he actually is.
(22) He entrusted the buyer with the deed before he received payment.
(23) To testify that his statement, which invalidates the deed, is in accordance with the facts,
(24) Lit., 'go after'.
(25) I.e., since the seller once admitted that the deed was written by him, his attempt to disqualify it is disregarded.
(26) The statement that one is to be guided by the deed (v. previous note).
(27) Is it likely that Bar Kappara's Mishnah represents the view of an individual only?
(28) Even the Sages. (This statement is modified infra.)
(29) Lit., 'the words of all'.
(30) R. Meir and the Sages.
(31) Keth. 18b. Cf. supra 154a, q.v. for notes.
(32) Lit., 'if'.
(33) Witnesses, according to the Sages. are justly entitled to invalidate a deed, despite the debtor's admission that he wrote it.
(34) Once he himself admitted that he wrote the deed, it is assumed that no witnesses would have signed it if it represented a purely fictitious transaction, and, consequently, even the Sages agree that he has no further power subsequently to invalidate it. Hence, no attestation is needed.
(35) Although they admitted the authenticity of the deed, (i.e.. that the seller had written it), and only disputed its validity
(by asserting that he was a minor). How, then, could R. Johanan say that once a person admitted the authenticity of a deed, (i.e., that he wrote it,) he cannot any more dispute its validity?
(36) A disciple of R. Johanan.
(37) Who reported in his name.
(38) Which clearly proves that, according to R. Johanan, the Sages require attestation even when the authenticity of a deed had been admitted.
(39) That no attestation is needed when the giver of the deed had admitted writing it,
(40) Thus it is the Sages, and not R. Meir, who require no attestation, when the writing of a deed had been admitted.
(41) Lit,, 'and what (is meant by) "the words of all"? Surely, according to what has been said, R. Meir disagrees'.
(42) I.e., the donee; which shows that, according to the Sages. the admission by the donor that he wrote the deed does not remove from the donee the need of attestation, while according to R. Meir it does
(43) The view in the last clause of our Mishnah, which is attributed to the Sages. is really the view of R. Meir, while the view attributed to R. Meir is in reality that of the Sages.
(44) Supra, quoted from Keth, 18b. V. 154a for notes.
(45) Supra 154a. How, then, could he say here, 'proof (can be produced) only through attestation of the deed'?
(46) The view attributed, supra, to R. Johanan is really that of R. Lakish, and vice versa,
(47) Is the objection which R. Johanan raised against R. Lakish (supra 154a) to be reversed and read as if R. Lakish had raised it against R. Johanan?
Talmud - Mas. Baba Bathra 155a
thus said R. Johanan to R. Simeon b. Lakish: According to my interpretation that1 proof [is produced] through the attestation of the deed, one can well understand how it was possible for the buyers to seize2 the property.3 according to you, however, since you maintain [that] proof [is to be produced] through [the evidence of] witnesses, how was it possible for the buyers to seize4 the property?5 - He replied to him: In the case of a protest on the part of members of the family I agree with you that it is no [legal] protest; [for] what do they plead? [That] he was a minor! [But] it is an established fact [that[ witnesses do not sign a deed unless [they know that] he was of age.6
It was stated: At what age7 [may] a minor sell his [deceased] father's estate? - Raba said in the name of R. Nahman: [When he is] eighteen years of age. And R. Huna b. Hinena said in the name of R. Nahman: [When] twenty years of age.
R. Zera raised an objection: It once happened at Bene-Berak that a person sold his father's estate, and died. The members of his family. thereupon.8 protested. asserting [that] he was a minor at the time of [his] death. They came [to] R. Akiba and asked whether the body might be examined. He replied to them: You are not permitted to dishonour him; and, furthermore, [the] signs [of maturity] usually undergo a change after death.9 [Now], according to him who said, 'Eighteen years of age'.
(1) Lit., 'to me, that I said'.
(2) Lit., 'to go down into'.
(3) And why the relatives were driven to protest. The buyers may have been able to secure the attestation of their deeds.
(4) V. p. 672, n. 12.
(5) Surely there were no witnesses to testify that the seller was of age at the time of the sale!
(6) This is the reason why the property was allowed to be seized by the buyers. Elsewhere, however, witnesses must be procured.
(7) Lit., 'From when'.
(8) V. supra p. 669. n. 1.
(9) Supra 154a, q.v. for notes.
Talmud - Mas. Baba Bathra 155b
one can well understand the reason why they came and asked whether the corpse might be examined.1 If, however, it is said, 'At twenty', what useful purpose could the examination serve?2 Surely we learnt:3 [If at the] age of twenty he4 did not produce two hairs,5 they6 shall bring evidence that he is twenty years old and he [becomes] a saris;7 he may neither perform halizah8 nor the levirate marriage!9 - Has it not been stated in connection with this [Mishnah], 'R. Samuel, son of R. Isaac, said in the name of Rab: That10 only [applies to the case] where [other] symptoms of a saris11 [also] appeared on his body!'12 Raba said: [This; may] also [be arrived at by] deduction. For it was taught, 'And he [becomes] a saris', from which [this]13 may [well] be deduced.
And. [in the case] where no symptoms of a saris developed, how long [is one regarded a minor]?14 - R. Hiyya taught: Until he has passed middle age.15
Whenever [such a case]16 came before R. Hiyya17 he used to tell them, if [the youth was] emaciated, 'Let him [first] be fattened'; and if he was stout, he used to tell them, 'Let him [first] be made to lose weight'; for these symptoms appear sometimes as a result of emaciation [and] sometimes they develop as a result of stoutness.
The question was raised: [Is] the intervening period18 [regarded] as that of under, or over age?19 - Raba said in the name of R. Nahman: The Intervening period is [regarded] as that of under age.20 Raba son of R. Shila said in the name of R. Nahman: The intervening period is [regarded] as that of over age.20 That [view] of Raba, however, was not stated21 explicitly but was arrived at21 inferentially. For there was a certain [youth], who during [his] 'intervening period' went and sold the estate [of his deceased father]. He came before Raba22 [who] decided23 that the action was illegal.24 [The student] who saw [what had happened] thought [that Raba's reason was] because during the intervening period [one is regarded] as being under age;25 but this is not [so]. In this [particular] case26 [Raba] observed excessive foolishness, for [the youth] was [also] liberating his slaves [without any apparent cause].27
Giddal b. Menashya sent [the following enquiry] to Raba:28 Will our Master Instruct us [as to] what [is the ruling in the case of] a girl [who is] fourteen years and one day old [and] understands how to carry on business.29 He sent [word] to him [in reply]: If she understands how to carry on a business, her purchase is [legal] purchase and her sale is [legal] sale.30 Why did he not enquire of him31 [about the case of] a boy? - The incident happened to be such.32 Why did he not address his enquiry31 [with reference to] a girl [who is] twelve years and one day old?33 - That case happened to be of such a nature.32
A certain [youth who was] under twenty [years of age] sold the estate [he inherited] from his father in accordance with [the decision sent to] Giddal b. Menashya. [When] he appeared before Raba34 his relatives told him,35 'Go [and] eat dates, and throw the stones at Raba'.36 He did so; [and Raba] said to them, 'His sale is not a [legal] sale'. When the verdict37 had been written out for him, the buyers said to him, 'Go tell Raba: The scroll of Esther38 [may be obtained] at a zuz [and] the master's written verdict39 [cannot be obtained] at [less than] a zuz!' He went and told him [so]. [Thereupon. Raba] said to them, 'His sale is a [legal] sale'.40 [When] the relatives told him41 [that] the buyers had taught him,42 he41 replied to them, '[But] he understands [that which] is explained; [and] since he understands when explained, he possesses intelligence,43 and his [previous] action44 was due to45 his excessive impudence.
R. Huna son of R. Joshua said: As regards [the giving of] evidence, his46 testimony [is legal] evidence. Mar Zutra said: This applies only47 to [the case of] movables48 but not to [that of] real estate. Said R. Ashi to Mar Zutra: Why only movables? [Is it] because his sale [of these] is a [legal] sale?49 If so,50 [would] the evidence of little children,51 of whom52 we learnt [that] their purchase [is a valid] purchase and their sale [is a legal] sale in [the case of] movables,53 also [be regarded as legal] evidence?54 - He replied to him: There55 it is required [that] both the men shall stand56 which is not [the case].57
Amemar said: His58 gift [is a valid] gift. Said R. Ashi to Amemar: [How] now! If in the case of a sale, where he receives money, it has been said that it is not [valid] because it is possible [that] he might sell too cheaply, how much more so [in the case of] a gift where he receives nothing! He replied to him:
(1) Because if the signs of maturity could not be found on the body of the youth he would rightly be regarded as a minor.
(2) Lit., 'when they examined him, what is it?'
(3) Nid. 47b; Yeb, 80a, 97a.
(4) Whose brother died childless and whose duty it is to marry his widow (V Deut. XXV, 5ff) or to perform halizah (V. Glos).
(5) The legal signs of maturity.
(6) The relatives of the widow, who desire to procure her freedom from the marriage or halizah.
(7) סרים wanting in procreative power.
(8) V. Glos.
(9) Cf. p, 673. n. 10. From this it follows that once the age of twenty had been reached, a person is considered to have attained legal majority though his body did not develop any signs of maturity. What, then, would be the use of the exhumation?
(10) The law that he is regarded as a saris. Described in Yeb. 80b.
(11) V. p. 673. n, 13.
(12) If these additional symptoms of a saris, however, did not appear. he is regarded as a minor provided the 'two hairs' have also not appeared. Hence an examination of the corpse could well reveal whether he was still a minor or not.
(13) That the additional symptoms of a saris apart from the absence of two hairs are required.
(14) If two hairs did not appear.
(15) Lit., 'most of his years', i.e., until he is thirty-six years of age. Man's span of life is assumed to be seventy years. (Cf. Ps. XC, 10).
(16) Of one who developed symptoms of a saris.
(17) For his decision as to whether it was a case of an established saris.
(18) The eighteenth year of a person's age. according to Raba, or his twentieth year, according to R. Huna b. Hinena, where he has grown the two hairs.
(19) Lit., 'as before time or as after time'.
(20) Cf. previous note.
(21) Lit., 'it was said'.
(22) To obtain a ruling on the legality of his action.
(23) Lit., 'told them'.
(24) Lit., 'be did not do anything'.
(25) Cf. p. 6740. 11.
(26) Lit., 'there'.
(27) And it was for this reason only that he treated him as one under age.
(28) Others, Rab.
(29) Lit., 'knows the nature of carrying and giving'.
(30) Though she is under twenty, her intelligence entitles her to the rights of one who is of age.
(31) Lit., 'and he should send to him'.
(32) Lit., 'the incident that was, was so'.
(33) At which age she becomes subject to the obligation of performing the commandments.
(34) Desiring to withdraw the sale on the plea that he did not understand the nature of buying and selling.
(35) The youth.
(36) That be might in consequence be regarded as irresponsible for his actions.
(37) שטרא, 'written document'.
(38) Which is a lengthy document.
(39) Which is a very short document. (CF. n. 16, supra.)
(40) By the argument he advanced the youth revealed that he was not lacking in intelligence. His sale must consequently be regarded as valid.
(42) That argument; but that the youth himself was incapable of any such reasoning.
(43) Lit., 'to know he knows'.
(44) His throwing of the date stones.
(45) Lit., 'and that is why he did so'.
(46) The evidence of a youth under twenty years of age but over thirteen, who produced the signs of maturity. though he is incapable of carrying on business transactions
(47) Lit., 'he did not say them but'.
(48) Only when the evidence is given in connection with a dispute concerning movable objects is his evidence valid.
(49) The Mishnah which regards his sale as invalid speaks of real estate and not of movables.
(50) Lit., 'but from now'.
(51) Of the ages of six or seven.
(52) Lit., 'that'.
(53) Keth. 70a, Git. 59a, 65a.
(54) Surely a child can hardly be relied upon as a witness!
(55) In the case of the evidence of witnesses.
(56) Deut., XIX, 17, referring to witnesses. (Cf. Shebu. 30a).
(57) Where children of six or seven give evidence.
(58) That of a boy who is thirteen years and one day old, who is unable to carry on transactions and whose sale of real estate is invalid.
Talmud - Mas. Baba Bathra 156a
And according to your reasoning,1 [if] he sold [something] worth five for six2 would his sale indeed be [legally] valid?3 But [this is the reason]: The Rabbis were well aware that a child is susceptible to the temptations of money; and if it would have been laid down4 [that] a sale of his is legally valid, [people] might sometimes rattle money before him [and] he would be tempted5 to sell all the possessions of his [dead father]. In the case of a gift, however, [it is known that] had he not had [some] benefit from him6 he would not have presented him with a gift; the Rabbis, [therefore.] said [that] his gift shall be a [legal] gift in order that people might render him service.7
R. Nahman said in the name of Samuel: [A youth] must be examined [to ascertain whether he has the signs of maturity]8 in respect of betrothal,9 divorce, halizah,10 [declarations of] refusal.11 But in regard to the sale of the estate of his father, he cannot do so until he becomes twenty years of age.12 But since [the youth]13 was examined in respect of his betrothal what need is there14 [for an examination] in respect of [his] divorce?15 - This [law] is required only [in the case] of a youth who married his dead brother's widow.16 For we learnt: [If] a boy of the age of nine years and a day had connexion with his sister-in-law,17 he has acquired her [as wife] and may not divorce her until he had attained [legal] age.18 '[In respect] of halizah'19 - to exclude [the ruling] of R. Jose who said, 'In the [Biblical] section [of halizah] it is written, Man;20 but [in the case of] a woman there is no difference between a major and a minor';21 hence it was necessary to teach us that 'woman' is compared to 'man', contrary to [the view of] R. Jose.
'And [in respect of declarations of] refusal', [this had to be mentioned] in order to exclude [the ruling] of R. Judah who said: [A girl can exercise the right of refusal] until the black22 predominates;23 hence it was necessary to teach us that [the law is] not in accordance with [the view of] R. Judah.24 'And [in respect of] the sale of the estate of his father, until he becomes twenty years of age' [had to be taught] in order to exclude [the view] of him who said [the youth need only be] eighteen years of age.
The law [is that during the] 'intervening period'25 [one is regarded] as being under age.26 The law [is] in accordance with Giddal b. Menashya.27 The law [is] in accordance with Mar Zutra.28 The law is according to Amemar.29 And the law is in accordance with [what] R. Nahman said in the name of Samuel, in all [cases].30
MISHNAH. IF [A PERSON] DISTRIBUTED HIS POSSESSIONS VERBALLY, R. ELEAZAR31 SAID, WHETHER HE WAS IN GOOD HEALTH OR DANGEROUSLY ILL, [ALL] REAL ESTATE32 IS ACQUIRED BY MEANS OF MONEY,33 DEED34 AND POSSESSION,35 WHILE MOVABLE OBJECTS36 ARE ONLY ACQUIRED BY MEANS OF PULLING.37
(1) That a child is not entitled to sell on account of a possible loss he may incur through his inexperience.
(2) In which case he made a profit.
(3) The Mishnah, surely, draws no distinction between sales at a profit or at a loss!
(4) Lit., 'You said'.
(5) Lit., 'go'.
(6) The donee.
(7) Lit., 'things'.
(8) Though he is thirteen years and one day old; or, in the case of a girl, twelve years and a day.
(9) Betrothal is not legal unless the examination had revealed signs of maturity.
(10) V. Glos.
(11) A woman's refusal to live with a person to whom she was married during her minority. She can do so only before the signs of maturity have appeared.
(12) Even if he has grown two hairs,
(13) The same applies, mutatis mutandis, to a young woman.
(14) Lit., 'why to me'.
(15) Since he was allowed to betroth he must have been examined and found to have produced the necessary signs of maturity.
(16) In such a case no formal betrothal is necessary. A boy who is over nine years of age becomes the legal husband of his dead brother's wife by the mere act of coition. If he desires, subsequently, to divorce her he must undergo an examination for signs of maturity.
(17) Whose husband had died childless.
(18) Nid. 45a; Sanh. 55b.
(19) I.e., it was necessary to teach that an examination for signs of maturity is required before halizah could be allowed to be performed.
(20) Deut. XXV, 7. The specific mention of man implies that the male only must be of age.
(21) Nid. 52b; Yeb, 105b. And a girl under age may consequently participate in the ceremony of halizah.
(22) I.e., the hair.
(23) And not merely until one has grown two hairs. V. Nid. 52a.
(24) But in accordance with the first Tanna (Nid. 52a) that her right ceases with the growth of the two hairs.
(25) The twentieth year of age according to one authority; the eighteenth, according to another.
(26) Supra 155b, q.v. for notes.
(27) That a youth of the age of thirteen and one day, who is able to carry on business transactions, may sell the estate he inherited from his father, whether it consists of movables or of real estate.
(28) That the evidence of a youth who is unable to transact business and is of the age of thirteen and one day, is legal only in the case of a dispute on movable objects, but not in that of real estate.
(29) That the gift made by such a youth (of the age and character described in the previous note) is legal, though a sale be contracted is invalid.
(30) Mentioned above. In the case of betrothal, divorce, halizah and declarations of refusal, age alone is no guide unless signs of maturity also appeared. As regards the legality of the sale of an estate inherited from his Father, a youth, if be is not intelligent enough to carry on business transactions, must be twenty years of age, and must also produce signs of maturity. If at the age of twenty no signs of maturity had appeared. the youth remains legally a minor until he had obtained the age of thirty-six, unless marks of a saris had meanwhile made their appearance.
(31) Others, R. Eliezer.
(32) Lit., 'possessions which have a secure foundation.
(33) Which the buyer pays for the land.
(34) Setting out and confirming the sale.
(35) The buyer performs some kind of work on the land purchased.
(36) Lit., 'possessions which have no secure foundation'.
(37) Heb., meshikah, v. Glos, R. Eleazar is of the opinion that a dying man's verbal instruction has no more legal force than that of a person in good health. Hence, unless legal acquisition took place, the donee acquires no possession even if the donor died; and in case of recovery, the donor may retract even where only a part of his estate had been given away.
Talmud - Mas. Baba Bathra 156b
THEY1 SAID UNTO HIM: THE MOTHER OF THE SONS OF ROKEL ONCE FELL ILL; AND SHE SAID, 'LET MY BROOCH WHICH IS WORTH TWELVE MANEH BE GIVEN TO MY DAUGHTER', AND WHEN SHE DIED, HER INSTRUCTIONS WERE CARRIED OUT!2 HE REPLIED TO THEM: [AS TO] THE SONS OF ROKEL, MAY THEIR MOTHER BURY THEM!3
GEMARA. It was taught: R. Eliezer4 said to the Sages, 'Once there lived5 a man of Meron6 in Jerusalem and he possessed much movable property which he desired to give away as gift[s]. He was told, [however. that] there was no means [of carrying out his wish] unless he transferred possession [to the donees]7 by virtue of land [transferred to them at the same time]. He consequently8 purchased a rocky9 piece of land near Jerusalem and gave the following instructions:10 "Its northern side [shall be given] to X, and [together] with it a hundred sheep and a hundred casks; and its southern side [shall be given] to Y, and together with it a hundred sheep and a hundred casks". And when he died the Sages carried out his instructions'.11 They12 replied to him, '[Is there any] proof from there? The Meronite was in good health'!13
HE REPLIED TO THEM: [AS TO] THE SONS OF ROKEL, MAY THEIR MOTHER BURY THEM! Why did he curse them,? - Rab Judah said in the name of Samuel: They allowed thistles to grow in [their] vineyard; and R. Eliezer [is thereby consistent] with his view. For we learnt: If [a person] allows thistles to grow in a vineyard he [thereby], R. Eliezer says, causes [the fruit] to be forbidden;14 and the Sages say: one does not cause [the fruit of a vineyard] to be forbidden unless [he grows] a plant the like of which [people] usually allow to grow.15 Said16 R. Hanina: What is R. Eliezer's reason? Because in Arabia they allow thistles to grow in their fields [as fodder] for their camels.17
R. Levi said: [Symbolic] acquisition may be acquired from a dying man18 even on the Sabbath;19 but [this is] not due to a consideration of the view of R. Eliezer,20 but to the possibility that his21 [peace of] mind might be disturbed.22
MISHNAH. R. ELIEZER23 SAID: ON THE SABBATH, HIS [VERBAL] INSTRUCTIONS24 ARE LEGALLY VALID, BECAUSE HE IS UNABLE TO WRITE,25 BUT NOT ON A WEEK-DAY.26 R. JOSHUA SAID: [IF] THEY SAID [THIS]27 IN [RESPECT OF] THE SABBATH28 HOW MUCH MORE SO IN [THE CASE OF] A WEEK-DAY?29 SIMILARLY: ONE MAY ACQUIRE OWNERSHIP ON BEHALF OF A MINOR30 BUT NOT ON BEHALF OF [A PERSON WHO IS] OF AGE,31 THESE ARE THE WORDS OF R. ELIEZER. R. JOSHUA SAID: [IF THEY ALLOWED POSSESSION32 TO BE ACQUIRED] ON BEHALF OF A MINOR,33 HOW MUCH MORE SO ON BEHALF OF [A PERSON WHO IS] OF AGE.34
GEMARA. Whose [version is represented in] our Mishnah? - It [is that of] R. Judah. For it was taught: R. Meir stated, 'R. Eliezer said: On a week-day his [verbal] instructions35 are legally valid because he is able to write,36 but not on the Sabbath.37 R. Joshua
(1) The Sages.
(2) Cf. Supra, 151b, q.v. for notes. Since the verbal instructions of the mother were in this case carried out, how could R. Eleazar maintain that the word of a dying man has no more force than that of one in good health?
(3) They were wicked men and the instructions of their mother, who deprived them of a portion of her estate in favour of her daughter, were carried out, (though there was no legal acquisition on behalf of the daughter), as some sort of punishment for their wickedness. No inference, therefore, as regards the case of other testators, may be derived from this special one.
(4) Cf. supra, note 1,
(5) Lit., 'was'.
(6) [In Galilee near Gush Halab, v. Neubauer, Geographie, 228ff.]
(7) Who were not themselves present to acquire possession.
(8) Lit., 'he went
(9) Unsuitable for cultivation and, therefore, obtainable at a very low price.
(10) Lit., 'and said',
(11) R. Eliezer assumed that the Meronite was a dying man, when he disposed of his property. and since he was compelled to transfer possession by means of land, it is to be inferred that the mere verbal instructions of a dying man have no legal force. How, then, R. Eliezer argued, could the Sages maintain that the verbal disposition of his estate by a dying man is legally valid?
(12) The Sages.
(13) Had he been in a dying condition his verbal Instruction alone would have been sufficient.
(14) It is forbidden to grow in the same vineyard heterogeneous plants even though one is used for human, and the other only for animal consumption.
(15) I.e., plants for human consumption or use. Thistles are mere weeds and as a rule are not allowed to grow among the vines, V. Kil. v, 8.
(16) Current editions insert the following, 'Saffron is well suitable, but of what use are thistles'. It is wanting in most MSS, and is unintelligible in this context.
(17) R. Eliezer, therefore, regards thistles as a proper plant that comes under the prohibition of the growing of heterogeneous kinds, The Sages, however, do not class them as a plant since in most parts of the world they are not grown.
(18) Whether he left some of his estate for himself or not.
(19) When it is forbidden to arrange legal transactions.
(20) Who requires legal acquisition even in the case of the gift of a dying man.
(21) The dying man's.
(22) Seeing that no legal acquisition is being arranged he will feel that he is already being regarded as a dying man. As this mental anguish might accelerate his death, the Sages have allowed legal acquisition to be performed even on the Sabbath in order to ensure the patient's peace of mind. Legally, however, the mere word of a dying man transfers possession to the donees.
(23) Others, 'The Sages'. cf. supra p. 679. n. 1.
(24) Those of a dying man distributing his property.
(25) Writing is one of the manual labors that are forbidden on the Sabbath.
(26) Since a written document may be prepared, and symbolic acquisition may be arranged.
(27) That no written deed or symbolic acquisition is necessary.
(28) When these are forbidden, and the rule, 'whenever something is suitable for fusion, actual fusion is not essential', cannot be applied.
(29) When writing and acquisition are permissible and possible, and the rule, 'Whenever something is suitable etc.' (V. previous note) may be applied.
(30) Because he himself is not legally entitled to acquire possessions.
(31) Since he is himself able to acquire possession.
(32) In his absence.
(33) Who cannot himself acquire.
(34) Since he himself is entitled to acquire and be may also appoint an agent to act on his behalf, others also, much more than in the case of a minor, are entitled to acquire possession for him in his absence.
(35) V. supra p. 681, n. 7.
(36) And the rule, 'Whenever fusion is possible. actual fusion is not essential', can be applied. Since writing and acquisition are possible on a week-day, actual writing and acquisition are not indispensable.
(37) V. supra p. 681, n. 11.
Talmud - Mas. Baba Bathra 157a
said: They said [this]1 in [respect of] a week-day.2 and how much more so in the case of the Sabbath.3 Similarly: One may acquire ownership on behalf of [a person who is] of age,4 but not on behalf of a minor;5 these are the words of R. Eliezer. R. Joshua said: [If they allowed possession to be acquired] on [behalf of] one who is of age, how much more so on behalf of a minor'. R. Judah stated,6 'R. Eliezer said: On the Sabbath his [verbal] instructions are legally valid , because he is unable to write, but not on a week-day. R. Joshua said: [If] they said [this] in [respect of] the Sabbath, how much more so in [the case of] a week-day. Similarly: One may acquire ownership on behalf of a minor but not on behalf of [a person who is] of age; these are the words of R. Eliezer. R. Joshua said: [If they allowed possession to be acquired] on behalf of a minor, how much more so on behalf of[a person who is] of age.7
MISHNAH. [IN THE CASE WHERE] A HOUSE8 COLLAPSED UPON A MAN9 AND HIS FATHER OR UPON A MAN9 AND THOSE WHOSE HEIR HE IS,10 AND [THAT PERSON] HAD AGAINST HIM [THE CLAIM OF] A WOMAN'S KETHUBAH11 OR [THAT OF] A CREDITOR;12 [AND, IN THE FIRST CASE]. THE HEIRS OF THE FATHER PLEAD [THAT] THE SON DIED FIRST AND THE FATHER AFTERWARDS,13 WHILE THE CREDITORS PLEAD [THAT] THE FATHER DIED FIRST AND THE SON AFTERWARDS,14 BETH SHAMMAI HOLD15 [THAT THE AMOUNT IN DISPUTE IS] TO BE DIVIDED,16 AND BETH HILLEL HOLD17 [THAT] THE ESTATE [IS TO REMAIN] IN ITS FORMER STATUS.18
GEMARA. We learnt elsewhere: He who lends [money] to another on a bond19 [is entitled to] collect [his debt] from [the borrower's] lands [even though they were subsequently] mortgaged.20 [If, however, the loan was made] in the presence21 of witnesses22 it may be collected from free23 property [only].24 Samuel inquired: What [is the law in the case where the borrower entered in the bond]. 'that I may acquire'.25 and he acquired?26 According to R. Meir who holds [the view that] a person may transfer possession of something that has not [yet] come into existence, there can be no question; for [the lender] has undoubtedly acquired possession.27 The question arises according to [the view of] the Rabbis who maintain [that] a person may not transfer possession of something that has not [yet] come into existence.28
R. Joseph said, Come and hear: And the Sages Say: This [creditor] who sold him29 the land30 was prudent, because thereby31 he was in a position to take from him a pledge.32 Raba said to him: You mean,33 'from him'!34 From him35 [surely], even the cloak that is upon his shoulders [may be seized]!36 Our question, however, is what [is the law in the case] where [the borrower entered in the bond]. 'That I may acquire'. [and] he [subsequently] bought and sold, [or where he entered] 'That I may acquire' [and] he [subsequently] bought or transmitted [his purchase] as an inheritance?37
R. Hana replied, Come and hear: [IN THE CASE WHERE] A HOUSE COLLAPSED UPON A MAN AND HIS FATHER [OR] UPON A MAN AND THOSE WHOSE HEIR HE IS, AND [THAT PERSON] HAD AGAINST HIM [THE CLAIM OF] A WOMAN'S KETHUBAH OR [THAT OF] A CREDITOR; [AND. IN THE FIRST CASE]. THE HEIRS OF THE FATHER PLEAD [THAT] THE SON DIED FIRST AND THE FATHER AFTERWARDS, WHILE THE CREDITORS PLEAD [THAT] THE FATHER DIED FIRST etc. Now, if it were to be assumed [that where a borrower entered in the bond]. 'that I may acquire'. [and] he [subsequently] bought and sold, [or where he entered]. 'that I may acquire'. and he [subsequently] bought or transferred [his purchase] as an inheritance, [the land] does not become mortgaged [to the creditor, what claim could the creditors advance?] Even if it were granted that the father had died first [and that the son, had consequently. inherited his estate]. this [is merely another form of the case where a bond contains the entry] 'that I may acquire'!38 R. Nahman said to them: Our colleague Zera has explained this [as follows]: It is the moral duty of the orphans to repay the debt of their father.39
R. Ashi demurred: This [surely] is a verbal loan,40 and both Rab and Samuel stated [that] a verbal loan cannot be collected either from the heirs or from the buyers!41
(1) V. loc. cit. n. 10.
(2) When writing and acquisition are permissible.
(3) When these are not permissible and some provision has to be made for giving legal force to the dying man's wishes.
(4) Cf. p. 681, n. 17.
(5) Cf. loc. cit. n. 16.
(6) For notes on R. Judah's version, v. our Mishnah supra 156b.
(7) R. Judah's version of the respective views of R. Eliezer and R. Joshua follows that recorded in the Mishnah.
(8) Lit., 'the'.
(9) Lit., 'upon him'.
(10) E.g., brothers or other relatives who had no other heirs but him.
(11) The marriage contract of his widow.
(12) But he left neither money nor possessions wherewith to meet his obligations.
(13) The son did not consequently inherit from his father whose estate would, therefore, be inherited by his living heirs.
(14) Hence, the son inherited his father's estate, and they, as the son's creditors, are entitled to seize it for their debts.
(15) Lit., 'say'.
(16) The claim of the creditors is considered to be of equal force with that of the heirs.
(17) V. note 3.
(18) The claim of the heirs is regarded as certain, since they are entitled to the estate as the heirs either of the Father or of the son, while the claim of the creditors is doubtful, and no 'doubt' may supplant a 'certainty'.
(19) Even though no security on the lender's real estate had been entered in it.
(20) Or sold. No one, it is assumed, would lend money without proper security, and the omission of the guarantee from the bond is regarded as a mere scribal oversight. Furthermore, any future buyer (or subsequent lender on the security) of the lands is assumed to have known of the existence of the loan (since the issue of a written note ensures for the matter due publicity), and must have consented to take the risk of having to surrender them to the creditor should the latter find no other property from which to collect his debt. (Cf. B.M. 14a).
(21) Lit., 'by the hands'.
(22) Without a written note.
(23) Such as has not been sold or mortgaged.
(24) Infra 175a, supra 42a.
(25) I.e., not only what be already possesses but also that which he may purchase in the future shall be mortgaged for the debt.
(26) After the note had been issued. Is the creditor entitled to seize this property if it was sold?
(27) I.e.,the lender is entitled to seize any real estate bought and sold after the date of the note.
(28) Has a mortgage, according to the Rabbis, more force than a sale, and may the lender, therefore, seize the sold land or not?
(29) The borrower.
(30) After the date of the loan, and the latter points to this fact as evidence that the loan had already been repaid. Had he not repaid his debt, one authority (Admon) maintains (Keth. 110a), the lender would not have sold him the field but would have retained its purchase money as payment of the loan. The fact that he did sell it confirms, in Admon's opinion, the borrower's claim; and the lender consequently forfeits his right to seize it.
(31) By the sale of the land.
(32) Keth. 110a. The sale, then, according to the Sages, is no evidence that the loan had been repaid; and the creditor is, therefore, entitled to seize the land though it was bought after the date of the note of indebtedness. Thus it has been proved, in answer to Samuel's enquiry, that property purchased after the loan was made may be seized by the creditor.
(33) [Lit., 'say'. Following the reading of R. Gersh. and MSS.]
(34) The borrower.
(35) I.e., when the property is still in the borrower's own possession.
(36) And no question would arise in such a case.
(37) I.e., where the land is no more in the possession of the borrower.
(38) Since at the time the debt was incurred the son was not yet in possession of his inheritance; and after it came into his possession it was, as soon as he was killed, automatically transmitted to his heirs. As our Mishnah, however, regards the creditors' plea as tenable, it must be inferred that even an estate that was acquired and transmitted to others, after the date of a loan, is also mortgaged to the creditors.
(39) The claim of the creditors, in our Mishnah, is not based on the law of mortgage but on moral considerations. Hence no inference may be drawn from it on the law of the mortgage of property bought and sold after the date of a loan.
(40) Since, as has just been asserted, the creditors have no legal claim upon the dead man's estate, the bond of indebtedness is of no value, and the loan, as far as this estate is concerned, becomes merely a verbal one.
(41) Only in the case of a loan for which a bond of indebtedness had been given is it the moral duty of orphans to repay their father's debt. The creditors, in our Mishnah, could not, consequently, advance even a moral claim. What, then, is their plea?
Talmud - Mas. Baba Bathra 157b
- But [the fact is that] this [Mishnah ] represents the view of1 R. Meir who holds [that ] a person may transfer possession of something that is not [yet] in existence.2
R. Jacob of Nehar Pekod3 said in the name of Rabina, Come and hear: Ante-dated bonds of indebtedness are invalid4 and post-dated [ones] are valid.5 Now, if it could be assumed [that where the bond contained the entry]. 'That I may acquire'. [and] he [subsequently] bought and sold [or where it contained the entry] 'That I may acquire' [and] he [subsequently] bought and transmitted [the purchase] as an inheritance, [the land] is not mortgaged, [to the creditor], why [are] post-dated [bonds] valid?6 This [is surely similar to the case of an entry] 'That I may acquire'! - [But] this [may] represent the view of7 R. Meir who holds [that] a person may transfer possession of something that is not [yet] in existence.8
R. Mesharsheya in the name of Raba said, Come and hear! How [is one to understand the statement that] for improvement of lands [one may not seize any sold property]? If [a person] has sold a field to another who improved it,9 and a creditor [of the seller] came and seized it,10 when [the buyer] collects [from the seller].11 he collects [the value of] the principal [even] from mortgaged property, but [that of the] improvement from free12 property [only].13 Now, if it is assumed, that where [a bond of indebtedness contained the entry]. 'That I may acquire'. [and] the debtor bought [land] and sold [it, or where the bond contained the entry]. 'That I may acquire'. [and] he bought [land] and transmitted [it] as an inheritance, [that land is] not mortgaged [to the creditor], why does the creditor seize the improvement[s]?14 - This [may] represent the view of15 R. Meir who holds [that] a person may transfer possession of something that is not [yet] in the world.
If [a good reason] could be found for the statement16 [that where there was an entry in a bond of indebtedness], 'That I may acquire'.17 [and the debtor subsequently] bought [land] and sold [it, or where the bond contained the entry]. 'That I may acquire',17 [and the debtor subsequently] bought [land] and transmitted it as an inheritance, [that land is] not mortgaged [to the creditor, the question that follows does not arise], since [the land was] not [in any way] mortgaged. If, [however. a reason] could be found for the statement16 [that such land]18 is mortgaged [to the creditor, the question arises as to] what [is the ruling in the case where the debtor] borrowed [from one person].19 and [then] borrowed [from another],20 and then purchased [some real estate which he subsequently sold].21 [Is this land] mortgaged to the first [lender],22 or is it mortgaged to the second?23 - R. Nahman replied: We [also] have raised the same24 question,25 and [a reply] was sent from Palestine26 [that] the first acquired [the right of seizing that land]. R. Huna said: They27 divide [the land among themselves].28 And Rabbah b. Abbuha also learned [that the land] is to be divided [between them].27
Rabina said: In the first version,29 R. Ashi told us30 [that] the first [creditor] acquired [the right over the land];31 the second32 version of R. Ashi [however], told us [that the land was] to be divided.33 And the law is [that the land] is to be divided.33
An objection was raised: How [is one to understand the statement that] for improvement of lands [one may not seize any sold property]? If [a person] has sold a field to another who improved it, and a creditor [of the seller] came and seized it,34 when [the buyer] collects [from the seller]35 he collects [the value of] the principal [even] from sold property but [that of the] improvement from free36 property [only]. Now, if that were so,37 he38 should [only be able to claim] half [the cost of his] improvement!39 - [The expression]. 'he collects', which was used,40 also implies half [the value of his] improvement.
(1) Lit., 'this according to whom? It is'.
(2) While Samuel's enquiry had reference to (v. supra 157a) the view of the Rabbis.
(3) [A town east of Nehardea, v. Obermeyer, op. cit., 270ff.]
(4) Since the creditor might unjustly seize the lands which the borrower sold between the date entered in the bond and the actual date of the loan. Only those sold after the actual date are legally mortgaged to the creditor.
(5) Sheb. X, 5, B.M. 17a, 72a, Sanh, 32a. The creditor, by allowing the entry of a later date, has thereby surrendered his right to seize those lands which the borrower sold between the actual date of the loan and the later date that was entered in the bond.
(6) Lands that the borrower bought (say in February) between the real date of the loan (say January) and the later one
(say March) that was entered on the bond, though acquired after the date of the loan, and consequently not mortgaged to the creditor, could nevertheless be seized by him from purchasers who bought these (say in April) on the plea that they were bought by the borrower before the date and sold by him after the date of the loan entered on the bond. And since a post-dated bond is valid, despite this possibility, one must conclude that lands bought and sold after the date of a loan are also mortgaged to the creditor,
(7) V. supra. p. 685, n. 5.
(8) Hence no answer may be derived from it to Samuel's question which had reference to the view of the Rabbis.
(9) By manuring, ploughing and sowing.
(10) In its improved condition.
(11) Compensation for his loss.
(12) V. supra p. 683, n. 11.
(13) B.M. 14b.
(14) The improvements, surely, took place after the loan was made.
(15) V. supra p. 685. n. 5.
(16) Lit., 'to say'.
(17) I.e., the debtor pledged for his loan not only the lands that he already possessed but also those that he may acquire in the future.
(18) Bought and sold under the conditions just described, (Cf. previous note).
(19) And pledged his present and future possessions. V. supra, n. 3.
(20) To whom he gave the same security as to the first.
(21) Or transmitted it as an inheritance.
(22) Since his security was obtained before the second loan was incurred, he is also entitled to the priority of his claim.
(23) Lit., 'last'. As it might be maintained that the hold of the first creditor on the property which was non-existent at the time of the loan is not sufficiently strong to prevent the debtor from withdrawing it from him and assigning it as security to a second creditor.
(24) Lit., 'that'.
(25) Lit., 'thing'.
(26) Lit., 'From there'. The statement was made in Babylonia where Palestine was often referred to as 'there'.
(27) The two creditors.
(28) The land having been purchased after the second loan, when both creditors had equal security on the debtor's possessions, it must be equally divided between them in proportion to their respective claims.
(29) [Thus, Yad Ramah.]
(30) He is said to have lived sixty years, and to have concluded at the age of thirty the first version of his lectures, and at the age of sixty (i.e., during the second thirty years of his life), his second version. [V. Letter of Sherira Gaon, ed. Lewin, 93-94. The tradition connecting R. Ashi with the Editorship of the Talmud is based on this statement, v. Brill, N., Jahrbucher, II, 10. Halevy, Doroth, II, 263ff., however, disputes this.]
(31) V. supra p. 687, n. 4.
(32) Lit., 'last'. Cf. p. 687, n. 14.
(33) V. supra p. 687, n. 14.
(34) V. supra p. 686, n. 5.
(35) V. ibid. n. 6.
(36) V. supra p. 683, n. 11.
(37) Lit., 'and if there is', i.e., if the law is that the second creditor has equal rights with the first, owing to the fact that the land in question was purchased after the second loan.
(38) The buyer.
(39) The buyer, who received no less security for his purchase than the creditor for his loan, should have the same rights as the creditor, just as, in the previous case, the second creditor has the same rights as the first. The improvement of the land, which obviously took place after the sale, may be regarded as land purchased by the debtor after the second loan and sold (since the improvement is claimed from him by both, first by the creditor and ultimately by the buyer. and, in either case, it was no more in his possession than the land sold). Accordingly, the creditor and the buyer (like the two creditors supra) are entitled to equal shares. The creditor could thus seize only half the value of the improvement, the other half remaining with the buyer. Why then should be collect from the seller its full value?
(40) Lit., 'taught'.
Talmud - Mas. Baba Bathra 158a
MISHNAH. IF THE HOUSE COLLAPSED UPON A MAN1 AND HIS WIFE2 [AND] THE HEIRS OF THE HUSBAND3 PLEAD [THAT] THE WIFE DIED FIRST4 AND [THAT] THE HUSBAND DIED AFTERWARDS,5 [WHILE] THE HEIRS OF THE WIFE6 PLEAD [THAT] THE HUSBAND DIED FIRST [AND THAT] THE WIFE DIED AFTERWARDS, BETH SHAMMAI HOLD [THAT THE ESTATE] IS TO BE DIVIDED,7 AND BETH HILLEL HOLD [THAT] POSSESSIONS8 [ARE TO REMAIN WITH THOSE WHO ARE] IN THEIR ESTABLISHED RIGHT OF OWNERSHIP;9 THE KETHUBAH10 IN THE POSSESSION OF THE HEIRS OF THE HUSBAND; [AND] THE PROPERTY THAT COMES IN AND GOES OUT WITH HER11 IN THE POSSESSION OF THE HEIRS OF THE FATHER.12
(1) Lit., 'upon him'.
(2) From whom he had no children.
(3) His sons, e.g., that were born from another wife or his father and brothers.
(4) And her estate was consequently inherited by her husband before he died.
(5) And, consequently, his heirs are entitled to his estate including all that he inherited From his wife.
(6) Her relatives who are not related to her husband.
(7) Since it is impossible to ascertain who in fact died first, the ownership of the estate is a matter of doubt, and any property the ownership of which is in doubt must be divided between the claiming parties.
(8) I.e., property which the wife brought to her husband on marriage, and the value of which was included in her marriage contract, the husband assuming full responsibility for loss or profit.
(9) The Gemara, infra, explains who these are,
(10) I.e.,the sum of a hundred, (in the case of the marriage of a widow), or of two hundred zuz (in the case of the marriage of a virgin), and the 'additional sum' which a husband undertakes to pay to his wife upon divorce or upon his death, and which forms the principal element in a marriage contract.
(11) Property, the principal of which is retained in the wife's possession while its usufruct is enjoyed by the husband. V. supra, p. 206, n. 7.
(12) Of the wife. Since she obtained the property from her father's house and since the property itself remained all the time in her possession, the heirs of her father's house are entitled to inherit it. (CF. Rashb. and R. Gersh. a.l.)
Talmud - Mas. Baba Bathra 158b
GEMARA. In whose established right of ownership?1 - R. Johanan said: In the right of the ownership of the heirs of the husband.2 R. Eleazar said: In the right of ownership of the heirs of the wife;3 and R. Simeon b. Lakish in the name of Bar Kappara said: [The estate in dispute] is to be divided.4 And so did Bar Kappara teach: Since these appear as heirs and those appear as heirs, [the estate] is to be divided [between them].
MISHNAH. IF THE HOUSE COLLAPSED UPON A MAN5 AND HIS MOTHER,6 BOTH7 AGREE THAT [THE ESTATE IN DISPUTE] IS TO BE DIVIDED.8 R. AKIBA SAID: I AGREE IN THIS [CASE] THAT THE ESTATE [IS TO REMAIN WITH THOSE WHO ARE] IN ITS ESTABLISHED RIGHT OF OWNERSHIP.9 BEN AZZAI SAID TO HIM: [IS IT NOT ENOUGH THAT] WE ARE SUFFERING FROM THE EXISTING DIVISIONS OF OPINION10 THAT YOU [MUST] COME TO CREATE DIFFERENCES FOR US WHERE UNANIMITY WAS DECLARED?11
GEMARA. In whose established right of ownership?12 - R. Elai said: In the established right of the ownership of the heirs of the mother. R. Zera said: In the established right of the ownership of the heirs of the son. When R. Zera went up [to Palestine] he adopted13 the principle of R. Elai.14 R. Zera said: From this15 one may deduce that the climate of the land of Israel makes one wise. And what is the reason?16 - Abaye replied: Because the inheritance17 has become the established possession of that tribe.18
BEN AZZAI SAID TO HIM: [IS IT NOT ENOUGH THAT] WE ARE SUFFERING FROM EXISTING DIVISIONS OF OPINIONS etc. R. Simlai said: This implies [that] Ben Azzai was disciple [and] colleague of R. Akiba [seeing] that he said to him, 'That you come'.19
[The following statement] was sent from Palestine:20 '[If] a son borrowed on [the security of] the estate of his father, during the lifetime of his father, and he died, his son may take away from the buyers; and this it is that presents a difficulty in civil law.'21 [If] he borrowed, [it may be asked.] what [is he to] take away? And, furthermore, what has he to do with buyers?22 - But, if that statement was made, thus
(1) Do the possessions to which Beth Hillel referred in our Mishnah, remain?
(2) Since the husband is entirely responsible for loss or profit and is also entitled to sell it, it is regarded as his possession and, consequently, on his death, it passes over into that of his heirs,
(3) Since it was she who brought it to him from her father's house.
(4) Between the heirs of the husband and those of the wife.
(5) Lit., 'upon him'.
(6) In her widowhood. Her heirs (e.g.. her brothers) plead that the son died first and that, consequently, his mother inherited his estate before she died, and they now inherit it from her, while his heirs (e.g., his paternal brothers) plead that the reverse had happened and that they, therefore, are entitled to the inheritance.
(7) Lit., 'these and these', Beth Shammai and Beth Hillel who are in disagreement on the cases in the Mishnah, supra 157a and 158a.
(8) Unlike the case of a father and son (Mishnah supra 157a), where one party claims possession as heirs and the other as creditors, or the case of a husband and wife (Mishnah. supra 158a), where certain kinds of property are in the legal ownership of the husband while others are in that of the wife, the case in our Mishnah deals with claims both of which are of equal strength, both being based on the right of inheritance, the widow being acknowledged as the undisputed possessor of the estate, the only point in doubt being whether the one party or the other is to be heir. As the equality of the claims leaves the question of ownership in equal doubt on either side, both schools are of the unanimous opinion that the estate in dispute must be divided.
(9) I.e., even in this case, the School of Hillel maintain the view they had advanced in the previous cases. 'I agree' may be paraphrased 'I agree to differ' (cf. Rashb.)
(10) Which are an obstacle to the formulation of the authoritative law.
(11) Since It was generally agreed that in the case spoken of in our Mishnah Beth Shammai and Beth Hillel are in agreement, why should R. Akiba introduce a note of discord by asserting that even here they are in dispute?
(12) Does the estate remain according to R. Akiba?
(13) Lit., 'stood'.
(14) 'Rabbah adopted the principle of R. Zera', which follows in current editions is to be deleted. (V. Bah, R. Gersh. and R. Han, a.l.) - [It is, however, well to remember that R. Elai was a Palestinian and that R. Zera must have become aware of R. Elai's view only after he came to Palestine when he was led to abandon his own opinion, whereas Rabbah, who still remained behind in Babylon, retained the view of his colleague, R. Zera. Considered in this light, the reading in our current editions is quite in order.]
(15) That in Palestine he was able to see the wisdom of R. Elai's decision.
(16) for R. Elai's decision that the heirs of the mother are entitled to the estate.
(17) The possessions of the widow from the moment her husband died.
(18) To which the mother belongs. Hence it must not be taken away from her heirs, who naturally belong to the same tribe, in favour of the son's heirs who may belong to another tribe and who would, consequently. alienate the property from the tribe the ownership of which had been established.
(19) And not, 'that our Master comes'.
(20) Lit., 'there'. v. supra p. 687, n. 12. The statement is unintelligible and is explained in the Gemara infra.
(21) Lit., 'laws of monies or money matters'.
(22) In the statement no sale but a loan was mentioned!
Talmud - Mas. Baba Bathra 159a
it [must] have been made: [If] a son sold the estate1 of his father, during the lifetime of the father,2 and he died, his son3 may take [it] away from the buyers;4 and this it is that presents a difficulty in civil law;5 for they6 could say to him, 'Your father has sold and you are taking away'!7
What objection is this! Could he8 not9 reply. 'I succeed to the rights of the father of [my] father'?10 You may know [that such a plea is justified] for it is written, Instead of thy fathers shall be thy sons, whom thou shalt make princes in all the land.11 If, however, [a message was sent to which] objection [is to be raised, it may be] the following:12 'A firstborn son who sold the share of [his] birthright during the lifetime of his father, and he died during the lifetime of his father, his son may take [it] away from the buyers; and this it is that presents a difficulty in civil law',[for] his father sold [it] and he takes [it] away! And if it be suggested [that] in this case13 also [he might plead]. 'I come as successor to the rights14 of my father's father', [it may be retorted.] 'If he comes as successor to the rights of his father's father what claim has he upon the portion of the birthright?'15
But what difficulty [is this]? Could he not16 reply, 'I succeed to the rights of [my] father's father17 but take [also] the place of [my] father'?18 If, however, [a message was sent to which] objection [is to be raised it might be] the following.19 'If a person was in a position to tender20 evidence for one21 [in respect of a transaction that was recorded] in a deed,22 before he turned robber, and [then] he turned robber,23 he is not [permitted] to attest his handwriting,24 but others may attest it.'25 Now, if he [himself] is not trusted26 [shall] others be trusted!27 This, then, [it is] which [presents] a difficulty in civil law.
What difficulty [is this]? [It is] possible [that the Palestine message refers to] a case where his28 handwriting was endorsed at a court of law!29 If, however, [a message was sent to which] objection [is to be raised, it might be] the following.30 'If a person was in a position to tender31 evidence for one32 [in respect of a transaction that was recorded] in a deed,33 before it34 had fallen as an inheritance to him, he is not eligible to identify his handwriting35 but others may identify his handwriting.'36
What difficulty, however, [is this]? [Is it not] possible [that] here also [the reference is to] a case where his handwriting was endorsed at a court of law?37 If, however [a message was sent to which] objection [is to be raised, it might be] the following.38 'If a person was in a position to tender evidence for one, before he became his son-in-law and he [subsequently] became his son-inlaw, he is not [permitted] to attest his handwriting,39 but others may attest it. [Now. if] he is not trusted [shall] others be trusted!40 And if it be suggested [that] here also [the reference is to] a case where his handwriting was endorsed at a court of law, surely, [it may be retorted], R. Joseph b. Manyumi said in the name of R. Nahman, 'Even though his handwriting was not endorsed at a court of law'!41
What difficulty. however, [is this]? [It is] possible [that] it is a decree of the king42 that he43 shall not be trusted [as a witness] while others44 shall be trusted; and [the reason is] not because he might lie!45 for should not [this explanation] be accepted,46 [could it be imagined that] Moses and Aaron [are not permitted to act as witnesses] for their fathers-in-law because they are untrustworthy! [The] only [possible explanation] then [is that] it is a decree of the king that they47 shall not act as witnesses for them,48 [so] here also [the explanation may be that] it is the decree of the king that he49 shall not attest his handwriting in favour of his father-in-law.50
Hence [the message sent from Palestine was in fact just the one that was mentioned at first;51 and as to your objection [from the verse]. Instead of thy fathers shall be thy sons,52 [it may be pointed out that] this was written in [connection with] a blessing.53 But can it be said [that this verse] was written [only] in [connection with] a blessing
(1) His share of the inheritance.
(2) I.e., while it was still in his father's possession.
(3) The son of the dead man who sold his share in his father's estate.
(4) That which his father had sold them. That sale was invalid because his father's father having been alive at the time, his father was not yet in possession of the land he sold; and, since he died before his father, the land has never come into his possession. Hence the son (the grandson of the owner) inherits that land from his grandfather and is entitled therefore, to take it away from the buyers, on his grandfather's death.
(5) V. p. 691, n. 9.
(6) The buyers.
(7) The son's title to the estate is solely due to the rights of his father, how then, could he lay any claim to that which his father himself had sold
(8) The son, the grandson of the original owner.
(9) Lit., 'perhaps'.
(10) And not to those of his father. As the Torah conferred upon a son the right to inherit from his father so it has also conferred upon the son's son the right to inherit from his grandfather. Hence, the inheritance has passed directly from the grandfather to the grandson who should, therefore, be entitled to seize the estate which has never come into the possession of his father who, consequently, had no right to sell it.
(11) Ps. XLV, 17. This proves that a person's son takes the place of his father, i,e., the grandson succeeds his grandfather.
(12) Lit., 'that (is) a difficulty'. But the message in the form given supra, as explained, presents no difficulty at all.
(13) Lit., 'here'.
(14) Lit., 'from the power'.
(15) Were it not for the rights of his father who was a firstborn son, he should not have been entitled to the double portion!
(16) Lit., 'perhaps'.
(17) As regards the right to be heir,
(18) I.e., he inherits from his grandfather as if he himself had been the firstborn (Rashb.). V. Mishnah supra 116a.
(19) V. p. 692 n. 10.
(20) Lit., 'knew'.
(21) Lit., 'for him'.
(22) Which be signed as a witness.
(23) Who is ineligible to act as a witness. Cf. Ex, XXIII, 1.
(24) Cf. previous note.
(25) And the deed is valid.
(26) Presumably because the deed may have been forged.
(27) Granted that the signature is his, there is no proof that the deed itself is not a forgery!
(28) The robber's.
(29) Before he embarked on his lawless career. At that time his word could be relied upon; and the deed is, therefore, valid if the witnesses now testify that they signed the endorsement when he was still an upright man.
(30) V. supra, p. 692, n. 10.
(31) Lit., 'knew'.
(32) Lit., 'him'.
(33) E.g., a loan for which a bond of indebtedness has been given.
(34) The bond, i.e., the debt.
(35) He is now an interested party and is, consequently. disqualified from acting as witness.
(36) Since it has been said that he himself is not trusted, it is apparently assumed that he might have forged the document, why then should it be valid if others confirm his handwriting? Could not that very handwriting represent a record of an imaginary transaction? This then may have been the message sent from Palestine which presents a difficulty in civil law.
(37) CF. mutatis mutandis, supra, n. 13.
(38) V. supra p. 692, n. 10.
(39) I.e., his signature on any document in favour of his father-in-law.
(40) CF. supra p. 693, n. 20.
(41) This, then, may have been the Palestine message and the difficulty in civil law that it presented.
(42) A divine precept, a statute without a reason.
(43) A relative such as a son-in-law.
(44) Strangers, attesting his signature.
(45) Hence, the correctness of the statements in the deed never having been doubted, the deed is valid if strangers attest the signature.
(46) Lit,, 'for if you will not say so'.
(47) Moses and Aaron as any other relatives.
(48) Their fathers-in-law (or other relatives).
(49) A son-in-law.
(50) What, then, could have been meant by the 'difficulty' mentioned?
(51) The case of a son who sold his share in his father's estate during the latter's lifetime (supra).
(52) V. supra.
(53) From an expression used in reference to a blessing no law may be derived.
Talmud - Mas. Baba Bathra 159b
and that with respect to [a matter of] law,[it is] not [applicable]? Surely it was taught: [In the case where] a house collapsed upon a man and his father [or] upon a man and those whose heir he is, and [that man] had against him [the claim of] a woman's kethubah or [that of] a creditor, [and. in the first case]. the heirs of the father plead [that] the son died first and the father afterwards, while the creditor[s] plead [that] the father died first and the son afterwards;1 [now,] 'sons'2 [denote] 'the heirs of the father',3 do they not? and 'brothers'4 'those whose heir he is'? If then it could be assumed [that] one cannot plead. 'I come by virtue of the rights of the father of [my] father', because the verse,5 Instead of thy fathers shall be thy sons, [was] written in [connection with] a blessing. what avails6 it [for the heirs] that the son died [first] and the father died afterwards, the creditor [surely] could say to them,7 'I collect [my debt from] the inheritance of their father'!8 - No; [by] 'the heirs of the father','his brothers'9 [are meant; and by] 'those whose heir he is' the 'brothers of his father'10 [are meant].
R. Shesheth was asked: May a son in the grave11 be heir to his mother12 to transmit [her estate] to his paternal brothers?13 - R. Shesheth said to them, You have learnt it: If a father was taken captive [and died] and his son died in the [home] country, or if a son was carried into captivity [where he died] and his father died in the [home] country. [the estate] is to be divided between the heirs of the father and the heirs of the son. How is this to be understood? If it be suggested [that it is to be understood] as was taught,14 who then are the heirs of the father and who are the heirs of the son?15 [Must it] not then [be concluded that it is] this that was meant: If a father was taken into captivity [where he died] and the son of his daughter died in the [home] country, or if the son of one's daughter was taken into captivity [where he died], and the father of his mother died in the [home] country; and it is not known which of them died first, [the estate] is to be divided between the heirs of the father and the heirs of the son. Now, if it were so,16 granted even that the son died first, he should in his grave inherit [the estate] of the father of his mother and transmit it to his paternal brothers! [Must it] not consequently be inferred that a son in the grave does not inherit [the estate of] his mother to transmit [it] to his paternal brothers?
R. Aha b. Manyumi said to Abaye. 'We also were taught [to the same effect] : IF THE HOUSE COLLAPSED UPON ON A MAN AND HIS MOTHER, BOTH AGREE THAT [THE ESTATE IN DISPUTE] IS TO BE DIVIDED.17 Now, if it were so,16 granted even that the son had died first, he should in his grave inherit [the estate] of his mother and transmit it to his paternal brothers! [Must it] not then be concluded that a son in the grave does not inherit [the estate of] his mother to transmit [it] to his paternal brothers?' This proves it.
And what is the reason? - Abaye replied: 'Remove' is mentioned in [the case of the inheritance of] a son,18 and 'remove' is [also] mentioned in [the case of the inheritance of] a husband,19 as [in the case of] removal [of an estate] mentioned in [respect of] the husband, a husband in the grave does not inherit [the estate of] his wife, so [also in the case of the] removal [of an estate] mentioned in [respect of] the son, a son in the grave does not inherit [the estate of] his mother to transmit [it] to his paternal brothers.
A man once said to his friend, 'I am selling you the estate of Bar Sisin.' [In it] there was [a plot of] land that bore the name of Bar Sisin, [but the seller] told him, 'This does not belong to Bar Sisin, though it bears the name of Bar Sisin.'20 [When the matter] was brought before R. Nahman he decided in favour of the buyer.21 Said Raba to R. Nahman: 'Is this the law? [Surely], he who claims from the other has to produce the proof!'
A contradiction was pointed out between two statements of Raba22 and between two statements of R. Nahman.23 For, once a person said to another, 'What claim have you upon this house?' [The other] replied to him, 'I bought it from you and enjoyed [undisturbed] usufruct [during the three] years [required to establish the legal right] of possession.' [The first] said to him, 'I occupied [however], the inner rooms.'24 [When the matter] was brought before R. Nahman he said [to the buyer]. 'Go [and] bring proof of your [undisturbed] enjoyment of the usufruct.' Said Raba to R. Nahman, 'Is this the law? [Surely], he who claims from the other has to produce the proof!' [Does not this present] a contradiction between the two statements of Raba and between the two statements of R. Nahman !25 - There is no contradiction between Raba's statements, [because] here,26 the seller is in possession of his property;27 and there,28 the buyer is in the possession of his property.27 There is [also] no contradiction between the statements of R. Nahman,[because] since here26 he spoke to him, of the estate of Bar Sisin and [that plot] bore the name of Bar Sisin, It is incumbent upon him29 to prove that it does not belong to Bar Sisin; here,28 [however.] [granted] that he has no [less a claim] than [one] who holds a deed, do we not [even in such a case] say [to the holder], 'Attest your deed and you will retain possession of the estate'?30 [
(1) Supra 157a, q.v. for notes.
(2) Of the son who was killed.
(3) 'The father of their father', i.e., their grandfather. They claim that their inheritance does not come to them from their father, who was in debt, but from their grandfather; and that for this reason they (and not the creditors) are entitled to the estate.
(4) V. supra n. 2.
(5) Lit., 'when it is written'.
(6) Lit., 'what is'.
(7) The court.
(8) Since their inheritance, as has been assumed, cannot come direct from their grandfather but from their father. As, however. they are allowed to advance such a plea, it follows that even in legal matters (not only in a blessing) grandchildren succeed directly to the estate of their grandfather
(9) The brothers of the son that was killed, who are, of course, the sons of the father that was killed whose entire estate they inherit, in the case where their brother died first and afterwards their father.
(10) The uncles of the son that was killed. The Mishnah, in the second case, refers to an uncle and a nephew upon whom a house collapsed. If the nephew died first, the brothers of the uncle (the 'heirs of the father' who is one of the brothers of the uncle) are entitled to the entire estate. If, however, the uncle died first, the nephew is entitled as the heir of his father (one of the brothers) to share the estate with them.
(11) I.e., who predeceased his mother.
(12) And thus keep away her estate from, her other living heirs (e.g., her brothers).
(13) Who are complete strangers to his mother.
(14) That it is a case of a father and his own son,
(15) Both, surely. are represented by the very same heir or heirs. If the son has no issue the heirs of the father would also inherit the sons' estate, and if he has issue, his sons would inherit the estate of their grandfather as well as that of their father.
(16) That a son in the grave inherits the estate of his mother.
(17) Supra 158b.
(18) V. Num. XXXVI, 7. So shall no inheritance . . . remove, which refers to the inheritance of a son from his mother. Cf. supra 112b.
(19) So shall no inheritance remove. Num. XXXVI, 9, which refers to a husband's inheritance from his wife. Cf. supra l.c.
(20) It is his in name only, not in fact.
(21) Lit., 'he placed it firmly in the hand of the buyer'.
(22) Lit., 'Raba on Raba'.
(23) Lit., 'R. Nahman on R. Nahman'.
(24) Since the occupier of the inner rooms is making use of the outer ones, the enjoyment of the usufruct for three years in the latter does not establish the right of ownership.
(25) Cf. supra notes 5 and 6.
(26) The case of the land of Bar Sisin.
(27) Hence it belongs to him.
(28) In the dispute about the outer rooms.
(29) The seller.
(30) Hence, it is the buyer who has to produce the proof. On the whole passage, v. supra 29b, 30a.
Talmud - Mas. Baba Bathra 160a
MISHNAH. A PLAIN DEED1 [MUST BEAR THE SIGNATURES OF] THE WITNESSES ON ITS INSIDE; A FOLDED ONE2 [MUST BEAR THE SIGNATURES OF] THE WITNESSES ON THE REVERSE.3 A PLAIN [ONE] THAT BEARS THE SIGNATURES OF THE WITNESSES ON THE REVERSE4 [AND] A FOLDED [ONE] THAT BEARS THE SIGNATURES OF ITS WITNESSES ON THE INSIDE ARE BOTH INVALID.5 R. HANINA B. GAMALIEL SAID: A FOLDED [DEED] THAT BEARS THE SIGNATURES OF THE WITNESSES ON ITS INSIDE IS VALID, BECAUSE IT CAN BE TURNED INTO A PLAIN [ONE].6 R. SIMEON B. GAMALIEL SAID: ALL DEPENDS ON7 THE USAGE OF THE COUNTRY. A PLAIN DEED REQUIRES TWO WITNESSES8 AND A FOLDED [ONE] THREE.9 A PLAIN [DEED] THAT BEARS THE SIGNATURE OF ONE WITNESS [ONLY]. AND A FOLDED [ONE] THAT BEARS THE SIGNATURES OF TWO WITNESSES [ONLY] ARE BOTH INVALID.
GEMARA. Whence these words?10 - R. Hanina said: For Scripture says, Men shall buy fields for money and subscribe the deeds, and seal them, and procure the evidence of witnesses.11 Men shall buy fields for money and subscribe the deeds,
(1) גט פשוט, an ordinary deed or note, relating, e.g., to a debt or divorce, all the writing of which appears on one side of the document.
(2) מקשר or מקושר, lit., 'knotted', i.e., stitched. This was a special form of deed, written on alternate lines, blank lines and written lines alternating. Each written line was folded over the blank line adjacent to it, each successive two being stitched together.
(3) Each fold must bear on its external upper side the signature of a different witness, the number of folds not to exceed the number of witnesses.
(4) Lit., 'whose witnesses wrote on its back'.
(5) If it is a bill of divorce, the woman cannot be divorced by it; and if it is a bond of indebtedness, the creditor is not entitled to seize any of the debtor's sold lands.
(6) By removing the stitches.
(7) Lit., 'like'.
(8) Lit., 'its witnesses by two'. [Meir Abulafia, in his Yad Ramah, explains 'a folded deed' differently. 'We take,' he writes, 'a long scroll, and draw from it three to seven thongs below which there comes the written text of the deed. The deed is then folded, special care being taken that the bottom of the reverse of the deed should remain exposed for the signatures of the witnesses. The scroll being rolled together and fastened by the thongs which are knotted together, the witnesses sign between the knots.' This, as Fischer, L. (ZAW. XXX, 139ff.) points out, is in accord with the 'folded deeds' discovered among the Greek papyri. V. also his article in Jahrb. de Jud. Lit., Gesel. IX. 51ff.]
(9) The folded deed contained two elements. The specific (date and amount), and the Formula which is common to all deeds. The first element usually occupied three lines which were folded on the intervening blank lines and stitched together. Hence no less than three witnesses were required. Cf. infra n. 14.
(10) That there are two kinds of deeds differing from each other in the number of witnesses and the mode of folding.
(11) Jer. XXXII, 44.
Talmud - Mas. Baba Bathra 160b
refers to1 the plain [deed]; and seal2 them, refers to1 the folded [one]; and procure the evidence, [implies] two [witnesses]3 witnesses, [implies] three.4 How [is] this5 [possible]? Two for a folded [deed]; three for a plain [one]. Might not this be reversed?6 - Since it has more folds,7 it [must also] have more witnesses.
Rafram said: [It8 may be derived] from the following.9 So I took the deed of the purchase, both that which was sealed, containing the terms and conditions, and that which was open.10 So I took the deed of the purchase, refers to11 the plain [deed]; that which was sealed, refers to the folded [one]; and that which was open. refers to the plain [portion] in the folded [deed];12 the terms and conditions, refers to13 the laws which distinguish14 the plain [deed] from15 the folded [one]. viz.,16 the one17 [requires] two witnesses18 and the other,17 three witnesses;18 the witnesses of the one [sign] on the obverse, while the witnesses of the other [sign] on the reverse side. Might not this be reversed?19 Since it has more folds20 it [must also] have more witnesses.
Rami b. Ezekiel said: [It21 may be derived] from, the following text.22 At the mouth of two witnesses, or at the month of three witnesses, shall a matter be established.23 If their evidence may be established by two, why should three be specified? To tell you [that] two [are required] for a plain [deed]; three for a folded [one]. Might not this be reversed? - Since it has more folds,20 it [must also] have more witnesses.
[Is it] for this [purpose]24 that the verses25 [mentioned] were intended?26 [Surely] each one is required27 for a separate purpose;28 as it was taught: [By the statement], men shall buy fields for money, and subscribe the deeds, and seal them,29 good advice was tendered;30 so I took the deed of the purchase,31 [is] just [a record of] what had happened; at the mouth of two witnesses, or at the mouth of three witnesses,32 [has been specified], in order to compare three [witnesses] to two,33 concerning which34 R. Akiba and the Rabbis are in dispute!35 [The fact], however, [is that the law of] a folded [deed] is [only] Rabbinical, and the Scriptural verses [quoted] are a mere asmakta.26
What is the reason why the Rabbis instituted a folded [deed]? - They were [in] a place [inhabited] by priests, who were very hot-tempered and they divorced their wives.36 Consequently the Rabbis made [this] provision,37 so that in the meantime38 they might cool down.39 This satisfactorily explains bills of divorce; what [explanation, however], may be given40 [in the case of other] documents? - In order that there may be no distinction between bills of divorce and [other] deeds.
Where, [in the case of a folded deed], do the witnesses sign? - R. Huna said: Between [one] fold and the other;41 and R. Jeremiah b. Abba said: [On] the back of the writing and corresponding to [all] the written part, on the external [side of the deed]. Rami b. Hama said to R. Hisda: According to R. Huna who said [that the witnesses sign] 'between [one] fold and the other', assuming [that he meant], 'between [one] fold and the other on the external side'42 [the following objection may be raised]: Surely, a folded [deed] was once brought before Rabbi who remarked, 'There is no date on this [deed]'. [Thereupon] R. Simeon son of Rabbi said to Rabbi, 'It might be hidden between the folds'. [On] ripping [the seams] open he saw it.43 Now, if it were [so],44 he should have [remarked].' There is neither date nor are there witnesses on this deed!' - He replied to him: Do you think [that according to R. Huna the witnesses sign] between the folds on the inside? No; [they sign] between the folds on the outside.45 But [is there no reason] to apprehend that he might forge [the lower section of the folded deed]46 and enter whatever he wished [after] the witnesses had signed?47 - 'Firm and established',is entered on it.48 Is [there, however, no reason] to apprehend that he might enter whatever he wished and then write a second time, 'firm and established'? - [The formula], 'firm and established', is entered [only] once,49 not twice.50 Is [there no] apprehension that he might erase the [original] 'firm and established', and add51 whatever he wished, and then write, 'firm and established'? - Surely, R. Johanan said: A suspended [word52 that has been] confirmed53 is admissible;54
(1) Lit., 'this'.
(2) חתם, seal, close, tie up.
(3) The minimum number of witnesses. All evidence must be given by no less than two witnesses unless the contrary has been specifically indicated. (V. Sot. 2b).
(4) The minimum number above two that has already been mentioned.
(5) That two, as well as three witnesses are required.
(6) Two witnesses for a folded deed and three for a plain one.
(7) I.e., since Scripture surrounded the folded deed with more restrictions.
(8) V. supra n. 1.
(9) Lit., 'from here'.
(10) Jer. XXXII. 11.
(11) Lit., 'this'.
(12) The folded deed, beside the date and amount which were entered in the first lines which were folded and stitched, also contained the formula, common to all deeds, which was entered in the same manner as on a plain deed. This second element is, 'the plain in the folded'. Cf. Supra p. 699, n. 9.
(13) Lit., 'these'.
(14) Lit., 'which between'.
(15) Lit., 'to'.
(16) Lit., 'how this'.
(17) Lit., 'this'.
(18) Lit., 'its witnesses'.
(19) V. p. 700, n. 8.
(20) V. l.c n. 9.
(21) V. l.c., n. 1.
(22) Lit., 'from here'.
(23) Deut. XIX, 15.
(24) To indicate the differences between the two kinds of deeds.
(25) Lit., 'and these'.
(26) Lit., that they came'.
(27) Lit., 'that it came'.
(28) Lit., 'For its thing'.
(29) Jer. XXXII, 44.
(30) Lit., 'he taught us'. The text is a guide to purchasers how to proceed with such transactions. Cf. supra 28b.
(31) Jer. XXXII, 21.
(32) Deut. XIX, 15.
(33) That three witnesses have no more powers or privileges than two.
(34) Cf. Mak. 5b.
(35) How, then, could these same verses be said to refer to the laws of folded and plain deeds? (20) אסמכתתא, 'support', i.e., the Scriptural text was used by the Rabbis as some slight support, or mnemotechnical aid to the laws of the plain and folded deeds which they themselves have enacted.
(36) For the slightest or imaginary provocation. A plain bill of divorce was easily obtainable, and once the divorce had taken place none could re-marry his wife, since a divorced woman is forbidden to a priest. Cf. Lev. XXI, 7.
(37) The folded bill of divorce.
(38) While the elaborate document was being prepared, written, folded, stitched and signed.
(39) And reconsider their hasty decisions.
(40) Lit., 'is there to be said'.
(41) The assumption at present is that they sign on the blank spaces between the written lines on the obverse of the deed.
(42) Of the document.
(43) The date.
(44) That the witnesses sign between the written lines on the inside and that their signatures are consequently folded and stitched in the same way as the date.
(45) Hence the signatures may be seen without ripping open the stitched folds. [According to the description of the folded deed given by the Yad Ramah, the signatures would appear as in fig. 2, p. 704.]
(46) Which is left unfolded. (Cf. supra p. 700. n. 14.)
(47) On the external sides of the folds of the upper section. Since the signatures do not appear at the foot of the deed, there is no guarantee that the holder would not add anything he pleased.
(48) This formula appears at the foot of every deed, and anything added after it would be detected at once as a forgery.
(49) Lit., 'one firm etc. we write.
(50) Lit., 'two'. Cf. previous note. Hence the forgery would be detected by the double entry of the formula.
(51) Lit., 'write'.
(52) Or words, inserted between the lines of a deed.
(53) At the foot of the deed.
(54) And the deed is valid.
Talmud - Mas. Baba Bathra 161a
an erasure [however] is inadmissible1 although it had been confirmed.2 [The law,] however, [that] an erasure invalid only applies3 [to the case where it occurs] in the position [of the formula] 'firm and established'4 and [occupies the] same space as 'firm and established'.5
According to R. Jeremiah b. Abba, however, who stated, '[On] the back of the writing and corresponding to [all] the written part, on the external [side of the deed]',6 is [there no cause] to apprehend that he might write on the inside7 whatever he wished and induce additional witnesses to sign on the outside;8 and might say, 'I did it9 in order to increase the number of witnesses'?10 - He11 replied to him:12 Do you think [that] witnesses13 sign in the [same] order [as the lines of the deed],14 they sign [vertically] from bottom to top?15 But is [there no reason] to apprehend [that some] unfavourable condition might occur in the last line [of the deed] and he would cut off that last line, and [though] with it he would [also] cut off [the name of the witness] 'Reuben',16 [the deed] would [yet] remain valid through [the remaining part of the signature], 'son of Jacob witness';17 as we learnt: [The signature]. 'son of X, witness', is valid?18 - [The witness] writes, 'Reuben son of', across one line,19 and, 'Jacob. witness', above it.20 Is [there no reason, however,] to apprehend that [though] he might cut off, 'Reuben son of', [the deed] would [yet] remain valid through [the remaining portion of the signatures]. 'Jacob, witness';21 as we learnt: [a signature], 'X, witness' is valid?22 - [The word], 'witness' is not written.23 And if you wish it may be said [that a witness], in fact, does write [after his signature], 'witness', [but this is a case] where it is known that the signature
(1) Any writing on the spot erased is invalid.
(2) Because it is possible that the formula, 'firm and established', had been erased from its original position and re-written after the spurious matter that had been inserted in its place. Since an erasure of the formula would, thus, invalidate the added matter, there is no cause to apprehend any forgery, though the witnesses sign on the external side of the deed.
(3) Lit., 'they only said'.
(4) At the end of the original text of the deed.
(5) Or more.
(6) And, since the signatures cover the entire extent of the writing, the end of the deed is clearly indicated; and the formula, 'firm and established', is not required at the foot of the deed.
(7) On the lower part of the deed which is left unfolded.
(8) On the back of the additional written matter.
(9) Added extra witnesses over and above the prescribed number of three.
(10) To give the matter greater publicity.
(11) R. Hisda.
(12) Rami b. Hama.
(13) According to R. Jeremiah.
(14) I.e., in horizontal lines on the reverse of the deed, corresponding to the lines on the obverse, the first signature corresponding to the first line of the deed, the second to the second, and so on. If that were the case, spurious matter could certainly be added.
(15) They begin their signatures at the bottom of the reverse, on the back of the last line of the obverse, and proceed vertically upwards, witness after witness, towards the top line. Since the first signature commences at the foot of the deed, any matter below it (not having a signature on the reverse) would be easily detected as spurious.
(16) Written on its back.
(17) The proper form of a signature was, 'X son of Y, witness'. The algebraic symbols are represented in the Talmud by the Biblical characters, Jacob and his son Reuben.
(18) Git. 87b.
(19) So that by cutting off the last horizontal line of in the deed, 'Reuben son of' which is written vertically on the other side is cut off with it.
(20) Above the last line and across the back of the second line (from the bottom) of the text; and this, i.e., the name only of the father of the witness, would remain on the deed were the last line to be cut off. [(V. fig. 1, cf. Fischer loc. cit.)]. According to the description of the Yad Ramah, the signatures appear thus (v. fig. 2).
(21) The court mistaking the name of the father for the name of a witness, regarding 'Jacob' as the name of the witness.
(22) Git. l.c.
(23) In such a case, the name of a witness without the name of his father is invalid. Hence, should one line of the deed be cut off leaving the name of the witness's father only on the remaining portion of the deed,the signature would be invalid.
Talmud - Mas. Baba Bathra 161b
is not that of Jacob.1 Is it not possible [that] be signed on behalf of his father?2 - No one gives up his own name and uses as his signature the name of his father. Might he not have used it3 as a mere mark?4 For, surely, Rab drew a fish;5 R. Hanina drew a palm-branch;5 R. Hisda a Samek.6 R. Hoshaia, an Ayin,6 Rabbah7 son of R. Huna, a mast!8 - No one would be so impertinent [as] to make of the name of his father a [mere] symbol. Mar Zutra said: What is the need for all this!9 Any folded [deed the signature of] whose witnesses10 do not terminate11 with the same line [on the deed],12 is an invalid [document].13 R. Isaac b. Joseph said in the name of R. Johanan: All erasures14 require confirmation;15 and the last line16 must contain a repetition of the subject matter of the deed.17 What is the reason?
(1) Hence no court would assume Jacob himself to be the witness.
(2) Using the name of his father rather than his own, as a mark of respect.
(3) The name of his father.
(4) As an arbitrary combination of letters in lieu of his full name. Such a symbol or mark is as legitimate in deeds as one's proper signature.
(5) Instead of his and his father's full name. This symbol has this become his recognised and legally valid signature.
(6) One letter of his name.
(7) Current editions, 'Raba'.
(8) Others, 'ship'. Now, since these scholars used symbols in lieu of their proper signatures, is it not possible that a witness might use the letters forming the name of his father as a symbol for his signature?
(9) All this series of difficult and forced explanations.
(10) Written vertically across the back of the deed, whether from top to bottom or from bottom to top.
(11) On the upper and lower edge of the document.
(12) I.e., the first letters and last letters of all the signatures must begin and end respectively with the same top and bottom lines of the deed.
(13) Hence there is nothing to apprehend. Should one add any spurious matter, it would be detected by the fact that the back of it would protrude below the signatures. Should one cut off a line, the initial or final sections of all the signatures also would thereby be lopped off.
(14) In legal documents; other than the formula, 'firm and established', which must not be erased, cf. supra 161a.
(15) At the conclusion of the text of the deed before the formula, 'firm etc.', all erasures must be enumerated. Current edd.: He is required to write, 'and this is their confirmation'. 'And this', is to be deleted. (Cf. Rashb.). V. however Tosaf, s.v. אמר for a justification of the text.
(16) Of the deed.
(17) I.e., no fact, condition or qualification that has not already appeared in the text of the deed may be contained in the last line. The approved formula for the last line is, 'And we took symbolic possession from X son of Y in accordance with all that is written and specified above etc.'
Talmud - Mas. Baba Bathra 162a
- R. Amram said: Because the last line cannot be taken as a determining factor.1 Said R. Nahman to R. Amram: Whence do2 you [derive] this? [The other] replied to him: Because it was taught, If the [signatures of the] witnesses were removed two lines from the text, [the deed] is invalid; [if only] one line, [it is] valid. Why are two lines different [from one line]? Because one might commit forgery and add3 [some unauthorised matter]! [In the case of] one line also [might not one] commit forgery and add3 [some spurious matter]? Must we not then conclude [that] the last line cannot be taken as a determining factor'? This proves it.
(1) Lit., '(people) do not learn from the last line'. Witnesses do not as a rule take care to write their signatures immediately below the text of the deed, and usually leave some space between their signatures and the text. As this space might be used by the unscrupulous for the insertion, in his own interests, of an unauthorised line, it has been provided that nothing essential that has not already appeared in the text of the deed may appear in its last line. Consequently, should this line ever contain a vital point not recorded in the text, it would immediately be detected as spurious.
(2) Lit., 'to'.
(3) Lit., 'write'.
Talmud - Mas. Baba Bathra 162b
The question was raised: What [is the ruling in the case of] a line and a half?1 - Come and hear: 'If the [signatures of the] witnesses were removed two lines from the text,2 [the deed] is invalid',3 [from which it may be inferred that if they were removed] a line and a half only [the deed] is valid. Explain, [however], the first clause: '[If only] one line, [it is] valid'3 [from which it follows] that only [if the interval was] one line is [the deed] valid but [if it was] a line and a half [the deed] is invalid! From this, then, no deduction can be made.4 What about an answer to the question?5 - Come and hear what has been taught: [If] the [signatures of the] witnesses were removed two lines from the text, [the deed] is invalid; [if] less than this6 [it is] valid.7
[If] four or five witnesses have signed on a deed, and the first two were found to be relatives or [such as are in any other way] disqualified,8 the evidence may be confirmed by the remaining witnesses.9 [This] affords support to [the view of] Hezekiah; for Hezekiah said, '[If] it10 was filled with [the signatures of] relatives, [the deed] is valid',11 And there is nothing strange12 [in this law],13 for [while] air [space]14 renders the festive tabernacle ritually unfit when [that space measures only] three [handbreadths],15 unfit roofing16 renders [it] ritually unfit [only] when [that roofing measures] four [handbreadths].17
The question was raised: [Do] the 'two lines' which were mentioned18
(1) If a space sufficient for the writing of a line and a half was left between the text and the witnesses' signatures.
(2) Cf. Bah, a.l.
(3) Supra 162a.
(4) Since the deduction from the first part is in contradiction to that of the second, the Baraitha can be used as a guide only for that which it actually teaches.
(5) Lit., 'what becomes about it'.
(6) I.e., a line and a half.
(7) Tosef. Git. VII.
(8) Cf. Rashb. a.l. Current edd., 'four and (or) five witnesses. . . and one of them was found to be a relative etc.'
(9) Though the signatures of the disqualified witnesses are entirely ignored, the space, nevertheless, on which their signatures are written, even if it extends to two lines between the text and the signatures of the qualified witnesses, is not regarded as a blank to disqualify the deed.
(10) The blank space of two lines between the text of a deed and the signatures of the witnesses.
(11) Git. 87b.
(12) Lit., 'be not astonished'.
(13) That a blank of two lines renders the deed invalid, while disqualified signatures. though ignored, and though covering the space of two lines, do not.
(14) Corresponding to a blank in a deed.
(15) If the tabernacle has only three walls, and the air space of three handbreadths in the roof runs across the entire length or breadth of the tabernacle intercepting one or two of the walls, so that the tabernacle is, as it were, short of the prescribed minimum number of walls. (Cf. Tosaf. s.v. שהרי a.I.).
(16) The roof of the festive tabernacle must consist of twigs or any other suitable materials which grow from the ground and are not subject to Levitical defilement.
(17) Suk. 17a.
(18) In respect of the law that a blank space of two lines between the text of a deed and the signatures of the witnesses renders the deed invalid.
Talmud - Mas. Baba Bathra 163a
[include] themselves1 and the space between them or, perhaps, themselves [only] and not the space between them? - R. Nahman b. Isaac replied: It stands to reason that they and the space between them [were meant];2 for if it could be assumed [that only] they3 [were meant] and not the space between them, of what use4 [is such a narrow space]?!5 Consequently it follows [that] they and the space between them [were meant]. This proves it.
R. Sabbathai said in the name of Hezekiah: The 'two lines' that were mentioned6 [are such as are] in the handwriting of the witnesses, not [in] the handwriting of the scribe.7 What is the reason? Because whoever [desires to] commit forgery does not go to a scribe to get it done8 . And how much [space]?9 - R. Isaac b. Eleazar said: As [much] for instance [as is required for the writing of] Lak Lak10 above one another. This shows that he is of the opinion [that the limit is] two [written] lines and four [intervening] spaces.11 R. Hiyya b. Ammi in the name of 'Ulla said: As [much] for instance [as is required for the writing of] a Lamed12 in the upper.13 and a [final] Kaph14 in the lower [line].15 [from this]16 it clearly follows that he is of the opinion [that the limit is] two [written] lines and three [intervening] spaces.17 R. Abbahu said: As [much] for instance [as is necessary for the writing of] Baruk b. Levi18 in one line; [for] he holds the opinion [that the limit is] one [written] line and two [intervening] spaces.
Rab said: What has been taught19 is only applicable [to the space] between the [signatures of the] witnesses and the text; but between the [signatures of the] witnesses and the legal attestation,20 even if [the blank space is] wider, [the deed] is valid. Why [is the limit] between the [signatures of the] witnesses and the text different [from the other]?21 Because, the witnesses having signed, [the holder of the deed] might commit forgery by entering [on it] whatever he desires! [In the case of the blank space] between the [signatures of the] witnesses and the attestation too, [could not] forgery be committed by entering whatever one desired and attaching the signature of witnesses?22 - [In the case]23 where [the blank space] is dotted with ink marks.24 If so, one [could] also dot with ink marks [any blank space] between the [signatures of the] witnesses and the [text of the] deed!25 - It might be assumed [that] the witnesses had confirmed26 the dotted [portion].27 [In the case of dotted ink marks] between the [signatures of the] witnesses and the attestation, [would it not] also be assumed [that] the court had confirmed28 the dotted portion? - A court does not confirm an ink dotted [space].29 Is [there no reason] to apprehend30 that the upper [portion of the deed], might be [entirely] cut off, the ink dots erased, any [terms] desired entered,31 and the signatures of witnesses [also] might be attached32 [and yet the deed would be regarded as valid], since Rab stated that a deed the text33 and the [signatures of the] witnesses of which appear on an erasure34 is legally valid?35
(1) I.e., the space occupied by the written lines.
(2) And that if space enough for the written lines only was left, the deed is valid.
(3) V. p. 707. n. 26.
(4) Current edd., 'one line without its space', is to be deleted. (CF. Rashb. and Bah, a.I.).
(5) No forgery could in such a case be committed with impunity. Whether the two lines would be inserted without the proper space between them or whether intervening space would be obtained by the use of a smaller hand, the forgery would be easily detected. Why, then, should a deed containing such a narrow blank space be invalid?
(6) CF. p. 707, n. 15.
(7) The characters in the handwriting of ordinary witnesses ate larger than those of a skilled scribe, and naturally occupy more space.
(8) Lit., 'and forge'. A forgery would be carried out in the secrecy of one's house and the unskilled writer would naturally draw big characters.
(9) Is implied by the limit of 'two lines'.
(10) lach lach to thee, to thee, (or perhaps lech lecha get thee out, a clause from Gen. XII, 1). There must be sufficient space for allowing of the writing, in each of the two lines, of letters which extend upwards (ל) and downwards (ך) without their touching each other. These letters, furthermore, are to be in the larger kind of character as reported above in the name of Hezekiah. Cf. supra note 6.
(11) Two between the lines (for the ך of the upper, and the ל of the lower line), one above the upper line for the ל, and one space below the lower line for the ך.
(13) Lit, 'from above'.
(15) Lit., from below'.
(16) Since mention is only made of a ל in the upper, and a ך in the lower line.
(17) One above the upper line for the letters which, like a ל, extend upwards; another below the second line for the letters which like ך, extend downwards; and a third between the two written lines for the letters that run both downwards and upwards. Should a ל happen to come below a ך, one could easily move the letter forward or backward to avoid coalescence.
(18) ברוך בן לוי contains two letters which extend downwards and one which runs upwards.
(19) Regarding the limit to two lines of the blank space allowed below the text of a deed.
(20) Confirmation by a court at the foot of a document.
(21) That between the signatures and the attestation of the court.
(22) And the attestation at the foot would be regarded as a confirmation of the entire deed inclusive of the spurious additions and signatures.
(23) I.e., more blank space than the 'two lines' maximum is allowed not in all cases but only in that particular case.
(24) So that nothing could be entered on that space. Aruk reads דײת) דמדײת to dot with ink); cur. edit. טײט) דמטײט to blot, smear).
(25) Why, then, was the blank space in this case restricted to the minimum of two lines?
(26) Lit., 'signed'.
(27) Not the text; and this would invalidate the deed (cf. Git. 87a). Hence, no dotted ink marks are permissible between the text of a deed and the signatures of the witnesses.
(28) V. p. 709. n. 10.
(29) And it would, therefore, be obvious that the attestation referred to the text of the deed. In the case of witnesses, however, such an assumption is not warranted, since not every witness knows the law and it is possible to assume that the holder of the deed had found some witnesses who consented to confirm with their signatures that a blank space was dotted with ink marks.
(30) If an unlimited blank space be allowed between the signatures of the witnesses and the attestation of the court.
(31) On the spot erased.
(32) Without their knowledge.
(33) Lit., 'it'.
(34) V. infra 163b seq.
(35) If the signatures are known. In the case, therefore, where an attestation of a court appears at the foot of the deed, the authenticity of the signatures of the witnesses would be taken for granted; and since, according to Rab, the fact that the deed is written on an erasure is no disqualification of its legality, the forgery would never be detected. How, then, could Rab state that the two lines limit does not apply to the space between the signatures of the witnesses and the attestation of the court?
Talmud - Mas. Baba Bathra 163b
According to R. Kahana who reported it1 in the name of Samuel, this is quite right;2 according to R. Tabyumi. however, who reported it1 in the name of Rab, what is there to be said?3 - He4 is of the opinion that in any such case5 [a deed] is not confirmed by the attestation of the court that [may appear] on it but by the witnesses on it.6
R. Johanan, however, said: What has been taught7 is only applicable [to the space] between the [signatures of the] witnesses and the text; but between the [signatures of the] witnesses and the legal attestation8 even [if the blank space is limited to] one line9 [the deed is] invalid. Why [is the limit] between the witnesses and the attestation different [from the other]?10 Because the upper [portion of the deed] might be cut off and the text11 [of a new deed] and its witnesses might be written on the one line, and he12 is of the opinion that a deed the text and the witnesses of which appear on one line is valid! If so, [in the case of a space] between the witnesses and the text also, might not the upper [portion of the deed] be cut off and, the witnesses having signed, anything one desires might be entered? - He holds the opinion [that] a deed the text11 of which appears on one line and its witnesses on another is invalid.13 But is [there no reason] to apprehend that the text and the witnesses might be written in one line14 and [the holder of the deed might] plead, 'I did this15 in order to increase the number of witnesses'?16 - He12 holds the opinion [that] in any such case17 a deed is not confirmed by18 the witnesses that [appear] below but by18 the witnesses who [appear] above.19
[Reverting to the above] text. 'Rab stated [that] a deed the text and [the signatures of the] witnesses of which appear on an erasure is valid.'20
(1) The legality of a deed, the text and signatures on which are written on an erasure.
(2) No difficulty arises, since it may be claimed that, in the opinion of Rab, a deed on an erasure is invalid.
(3) In reply to the difficulty raised. Cf. supra note 8.
(5) Where the text of the deed and its witnesses are written on an erasure though an attestation of a court also appears on it.
(6) As the personal evidence of the witnesses, or that of those who knew their signatures, is thus required, a forgery on the lines suggested would, of course, be detected.
(7) V. supra p. 709. n. 3.
(8) V. l.c., n. 4.
(9) And even though that space is dotted with ink marks (Rashb.).
(10) That between the text and the witnesses.
(11) Lit., 'it'.
(12) R. Johanan.
(13) Because, as stated supra 162a, the last line cannot be taken as the determining factor.
(14) I.e., all the Original text of the deed would be cut away, leaving only the two lines' blank space above the signatures and, on one of these, a forged text and signatures would be written.
(15) Arranged for signatures of witnesses in more than one line.
(16) The genuine witnesses, though appearing in the second line, would not invalidate the deed, since the first line contains the text and witnesses, while for confirmation of the deed, the holder would not make use of the signatures of the fictitious witnesses in the first line but of those of the genuine witnesses in the second line.
(17) Where the text of a deed and the signatures of its witnesses appear in one and the same line, and these are followed by other witnesses in the next line.
(18) Lit., 'from'.
(19) Since the signatures of the witnesses in the first line, being fictitious, could not be attested, the forgery would be exposed.
(20) Supra 163a.
Talmud - Mas. Baba Bathra 164a
If, however, it is objected1 [that, since the writing on the document had been] erased [once, it might] be erased again,2 [it may be replied that anything which] has been erased once is not like [that which] has been erased twice.3 But [is there no cause] to apprehend that ink might first be poured on the place of the witnesses,4 and this5 would be erased,6 so that when the text7 is subsequently erased8 the lower and the upper sections would represent9 a repeated erasure?10 - Abaye replied: Rab is of the opinion [that] Witnesses [must] not sign on an erasure unless the erasure was made11 in their presence.12
An objection was raised: [A deed] the text13 [of which is written] on [clean] paper14 and its witnesses on an erasure is valid. Is [there no cause] to apprehend that [the text] might be erased, and any [terms] one desires substituted,15 and [thus] there would result [a deed] the text13 and witnesses of which [appear] on an erasure?16 - They17 write as follows:18 'We witnesses signed on an erasure and the text is written on paper'. Where, [however], do they write [this]? If below,19 [surely] one [can] cut it off! If above,19 one [can] erase it!20 They write [it]21 between the signatures.22 If so, explain the second clause: [A deed] the text23 [of which appears] on an erasure and its witnesses on [clean] paper is invalid.24 Why, [it may be asked,] should it be invalid? Let them in this case25 also write thus: 'We witnesses signed on paper and the text [is written] on an erasure'. Would you now also reply [that as the writing] was [once] erased,26 one might again erase it?27 Surely, you said [that] what was erased once is not like that which was erased twice! - This28 [has been said in the case only] where the witnesses are signed on an erasure.29 Where, [however], the witnesses are not signed on an erasure but on [clean] paper [the difference30 can] not be detected.31 But let any32 scroll be brought, [on which some writing could] be erased, and compared!33 - The erasure on one scroll is not [always] like the erasure on another scroll.34 Let, then, the signatures of the witnesses be accepted by the court,35 and be erased and compared!36 - R. Hoshaia replied: An erasure of one day's [standing] is not like an erasure of two days [standing]. Let it stand [for some time]!37 - R. Jeremiah replied: Precaution had to be taken [to provide] against an erring court.38
R. HANINA B. GAMALiel SAID: A FOLDED [DEED] ETC. Rabbi raised an objection against the statement39 of R. Hanina b. Gamaliel:
(1) Lit., 'thou wilt say'.
(2) And, consequently, while leaving the signatures on the first erasure, the text above them could be erased again. and on this second erasure a forged text might be substituted for the original!
(3) The forgery would be discovered by comparing the signatures which appear on a first erasure with the text appearing on a repeated erasure.
(4) I.e., on the lower section (corresponding to the place of the witnesses) of a paper which has been once erased from top to bottom.
(5) The ink poured.
(6) And thus the witnesses, not suspecting that the section where they append their signatures had been erased twice, whereas the upper section only once, would be signing on a double erasure.
(7) Lit., 'to that'.
(8) from the upper section, and a forged text substituted.
(9) Lit., 'this and this is'.
(10) Lit., 'erased twice'; and since both text and signatures would thus appear on the same kind of erasure, the court would not be able to detect the forgery.
(11) Lit., 'it was erased'.
(12) They would, consequently, be able to satisfy themselves that the upper and lower sections of the erasure were exactly alike.
(13) Lit., 'it'.
(14) I.e., on which nothing has ever before been written.
(15) Lit., 'write'.
(16) Which, as has been said, is valid! Since this would facilitate forgery, why were witnesses allowed to sign on an erasure?
(17) The witnesses.
(18) Lit., 'thus'.
(19) Their signatures.
(20) And the erasure would raise no suspicion since the witnesses also are signed on an erasure.
(21) The formula, 'We witnesses etc.'
(22) Lit., between witness and witness'. Consequently it cannot be cut off without cutting away with it one of the signatures; and should it be erased, it would leave a doubly erased spot which could be easily distinguished from that of the signatures which appear on what was erased only once.
(23) Lit., 'it'.
(24) Because it is possible that the original had been erased and a forged text had been substituted for it.
(25) Lit 'here'.
(26) The text being written on an erasure.
(27) And substitute a forged text for the original.
(28) Lit., 'these words', that it is possible to distinguish between the two kinds of erasure.
(29) Since the two kinds of erasure appear side by side, on the same document, the contrast between them would be noticed.
(30) Between a first, and second erasure.
(31) The contrast on the document being not that between two kinds of erasure but between an erasure and clean paper.
(32) Lit., 'another'.
(33) With the erasure on the deed. The comparison would determine whether the writing on the deed was erased once or twice.
(34) One of them may be thicker than the other and would not show up the erasure as well as the other.
(35) Provisionally, until it had been ascertained whether the text was, or was not a forgery.
(36) With the erasure on which the text of the deed is written. CF. supra note 11.
(37) When the difference between the old, and the new erasure would disappear and comparison could be made between the erasures on the two sections of the deed.
(38) Which might not think of comparing erasures and, relying on the clear signatures of the witnesses, could accept the validity of the deed. (R. Gersh.) Which might not be aware of the fact that an old erasure differs in appearance from a new one and would, consequently, accept a forged document as genuine (Rashb., cf. Bah, a.l.). Hence it was ordained that any deed the text of which appears on an erasure and the signatures of its witnesses on a clean section of the paper is invalid.
(39) That a folded deed may be turned into a plain one.
Talmud - Mas. Baba Bathra 164b
Surely. the date of the one1 [deed] is not like that of the other;1 [for in the case of] a Plain [deed,. the first completed year of a king's reign2 is counted as his first,3 [and] the second completed year4 as his second;4 [while in the case of] a folded [one], the first year of a king's reign2 is counted as his second,4 the second as his third;5 and sometimes [it may happen] that [a person] might borrow money from another6 on a folded [deed] and, in the meantime,7 he might obtain funds and repay him, but [when] requesting the return of his deed,8 [the creditor] might reply to him, 'I lost it', and would write out for him [instead], a receipt; and when the time of its payment9 arrived, he10 might convert it [into] a plain [deed] and say to him, 'You borrowed from me now'!11 - He holds the view that a receipt is not written.12
Was Rabbi, however, familiar with [the dating of] a folded [deed]? Surely, once a certain folded [deed] was brought13 before Rabbi who remarked, 'This is post-dated',14 and Zonin said to him, 'Such is the practice of this nation: [If a king] reigned a [full] year they count it as his second year;15 [if] two [years], they count them as his third16 [year]'!17 - After he heard it from Zonin he knew it.18
In a certain [plain] deed there occurred the [following] date:19 'In the year20 of the archon21 X'. Said R. Hanina: Let enquiry be made when [that] archon assumed office.22 Might he [not on that date] have been in office for some years?23 - R. Hoshaia replied, 'Such is the practice of this nation: [In the] first year they call him, "archon", [in the] second they call him, digon.'24 Is it not possible that he was deposed and re-appointed?25 - R. Jeremiah replied: [In] such [a case] he is designated, 'archon-digon'.
Our Rabbis taught: [In the case where a person said.] 'I am to be a nazarite',26 Symmachus said, [if he added], hena27 [he must observe] one [term];28 [if he added], digon [he must observe] two terms;29 trigon,30 three [terms];29 tetragon,31 four [terms]; pentagon,32 five [terms].33
Our Rabbis taught: A circular, two cornered, three cornered, and five cornered34 house is not subject to uncleanness from [house] plagues;35 a four-cornered house is subject to uncleanness from [such] plagues. Whence is this inferred?36 - for our Rabbis taught: Above it is said, [instead of] 'wall', walls,37 [signifying] two;38 below39 [also]. [instead of] 'wall', it is said, walls,39 [which similarly signifies] two, thus making a total of40 four [walls].41
A folded [deed] was once brought before Rabbi who remarked, 'There is no date on this [deed]'. [Thereupon], R. Simeon son of Rabbi said to Rabbi, 'It might be hidden between its folds'. [On] ripping [the seams] open he saw it.42 Rabbi turned round [and] looked at him with displeasure.43 'I did not write it', [said the other]. 'R. Judah Hayyata44 wrote it'. Keep away from talebearing',45 [Rabbi] called to him.
Once he46 was sitting in his47 presence when he finished a section of the Book of Psalms.48 'How correct is this writing'? said Rabbi. 'I did not write it', replied the other, 'Judah Hayyata wrote it'. 'Keep away from tale-bearing'. [Rabbi] called to him. In the first case49 one can well understand [Rabbi's exhortation, since] there was slander; what tale-bearing, however, was there here?50 - Owing to [the teaching] of R. Dimi; for R. Dimi, brother of R. Safra, taught: A man should never speak in praise51 of his friend, because by praise of him he brings about52 his blame.53
R. Amram said in the name of Rab: [There are] three transgressions which no man escapes for a single54 day: Sinful thought,55 calculation on [the results of] prayer,56 and slander.57 'Slander'? [How] could one imagine [such a thing]!58
(1) Lit., 'this'.
(2) Lit., 'he reigned a year'.
(3) Lit., 'a year'.
(4) Lit., 'two'.
(5) Deeds were dated according to the year of the reigning sovereign, folded deeds were post-dated by adding one year to the reign of the ruling king. Hence the same date (e.g. 'the fourth year of King X') on a plain and a folded deed would represent a difference of a full year. [The extra year was probably obtained by reckoning the period elapsing between the day of the king's accession to the throne and the end of the civil year as a full year. Cf. R.H. 2b: 'If a king ascends the throne on the 29th Adar, as soon as1st Nisan comes, it is counted for him as one year.' This practice in vogue among Persians and Babylonians was adopted by the Romans after the days of Trajan, when the years of emperors were counted from10th December. V. Fischer, L., Jahrb. d. Jud. Lit. Gesel. IX, 67ff; and Bornstein, Sokolow's Sefer hayovel 184 ff.]
(6) Lit., 'from him'.
(7) Between the date on the folded deed and the corresponding date on a plain deed, i.e., during the one year's interval.
(8) Lit., 'and say to him: give me my deed'.
(9) Lit., 'its time'.
(10) The creditor.
(11) I.e., after the date of the receipt. By converting the folded, into a plain deed, its date is moved a full year forward, and the receipt is thus made to appear as having been given prior to the loan. The creditor is, consequently, in a position to assert that the receipt was given for a previous loan, and to claim payment for the loan recorded on the deed. How, then, in view of such possible fraud, could R. Hanina allow the conversion of a folded, into a plain deed?
(12) If the creditor cannot produce and return the deed he is not entitled to the re-payment of his debt.
(13) Lit., 'that came'.
(14) A year later than the current year.
(15) Lit., 'two'.
(16) Lit., 'three'.
(17) This shows that Rabbi did not know that folded deeds were dated a year later than ordinary ones. How, then, could he raise the objection against R. Hanina, supra, which shows that he knew that the dating of one kind of deed was different from that of the other?
(18) And it was then that he, raised the objection.
(19) Lit., 'written'.
(20) Not specifying which year.
(21) Cf. Gr.**.
(22) Lit., 'when archon stood in his archonship'; and that year is to be regarded as the date of the document. If such a deed relates to a loan, the creditor is entitled to seize any of the creditor's lands that were sold or mortgaged after that date.
(23) Lit., 'that his reign was long'.
(24) Gr. ** (born a second time), 'second term in office', iterum consul; the deed, since the title of 'archon' was used in it, must have been written in his first year of office.
(25) And thus assumed the title of 'archon', a second time. Since there may have been a difference of some years between the first and second archonship, and since the deed may have been written in the second, how could R. Hanina decide that the year of the first archonship was to be regarded as the date of the deed?
(26) If no period has been specified the term is thirty days.
(27) Gr. ** acc. of Gr.**, 'one'.
(28) Of thirty days. Cf. previous note but one.
(29) Each of thirty days.
(30) Cf. Gr. **. 'for the third time'.
(31) Cf.Gr. ** 'for the fourth time .
(32) Cf. Gr.**. 'for the fifth time'.
(33) Tosef. Nazir, I, Nazir 8b.
(34) Cf. p. 715. n. 12, and the previous three notes but one.
(35) Cf. Lev. XIV, 34ff.
(36) Lit., 'whence these words', that a four-cornered house only is subject to the laws mentioned.
(37) Lev. XIV, 37. The plur. is used where the sing. would have been more appropriate.
(38) The plural, walls, signifies a minimum of two.
(39) Ibid. v. 39.
(40) Lit., 'behold here'.
(41) I.e., four cornered. Cf. supra, II. 11.
(42) Cf. supra 160b.
(43) Rabbi probably believed R. Simeon to have written the deed, well knowing that he opposed the issue of folded deeds which were a constant source of errors.
(44) The tailor or a surname.
(45) He should not have given the name of the writer but should have been content with disclaiming his own responsibility for the writing.
(46) R. Simeon.
(48) [Thus R. Gersh. The expression פסיק סידרא is, however, taken to denote (a) an exposition of a Biblical section (Rappaport, Erek millin s.v. אפטרתא,) or, (b) a reading of Biblical verses with due regard to the divisions between then, (Friedmann. Hakedem, I, 120)]
(49) Lit., 'there', in the case of the deed which incurred Rabbi's displeasure.
(50) In connection with the Book of Psalms which elicited Rabbi's praise.
(51) Lit., 'good'.
(52) Lit., 'he comes'.
(53) Lit., 'evil'. By pointing to a person's good actions or qualities attention is inevitably directed to his bad actions and qualities also.
(54) Lit., 'every'.
(55) Usually applied to unchaste or immoral thoughts.
(56) עיון תפלה 'contemplation. Or speculation in prayer'. Hence either (a: as elsewhere). 'devotion in prayer' (cf. Pe'ah, I); Or (b: as here). 'speculation on the result of prayer', 'expectation of the immediate grant of one's request'. The offence lies in the presumption of the claim that God must answer prayer of any kind whatsoever; v. Abrahams, I. , Pharisaism and Gospels. II, 78ff.
(57) לושן הרע, Lit., 'evil speech'.
(58) Surely it is quite possible to avoid slandering one's fellows!
Talmud - Mas. Baba Bathra 165a
- But the fine shades1 of slander [were meant].
Rab Judah said in the name of Rab: Most [people are guilty] of robbery,2 a minority of lewdness, and all of slander. 'Of slander'? [How] could one imagine [such a thing]! - But the fine shades of slander1 [were meant].
RABBAN SIMEON B. GAMALIEL SAID: ALL DEPENDS ON THE USAGE OF THE COUNTRY. And does not the first Tanna hold [the principle of the] 'usage of the country'?3 - R. Ashi4 replied: Where5 it is the custom [to use] plain [deeds] and one said to [the scribe]. 'Prepare for me a plain deed', and [the latter] prepared for him a folded [one], the objection [is valid].6 [Where it] is the custom [to use] folded [deeds] and one said to [the scribe]. 'Prepare for me a folded deed', and [the latter] prepared for him a plain [one, legal] objection [may be raised.6 Their dispute relates to a place where [both] plain and folded [deeds] are in use, and he said to [the scribe], 'Prepare for me a plain [deed],' and [the latter] prepared for him a folded [one]. [In such a case],7 [one] master8 is of the opinion [that legal] objection [may be raised]9 and [the other] master10 is of the opinion [that] it was merely an intimation.11
Abaye said: Rabban Simeon b. Gamaliel and R. Simeon and R. Eleazar are of the opinion [that, in such a case,12 the instruction] is [regarded as] a mere intimation.13 [As to] Rabban Simeon b. Gamaliel, [proof may be brought from] what has [just] been said. [As to] R. Simeon? - Because we learnt: R. Simeon said, If his mistake was in her favour, she is betrothed.14 [As to] R. Eleazar? - Because we learnt: If a woman said [to an agent] 'Receive a bill of divorce on my behalf at15 such and such a place', and he received it on her behalf at a different place [the divorce is] invalid; but R. Eleazar considers it valid.16 [for one] master is of the opinion [that by her instruction17 she expressed her] objection.18 while [the other] master holds the opinion [that] it was merely an intimation to him of the place.19
A PLAIN [DEED] THAT BEARS THE SIGNATURE OF ONE WITNESS etc.20 One can well understand why it was necessary [to state]. A FOLDED [ONE] THAT BEARS THE SIGNATURES OF TWO WITNESSES is invalid; [since] it might have been imagined [that] because elsewhere [such evidence is] valid, it is valid here also, it [was necessary] to teach us that it is invalid. [In the case] however, [of] A PLAIN [DEED] THAT BEARS THE SIGNATURE OF ONE WITNESS, [is not this] obvious?21 Abaye replied: This was required22 [for the following]. That even [where, in addition to] the signature of one witness,23 there is also the oral evidence of another24 [the deed is invalid].
Amemar [once] declared [a deed] valid on the signature of one witness25 and the oral evidence of another.24 Said R. Ashi to Amemar: And what [about] the [view] of Abaye?26 [The other] replied to him: I did not hear [of it], that is to say27 I do not share his view. But, [if so],28 the difficulty
(1) Lit., 'dust', i.e., not actual, but hinted, Or implied slander. (Cf. 'Ar. 15b).
(2) In trade or industry one commits robbery directly or indirectly by withholding due profits. Full price of labour or full value for money.
(3) Surely he does. Wherein then, does R. Simeon b. Gamaliel differ from him?
(4) Or, 'Abaye' (Rashal).
(5) Lit., 'in the place'.
(6) Since the instruction was for the preparation of a deed in accordance with the usage of the country, the scribe's deviation tenders the deed legally invalid.
(7) When the scribe did not carry out instructions but did not at the same time also deviate from the established local practice.
(8) The first Tanna.
(9) Since the scribe did not carry out instructions, the deed is invalid.
(10) Rabban Simeon b. Gamaliel.
(11) Lit., 'he shows him a place', i.e., the instruction was not meant to imply a request for a plain deed only. It was a mere intimation that a plain deed also would be acceptable; but no objection to a folded deed was ever intended. Hence, since it is the usage of the place to write either plain, or folded deeds, the document is legally valid.
(12) Where a person was instructed to perform a mission in a certain manner and he carried it out in a more acceptable manner.
(13) Cf. previous note but one.
(14) Kid. 48b. The case of a man who (through an agent) said to a woman, 'Be thou betrothed to me by a silver denar' and tendered instead a gold denar.
(15) Lit , 'from'.
(16) Git. 65a.
(17) That the document be received at a certain place.
(18) To any other place. She objects to having her divorce discussed in any other place but the one she mentioned.
(19) Whither she would trouble him to go. Beyond that place he would not be expected to go, but she would, nevertheless, be grateful if he did.
(20) V. Rashal, a.l.
(21) Surely, the evidence of one witnesses is never sufficient to tender a document valid.
(22) Lit., 'it was not required (but)'.
(23) Lit., 'one witness in writing'.
(24) Lit., 'and one witness by (word of) mouth'.
(25) Cf. n. 5.
(26) Who maintains that in such a case the deed is invalid.
(27) Lit., 'as if to say'.
(28) That Abaye's view is not accepted.
Talmud - Mas. Baba Bathra 165b
in our Mishnah1 [remains]! - It2 teaches us this: That two [witnesses] on a folded [deed are] like one witness on a plain [one]; as in the latter3 the defect is Biblical,4 so also in the former5 the defect is Biblical.6 [This]7 can be proved.8 for the members of the College9 sent10 [the following enquiry] to R. Jeremiah:11 [In the case of witnesses] one of whom had signed12 [the deed] and the other [confirmed the contents] orally,13 are they combined?14 According to the first Tanna of R. Joshua b. Korha,15 the question does not arise because, [according to him, independent evidence16 of two can] not be combined even [in the case where] the two [witnesses] signed the deed,17 or the two [gave] oral [evidence]. The question, however, arises according to R. Joshua b. Korha.18 Is the [independent evidence] combined only [in the case where] the two [witnesses] signed the deed17 or where the two [gave] oral [evidence], but [in the case where] one witness signed17 and one [testified] orally, [their evidence] is not combined, or [is there], perhaps, no difference? He sent to them [the following reply]: I am not worthy of having [this enquiry] addressed to me; but your disciple is inclined to the opinion19 that [the witnesses] may be [regarded as] combined.
He20 said unto him:21 We learned it22 thus:23 for the members of the College sent [the following enquiry] to R. Jeremiah: [In the case of] two [witnesses] who gave evidence, one at one court24 and the other25 at another court,24 may [one] court come to the other and [thus cause the evidence to be] combined? According to the first Tanna of R. Nathan26 the question does not arise, since, [according to him, such evidence27 can] not be combined even where [it was given before] one court. The question, however, arises according to R. Nathan.28 Is [the evidence] combined only [where it was given] at one court, but [if] at two courts [it is] not combined, or [is there], perhaps, no difference? And he sent to them [his reply]; I am not worthy of having [this enquiry] addressed to me, but your disciple is inclined to the opinion29 that [the witnesses may] be [regarded as] combined.
Mar b. Hiyya said: This was [the enquiry] addressed to him: [In the case where] two gave evidence at one28 court, and then they gave evidence at another30 court,31 may one [member] of either court come [to the other court] and combine?32 According to [the view] of R. Nathan,33 the question does not arise, [for] since witnesses may be combined, is there [any] need [to say that] judges [may be combined]? The question, however, arises according to the first Tanna of R. Nathan.34 [Is it] witnesses only that are not combined but judges are, or is there, perhaps, no difference? He sent to them [in reply]: I am not worthy of having [this enquiry] addressed to me; but your disciple is inclined to the view35 that they may be combined. Rabina said; Such was [the enquiry] sent to him: [Where] three [judges] sat down to confirm a deed, and one of them died,36 [is it] necessary to write; 'We were in a session37 of three38 and one is [now] no more,39 or not?40 He sent to them [in reply]: I am not worthy of having [this enquiry] addressed to me; but your disciple is inclined to the view41 that it is necessary to write, 'We were in a session of three38 and one is [now] no more'. And on account of this42 R. Jeremiah was re-admitted to the College.43
MISHNAH. [WHEN] IN [A BOND OF INDEBTEDNESS] IT IS WRITTEN. 'A HUNDRED ZUZ WHICH ARE TWENTY44 SELA' [THE CREDITOR] RECEIVES ONLY45 TWENTY [SELA'].46 [IF THE ENTRY WAS]. 'A HUNDRED [ZUZ] WHICH ARE THIRTY [SELA']' HE47 RECEIVES ONLY45 A MANEH.48 [IF THE ENTRY READS], SILVER ZUZ IN WHICH ARE . . . AND [THE AMOUNT IS] BLOTTED OUT, [IT REPRESENTS] NO LESS THAN TWO. [IF THE ENTRY READS]. 'SILVER SELA'S WHICH ARE. . . , AND [THE AMOUNT IS] BLOTTED OUT, [IT REPRESENTS] NO LESS THAN TWO. [IF], 'DARICS49 WHICH ARE. . . AND [THE AMOUNT IS] BLOTTED OUT, [IT IS] NO LESS THAN TWO. [IF] ABOVE50 A MANEH51 IS WRITTEN AND BELOW52 TWO HUNDRED,53 [OR IF] TWO HUNDRED53 [ARE WRITTEN] ABOVE AND A MANEH51 BELOW, ONE IS ALWAYS TO BE GUIDED BY THE LOWER ENTRY.54 IF SO,55 WHY SHOULD THE UPPER [PORTION AT ALL] BE WRITTEN? - IN CASE A LETTER IN THE LOWER [SECTION] BE RUBBED OFF IT MAY BE INFERRED56 FROM THE UPPER [PORTION].
GEMARA. Our Rabbis taught:57 'Silver'58 [signifies]no less than a silver denar. 'Silver denarii' or 'denarii silver' [signifies] no less than two silver denarii. 'Silver for denarii', [signifies] silver for no less than two gold denarii.59
The Master said: '"Silver" [signifies] no less than a silver denar.' Might it not signify60 a bar [of silver]? - R. Eleazar replied: [This is a case] where coin was mentioned.61 Might it not signify60 small change? - R. Papa replied: In [the case of] a place where small silver coins are not current.62
Our Rabbis taught: 'Gold'63 [signifies] no less than a golden denar. 'Gold denarii' or 'denarii gold' [signifies] no less than two gold denarii. 'Gold for denarii' [signifies] gold of the value of no less than two silver denarii.64
The Master said: "gold" [signifies] no less than a gold denar'. Might it not mean60 a bar [of gold]? - R. Eleazar replied: [In the case] where coin was mentioned.65
(1) Why should it be necessary to teach that a deed is invalid if it bears the signature of one witness only? Cf. supra note 3.
(2) Our Mishnah.
(3) Lit., 'there'.
(4) Cf. Deut. XIX, 15.
(5) Lit., 'here'.
(6) The Rabbis, that is to say, have imposed Biblical restrictions on the folded deed. Consequently, it is invalid if it contains the signatures of two witnesses only. Should such a document be a bond, the creditor would not be entitled to collect his debt from sold or mortgaged lands. Should it be a bill of divorce, the divorce would be illegal.
(7) That the written, and oral evidence respectively of two witnesses is combined.
(8) Lit., 'thou shalt know'.
(9) Lit., 'friends', 'colleagues'.
(10) Cut. edd. add. מתם, 'from there', i.e., Palestine. This is to be deleted with some MSS. as the entire incident occurred in Babylon. Cf. Weiss, Dot, III, 108.
(11) After he had been excluded from the College. V. supra 23b.
(12) Lit.. 'one witness in writing'.
(13) Lit., 'and one witness by (word of) mouth'.
(14) To form complete legal evidence as if they had both signed the deed.
(15) I.e., his opponent. v. supra 32a.
(16) As defined ibid.
(17) Lit., 'in writing'.
(18) Who, in opposition to the view of the first Tanna, regards such evidence as valid.
(19) Lit., 'thus the opinion of your disciple inclines'.
(20) R. Ashi.
(22) The version of the enquiry sent to R. Jeremiah.
(23) And, consequently. no objection from It. Jeremiah's reply could be raised against Abaye's view that the written and oral evidence of two witnesses cannot be combined.
(24) Lit., this'.
(25) Lit., 'one'.
(26) I.e., his opponent. V. supra 32a, Sanh. 30a.
(27) Given by each of the two witnesses at a different time.
(28) Who allows the evidence even if each of the witnesses appeared before the court on a different day.
(29) Cf. supra, p. 720. n. 11.
(30) V. p. 720. n. 16.
(31) [MSS. 'And again they gave evidence at another court', v. R. Gersh.]
(32) To form a court where, owing to death or some other cause, neither of the two or three courts could obtain a quorum.
(33) Cf. supra note 1.
(34) Cf., p. 720. n. 18.
(35) Cf., loc. cit. n. 11.
(36) After the witnesses had attested their signatures. A court before whom signatures arc attested must consist of three judges.
(37) Lit., 'sitting'.
(39) In order that the signatures of two judges only shall not appear as a contradiction of the first sentence of the attestation, we were . . . three'.
(40) And, consequently, 'and one is now no more' may be omitted.
(41) Cf. supra. 720, n. 11.
(42) His modesty, and clear thinking and decision.
(43) Cf. loc. cit. n. 3.
(44) A sela' containing four zuz, the amount of the sela's should have been not twenty but five and twenty.
(45) Lit., 'he has not but'.
(46) I.e., eighty zuz. The holder of the deed being the claimant and the other being in the possession of the sum claimed, the former cannot obtain payment unless he produces satisfactory proof that the higher figure in the bond is the correct one. If he cannot do so, it is assumed that the zuzim borrowed were of an inferior quality five of which (instead of the usual four) amount to a sela.
(47) The creditor.
(48) A hundred zuz. Though, usually, thirty sela are a hundred and twenty zuz, it is assumed (cf. n. 3), that the sela's were of an inferior quality, each of which was worth only three and a third zuz.
(49) Cf.Gr. **, a Persian gold, or silver coin.
(50) In the upper section of the bond.
(51) Hundred zuz.
(52) Near the conclusion of the bond where the principal items are briefly repeated.
(54) Lit., 'all goes after the lowest'.
(55) That the entry in the lower section is always regarded as more reliable.
(56) Lit., 'learned'.
(57) Cur. edd. 'he said', is to be deleted. V. Bah, a.l.
(58) I.e., if a bond contains an entry that 'silver' was lent and no amount is specified.
(59) 'Silver for denarii', implies that the loan consisted of silver which was worth two gold denarii. V. Gemara, infra.
(60) Lit., 'say'.
(61) Lit., 'written'.
(62) Lit., 'men do not make'.
(63) Cf., p. 722. n. 25.
(64) Cf. supra. note 1.
(65) Lit., 'do not pass'.
Talmud - Mas. Baba Bathra 166a
Might it not signify small change? - Small change is not made of gold.1
'"Gold for denarii" [signifies] gold of the value of no less than two silver denarii.' Might he2 not have meant, broken gold [ware] of [the value of] two gold denarii.? - Abaye replied: The holder of the bond [must always be] at a disadvantage.3 If4 so,5 [the same principles should be followed in] the former [cases] also!6 - R. Ashi replied: [In the] first [cases] denarii was written; [in the] last, dinrin was written.7 And whence may it be deduced8 that there is a difference between denarii and dinrin? - for we learnt9 : A woman who had10 five doubtful confinements11 [or] five doubtful issues,12 brings one offering13 and may14 [subsequently] eat of sacrificial meat. She is not obliged, [however, to bring] the rest.15 [If] she had16 five certain confinements [or] five issues, she brings one sacrifice and [may subsequently] eat of sacrificial meat but is [also] obliged to [bring] the rest.15 It once happened that [the price of a pair of] birds17 in Jerusalem had risen18 to gold denarii.19 [Thereupon] R. Simeon b. Gamaliel exclaimed, '[By] this Temple!20 I shall not go to rest this night before these [can] be [obtained] for silver denarii'.21 He entered the Beth din and issued the following instruction:22 'A woman who had23 five certain [child] confinements, [or] five certain issues, brings one sacrifice and may [subsequently] eat of sacrificial meat, and there is no obligation upon her to bring the rest'.24
(1) Lit., 'small change of gold people do not make'.
(2) The writer of the bond.
(3) Lit., 'the hand of the owner of the bond on the lowest'. And the borrower, being in possession of the sum claimed, has the right of interpreting the bond in terms advantageous to himself.
(4) for this reading. v. Rashal, a.l. The printed texts contain the following in round brackets: The first (part) where it was taught 'silver for denarii' (signifies) silver for no less that, two gold denarii, why? I might say (that) he meant a bar of silver for two silver denarii.
(5) That the bond is to be interpreted in terms advantageous to the borrower and disadvantageous to the creditor.
(6) In the case of (a) the entry. 'silver denarii'; why should this be interpreted to mean 'silver for no less than two gold denarii' (which is in favour of the holder of the bond), and not, 'small silver coins for two silver denarii' (which would be in favour of the borrower)? And, again (b) in the entry. 'gold denarii' or 'denarii gold'; why should that be given the interpretation, 'no less than two gold denarii' (which also is in favour of the creditor) rather than, 'gold of the value of no less than two silver denarii' (which would be in favour of the borrower)?
(7) The latter, being the usual plural form of denar, signifies silver denarii; the former, being the unusual plural of the noun, implies gold denarii. Cf. Rashb., R. Gersh. and Goldschmidt. For a further discussion of the denar v. Zuckermann's Tal. Munz., 19ff; and Smith's Dict. Gk. Rom. Ant., s.v. Denarius.
(8) Lit., 'thou sayest'.
(9) Cut. edd.: 'it was taught'.
(10) Lit., 'there were upon her'.
(11) Lit., 'births', i.e., if she miscarried five times and, in each case, it was unknown whether the miscarriage was a human embryo or some other object. In the former case the woman would be liable to bring an offering after the termination of a period of Levitically unclean, and clean days (cf. supra p. 528, n. 1); in the latter case she would not.
(12) When it is uncertain whether the discharge occurred during the ordinary course of menstruation (cf. supra p. 528. n. 8). or during the 'eleven days' that intervene between the menstrual periods. In the latter case she is liable to bring an offering (cf. Lev. XV, 25ff); In the former she is exempt.
(13) At the conclusion of the 'days of her purifying'.
(14) Having, thereby, completed the ceremonial of purification.
(15) The other four sacrifices.
(16) V. note 4.
(17) Lit., 'nests'. Sacrifices after recovery from an issue, (cf. Lev. XV. 29). and, in cases of poverty, also after confinements, (ibid. XII, 8). consisted of birds (two turtles or two young pigeons).
(18) Lit., 'stood'.
(19) The price had risen owing to the large demand on the part of women who brought separate sacrifices for each confinement.
(20) An oath.
(21) Dinrin, implying silver denarii, while gold denarii were previously described (v. supra n. 13), as denari. Thus it has been shewn that a distinction was made between the two names, denari and dinrin.
(22) Lit., 'he taught'.
(23) Lit , 'there were upon her'.
(24) The other four sacrifices.
Talmud - Mas. Baba Bathra 166b
On that day [the price of a pair of] birds fell1 to a quarter [of a denar'].2
IF ABOVE IS WRITTEN etc. Our Rabbis taught: The lower [section] may be corrected3 from the upper [one] where one letter [is missing], but not in [the case of] two letters; for example, Hanan from Hananis4 or 'ANan from 'ANani.4 What is the reason5 why two letters [must] not [be replaced]? [Because] a name of four letters might occur and these6 would represent half of the name! If so, [in the case of] one letter also, might [not] a name of two letters occur and this7 would represent half of the name? - But this is the reason [for] two letters: A name of three letters might occur, and these would represent the greater part of the name.8
R. Papa said: It is obvious to me [that if] Sefel9 [appears] in the upper [section].10 and Kefel11 in the lower [section], the latter is always to be taken as a guide.12 R. Papa, [however], inquired what [is the ruling if] Kefel [appears] above and Sefel below? May this be attributed13 to a fly,14 or not? - This remains undecided.15
In a certain [deed] there was written, 'six hundred and a zuz'. R. Sherabya sent this [enquiry] to16 Abaye: [Is the entry to be interpreted as], 'six hundred istira17 and a zuz', or perhaps, [as] 'six hundred perutoth18 and a zuz?' - He replied to him: 'Dismiss [the question of] perutoth which [could] not [have been] written in the deed, since they are counted up
(1) Lit., 'stood'.
(2) Ker. I, 7.
(3) Lit., 'be learned', 'inferred'.
(4) Where only the letter Yod is wanting. Should two letters, however, be missing. e.g.. N and I, leaving in the lower section Han or AN, only, they must not be replaced from the upper section.
(5) Lit 'why different'.
(6) The two letters.
(7) The single letter.
(8) A scribe might omit half a name if that consisted of a single letter. He is not likely, however, to omit two letters which in some names represent the greater part of the name. If two letters or more are missing, the person whose name is represented by the remaining letters, not the bearer of the name in the upper section, is entitled to the repayment of the loan. [V. however Tosaf. s.v. אבל
(9) Heb., Sefel, 'bowl' or 'cup' Some read ס פל, i.e. ס פלגי 'sixty halves'.
(10) Of a deed.
(11) Heb., קפל (root. 'to fold'), an article of dress, which can be folded. Others, ק פל i.e., ק פלגי 'hundred halves'. Both sefel and kefel, however, may be arbitrary word combinations taken by R. Papa as an illustration of a slight variation by which one word may differ from another.
(12) Lit., 'all goes after the lowest.
(13) Lit., 'do we fear'.
(14) Which might have blotted out the lower stroke of the kof, and thus changed it into a samek. [In the third and fourth centuries the stem of the kof hung from the roof of the letter and the curve was drawn to it, thus: P.]
(15) Hence, if such a case should be brought before a court, the decision must be in favour of the person who is in possession of the money or article; in accordance with the rule, 'he who claims must produce the proof'.
(16) Lit., 'before'.
(17) The istira was a silver coin equal to a provincial sela or half a zuz.
(18) A perutah was a very small coin of the value of a hundred and ninety-second part of a zuz. Cf. Zuckermann, op. cit., 22f.
Talmud - Mas. Baba Bathra 167a
and converted into zuzim.1 What, [then could the entry] mean?2 [Either] "six hundred istira and a zuz" [or] "six hundred zuz and a zuz";3 [but] the holder of the bond [must always be] at a disadvantage.'4
Abaye said: One who is required to present his signature at a court of law5 shall not present it at the foot of the scroll [because] a stranger might find it and write [above the signature] that he [has a] claim [of] money upon him; and we learnt [that a person], who produced against another6 [a bond in] the latter's7 handwriting [showing] that he owes him [a debt], may collect [it] from his free8 property.9
A collector of bridge tolls10 once came before Abaye [and] said to him, 'Will the Master give11 me his signature so that when the Rabbis come [and] present to me [an authorisation]12 I will allow them to pass without [payment of] the toll'.13 He was writing it down14 for him at the top of a scroll. As [the other] was pulling it,15 he16 said to him,'The Rabbis have long ago anticipated you'.17
Abaye said: [Numbers] from three to ten [should] not be written at the end of a line, [because] forgery might be committed by adding letters to them;18 and if this occurred, the sentence should be repeated two [or] three times, [since] it [would then] be impossible that [the numbers] should not [once] occur in the middle of a line.19
In a certain [deed]20 it was entered,21 'a third of an orchard'.22 [The buyer] subsequently23 erased the top, and the base of the Beth24 and converted25 [the second word] into, 'and an orchard'.26 [When] he appeared before Abaye [the latter] said to him, 'Why has the Waw so much space round about it?'27 Having been placed under arrest28 he confessed.
In a certain [deed] there was entered, 'the portion of Reuben and Simeon, brothers'.29 They had a brother whose name was 'Brothers';30 and [the buyer] added to31 it32 a Waw and converted [the word into], 'and Brothers'.33 [When] he came before Abaye34 [the latter] said to him. 'Why is there so little space round the Waw!.35 He was placed under arrest36 and he confessed.
A certain deed bore the signatures of Raba and R. Aha b. Adda. He37 came before Raba [who] said to him, '[This] signature is mine; never, however, have I signed before R. Aha b. Adda!' He was placed under arrest36 and he confessed.38 Said [Raba] to him, 'I can well understand how you forged my [signature], but how [could] you manage [that] of R. Aba b. Adda whose hand trembles?' 'I put my hand',39 the other replied, 'on a rope-bridge'.40 Others say [that] he stood on a hose and wrote.41
MISHNAH. A LETTER OF DIVORCE [MAY] BE WRITTEN FOR A HUSBAND THOUGH HIS WIFE IS NOT PRESENT,42 AND A RECEIPT43 [MAY BE WRITTEN] FOR A WIFE THOUGH HER HUSBAND IS NOT PRESENT,44 PROVIDED THEY ARE KNOWN.45 THE FEE46 IS PAID BY THE HUSBAND.
(1) Any sum of a hundred and ninety-two perutoth, or any multiple of it, is entered respectively as a zuz or zuzim. Had the loan amounted to six hundred perutoth and a zuz, this would have been entered as 'four zuzim and twenty-four Perutoth.'
(2) Lit., 'thou saidst'.
(3) R. Han. deletes, 'six . . . zuz'.
(4) Cf. supra p. 723. n. 10. Hence, he may claim the smaller sum only.
(5) In certain circumstances it is necessary for one of the witnesses of a deed that he does not attest his signature in person but enables the court to see a signature of his on a separate scroll for the purpose of comparison with, and confirmation of his signature on the deed. Cf., Keth. 21a.
(6) Lit., 'him'.
(7) Lit., 'his'.
(8) Real estate which the borrower has neither sold nor mortgaged.
(9) Infra, 175b.
(10) Heb. Bazbina or Bazbana, Pers. bazwan, bazban.
(11) Lit., 'show'.
(12) From Abaye.
(13) His possession of Abaye's signature, he contended, would enable him to check the signature on any authorisation that might be presented to him.
(14) Lit., 'he showed'.
(15) The scroll; so that the signature might appear lower and a margin be left above it.
(17) V. previous paragraph.
(18) Lit., and write'. The Hebrew units from three to ten can easily be increased by the addition of ין, three would thus become תלתין, thirty; ארבע, four. ארבעין, forty, and so on.
(19) Should forgery be committed on the number at the end of the line, this would be detected by the number that appeared in the middle of the lowest of these lines, which is always taken as the determining factor. V, our Mishnah, 165b.
(20) Of a sale.
(21) Lit., 'written'.
(22) The deed read: 'I sold to N.N. in my garden a third of (lit., 'in') my orchard,' בפרדיסא.
(23) Lit., 'he went'.
(24) In the word בפרדיסא, thus changing the ב into a ו.
(25) Lit., 'made'.
(26) Heb., ufardisa, ופרדיסא 'and an orchard'. The text was thus made to read, 'in my garden a third and an (viz.. all the) orchard'; and on the strength of this altered text the buyer claimed not only a portion of the field but also the entire orchard.
(27) Lit., 'What is the reason (why) the world was widened for this waw'.
(28) Lit. 'he bound him'.
(29) אחי, brothers'. The deed stated that the buyer had acquired the portion of the two brothers only. that belonging to any other brother not being included in the sale.
(30) Ahi, אחי.
(31) Lit., 'he went (and) wrote'.
(32) The word, 'brothers', אחי in the deed.
(33) ואחי, signifying, 'and Ahi'. On the basis of this text the buyer claimed to have acquired the portion of the third brother Ahi also.
(34) To claim Ahi's share.
(35) Lit., 'what is the reason (why) the world is so much compressed for this Waw'.
(36) V. p. 727. n. 25.
(37) The holder of the deed.
(38) That the signatures were forged.
(39) When forging his signature.
(40) Which vibrates at the least touch and causes the hand to shake.
(41) Standing on a hose causes all one's limbs to shake.
(42) Lit., with him'. Since the grant or refusal of a divorce is entirely dependent on the desire of the husband, he may be entrusted with the keeping of the document until such time as he may decide to hand it over to his wife.
(43) For the amount of a woman's kethubah.
(44) The receipt is of advantage to the husband and, since a privilege may be obtained on behalf of a person in his absence, may be written, at the request of the wife, though the husband is absent. The wife takes charge of the receipt and delivers it to him when she had received the payments due to her.
(45) The Gemara explains this, infra.
(46) For the writing of the letter of divorce and the receipt.
Talmud - Mas. Baba Bathra 167b
A BOND MAY BE WRITTEN FOR A BORROWER THOUGH THE LENDER IS NOT PRESENT.1 IT [MUST] NOT, HOWEVER, BE WRITTEN FOR THE LENDER UNLESS THE BORROWER IS WITH HIM. THE FEE2 IS PAID BY THE BORROWER. A DEED [OF SALE] MAY BE WRITTEN FOR THE SELLER IN THE ABSENCE OF THE BUYER.3 IT [MUST] NOT BE WRITTEN, HOWEVER, FOR THE BUYER UNLESS THE SELLER IS PRESENT.4 THE FEE5 IS TO BE PAID BY THE BUYER. DEEDS OF BETROTHAL6 AND MARRIAGE7 ARE NOT TO BE WRITTEN EXCEPT WITH THE CONSENT OF BOTH PARTIES, AND THE FEE IS PAID BY THE BRIDE GROOM. A CONTRACT OF TENANCY ON SHARES8 OR ON A FIXED RENTAL9 IS NOT WRITTEN EXCEPT WITH THE APPROVAL OF BOTH PARTIES, AND THE FEE IS PAID BY THE TENANT.10 DEEDS OF ARBITRATION11 AND ALL [OTHER] JUDICIAL DOCUMENTS ARE NOT WRITTEN EXCEPT WITH THE APPROVAL OF BOTH PARTIES, AND BOTH PAY THE FEE.12 RABBAN SIMEON B. GAMALIEL SAID; TWO [DEEDS] MAY BE WRITTEN13 FOR THE TWO PARTIES, ONE FOR EACH.14
GEMARA. What [is meant by] PROVIDED THEY ARE KNOWN? - Rab Judah said in the name of Rab: Provided the name of the man is known15 [in the case of] a letter of divorce,16 and the name of the woman in [the case of] a receipt.17
R. Safra and R. Aha b. Huna and R. Huna b. Hinena sat [together] and Abaye [also] was sitting with then, and, while they were in session,18 they raised [the following] question: [Why is] the name of the man required19 [to be known] in [the case of] a letter of divorce, [and] not the name of the woman; [and] the name of the woman [and] not that of the man in [the case of] a receipt? [Surely] there is reason to fear that one might write20 a letter of divorce and give21 it to the wife of another person;22 and sometimes a woman might procure the writing23 of a receipt and give it to a strange24 man!25 - Abaye said to them: Thus said Rab, 'The name of the man26 in [the case of] a letter of divorce, and the same law [applies] to the name of the woman; the name of the woman26 in [the case of] a receipt and the same law [applies] to the name of the man'.
But is [there no reason] to apprehend27 [that there might be a case] of two [persons of the name of] Joseph b. Simeon28 living in the same town [and that one of them] might write29 a letter of divorce and deliver30 it to the other's wife? - R. Aha b. Huna said to them: Thus said Rab: Two [persons of the name of] Joseph son of Simeon who live in one town, must not divorce their wives except in the presence of each other.31
Is [there no reason], however, to apprehend32 that [a person] might go to another town and make his name [there] known as Joseph b. Simeon and [then] would write29 a letter of divorce33 and carry it to the wife of that person?34 - R. Huna b. Hinena said to them,: Thus said Rab; Provided one's name was known in a town [for] thirty days, he need not be suspected.35
What [is the law where one's name] is not known?36 Abaye said, Where they37 call him38 and he answers.39 R. Zebid said, 'A deceiver is vigilant in his deceit'.40
A certain receipt [was produced] on which the signature of R. Jeremiah b. Abba appeared. The woman,41 [however], came before him [and] said to him, 'It was not I',42 'I also said to them'.43 [R. Jeremiah] replied, '[that] it was not she';44 but they43 told me, 'She has grown old and her voice has become rough'.45 Said Abaye: Although the Rabbis said,
(1) Lit., 'with him'.
(2) For the writing of the document.
(3) Lit , 'though the buyer is not with him'.
(4) V. p. 728. n. 13.
(5) V. loc. cit. n. 14.
(6) Agreements between the parties on the amounts promised. Cf. Keth. 102b.
(7) Kethubah contracts.
(8) The tenant giving the landowner an agreed portion of the crops.
(9) A certain fixed amount irrespective of the yield of the land.
(10) Lit., 'the receiver', i.e 'he who undertook the work'.
(11) Heb. Shetare berurin, שטרי בירורין. V. Gemara, infra.
(12) For the preparation of the shetare berurin.
(13) By the witnesses.
(14) Lit., 'to this for himself and to . . . himself'.
(15) To the scribe and witnesses.
(16) So that a false name might not be given, and the document presented to the wife of the man bearing that name. The woman would then on producing the letter of divorce be able to collect the kethubah from her husband, even though she did not produce a written kethubah. Cf. Keth. 89b.
(17) She might give the name of a woman who has been divorced and has not received what was due to her as her kethubah, and present the document to the man who would use it as proof that he discharged his obligation to his divorced wife.
(18) Lit., 'sat' , i.e delivering, or listening to lectures and discussing them.
(19) Lit 'yes'.
(20) I.e., obtain a scribe and witnesses to write it for him.
(21) Lit., 'go and bring'.
(22) Whose name might be identical with his own.
(23) Lit., 'go (and) write'.
(24) Lit., 'who is not hers'.
(25) Whose wife might bear the same name as hers.
(26) Must be known.
(27) Even where the names of the parties are known.
(28) I.e., husbands and wives bearing respectively the same names.
(29) I.e., instruct a scribe and witnesses to write it for him.
(30) Lit., 'and go (and) bring'.
(31) If one of them divorces his wife the other must be present.
(32) According to the Tanna of our Mishnah who requires the names of the parties to be known in order to guard against the possibility of the use of the document by the wrong party.
(33) In his adopted name.
(34) Whose real name is Joseph b. Simeon: and the woman would thus be able to prove that she had been divorced.
(35) That the name by which he is known is not his real name. No one, it is assumed, would venture to go under a false name for so long a period, for fear of being discovered.
(36) How are the scribe and witnesses to decide whether the name submitted to them is the genuine one?
(37) The persons preparing the letter of divorce.
(38) Suddenly, unexpectedly.
(39) One would not respond, it is assumed, to a name which is not really his.
(40) And would, therefore, respond when called by his false name. The genuineness of a name cannot consequently be determined unless a person was known by that name for a sufficiently long period.
(41) Lit., 'that woman, on whose behalf the receipt was written.
(42) Who authorised the writing of the receipt.
(43) The other witnesses who signed the document with him.
(44) Judging by her voice which was different from that which he heard at the time he signed the receipt.
(45) With which opinion R. Jeremiah, after consideration, concurred.
Talmud - Mas. Baba Bathra 168a
'Once a statement has been made it cannot be withdrawn',1 it is not the nature of a scholar to take particular note [of a woman's face].2
A certain receipt3 on which the signature of R. Jeremiah b. Abba appeared [was produced, but the woman] said to him, 'It was not I'.4 'I am sure',5 he insisted,6 'it was you'. Said Abaye: Although a scholar is not in the habit of taking note [of a woman's appearance], when [however] he does take notice he is relied upon.7
Abaye said: A scholar who desires8 to betroth a woman should take with him a layman9 [so that another woman] might [not] be substituted for her [who would be taken away] from him.10 AND THE HUSBAND PAYS THE FEE etc. What is the reason? - Because Scripture says: And he shall write . . . and give.11 And why is this not done12 at the present time? - The Rabbis have imposed it13 upon the woman to order that he might not cause her [undue] delay.14
A BOND MAY BE WRITTEN FOR A BORROWER THOUGH THE LENDER IS NOT PRESENT etc. [Is not this] obvious?15 - [This15 would] not [have been] required [except] in [the case of a loan for] merchandise on shares.16
A DEED [OF SALE] MAYBE WRITTEN FOR THE SELLER IN THE ABSENCE OF THE BUYER etc. [Is not this] obvious?17 - [This would] not [have been] required [except in the case] where one sells his field on account of its inferiority.18
DEEDS OF BETROTHAL AND MARRIAGE ARE NOT WRITTEN etc. [Is this not] obvious?19 - [This would] not [have been] required [except for the fact] that even a scholar [has to pay the fee] though it is a satisfaction to his father-in-law to bring him into his family.20
A CONTRACT OF TENANCY ON SHARES OR ON A FIXED RENTAL IS NOT WRITTEN etc. [Is not this] obvious? - [It would] not [have been] required [except for the case] where [the land is to lie] fallow.21
DEEDS OF ARBITRATION . . . . ARE NOT WRITTEN EXCEPT WITH THE APPROVAL OF BOTH PARTIES etc. What [is meant by] shetare berurin?22 - Here23 it was explained [as] 'records of the pleas'.24 R. Jeremiah b. Abba explained: One25 [of the litigants] chooses one and the other chooses another.26
RABBAN SIMEON B. GAMALIEL SAID: TWO [DEEDS] MAY BE WRITTEN FOR THE TWO PARTIES, ONE FOR EACH. May it be suggested [that] they are in dispute on [the principle of] exercising force against a Sodomite character;27 for [one] Master28 is of the opinion [that] force is exercised29 and the [other] Master30 is of the opinion that force is not exercised!31 - No; both32 [agree that] force is exercised, but the reason of Rabban Simeon b. Gamaliel here33 is this: Because [one can] say to the other,34 'I do not like your rights to be at the side of my rights, for you appear to me as a lurking lion'.35
MISHNAH. [IN THE CASE] WHERE [A PERSON] PAID A PART OF HIS DEBT AND THE BOND WAS DEPOSITED WITH A THIRD PARTY TO WHOM [THE BORROWER SAID]. 'IF I WILL NOT PAY YOU [THE BALANCE] BETWEEN NOW AND36 A CERTAIN DATE, GIVE HIM37 HIS BOND', [AND] THE DATE ARRIVED AND HE DID NOT PAY, R. JOSE SAID: HE38 SHALL GIVE [IT];39 R. JUDAH SAID, HE SHALL NOT GIVE [IT].
GEMARA. Wherein40 [lies] the difference between them? - R. Jose holds [that] asmakta41 conveys possession.42 and R. Judah holds [that] an asmakta does not convey possession.43 R. Nahman in the name of Rabbah b. Abbuha in the name of Rab said: The halachah is according to R. Jose. When [such cases]44 came before R Ammi, he said: 'Since R. Johanan has taught us again and again45 [that] the halachah is according to R. Jose, what can I do?' The halachah, however, is not according to R. Jose.
MISHNAH IF A MAN'S BOND OF INDEBTEDNESS WAS EFFACED, HE MUST SECURE46 WITNESSES,47 AND APPEAR BEFORE A COURT OF LAW WHERE HE IS SUPPLIED WITH [THE FOLLOWING] ATTESTATION: 'THE BOND OF X SON OF Y WAS FADED ON SUCH AND SUCH A DATE,
(1) Lit., 'since he said, he cannot say again'. Ket. 18b, Sanh. 44b, Mak. 3a.
(2) Hence R. Jeremiah's first statement may be assumed to have been made under a misapprehension, while his second statement, made after due consideration, is accepted.
(3) For a kethubah.
(4) But another woman whose name happened to be the same as hers.
(5) Lit., 'indeed'.
(6) Lit., 'said to her'.
(7) Lit., 'he took note'. Hence R. Jeremiah's statement is to be accepted.
(8) Lit., 'goes'.
(9) Heb. Am-ha-arez, v. Glos.
(10) Since he does not observe and recognise women.
(11) Deut. XXIV, 3.
(12) Lit., 'that we do not do so', that the husband is made to pay the fee
(13) The payment of the fee.
(14) By refusing, or delaying the payment of the scribe's fee, as the scribe would hardly part with the deed before his fee had been paid, the husband is able to postpone also the paying of the kethubah which does not become due until after the divorce had taken place. (Cf. R. Gersh., a.l.). Furthermore, the husband, in order to avoid payment, might desert her altogether and she would thus remain separated from him and prevented from ever marrying again. (Rashb.).
(15) That the borrower, in whose interest the loan is made, must pay the fee of the scribe.
(16) עיסקא, a loan for trading purposes the profits of which are shared by the borrower and lender, (v. supra 70b). Though the latter also benefits from the profits, the fee, as in the case of any ordinary loan, must be paid by the borrower.
(17) That the buyer is to pay the scribe's fee.
(18) Though the seller may be more anxious to sell than the other to buy, the latter, as is the case with an ordinary buyer, must pay for the preparation of the deed.
(19) That the bridegroom is to pay the fee.
(20) It is a source of deep satisfaction for one to be able to secure a scholar for a son-in-law. This, however, is no reason why the bridegroom, though a scholar, should not pay the fees that are paid by other bridegrooms.
(21) Though the tenant would for a year or two, while the land is to lie fallow, derive no benefit from the purchase, he has nevertheless, like an ordinary buyer, to pay the fee
(22) V., supra p. 729. n. 8.
(23) In Babylon.
(24) Of the litigants. Those were recorded by the court scribes, and the decision of the judges was based on the pleas thus recorded.
(25) Lit., 'this'.
(26) Lit., 'One'. An agreement was then signed in which the names of the litigants and the respective arbitrators they have chosen were duly entered.
(27) V. supra p. 62, n. 3.
(28) The first Tanna.
(29) Hence if one of the litigants demands a separate copy of the document for himself for which he offers to pay, and expects the other to pay for another copy, he, acting in the 'character of Sodom', is forced by the court to content himself with one common document towards the cost of which both parties contribute in equal shares.
(30) R. Simeon b. Gamaliel.
(31) Consequently he maintains that a separate copy of the document may be prepared for each of the litigants if one of them so desires it. Now, since the principle of exercising force against a 'Sodomite character' has been disputed elsewhere, why should it be re-argued here again?
(32) Lit 'that all the world'.
(33) Against the use of force in this case.
(34) Lit., 'to him'.
(35) Since a common document might lead to new arguments and quarrels. R. Simeon b. Gamaliel's view is that, in such a case, it is better to allow separate copies for each of the litigants if one of them had expressed a desire to have a copy of his own.
(36) Lit., 'from here and until'.
(37) The creditor.
(38) The trustee.
(39) To the creditor, who can consequently claim the payment of the full debt.
(40) On what principle.
(41) אסמכתא, (lit.. 'reliance'), an undertaking to pay or to forfeit something without receiving for it sufficient consideration, which is dependent on the non-fulfilment of a certain condition given by a person in the hope (reliance) that he would be able to fulfil the condition and would not in consequence have to carry out the undertaking.
(42) Though the undertaking to pay the full debt was given in the hope and expectation that it would never have to be carried out, it is nevertheless legally binding, since the condition on which it was dependent was not in fact fulfilled.
(43) It is obvious that the borrower never intended to pay the full debt after he had already paid an instalment. His undertaking to pay the full debt if the balance were not paid by a certain date must have been in the nature of an expression of good faith, in his desire to show that it was his earnest hope and intention to pay the balance before that date arrived.
(44) Relating to the laws of asmakta.
(45) Lit., 'a first, and second time'.
(46) Lit., 'causes to stand concerning it'.
(47) Who remember the contents of the bond.
Talmud - Mas. Baba Bathra 168b
AND A AND B [WERE SIGNED ON IT AS] ITS WITNESSES
GEMARA. Our Rabbis taught: What is the form of its1 attestation? - 'We, X, Y and Z, being in a session of three, A son of B produced before us a faded bond on such and such a date, and C and D [were signed as] Its witnesses'. And if the attestation contains [the following]. 'We have dealt with the evidence of the witnesses and their evidence was found to agree', [the creditor] collects [his debt]2 and is not required to produce [any additional] proof; but if not,3 he is required to produce proof.4 [A bond] intentionally torn is invalid; if torn accidentally, it is valid. [In case] it was effaced or obliterated, if the tracing5 [of the letters] is distinguishable it is valid. How is one to understand 'intentionally torn' and how, 'torn accidentally'? Rab Judah said: 'Intentionally torn' [means] a tear made by a court of law; 'torn accidentally', a tear which [was] not made by a court of law. How is 'a tear made by a court of law' to be understood? - Rab Judah said:[ If it was made at] the place of the witnesses, the place of the date and the place of the amount.6 Abaye said: [If it runs] lengthwise and crosswise.
Certain Arabs who came to Pumbeditha were seizing by force the lands of the inhabitants.7 The owners8 came to Abaye [and] said to him: 'Will the Master examine our deeds and write for us duplicates9 so that, in case one is forcibly taken away. we shall [still] hold one in our possession'?10 He said to them: 'What can I do for you. when R. Safra said: Two deeds [may] not be written in respect of the same field [since a person] might [thereby] seize and seize again'.11 [As] they were troubling him,12 be said to his scribe, 'Go [and] write for them the text13 [of the deeds] on an erasure and [let] the14 witnesses [sign] on [clean] paper, [and thus produce duplicate deeds], which [are] invalid.15 Said R. Aha b. Manyumi to Abaye;16 Might it not happen that the [original] tracing17 would be distinguishable, and [concerning such a case, surely,] it was taught: [A deed that] was effaced or obliterated, if its tracing is distinguishable. [is] valid!18 - He replied to him: Did I say a proper deed [shall be written]?19 What I said was mere [letters of the] alphabet.20 Our Rabbis taught: Should [a creditor] come and say, 'I lost my bond of indebtedness'21 , the bond [may not] be rewritten for him although witnesses stated, 'We wrote, signed and delivered [such a deed] to him'.22 This, [however], applies only to the case23 of bonds of indebtedness24 but [in the case of] deeds of purchase and sale [a deed], with the omission25 of [the clause] pledging [property may] be [re]written.
(1) A Faded bond. Cf. our Mishnah.
(2) from the property which the borrower may possess or from that which he sold after the date of the original deed.
(3) If the formula, 'we have dealt with the evidence of the witness etc.. Is not entered.
(4) As to the contents of the bond such as date, sum, etc.
(5) Lit., 'its tracing'.
(6) תורף, The 'specific element' of a deed (opp. טופם 'formal element'). viz., date and amount. (Cf. supra p. 699. n. 9.) So called because by virtue of it the creditor may seize (טורף) even the sold lands of the creditor (R. Gersh.). [Krauss, op. cit. III, 352. Connects it with תורפה, 'exposed', 'blank', hence the blank part of the deed which has to be filled in.]
(7) [During the long drawn out Roman-Persian war (338-363). Shapur II invited certain warring Arab tribes to help him in this struggle against the Romans. V. Funk, S., Die Juden in Babylonian, II. 41.]
(8) Lit., 'their owners', of the seized lands, who were compelled by the Arabs to hand over also their deeds.
(9) Lit., another deed on it'.
(10) And use it as proof of ownership if they should succeed in recovering their lands from the Arabs. [V. Obermeyer. op. cit. 235.]
(11) Infra 169a. A buyer who purchased a field the sale of which has been secured by the seller's landed property might, if a creditor of the seller should ever seize that field for his debt, secure double compensation from the lands of subsequent buyers by the production in turn of one of the two deeds.
(12) Persisting in their demand.
(13) Lit., 'it'.
(14) Lit., 'its'.
(15) They. not knowing that the duplicates were of no legal value, would cease troubling the Master, while no loss to subsequent buyers. (v. supra n. 1,) could possibly be involved (v. supra 164a).
(16) R. Aha understood Abaye to have instructed his scribe (a) to copy the deeds on clean paper; (b) to erase the text, and (c), to copy the deeds again on these erasures.
(17) The first copy. v. previous note (a).
(18) Of what avail, then, was Abaye's device seeing that they could erase the second text whilst preserving the tracing of the first text?
(19) A copy of the original. v. n. 6 (a).
(20) These were (a) to be written; (b) erased; and on the erasure thus produced, a duplicate of the deed was to be written. Should, in such a case, the original letters re-appear they would signify nothing and the deed would remain invalid.
(21) And there are no witnesses to testify that the deed was really lost.
(22) Because this evidence merely proves that the creditor is entitled to the rights of one such bond. It does not prove, however, that he lost his bond. Hence no second one in lieu of the first may be written for him, since he might make use of the two and thus reimburse himself twice.
(23) Lit., 'in what (case) are the words said'.
(24) Because the creditor might thereby collect his debt twice. Even if no security on the borrower's lands were to be entered, it could still be collected from his 'free' property.
(25) As will be explained, infra 169b.
Talmud - Mas. Baba Bathra 169a
Rabban Simeon b. Gamaliel said: Deeds of purchase and sale also [must] not be re-written.1 for thus said Rabban Simeon b. Gamaliel: Where a person made a gift to his friend and [the latter] returned the deed to him, his gift [also is, thereby] returned.2 But the Sages say: His gift is valid. The Master had said, 'with the exception of its land security'; what is the reason?3 - R. Safra replied: Because two deeds may not be written In respect of the same field in case a creditor4 might go and seize [the field] of this [person]5 and [the latter]6 would go and produce one [deed]7 and seize [thereby the lands of subsequent] buyers.8 He9 would [then] say to the creditor.10 'Wait11 until I am firmly established in the possession of this field12 and then come and seize it13 from me. He would [then]14 produce the other [deed]15 and [thereby] rob other buyers [also].16
Since, however, the creditor's bond was torn,17 whereby would he again seize [any] land?18 And if it be said [that this might refer to a case] where it was not torn; surely, [it may be pointed out,] R. Nahman stated: Any tirpa19 which does not contain20 [the declaration], 'we have torn up the creditor's bond of indebtedness', Is not a [legal] tirpa;21 and any adrakta22 which does contain [the entry]20 'we have torn up the tirpa is not a [legal] adrakta;21 I and any shuma23 in which [the statement]. 'We have torn up the adrakta' is not entered20 is not a [legal] shuma!24 - [The precaution was] necessary [in the case] only25 where one asserts a claim by virtue of his paternal rights.26 R. Aha of Difti said to Rabina: Why [should it be necessary]27 for him28 to say to the creditor, 'Wait until I am firmly established in the possession of this land'?29 This30 [surely], could be derived [from the fact] that since he31 holds two deeds he [can] seize [once] and [immediately] seize again!32 - If [he were to do] so [he would have had too] many litigants against him.33
And [why] should [not] a proper deed34 be written for that [man],35 while, for the seller,36 [the following quittance might] be written out: 'All deeds that [may] be produced against this land are invalid except the one bearing37 this date'?38 The Rabbis recited this before R. Papa - and others say, before R. Ashi - [and suggested that] this proves [that] no quittance is [ever] to be written.39
(1) Because it is possible that the original deed was returned by the buyer to the seller who has thereby (in accordance with the view of Rabban Simeon b. Gamaliel which follows) again acquired the land he sold.
(2) Similarly, in the case of a sale, it is possible that the deed of sale was returned, and the land was, thereby, re-transferred from the buyer to the seller. Cf. previous note.
(3) Why must the security be excluded from the duplicate.
(4) Of the seller of that field.
(5) The buyer for whom a duplicate deed was written.
(6) Lit., 'that', the buyer from whom the field has been taken by the creditor and for whom a duplicate deed was written. V. previous note.
(7) The duplicate.
(8) Who bought from the same seller after the date of the sale in question and whose purchased lands are consequently included in the security of the first sale.
(9) The buyer. Cf. supra note 7.
(10) With whom he would form a conspiracy to defraud subsequent buyers.
(11) Or 'allow me a period of peace'.
(12) Lit., 'in it', i.e., till the whole affair of the seizure be forgotten.
(13) For the debt for which the creditor was already reimbursed by his first seizure.
(14) After the creditor had staged a second seizure.
(15) I.e., the original one which was alleged to have been lost.
(16) He and the creditor sharing the spoils of the fraud between them. Hence the provision that no duplicates are to be written even in the case of deeds of sale and purchase.
(17) When he seized the property from the buyer the first time.
(18) Lit., 'it'.
(19) טירפא (rt. טרף, 'to seize'), a document issued by a court of law to a creditor (to whom the debtor is unable or unwilling to pay his debt), authorising him to trace the debtor's property (including any land sold after the date of his loan), for the purpose of eventually seizing it in payment of his debt.
(20) Lit., 'in which it is not written'.
(21) Had it been made legal, one could have used both documents, each at a different court in a different town.
(22) אדרכתא, (rt. דרך 'to tread'), an authorisation (following that of the tirpa) which a court issues to a creditor, after he had traced the debtor's property (cf. n. 1). to seize it (to 'tread' on) for the purpose of having it offered for public sale and his receiving the proceeds or the land itself at the price valued.
(23) שומא. (rt. שום to appraise', 'value'), a record of the valuation of the seized property, which is delivered by the court to the creditor as evidence of the value at which it was assessed for him. Since a debtor may at any time repay the amount at which the land had been assessed, such a record is necessary to enable the creditor to receive the sum due to him.
(24) Cf. n. 3. How then could it happen that a bond of indebtedness should not be torn up by the time the creditor had already taken possession of the property?
(25) Lit., 'not necessary (but)'.
(26) Lit., 'when he comes from the power of his fathers', i.e., the reason why a duplicate of a deed of purchase and sale is not issued, is not, as has been assumed, because a creditor might conspire to obtain double payment; but to provide against an heir who might prove by witnesses that a buyer had purchased a field from a seller who had robbed it from his father and in consequence of this proof it would be returned to him, while the buyer would be given a certificate authorising him to seize the property which anyone may have purchased from the same seller after the date of his purchase. Such a buyer, were he allowed a duplicate of his deed of purchase, could form a conspiracy with the heir by asking him to wait for a certain period, until he had been firmly established in the ownership of the field which he seized by virtue of one of the two copies of the deed and, after the whole affair had been forgotten, to claim again that field so that the buyer could, with the aid of the second of his two copies of the deed, seize the lands of other subsequent buyers. Hence R. Safra's ruling that no two deeds may be written in respect of one field.
(27) In giving a reason why R. Safra forbids the issue of two deeds of purchase in respect of the same field.
(28) The buyer who, as has been stated above, might form a conspiracy with a creditor to defraud subsequent buyers by means of the duplicate of his deed of purchase.
(29) Lit., 'in this land and I will be established in it'.
(30) R. Safra's law.
(31) The buyer.
(32) Why, then, the necessity for postponing the seizure of the second field to a later date.
(33) And his conspiracy might thereby be more likely to be discovered.
(34) One containing the clause pledging the seller's lands.
(35) Spoken of in the Baraitha (supra 168b, end), who pleads that he lost his deed and requests that a duplicate be given to him in its stead.
(36) In order to protect him against being called upon by the production of two deeds, to pay the buyer twice.
(37) Lit., 'that will go out with'.
(38) That in the duplicate. Should the buyer ever present the first deed, the seller could prove its invalidity by the production of his quittance.
(39) I.e., a debtor cannot be compelled to repay a loan unless his bond is returned to him. He is not obliged to become the keeper of a quittance. Cf. Mishnah 170b, infra.
Talmud - Mas. Baba Bathra 169b
He, [however,] said to them: Elsewhere1 a quittance is to be written,2 and [the reason why it is not written] in this case3 is because the creditor4 might call upon, and take [the field] away from the buyer5 and he6 would call upon, and seize [the fields of subsequent] buyers, while [these] buyers [would] have no quittance [to show].7 After all, however, [would] not the buyers [ultimately] return to the owner of the land?8 - In the meantime he9 [would be] plucking and eating the fruit, or else,10 [he9 might seize the land] from one who has purchased [it] without security.11 If so,12 [the same should apply to] bonds of indebtedness also!13 - In that case14 where the claim is money they15 assume [that] the debtor might have satisfied the claim16 with money.17 In this case18 [however] where the claim is for land, they well know that one who claims land would not be satisfied with money.19
The Master had said, 'With the omission of [the clause] pledging [property]'. How [is such a deed]20 to be written? - R. Nahman said: It is written as follows: 'This deed is not for the purpose of collecting thereby either from sold, or from free property but for that of establishing the land in the possession of the buyer'.21 Rafram said: This22 proves [that the omission23 of the clause] pledging property [is regarded as the] scribe's error,24 [since] the reason [given25 was] because such an entry26 was actually included27 but, [it follows], had it not been included28 he29 [could have] claimed [his compensation from the seller's lands].30
R. Ashi said: [The omission of the clause] pledging property [is] not [regarded as] the scribe's error; and the meaning of30 'with the omission [of the clause] pledging property' is that no such clause is entered in the deed.31
A certain woman once gave to a man money [wherewith] to buy for her [a plot of] land. He went [and] bought for her [the land] without [providing for the] security32 of its tenure. She came before R. Nahman33 [who] said to the agent.34 '[The woman has the right to declare]. "I sent you to improve [my position]; not to make [it] worse".35 Go [then], buy it [yourself] from him36 without security and then sell it [to the woman] with due security of tenure'.37
'Rabban Simeon b. Gamaliel said; Where a person made a gift to his friend and [the latter] returned the deed to him, his gift [also is, thereby] returned. But the Sages said: His gift is valid.' What is Rabban Simeon b. Gamaliel's reason? - R. Assi said: [Because] it38 is just as if [the donor] had said to the donee.39 'This field is given to you for so long [a period] as the deed [remains] in your possession'.40
Rabbah demurred; If so,41 [the same law should apply] also [to the case where] it42 was stolen or lost! - But, said Rabbah, they differ on [the question whether] 'letters'42 [may] be acquired by delivery.43 R. Simeon b. Gamaliel holds the opinion [that] 'letters' are acquired by delivery while the Rabbis44 hold the opinion [that] 'letters' may not be acquired by delivery.
Our Rabbis taught: Where a person appears in court45 with a deed46 and with [evidence of] undisturbed possession47 judgment is given [on the basis of] the deed; [these are] the words of Rabbi. R. Simeon b. Gamaliel said: [Judgment is given] on [the basis of his] undisturbed possession. On what [principle] do they differ? - When R. Dimi came48 he said: They differ on [the question whether] 'letters' may be acquired by delivery.
(1) In the case where a bond of indebtedness was lost by a creditor.
(2) for the debtor on paying his debt.
(3) And on the strength of it provide the buyer with a duplicate.
(4) Of the seller.
(5) Who bought his land from the debtor subsequent to the date of the loan.
(6) That buyer.
(7) The first buyer, wore he able to secure a duplicate deed on a plea of having lost the original, would, thereby, be placed in a position to form a conspiracy with the creditor to defraud subsequent buyers.
(8) I.e., the seller, to claim compensation for the lands seized; and he would, naturally, tell them about the quittance wherewith they could to - claim the lands of which they were robbed by the first buyer.
(9) The first buyer.
(10) Lit., 'also'.
(11) Such a buyer could not advance any claim for compensation against the seller. Hence he would never learn of the existence of the quittance.
(12) That provision is made against the possibility of seizing lands from buyers who are unaware of the existence of a quittance.
(13) I.e why then is a quittance permitted, where a bond of indebtedness was lost? Surely it is possible that the buyers might not be aware of the existence of such a quittance.
(14) The case of a loan.
(15) The subsequent buyers whose lands the first buyer comes to seize.
(16) Lit., 'him'.
(17) Hence they would not part with their fields before ascertaining the position from the seller, (i.e. the debtor) and so would learn of the existence of the quittance.
(18) That of a deed of sale and purchase.
(19) And would, therefore, allow the first buyer to take possession of their lands in the hope that, in due course, the seller might compensate him and arrange for the return to them of their property. They are not, therefore, in a hurry to go to the seller. When they ultimately learn of the existence of a quittance a considerable time has already elapsed and they lose the fruits which the first buyer had consumed in the meantime.
(20) Which enables the holder to establish his claim upon his land and yet prevents him from seizing that of others.
(21) That the previous owner (the seller) shall not be able to deprive him, of it by the assertion that he had never sold it to him.
(22) R. Nahman's requirement specifically to enter in the deed that it does not provide any security.
(23) from any deed.
(24) And is regarded as entered though the scribe had omitted it. V. B.M. 14a.
(25) Why the deed does not entitle the holder to claim compensation from the seller's lands.
(26) 'This deed is not etc.'.
(27) Lit., 'because he wrote for him thus'.
(28) Lit., 'not written for him, thus'.
(29) The holder of the deed.
(30) Lit., and what'.
(31) Lit., 'that pledging is not written in it'.
(32) He failed to arrange for the seller to pledge his landed property for the field he bought.
(33) To complain against the unsatisfactory terms of the purchase.
(34) Lit., to him', the man who acted on behalf of the woman.
(35) By spending her money on unsecured property.
(36) The seller.
(37) So that in case the land is ever taken away from her by a creditor of the seller or by previous buyers she will he entitled to compensation from the agent.
(38) Since the gift is conveyed to the donee by means of a deed.
(39) Lit., 'to him'.
(40) Hence it returns to the donor as soon as the deed is returned to him.
(41) That the donee can retain ownership of the gifts so long only as the deed remains with him.
(42) A deed.
(43) Heb., mesirah, v. supra 76a (q.v. for notes), and Glos.
(44) The Sages.
(45) Lit., 'who comes to be judged', i.e., to respond to a claim that a plot of land which he Occupies is not his.
(46) Of purchase, which X, the person who sold the land to him, received from Y, from whom he in turn bought it; pleading that, though his own name does not appear in it, he acquired ownership of the land by the act of delivery which X had performed when he handed the deed to him. [So Rashb. R. Gersh. and Rashi (Sanh. 23b) take it simply to refer to the deed of purchase which the buyer claims to have received from the seller.]
(47) Hazakah (v. Glos.). Witnesses testify that he occupied the land during the statutory period of three years required for establishing his title to it.
(48) From Palestine to Babylon.
Talmud - Mas. Baba Bathra 170a
R. Simeon b. Gamaliel holds [that] 'letters' are not acquired by delivery1 and Rabbi holds [that] 'letters' are acquired by delivery.
Said Abaye to him: If so,2 [this would present] a disagreement with the Master!3 [The other] replied to him, 'Then let there be disagreement!'4 'I mean to say to you this', said [Abaye] to him, '[that] the Baraitha cannot be [well] explained except on the lines which the Master had laid down; and since [that is] so.,[there would emerge] a contradiction between one statement of R. Simeon b. Gamaliel and the other statement of his!'5 But, said Abaye, here it is a case6 where one of them7 was found to be a relative8 or [otherwise] disqualified; and they differ on the [same principle that underlies the] dispute of R. Meir and R. Eleazar. Rabbi holds the [same] View as R. Eleazar who maintains [that] the witnesses to the delivery9 effect the legal separation;10 while R. Simeon b. Gamaliel is of the [same] opinion as R. Meir who maintains [that] the witnesses who signed11 [the letter of divorce] are the main factor in the legal separation.12
But, surely. R. Abba had said: R. Eleazar agrees that [a deed] is invalid if the irregularity is internal!13 - But, said Rabina, all agree14 that [the deed] is invalid if it15 contains the entry.16 'we have dealt with the evidence of the witnesses and their evidence was found to be irregular'.17 in accordance with [the law laid down by] R. Abba; they only differ in [the case of] a deed which bears no [signatures of] witnesses at all [in] which [case] Rabbi holds the [same] view as R. Eleazar who maintains [that] the witnesses to the delivery effect the legal separation;18 while R. Simeon b. Gamaliel holds the [same] view as R. Meir who maintains [that] the witnesses who signed the deed19 effect the final separation.20 If you prefer, however, I might say, [that] they differ on [the question whether in the case] where a person21 admitted that he wrote a deed,22 [independent legal] attestation is required. For Rabbi holds [that where a person] admitted that he wrote a deed, no [independent] attestation is required;23 while R. Simeon b. Gamaliel holds [that independent] attestation is required.24
[Did] we [not], however, hear [that] they hold contrary [views]? for it was taught:25 Where two men26 cling to a deed, the creditor pleading. 'It is mine, I dropped it, and you found it', and the borrower pleading. 'It is27 [indeed] yours but I have paid you'. the [validity of the] deed is established by those who signed it.28 So29 Rabbi. Rabban Simeon b. Gamaliel said: Let them30 divide it.31 And when this was discussed [the following] question was raised: Does not Rabbi accept32 what we have learnt: Where two [men] hold a cloth, one pleading, 'I found it' and the other [also] pleading, 'I found it', the one must take an oath that he possesses in it no less than a half and the other must take an oath that he possesses in it no less than a half and they divide [it]?33 And Raba in the name of R. Nahman replied: In [the case of] an attested34 [deed] no one disputes [the law] that they35 must divide;36 they differ only in [the case of a deed] which has not been attested, [since] Rabbi holds the opinion [that where one] admitted that he wrote a deed [independent] attestation is required, and [consequently] if [the creditor is able to] secure its attestation he collects a half, and if not [the deed is regarded as] a mere potsherd; while Rabban Simeon b. Gamaliel holds the opinion [that where one] admits that he wrote [a deed] no [independent] attestation is required and they divide!37 - Reverse.38
If you prefer, however, it may be said [that] there is really no [need] to reverse [the reported opinions],39 but the dispute here40 is on [the question of] proving [all one's pleas];41 such as [the case] of R. Isaac b. Joseph [who] claimed [a sum of] money from R. Abba. [When] he came before R. Isaac Nappaha. [R. Abba] pleaded. 'I repaid to you in the presence of X and Y'. 'Let X and Y come', said R. Isaac to him, 'and let them give [their] evidence'. 'If they will not come', said [R. Abba] to him, 'am I not to be believed? Surely we have it as an established law [that] a loan made in the presence42 of witnesses need not be repaid43 in the presence of witnesses!' 'In this [case', R. Isaac] replied to him, 'I am of the same opinion as [that in] the reported statement of the Master.44 for R. Abba in the name of R. Adda b. Ahabah in the name of Rab said: Where one said to another, 'I paid you [your debt] in the presence of X and Y', it is necessary that X and Y should come and give evidence. 'But surely', said [R. Abba] to him,45 'R. Giddal said in the name of Rab: The halachah is in accordance with the statement of R. Simeon b. Gamaliel;46 and even Rabbi
(1) The production of the deed is, therefore, useless and the title to the land must rest entirely on the evidence of 'undisturbed possession'.
(2) That according to R. Simeon b. Gamaliel 'letters' are not acquired by delivery.
(3) Rabbah, who said supra that according to R. Simeon b. Gamaliel 'letters' are acquired by delivery.
(4) I.e 'I do not mind differing from Rabbah'.
(5) Lit., 'R. Simeon etc' on R. Simeon etc.' V. supra notes 9 and 10.
(6) Lit., 'in what are we engaged'.
(7) The witnesses who signed an ordinary deed.
(8) Of one of the litigants.
(9) Of the letter of divorce to the woman.
(10) Lit., 'cut', the matrimonial relationship between husband and wife (v. Git. 9b). The signatures of the witnesses on the document, which are required 'for the sake of the social order' (cf. ibid. 86a). do not in any way affect the legal and final separation between husband and wife, which is entirely dependent on the presence of suitable witnesses at the time of the delivery of the document. Similarly in the case of a deed of purchase and sale, Rabbi regards the document as valid irrespective of the signatures or the qualification of the witnesses. Hence he maintains that the tight of ownership may be established even where one of the witnesses is a relative or is in any other way disqualified.
(11) Lit., 'witnesses of the signature'.
(12) Git. 21b. Cf. note 5. As in the case of a letter of divorce the validity of the document is entirely dependent on the witnesses whose signatures are appended to it so in the case of a deed of purchase or sale, unless the witnesses who signed it are eligible, the document is invalid. Hence R. Simeon b. Gamaliel maintains that, where one of the witnesses was found to be disqualified for any reason whatsoever, the entire deed is invalid, and right of ownership must be determined by the result of the evidence of witnesses on the statutory period of undisturbed possession of the land, on the part of the present holder.
(13) Git. 10b. Though a letter of divorce on which no signatures at all appear is valid (the witnesses to the delivery effecting the legal and final separations), where disqualified witnesses are signed on it, thereby causing an irregularity in the document itself, the deed is invalid. Similarly, in the case of the deed of purchase under discussion, how could R. Simeon b. Gamaliel regard it as valid when, owing to the disqualification of one of the witnesses, an internal irregularity arises in the deed itself!
(14) Rabbi and R. Simeon b. Gamaliel.
(15) The deed produced as evidence of the holder's tight of ownership. supra 169b, end.
(16) Lit., 'written in it'. [Read with Ms. M., 'IF they dealt with the evidence, etc.']
(17) I.e., one of the witnesses was found to be disqualified.
(18) Cf. p. 743. n. 5.
(19) Cf. loc. cit. n. 6.
(20) V. loc. cit. n. 5.
(21) E.g. a seller.
(22) And he only disputes its validity. In the case under discussion, e.g., he might plead that he did not deliver the deed to the other party, as the sale never took place, but he lost the document and the other found it.
(23) Consequently, in the present case since the seller admits the writing of the deed and only disputes the buyer's claim, the latter's word is accepted and there is no need to hear witnesses on the question of undisturbed possession.
(24) Judgement, therefore, cannot be given in favour of the buyer on the strength of the deed alone; and his claim must be based on the evidence of undisturbed possession which is given by qualified witnesses. Cf. 154a; B.M. 7b; 72b.
(25) B.M. 7a.
(26) Creditor anti debtor.
(27) [Some texts: 'It sits yours'; v D.S.B M. 7a.]
(28) Since the original validity of the deed is thus established, the creditor is entitled to judgment in his favour.
(29) Lit., 'the words of'.
(30) Creditor and debtor.
(31) The amount of the debt, the debtor repaying only a half of the claim.
(32) Lit , 'is there not'.
(33) B.M. 2a. As the cloth in that case is divided so here the amount of the debt should be divided. Why, then, did Rabbi say that the entire amount of the debt was to be repaid to the creditor?
(34) Legally endorsed by a court of law.
(35) Creditor and debtor.
(36) The amount of the debt; as the cloth is divided between the two who claim to have found it. The creditor is entitled to his half by virtue of the endorsed deed; the debtor also is entitled to his half by virtue of his holding on to the deed jointly with the creditor.
(37) Cf. previous note. Thus it follows that Rabbi does not, and Rabban Simeon b. Gamaliel does require independent attestation. How, then, could it have been assumed supra that their respective opinions were directly the opposite?
(38) One or other of the two reported statements, so that Rabbi and Rabban Simeon b. Gamaliel should hold respectively the same opinions in both cases.
(39) OF Rabbi and Rabban Simeon b. Gamaliel.
(40) The Baraitha. supra 169b.
(41) In the case where one of two pleas is essential, and the other superfluous. According to Rabbi both pleas must be proved since they were both advanced together. Hence it is necessary for the buyer (supra 169b) to prove the validity of the deed though, had he based his claim on the tight of undisturbed possession only, there would have been no need for him to produce any deed at all, no one being expected to preserve a deed after three years which is the statutory period of undisturbed possession. Rabban Simeon b. Gamaliel, however, holds that the superfluous plea is altogether disregarded. Hence it is sufficient for the buyer to prove undisturbed possession to secure judgement in his favour.
(42) Lit., 'who lends to his friend with'.
(43) Lit., 'to pay him'. V. Shebu.41b, Ket. 18a.
(45) Cf. Rashal, a.l.
(46) Who maintains that where a superfluous plea was advanced together with one which is essential, the former is altogether disregarded. Here, then, since it is not necessary to repay a loan in the presence of witnesses, why should it be necessary to bring the witnesses that were needlessly mentioned?
Talmud - Mas. Baba Bathra 170b
disagreed1 only in respect of proving [one's statement]!'2 'I also', replied [R. Isaac] to him, 'require3 [the evidence of your witnesses] in order to prove [your plea]'.4
MISHNAH. IF A PERSON5 REPAID PART (OF HIS DEBT, R. JUDAH SAID, HE SHALL EXCHANGE [HIS BOND FOR ANOTHER].6 R. JOSE SAID: HE7 SHALL WRITE A QUITTANCE.8 R. JUDAH SAID: THUS, THIS [DEBTOR] WOULD HAVE TO GUARD HIS QUITTANCE FROM MICE!9 SAID R. JOSE TO HIM: SUCH [A COURSE]10 IS BETTER FOR THE CREDITOR11 AND HIS12 RIGHTS MUST NOT BE IMPAIRED.
GEMARA. R. Huna said in the name of Rab: The halachah is neither in accordance with R. Judah nor in accordance with R. Jose; but [only] a court of law [has the authority to] tear up the deed and to write for the creditor13 another deed14 entering the original date.15
Said R. Nahman to R. Huna, and others say [that] R. Jeremiah b. Abba said to R. Huna: Had Rab heard that Baraitha16 wherein it was taught, 'Witnesses may tear up a deed and write 'for [the creditor]; another deed entering the original date', he would have withdrawn.17 He said unto him: He heard it and he did not withdraw.
(1) Lit., 'said'.
(2) Legally however, Rabbi admits, this is not necessary (R. Gersh.)
(3) Lit. , 'say'.
(4) I.e., R. Isaac holds the same opinion as Rabbi. Had not R. Abba mentioned witnesses his word alone would have been accepted. Since, however, he did mention witnesses, he must prove his statement or lose his case. [R. Gersh. 'I also require it merely to prove your plea, without however affecting the issue should you fail to bring the witnesses.']
(5) Lit 'who'.
(6) For one in which the balance if the debt is entered, while the original deed is to be destroyed.
(7) The creditor.
(8) For the sum received; and delivered to the debtor.
(9) Lit., 'keep his receipt from the mice'. It is more equitable for the creditor to exchange the bond than for the debtor to be encumbered with the necessity of taking care of a receipt the loss of which might involve him in a claim for the repayment of the full loan.
(10) The writing of a receipt instead of changing the original deed.
(11) Lit 'for him'.
(12) Lit., 'of this'.
(13) Lit., 'for him'.
(14) for the balance of the debt.
(15) Lit. , 'from the first time'.
(16) Cited infra 171a.
(17) His ruling; and would have admitted the halachah to be in accordance with the ruling of R. Judah in our Mishnah. Since the original date is entered in the new bond, the creditor is involved in no loss or disadvantage whatsoever, and there should, therefore, be no difference whether the court or witnesses change the deed.
Talmud - Mas. Baba Bathra 171a
[In the case of] a court of law, one can well understand,1 because it has the power and authority to confiscate2 money;3 but [as regards] witnesses, who had once performed their mission,4 [how could they] perform their mission again?5 - But [can they] not? Surely Rab Judah said in the name of Rab: Witnesses may write even tell [successive]6 deeds in respect of one field! - R. Joseph replied: [This7 is permitted only] in [the case of] a deed of gift.8 And Rabbah replied: [Even] in [the case of] a deed [of sale] which does not contain [the clause] pledging [property].8
What [was that] Baraitha?9 - It was taught: If [a creditor] was claiming from [a debtor] a thousand zuz and he repaid five hundred zuz of these, the witnesses [may] tear up the bond and write for him another deed bearing the original date;10 so11 R. Judah. R. Jose said: This deed must remain where it is. and a quittance is to be written.12 And for two reasons has it been said [that] a receipt was to be written. Firstly13 in order that he be compelled [thereby]14 to repay [the debt] and secondly15 in order that [the debt] may be collected from [property sold] since the original date.
But R. Judah also said, 'bearing the original date'!16 - This17 is what R. Jose said to R. Judah: If you mean, 'bearing the first date', I disagree with you for one [reason];18 if you mean 'bearing the second date' 'I disagree with you for two [reasons].
Our Rabbis taught: A deed the date of which19 is a Sabbath or the Tenth of Tishri20 is [regarded as] a postdated deed21 and is valid.22 So R. Judah. R. Jose [declares it to be] invalid.23 Said R. Judah to him: Was not [such24 a deed] actually brought before you at Sepphoris and you declared [it] to be valid? [R. Jose] replied to him: When l declared [it] to be valid, I declared [it] in that [case only].25 But, surely. R. Judah also speaks of such [a deed]!26 - R. Pedath replied: All27 agree that if the date of the deed was calculated and it28 was found to coincide exactly with a Sabbath day or the Tenth of Tishri, it is a postdated deed and is valid.29
(1) Why it may tear up a deed and insert its date in the one given in exchange.
(2) Lit., 'to take Out'.
(3) A deed entitled its holder to seize any real estate which the debtor had sold to mortgaged after, but not before the date of the deed. Consequently. when a now deed is written for the balance of a debt in exchange for the original deed, the creditor should not be entitled to seize any property that was sold between the date of the original and that of the new deed. A court of law, however, having the right to confiscate any property. Is also empowered to enter in the second deed the date of the original and thus to subject to the creditor's seizure property to which he would not otherwise have been entitled.
(4) OF writing and signing the first deed.
(5) What authority have they for inserting the date of the original deed and to confer thereby upon the creditor privileges to which his new deed would not otherwise have entitled him?
(6) If the holder has lost the previous ones.
(7) The issue by witnesses of a second, or subsequent deed bearing the date of the original one.
(8) Such a deed does not entitle its holder to the seizure of any property, and the date is therefore, of no consequence.
(9) Referred to supra 170b.
(10) Lit 'from the first time'.
(11) Lit. , 'the words of'.
(12) for the five hundred zuz paid.
(13) Lit. , 'one' '
(14) Owing to the trouble he has to take in preserving the quittance.
(15) Lit., 'one'.
(16) What point, then, is there in R. Jose's second reason?
(17) Lit., 'thus'.
(18) The first reason, that the debtor may be compelled to repay the loan.
(19) Lit 'the time of which is written', i.e.. a certain date is given which, on calculation is Fund to be one of the following.
(20) Writing is forbidden on the Day of Atonement, as on the Sabbath.
(21) Since it is obvious that it was not written on the Day of Rest or the Day of Atonement, it is assumed15 have been written on a previous day. and post dated so as not to invalidate without any proof the deed (Rashb.)
(22) According to R. Judah, any postdated deed is valid even though the contents do not show that it was postdated; much more so in this case where it is obvious (of. p.748. n.16) that it was postdated.
(23) Cf. explanation in the Gemara, infra.
(24) I.e., postdated.
(25) When the date of the deed is a day on which writing is forbidden, from which it would be obvious to all (cf. loc. cit. n.16) that It was postdated. No one, therefore, could possibly be misled by the date, and no confusion or loss would arise. Any other postdated deed, however, the contents of which do not clearly show that it is postdated, (i.e.. where the date is an ordinary working day). and which might consequently be mistaken for one written on that very date, and thus cause confusion or loss, is regarded by R. Jose as invalid.
(26) Why. then, was it stated that It. Jose declares it to be invalid?
(27) It. Judah and R. Jose.
(28) Lit 'its date'.
(29) V. p.748. n. 16, 4.
Talmud - Mas. Baba Bathra 171b
They are in disagreement only in [the case of] an ordinary Postdated deed,1 [in] which [case] R. Judah follows his own view, according to which2 no quittance is written,3 and consequently no loss4 would ensue,5 while R. Jose follows his view according to which a quittance may be written and loss might consequently ensue.6 R. Huna son of R. Joshua said: Even according to him who said [that] a quittance may be written, this may be done only7 for a half,8 but not for the whole [of the debt].9
And [the law is] not so, but10 even for the full amount of a debt11 [a quittance] may be written; as in the case of R. Isaac b. Joseph. He claimed [a sum of] money from R. Abba whom he sued12 before R. Hanina b. Papi. [When] he13 said to him,14 'Give me my money', [the other] replied to him, 'Return to me my deed and you will receive your money'. 'I lost your deed', said [R. Isaac] to him, '[but] I will write for you a quittance'. 'Surely', the other replied to him, 'It was both Rab and Samuel who said [that] no quittance was to be written'.'[Were] one [to] give us of the dust of Rab and Samuel', he13 exclaimed, 'we should put it into our eyes;15 but it was both R. Johanan and Resh Lakish who stated [that] a quittance is to be written'.16
Similarly, when Rabin came17 he stated in the name of R. Elai [that] a quittance may be written. And it stands to reason that a quittance may be written; for should it be assumed [that] a quittance must not be written, [is it conceivable that where] the bond of this one18 was lost, the other should eat19 and enjoy himself!
Abaye demurred: What then; is a quittance to be written? Should this one,20 [if] the quittance of the other was lost, eat and enjoy himself? 'Yes', replied Raba to him, 'the debtor21 is the slave of the creditor'.22
Elsewhere We learnt: Antedated bonds of indebtedness are invalid23 and postdated [ones] are valid.24 Said R. Hamnuna: This law applies only to25 bonds of indebtedness but [in the case of] deeds of purchase and sale even [those which are] postdated are invalid. What is the reason? [A person] might sometimes sell [a plot of] land to another in Nisan and write [the deed] for him in Tishri; and in the meantime he might obtain some money and repurchase it from him.26 But when Tishri arrived he27 would produce it28 and say, 'I have [subsequently] bought it from you again'.29 If so, [in the case of] bonds of indebtedness also, one might sometimes borrow [money] in Nisan and write the bond for the creditor30 in Tishri, and in the meantime he would obtain some money and repay him. When [however the debtor] requested the return of his31 bond, he would reply to him, 'I lost it', and would [instead] write out for him a quittance. When [later] the date of payment32 arrived he would produce it33 and plead 'You have borrowed from me just now!' - He34 holds the opinion that no receipt is to be written.35
Said R. Yemar to R. Kahana, and others say [that] R. Jeremiah of Difti said to R. Kahana: But [what of] the present time, when postdated deeds are written though quittances also are written?36 He replied to him37 : [This is permissible] since the time when R. Abba said to his scribes: 'When you write a postdated deed, write as follows: This deed was not written on the date indicated38 but was postdated.'39
Said R. Ashi to R. Kahana: And [what of] the present time when this is not done!40 - [This41 is not necessary] since R. Safra instructed his scribes: When you write out quittances, enter the date of the deed42 if you know it; if not, leave the quittance undated so that whenever [the deed] is produced [the receipt] will render it invalid.43
Said Rabina to R. Ashi, and others say [that] R. Ashi [said] to R. Kahana:
(1) The date of which is that of a working day and dies not, consequently, prove that the deed was postdated.
(2) Lit., 'who said'.
(3) Where the debtor repaid a part of the loan or the whole of It and the creditor lost the deed.
(4) To the debtor.
(5) Since the deed would be returned to him on his repayment of the debt, or would be exchanged for a second deed should he pay a portion only of the debt.
(6) The creditor, after giving the debtor a quittance for his repayment of the loan, might produce the postdated deed (the date of which is later than the date of the quittance) and thereby claim his loan again. pleading that the quittance was given for an earlier loan. As the Fact that the deed is postdated could not be proved, the debtor would be the loser having to repay rise same loan twice. In the case, however, where the date coincides with a sacred day, on which no writing is permitted, the creditor's fraud would be detected. (Cf. p. 748. n. 16 and supra n. 4).
(7) Lit., 'these words'.
(8) I.e where the debtor repaid a part of the debt only and desires to have evidence of payment.
(9) It is the creditor's own fault if he lost the bond. He must either produce the bond or forfeit the loan.
(10) Cf. Bail, a.l.
(11) Lit., 'on all of it'.
(12) Lit. , 'he came'.
(13) R. Isaac.
(14) R. Abba.
(15) Out of respect and reverence for their memory.
(16) Despite the greatness of the departed Masters, the law is in accordance with the ruling of R. Johanan and R. Lakish.
(17) From Palestine to Babylon.
(18) The creditor.
(19) Consume other people's money.
(20) The creditor.
(21) Since he has the benefit of the transaction.
(22) Hence he must beat the burden of preserving the receipt.
(23) Since a creditor, who is justly entitled to seize any real estate sold by the debtor after the date of the loan, might fraudulently lay claim to lands which the borrower had sold between the date entered in the bond and the actual date of the loan, by pleading that the earlier date in the deed was the actual date of the loan.
(24) Though the creditor is thereby prevented from seizing any of the debtor's property that was sold between the actual date of the loan and the date in the deed. By allowing the entry of the later date he is assumed to have voluntarily surrendered his right upon such lands as were sold during the period intervening between the two dates, Sheb. X. 5.
(25) Lit., 'they did not teach but'.
(26) Without having the deed of sale returned to him, the buyer having asserted that he lost it.
(27) The buyer.
(28) The postdated deed.
(29) Even the document which the buyer might have given to the seller as confirmation of his to.purchase would be of no avail, since its date is earlier than the one which appears on the postdated bill of sale, and the former could, therefore, plausibly claim that after the to purchase by the seller the land was sold to him again.
(30) Lit., 'for him'.
(31) Lit., 'and said to him, give me my'.
(32) Lit., 'its time'.
(33) The postdated deed.
(34) R. Hamnuna.
(35) The creditor must return the bond itself before he can receive repayment of the debt.
(36) How, in view of what has been said above, could a postdated deed be permitted where a receipt also is allowed?
(37) for this reading. v. Rashb., R. Gersh. and Bah, a.l.
(38) Lit., 'in its time'.
(39) Lit., 'we delayed (or postponed) it and wrote it.'
(40) No formula such as that introduced by R. Abba is entered in a postdated deed, though the writing of a quittance is permitted!
(41) R. Abba's formula.
(42) I.e., the quittance must not only contain the names of the creditor and debtor as well as the amount of the loan, but also the date of the bond in lieu of which the quittance is given. Consequently should the creditor ever attempt to make use of the cancelled bond because it was postdated the debtor would be in a position to expose him by means of the quittance in which the date of that bond is entered.
(43) Since the receipt is undated and contains all the particulars (such as names of parties and amount) of the bond, it can be used by the borrower against the creditor whenever the latter should attempt to advance a claim by means of that bond. Whether the date of the bond is earlier, or later than that on which the quittance was written matters little, since the quittance, being undated, can always be presented as a document written after the date of the bond. The issue of such an undated quittance, however, would naturally preclude the creditor from ever lending the debtor a sum equal to that in the bond in question.
Talmud - Mas. Baba Bathra 172a
But this1 is not done at the present time?2 - He replied to him: The Rabbis have made the necessary provision. Whosoever acts [accordingly] reaps the benefit;3 he who does not act [accordingly] has himself to blame, for any loss suffered.4 Raba son of R. Shila said to those who were writing deeds of transfer:5 When you write deeds of transfer enter6 the date of transfer7 if you know it; and if not, enter the date on which the deed is prepared,8 so that it9 might not have the appearance of a falsehood.
Rab said to his scribes, and R. Huna, similarly, said to his scribes: When you are at Shili write [in any deed] 'at Shili', although the information was given to you at Hini;10 when you are at Hini, write, 'at Hini'10 , although the information was given to you at Shili.10
Raba said: If a man [who] is in possession of a bond of a hundred zuz, said, 'Convert it into two bonds each of fifty zuz',11 his request must not be granted.12 What is the reason? - The Rabbis instituted a law13 which is acceptable to the creditor and is [also] acceptable to the borrower. It is acceptable to the creditor in that [the debtor is thereby] compelled to repay him [the entire loan];14 and it is [also] acceptable to the borrower in that [the legal force of] the bond is [thereby]15 impaired.16
Raba further stated: If a man, holding two bonds each of fifty [zuz:], requests that they be converted into one [bond] of a hundred [zuz], his request must not be granted,17 [because] the Rabbis have ordained a law18 which is agreeable to the creditor and is also agreeable to the borrower. It is agreeable to the creditor in that [the force of] his bond is not [thereby] impaired;19 and it is [also] agreeable to the borrower in that he is not [thereby]15 under pressure to repay the debt.20
R. Ashi said: If a man holds a bond for a hundred zuz and requests that it be converted into21 one of fifty [zuz],22 his request must not be granted. What is the reason? - We assume [the debtor] had already repaid him that [loan] and [that when] he asked him for the return of his bond23 he was told [that] he24 had lost it and [so] he wrote out for him a quittance25 but [that later] he would produce that [new bond] and claim,26 'This is [for] another [loan]'.27
MISHNAH. [IN THE CASE OF] TWO BROTHERS, THE ONE POOR AND THE OTHER28 RICH, WHOM THEIR FATHER HAD LEFT A BATH-HOUSE OR AN OLIVE-PRESS, [IF] HE BUILT THESE [TO BE LET OUT] ON HIRE, THE RENT BELONGS TO THE COMMON ESTATE.29 [IF,] HOWEVER, HE BUILT THEM FOR HIS OWN [USE]29 THE RICH [BROTHER] MAY30 SAY TO THE POOR [BROTHER], BUY FOR YOURSELF SLAVES THAT THEY MAY BATHE IN THE BATH-HOUSE', [OR] 'BUY FOR YOURSELF OLIVES AND COME AND PREPARE [THEM] IN THE OLIVE-PRESS'.31
IF THERE WERE TWO [MEN] IN THE SAME TOWN [AND THE] NAME OF THE ONE [WAS] JOSEPH SON OF SIMEON AND THE NAME OF [THE] OTHER [WAS] JOSEPH SON OF SIMEON, NEITHER MAY PRODUCE A BOND OF INDEBTEDNESS AGAINST THE OTHER, NOR MAY ANOTHER [PERSON] PRODUCE A BOND OF INDEBTEDNESS AGAINST THEM.32 [IF] A MAN FOUND AMONG HIS DEEDS [A QUITTANCE SHOWING THAT] THE BOND OF JOSEPH SON OF SIMEON [WAS] DISCHARGED, THE BONDS OF BOTH [ARE CONSIDERED TO BE] DISCHARGED. HOW SHOULD THEY PROCEED?33 THEY SHOULD INDICATE THE THIRD [GENERATION].34 AND IF [THEIR NAMES] ARE [ALIKE] TO THE THIRD [GENERATION], THEY ADD35 [SOME PERSONAL] DESCRIPTION;36 AND IF THEIR [PERSONAL] DESCRIPTIONS ARE ALIKE THEY WRITE, 'PRIEST'.37
GEMARA. In a certain bond that was presented at the court of R. Huna there was [the following] entry:38 'I.X, son of Y, borrowed from you39 a maneh'.
(1) The omission of the date it, a receipt.
(2) When deeds are written without R. Abba's formula, and dated quittances are issued.
(3) Lit., 'he who does, does'.
(4) The provision was made by the Rabbis for the benefit of debtors who may wish to benefit by it. No man, however, is compelled to carry out a provision which was enacted solely in his own interests.
(5) אקניאתא, deeds of gifts, or deeds of sale in which land security is entered. (Cf. Rashb.). Jastrow's definition is. 'An agreement by which one's landed estate is mortgaged in the form of a sale from date, independent of the loan to be consummated afterwards.' [Since agreement was accompanied by a kinyan from which the deed subsequently drawn up obtains its name. V. Rappaport. J., Das Darlehen, p. 70 ff.]
(6) Lit., 'write'.
(7) V. previous note. [In order to preclude the donor from presenting the gift to some one else.] In the case of a deed of sale, the buyer must be enabled, in addition, to seize such lands as wore sold during the period subsequent to the date of transfer. (Rashb.)
(8) Lit., 'on which you stand'.
(9) The entry of a date of which they were not certain.
(10) The locale of a deed is the place where the deed is written, not where the transaction (gift, sale, or loan) which it records took place. The former, therefore, must be entered in the deed. According to Rashb. both places arc entered, thus: 'We wrote at . . . what we saw at . . . ' [Hini and Shili were two places South of Sura and close to each other. The point in R. Huna's instructions to the scribes according to Obermeyer, op. cit. 320, is that they were not to regard the two localities as one and write 'Hini-Shili'.]
(11) So that in case the debtor repays him half the debt he can return one of the two bonds.
(12) Lit., 'we do not make them'.
(13) Lit., 'thing'.
(14) Having repaid half of the debt and received in return a quittance, the debtor is anxious to repay the other half at the earliest possible moment, so that he might secure the destruction of the bond and thus be liberated from the necessity of guarding his receipt 'from the mice'.
(15) By the repayment of half of the amount mentioned in the bond.
(16) The creditor will not be able to recover with it the balance, except on oath (cf. Keth. 87a. Shebu. 41a).
(17) V. p. 753, n.8.
(18) V. p. 753. n. 9.
(19) Instead of giving a receipt for half the amount repaid and thus impairing the force of the deed (cf. n. 1 ), one bond is destroyed while the other retains its full force.
(20) Since he secures the return and destruction of one of the deeds and need not take care of any quittance.
(21) Lit., 'make the thing'.
(22) Even though he consents to enter on the new bond the date of the original bond.
(23) Lit., 'and he said to him: Give me my bond'.
(24) Lit., 'I', the creditor.
(25) For the hundred zuz.
(26) Lit., 'and say to him'.
(27) The bond being made out for a sum of fifty zuz, the creditor could plausibly claim that the receipt for the hundred zuz was given for a totally different loan which had no connection whatsoever with the fifty zuz bond produced. Hence no bond must be exchanged at the request of a creditor even though he request the issue of a bond for a smaller amount in lieu of one containing a larger amount.
(28) Lit., 'one'.
(29) Lit., 'to the middle', i.e., it is divided between the two brothers in equal proportions.
(30) Lit., 'behold'.
(31) None of the brothers has the right to use the bequeathed joint estate (except, of course, by mutual consent) for any purpose other than that for which their father had originally intended it (v. supra 13a).
(32) Since each can say that it was not he but the other who signed the bond.
(33) If they desire to borrow, or buy from one another or from a third party.
(34) They give their own names and the names of their fathers and grandfathers.
(35) Lit., 'they shall write'.
(36) Such as Joseph etc. the tall, the short, black, brown.
(37) If one of these was a priest, or some similar patronymic. e.g.. Levite.
(38) Lit., 'written'.
(39) The name of the creditor not being entered, and the holder of the bond claiming that the pronoun referred to him.
Talmud - Mas. Baba Bathra 172b
R. Huna decided [that], 'from you' [might] even [signify] 'from the exilarch', and even 'from King Shapur'.1 Said R. Hisda to Rabbah: Go and consider this matter,2 for in the evening R. Huna will question you on the subject. He went out, carefully considered [the matter], and found [the following Baraitha] wherein it was taught: [In the case of] a letter of divorce which bears [the signatures of] witnesses but no date,3 Abba Saul said: If there was written in it. 'I divorced you4 this day,' it is valid. This5 clearly proves that that day6 [is taken] to mean that day on which it was produced,7 [so] here also,8 'from you' must mean from that person who produced [the bond].9
Said Abaye to him: Is it not possible that Abba Saul holds the same view as R. Eleazar10 who maintains that the witnesses to the delivery11 affect the legal separation,12 but here [surely, there is reason] to apprehend that it was lost!13 He replied unto him: [That a deed] was lost is not to be apprehended.14 And whence is it deduced that the losing [of a deed] is not to be apprehended? - For we learned: IF THERE WERE TWO [MEN] IN THE SAME TOWN [AND THE] NAME OF THE ONE [WAS] JOSEPH SON OF SIMEON AND THE NAME OF [THE] OTHER [WAS] JOSEPH SON OF SIMEON, NEITHER MAY PRODUCE A BOND OF INDEBTEDNESS AGAINST THE OTHER, NOR MAY ANOTHER [PERSON] PRODUCE A BOND OF INDEBTEDNESS AGAINST THEM. Either of them,15 however [it follows] may [produce a bond of indebtedness] against others. But why? Why not apprehend the loss [of the deed]?16 from this17 then18 it may be deduced that we do not apprehend the loss. And Abaye?19 We do not apprehend the loss [of a deed] by one [particular individual];20 but we do apprehend loss [of deeds] generally by many.21
(1) Since the pronoun might refer to anybody, the creditor is not in a position to establish his claim.
(2) Lit., 'in it'.
(3) The omission of the date renders a divorce invalid.
(4) [So Ms. M. Cur. edd. 'hot'.]
(5) The fact that it is valid if only the witnesses saw it in the hand of the husband on a certain date, that date being regarded as the legal date of the divorce.
(6) On which witnesses saw it in the husband's hand though it, the document that date is not entered.
(7) So long as the witnesses saw it on that day in his hand.
(8) The case of tho deed wherein the name of the creditor does not appear.
(9) Lit , 'from under whose hand it goes out'. Since the bond is produced by a certain person in the presence of the court that person should be assumed to be the creditor.
(10) Cur. edd., 'Eliezer'.
(11) Of a letter of divorce to the woman.
(12) But the signatures of the witnesses, or the date, do not affect the legality of the divorce, hence he stated that the divorce was valid, v. supra 170a.
(13) Lit., 'to falling'. i.e.. the bond may have been lost by the real creditor and the present claimant may have found it.
(14) The person who presents a bond must be assumed to be the real creditor.
(15) Lit 'they'.
(16) One Joseph, the creditor, might have lost the bond and the other Joseph who presents it might have found it.
(17) From the fact that either of them is entitled to establish a claim against a third patty by the production of his bond.
(18) Lit., 'but not'.
(19) How, in view of the inference from our Mishnah, could he suggest that loss of the deed should be apprehended?
(20) It is most unlikely that a particular person of the very same name as the one who presents the bond should have lost it.
(21) It is not unusual for people to lose their bonds and for others to find them. Hence, as regards the bond presented at R. Huna's court, Abaye was well justified in suggesting that loss of the deed should be suspected.
Talmud - Mas. Baba Bathra 173a
Since it was taught, however, 'As they cannot produce a bond of indebtedness against one another so they cannot produce [a bond] against others'1 [the question arises]2 wherein [lies the principle of] their disagreement?3 - They differ on [the question whether] 'letters'4 [may] be acquired by means of delivery.5 Our Tanna holds [that] 'letters' are acquired by means of delivery6 and the external7 Tanna holds [that] 'letters' are not acquired by means of delivery.8
And if you prefer I would say that all9 [agree that] 'letters' may be acquired by delivery., but they differ here on [the question whether] it is necessary10 to produce proof.11 Our Tanna12 'holds that proof need not be produced13 while the external Tanna14 holds that proof must be produced,15 for it was stated: 'Letters' are acquired by delivery; Abaye said: He16 must, however, produce proof;17 and Raba said: He need not produce proof.18
Said Abaye: Whence do I derive this?19 - For it was taught: 'The brother20 who presents21 the bond of indebtedness22 must23 produce proof'.24 Obviously, this applies also to the case25 of others.26 Raba, however, said: Brothers are different because they pilfer from one another.27
Others say, Raba said: Whence do I derive this?28 - For it was taught: 'The brother who presents the bond of indebtedness must produce proof'.29 [from which it is obvious that this applies to] brothers [only] since they pilfer from one another but not [to] others.30 And Abaye31 [explains that] it was necessary [to specify] brothers32 [because] it might have been assumed [that], as they pilfer from one another, they are [all] particularly alert33 and should not [therefore] require to produce proof;34 hence [it was necessary] to teach us [that it is not so].35
As regards, however, the following wherein it was taught. 'As they36 may present a bond of indebtedness against others so may they present [bonds] against each other', [the question arises] wherein lies [the principle of] their37 disagreement?38 They differ on [the question whether] a bond [may] be written for a borrower though the creditor be not with him. Our Tanna39 holds [that] a bond may be written for a borrower although the creditor be not with him. [Consequently it may] sometimes [happen] that one40 would go to a scribe and witnesses and tell them, 'Write for me a bond because I intend borrowing [money] from my friend Joseph son of Simeon'; and, after they had written and signed [it] for him, he would take hold of it and demand from him,41 'Give me the hundred [zuz] which you borrowed from me'.42 The external Tanna,43 holds that no bond may be written for a borrower unless the creditor be with him.44 [IF] A MAN FOUND AMONG HIS DEEDS [A RECORD TO THE EFFECT THAT] THE BOND OF JOSEPH SON OF SIMEON [WAS] DISCHARGED, THE BONDS OF BOTH [ARE CONSIDERED TO BE] DISCHARGED etc. The reason45 is thus because [a record] was found, but had there been found none, [a bond] could be presented [against one of them]? Surely we have learnt, NOR MAY ANOTHER [PERSON] PRODUCE A BOND OF INDEBTEDNESS AGAINST THEM! - R. Jeremiah replied: In [the case where the bonds record the names of] the third [generation].46 Then let us see in whose name the discharge was made out!47 - R. Hoshaia replied: Where the third [generation] is indicated in the bond but not in the discharge.48 Abaye said: This is the meaning49 [of our Mishnah]; [IF50 a borrower]51 FOUND AMONG HIS DEEDS [A QUITTANCE SHOWING] THAT THE BOND OF JOSEPH SON OF SIMEON [against him52 WAS] DISCHARGED, THE BONDS OF BOTH [ARE CONSIDERED TO BE] DISCHARGED.53
HOW SHOULD THEY PROCEED? THEY SHOULD INDICATE THE THIRD [GENERATION] etc. A Tanna taught: If both were priests54 they enter [the names of previous] generations.55
MISHNAH. IF [A FATHER]56 SAID TO HIS SON,' ONE57 AMONG MY BONDS IS DISCHARGED BUT I DO NOT KNOW WHICH', THE BONDS OF ALL HIS DEBTORS58 ARE [CONSIDERED] DISCHARGED.59 IF AMONG THEM60 WERE FOUND TWO [BONDS, PERTAINING] TO ONE [DEBTOR], THE LARGER61 [ONE IS DEEMED] DISCHARGED AND THE SMALLER UNDISCHARGED.62
GEMARA. Raba said: [If a person declared], 'The bond against you, [which l have] in my possession is discharged', the larger [one is deemed] discharged and the smaller undischarged. [If, however, he declared], 'The debt you owe me is paid', all63 his bonds [are deemed] discharged.63 Said Rabina to Raba: Consequently64 [should one say to another],' My field is sold to you', his larger field [would be deemed to have been] sold to him, [but if he said,] 'The field that l have is sold to you', all his fields65 [would then be deemed] sold! - There,66 the holder of the deed is at a disadvantage.67
MISHNAH. IF A MAN LENDS MONEY TO ANOTHER ON A GUARANTOR's SECURITY,68 HE MUST NOT EXACT PAYMENT FROM THE GUARANTOR.69
(1) Because it is possible that one of them lost the bond and the other, who presents it at court, accidentally found it.
(2) Since, as has been said, loss of the bond is not suspected.
(3) That between the Baraitha and Our Mishnah, from the latter of which it was deduced, supra, that either of the Josephs may produce a bond against others, a deduction with which, since it referred to the case of a particular individual, even Abaye agreed.
(4) A bond.
(5) Mesirah, v. Glos.
(6) Since loss of the bond is not suspected, it can only be assumed that Joseph the creditor delivered the bond to the other Joseph. As 'letters' are acquired by delivery, the holder of the bond is legally entitled to the loan.
(7) The Tanna of the Baraitha.
(8) The debtor can consequently refuse payment of the bond, pleading that he does not owe the money to the holder of the bond but to the other Joseph; while to the other he can refuse payment on the ground that he has no bond to prove his claim.
(9) The authors of the Baraitha under discussion and of our Mishnah. (16) Mesirah, v. Glos. And no deed of sale is necessary (v. supra 77a).
(10) For the holder of the bond.
(11) That he received the bond as a gift or purchase and that he did not merely find it or receive it as a deposit.
(12) The author of our Mishnah.
(13) The possession of the bond is sufficient evidence that the debt is owing to its holder. Hence the inference from our Mishnah, that one of the Josephs may present a bond of indebtedness against a third person who cannot consequently refuse payment by demanding additional proof of the holder's title to ownership.
(14) The author of the Baraitha.
(15) Otherwise the debtor can plead that the holder has found the bond in the street or that it was only deposited with him. Hence the statement in the Baraitha that none of the Josephs may present a bond against a third person who could plead that the bond belongs to the other Joseph and that the one who presented it received it only as a deposit or found it.
(16) The holder of the deed.
(17) Cf. supra note 2.
(18) Cf. supra note 4.
(19) That proof is required apart from the production of the deed.
(20) Lit., 'one of the brothers'.
(21) Lit., 'that goes out from under his hand'.
(22) Which bears the name of his father as creditor or which has been acquired by the father from another creditor.
(23) If the other brothers claim that the bond was bequeathed to all of them, and that the holder has unlawfully appropriated it for himself.
(24) That the bond lawfully belongs to him only.
(25) Lit., 'what not? The same law'.
(26) Strangers. who dispute his claim to the bond he holds.
(27) In the case of a bequeathed estate. All the brothers being heirs to it, every one considers himself entitled to appropriate as much of it as he possibly can. It is for this reason only that it was ordained that the brother who claims, against the statement of the other brothers, to be the sole owner of an inherited bond, must produce proof. As this unlawful appropriation could not apply to the case of a stranger, proof in that case is not required.
(28) That apart from the production of the bond no other proof is required.
(29) V. supra notes, 11, 15.
(30) Who could have no plausible excuse or justification for such an appropriation. Hence no proof is required in the case of a stranger.
(31) Who requires proof in the case of a stranger also.
(32) Though the law applies to strangers also.
(33) In watching one another.
(34) Apart from the presentation of the bond. The fact that one of them is actually holding it should be sufficient proof that it belongs to him.
(35) But that brothers as well as strangers must produce proof of lawful acquisition.
(36) Two Josephs living in the same town. Cf. our Mishnah.
(37) This Baraitha on the one hand and the Baraitha previously cited and our Mishnah on the other.
(38) According to this Baraitha the two Josephs may present bonds against one another while according to the previously cited Baraitha and our Mishnah, they may not.
(39) Of our Mishnah; and so the Tanna of the previously cited Baraitha.
(40) Of the two Josephs.
(41) His namesake whose name would appear in the bond as the debtor.
(42) In order to avoid such a fraud it had been instituted that, in the case of two Josephs, bonds may not be presented by one against the other.
(43) The author of the last-mentioned Baraitha.
(44) Consequently, the one Joseph would not be able to obtain a bond unless the other Joseph should be present. Hence there would be no possibility to practise the fraud described. The Josephs, therefore, may present bonds against one another.
(45) Why the bonds of both are considered as discharged and no claim may be advanced against either of them.
(46) Cf. our Mishnah. In such a case bonds may be presented against them.
(47) Lit., 'written'. Why, then, should the bonds of both be considered discharged.
(48) Each Joseph is consequently in a position to claim that the name of his grandfather was omitted from the discharge though it was mentioned in the bond.
(49) Lit.,' thus he said'.
(50) Bah inserts, 'they may present (bonds) against others'.
(51) Not, as has been previously assumed, a creditor.
(52) Lit., 'against me'.
(53) Since the debtor can produce the same quittance whenever either of the two Josephs should present his bond. On the question of mutual authorisation or the simultaneous presentation of the bonds of the two, v. Rashb. a l.
(54) And their names also were alike up to the third generation.
(55) Until the names of ancestors are reached whose names differ.
(56) Lying on his death-bed.
(57) Lit., 'bond'.
(58) Lit., 'all of them'.
(59) It is left to the conscience of those debtors who did not yet repay their loans to admit their liabilities.
(60) Lit., 'there'.
(61) The one containing the bigger amount.
(62) The debtor is given the benefit of the doubt. He must, however, repay the smaller amount since the creditor declared that one bond only was discharged.
(63) 'Debt' implies all that the debtor owes irrespective of the number of the written bonds.
(64) Lit., 'but from now'.
(65) 'Field', like 'debt', in Raba's statement, being regarded as a collective noun, implying all one's fields.
(66) The case of sale and purchase.
(67) Lit., 'the hand of the owner of the deed is upon the lowest'. He seeks to deprive the owner of property in the possession of which he is confirmed. Hence he must produce convincing proof. In the case of a debt, however, the claimant is the creditor, while the debtor is the confirmed possessor of the sum claimed. Hence the advantage is on the side of the latter.
(68) Lit., 'by the hands of a guarantor'.
(69) Before the debtor was sued and, the court having ordered him to pay, was found unable to meet his obligation.
Talmud - Mas. Baba Bathra 173b
IF, HOWEVER, HE SAID TO HIM,1 'ON CONDITION THAT I MAY EXACT PAYMENT FROM WHOM I WILL', PAYMENT MAY BE EXACTED FROM THE GUARANTOR. RABBAN SIMEON B. GAMALIEL SAID: IF THE BORROWER HAS PROPERTY, PAYMENT FROM THE GUARANTOR MAY IN NEITHER CASE2 BE EXACTED.3 AND SO SAID RABBAN SIMEON B. GAMALIEL: WHERE [A MAN] WAS GUARANTOR FOR A WOMAN IN [RESPECT OF] HER KETHUBAH, AND HER HUSBAND DIVORCED HER, [THE HUSBAND] MUST VOW TO DERIVE NO [FURTHER] BENEFIT FROM HER. [SINCE IT IS] POSSIBLE THAT THEY MIGHT FORM A CONSPIRACY AGAINST THE PROPERTY OF THE GUARANTOR4 AND THEN [THE HUSBAND] WOULD TAKE HIS WIFE BACK AGAIN.5
GEMARA. What is the reason?6 - Both Rabbah and R. Joseph explain: [Because the guarantor can say,] 'You have entrusted me with a man;7 and a man have I handed over to you'.8 R. Nahman demurred: [Is not] this9 the law of the Persians? - On the contrary; they [invariably] go after the guarantor!10 - [This,] however, [is the objection]: [Is not this ruling9 like that of] a Persian court of law [the judges of] which do not give [any] reason for their decisions?11 - But, said R. Nahman, the meaning of12 HE [MUST] NOT EXACT PAYMENT FROM THE GUARANTOR [is that] he [may] not demand [payment from] the guarantor first.13 Thus it was also taught [elsewhere]: If [a man] lends [money] to another on a guarantor's security, [payment] shall not be demanded [from the] guarantor [in the] first instance. If, however, [the creditor] said, 'On condition that I may exact payment from whom I will' the guarantor may be called upon first.14
Said R. Huna: Whence [may it be deduced] that a guarantor becomes responsible [for a debt he has guaranteed]?15 - For it is written, I will be surety for him; of my hand shalt thou require him.16 R. Hisda demurred: [This], surely was [an unconditional] assumption [of obligation],17 for it is written, Deliver him into my hand,18 and I will bring him back to thee!19 - But, said R. Isaac: [It20 may be deduced] from the following: Take his garment that is surety,21 for a stranger; and hold him in pledge that is surety for an alien woman.22 Furthermore, it is said, My son, if thou art become surety for thy neighbour,23 if thou hast struck thy hands for a stranger,24 [if] thou art snared by the words of thy mouth,24 thou art caught by the words of thy mouth, do this now, my son, and deliver thyself, seeing that thou art come into the hand of thy neighbour; go, humble thyself, and urge thy neighbour.25 If he has [a claim of] money upon you,26 open out27 for him the palm of [your] hand;28 and if not,29 get at him through many friends.30
Amemar said: [The question] whether a guarantor is responsible31 [for the payment of the debt he guaranteed, is a matter of] dispute [between] R. Judah and R. Jose. According to R. Jose. who said, 'asmakta32 conveys title,'33 a guarantor is responsible. According to R. Judah, [however], who said 'asmakta gives no title', the guarantor Is not responsible.34 Said R. Ashi to Amemar: Surely, it is the regular practice35 [of the courts to rule] that asmakta gives no title,36 and [yet that] a guarantor is held responsible! - But, said R. Ashi having regard to the pleasure of being trusted [by the creditor] he determines to undertake the responsibility.37
IF, HOWEVER, HE SAID, 'ON THE CONDITION THAT34 MAY EXACT PAYMENT FROM WHOM34 WILL' etc. Rabbah b. Bar Hana said in the name of R. Johanan: This applies only in the case38 where the debtor has no property,39 but where the debtor has property no payment may be exacted from the guarantor. Since, however, it is stated in the final clause: RABBAN SIMEON B. GAMALIEL SAID: IF THE BORROWER HAS PROPERTY, PAYMENT FROM THE GUARANTOR MAY IN NEITHER CASE BE EXACTED,40 one might infer that in the opinion of the first Tanna there is no difference whether he had or had not41 [any property]!42 - There is a lacuna [in our Mishnah].and the proper reading is as follows:43 IF [A MAN] LENDS [MONEY] TO ANOTHER ON A GUARANTOR'S SECURITY HE [MUST] NOT EXACT PAYMENT FROM THE GUARANTOR. IF, HOWEVER, HE SAID 'ON THE CONDITION THAT I MAY EXACT PAYMENT FROM WHOM I WILL', PAYMENT MAY BE EXACTED FROM THE GUARANTOR. This law applies only to the case44 where the debtor has no property, but where the debtor has property, payment from the guarantor may not be exacted. And [in the case of] a kabbelan,45 even though the debtor has property, payment may be exacted from the kabbelan.
(1) 'To him' is omitted in the Gemara; v. infra, where it is also shown that the Mishnah contains a lacuna.
(2) Lit., 'whether so or so'.
(3) In the first instance.
(4) By staging a divorce, and the husband having no money, the woman would be enabled to exact the amount of her kethubah from the guarantor.
(5) And divide the spoil with her.
(6) Why payment may not be exacted from the guarantor. At present it is assumed that so long as the borrower is alive and did not abscond the guarantor cannot be called upon to pay.
(7) The debtor; i.e., the creditor has, so to speak, put the debtor in charge of the guarantor who has undertaken to present him when payment falls due.
(8) Since the debtor neither died nor absconded, the guarantor has carried out his obligation. As the debtor is present in person the claim is to be addressed to him and not to the guarantor.
(9) The exemption of the guarantor from payment where the debtor himself is available.
(10) Even where the debtor is in possession of property.
(11) Lit., 'words'. As the decisions of a Persian court of law are arbitrary, so is the ruling which exempts a guarantor from payment where the debtor is available though destitute. Of what use is the guarantee if the guarantor cannot be called upon to pay where the debtor himself is unable to meet his obligation!
(12) Lit., 'what'.
(13) In the first instance the debtor must be called upon to pay. If the obligation, however, has not been met owing to the debtor's poverty, refusal to appear in court, or death, the guarantor must discharge the debt.
(14) V. infra.
(15) By his mere verbal undertaking, though it was not attended by a kinyan.
(16) Gen. XLIII. 9. Thus spake Judah to Jacob in urging him to entrust Benjamin to him.
(17) קבלנות, 'unconditional assumption of obligation', acceptance'. V. p. 765. n. 10.
(18) 'Into my hand' implies unconditional responsibility.
(19) Ibid. XLII, 37. [Although this was said by Reuben, it is unlikely that Judah's guarantee involved less responsibility than that of Reuben's which Jacob had rejected (Maharsha).]
(20) V. supra, n. 3.
(21) By mere verbal undertaking, since no legal agreement15 mentioned.
(22) Prov. XX, 16.
(23) In money matters.
(24) By insulting or calumniating.
(25) Ibid. VI.1-3.
(26) Lit., 'in thy hand'.
(27) Lit., 'loosen'.
(28) I.e., pay him. התר ל פיסת יד, a play upon הת פם. (E.V. 'go humble thyself').
(29) When the claim or grievance15 not due to monetary matters.
(30) Who may plead with him and obtain his pardon. הרבה עליו רעים, a play upon רהב עיך, (E.V. 'urge thy neighbour').
(31) Lit., 'subjects himself'.
(32) V. Glos.
(33) Supra 168a.
(34) His guarantee to repay the debt is regarded as a mere asmakta, it being assumed that what he meant to convey by it amounted to no more than an expression of his conviction that the debtor would meet his obligation. Had he known that the debtor would default, he would not have given his guarantee.
(35) Lit., 'actions every day'.
(36) In accordance with the ruling of R. Judah.
(37) Though a similar undertaking would elsewhere be regarded as an asmakta which is not legally binding, the pleasure of being trusted transforms such an asmakta into a legal undertaking.
(38) Lit., 'they did not teach but'.
(39) [I.e., it is not known whether the debtor has any property from which the creditor could recover his claim, in which case, having regard to the stipulation, the guarantor can immediately be called upon to pay the debt, whereas in the absence of such a stipulation, the creditor would still have first to sue the debtor (Yad Ramah).]
(40) V. Bah, a l.
(41) Lit., 'no difference thus'.
(42) But in either case the guarantor may be called upon to pay. How, then, could Rabba b. Bar Hana assert that the first Tanna speaks only of the case where the debtor had no property?
(43) Lit., 'and thus it teaches'.
(44) Lit., 'in what (are the) words said'.
(45) קבלן, a guarantor who accepts unconditional responsibility. an 'acceptor'.
Talmud - Mas. Baba Bathra 174a
RABBAN SIMEON B. GAMALIEL SAID: IF THE BORROWER HAS PROPERTY, PAYMENT MAY BE EXACTED neither from the one nor from the other.1
Rabbah b. Bar Hana said in the name of R. Johanan: Wherever Rabban Simeon b. Gamaliel taught in our Mishnah, the halachah is in agreement with his ruling2 except [in the cases of] 'guarantor',3 'zidon'4 and the 'latter proof'.5
R. Huna said: [Should one say], 'Lend him [a sum of money] and I [shall be] guarantor'. 'Lend him and I [shall] repay [you]', 'Lend him and I [shall be] liable [for the loan]', [or] 'Lend him and I [shall] give [it back to you]' - all these are expressions of guarantee.6 [If, however, one said], 'Give him [a sum of money] and I [shall be] kabbelan'.7 'Give him and I shall repay [you]', 'Give him and I [shall be] liable [for the loan]', [or] 'Give him and I [shall] give [it back to you]' - all these are expressions of kabbelanuth.8 The question was raised: What [is the law if one said], 'Lend him9 and I [shall be] kabbelan'7 [or], 'Give him and I [shall be] guarantor'?10 - R. Isaac replied: The expression of guarantee [has the force of a] guarantee; the expression of kabbelanuth11 I [has the force of] acceptance.12 R. Hisda said: All of these are expressions of kabbelanuth, except [that] of 'Lend him [a sum of money] and I [shall be] guarantor'.13 Raba said: All of these are expressions of 'guarantee', except that of 'Give him and I [shall] give [it back to you]'.14
Mar b. Amemar said to R. Ashi: Father said thus: [If one said,] 'Give him [a sum of money] and I [shall] give [it back to you]', the creditor has no claim whatsoever against the borrower. The law,15 however, is not [so]; [for] a debtor cannot escape from the creditor unless [the guarantor] had taken [the money] with [his own] hand [from the creditor] and delivered [it to the borrower].
A certain judge once allowed a creditor to take possession16 of the property of the debtor before [that] debtor had been sued. [The matter having been brought to his notice,] R. Hanin the son of R. Yeba removed him.17 Said Raba: Who [would have been so] wise [as] to do such a thing if not R. Hanin the son of R. Yeba! He holds the opinion that a man's possessions are his surety, and we have learnt, IF [A MAN] LENDS [MONEY] TO ANOTHER ON A GUARANTOR'S SECURITY, HE MUST NOT EXACT PAYMENT FROM THE GUARANTOR, and this18 has been established [to mean that] the guarantor may not be called upon first.19
A certain guarantor of orphans20 once paid the creditor before the orphans were sued.21 Said R. Papa: The repayment [of a verbal loan to] a creditor is a commandment, and orphans22 are not subject to the performance of commandments.23 But R. Huna son of R. Joshua said:24 It may be assumed [that] he25 deposited with him26 [some] bundles [of valuables].27
(1) Lit., 'whether this or this, payment from them shall not be exacted', neither from the guarantor not from the kabbelan.
(2) Lit., 'like him'.
(3) The law just quoted from our Mishnah. Payment, contrary to the ruling of Rabban Simeon b. Gamaliel, may be exacted from a kabbelan, though the debtor has property.
(4) V. Git. 74a.
(5) V. Sanh. 31a
(6) ערבות, security. Since the expression of lending was used the guarantor has thereby intimated that the other shall be the borrower. He has consequently to pay only in the case where the debtor has no property of his own.
(7) V. supra note 2.
(8) קבלנות, 'acceptance'. By using the expression give and not lend he thereby gave the order and thus he makes himself in form the principal debtor. Consequently, whether the debtor possesses property or not, payment may be exacted from the kabbelan.
(9) A sum of money.
(10) I.e., the expression of lending was used together with that of kabbelanuth and the expression of give with that of guarantee.
(11) V. note 10.
(12) The expressions of 'lending' and 'giving', are of no consequence where the term denoting 'guarantee' or 'acceptance' was specifically mentioned.
(13) Cf. p.765. notes 8 and 10 supra. Since both expressions wore used, lending and guarantee.
(14) Cf. loc. cit. note 10. Since the expression of 'giving' was used twice; much more so if the expressions of giving and kabbelanuth were used.
(15) Lit., 'it'.
(16) Lit., 'caused him to go down'.
(17) He re-transferred the property to the borrower.
(18) Lit., 'for us'.
(19) Similarly, in the case of seizure of property (a person's surety), the debtor must be sued first before his possessions may be approached.
(20) I.e., guarantor to a loan incurred by their father.
(21) And after paying he desired compensation by the orphans. [So Rashb. Cur. edd. read 'before he informed them'. Had he, that is to say, informed them first and paid on their instructions, he would have been able to recoup himself. V. Yad Ramah.]
(22) Minors under thirteen years of age.
(23) The guarantor who discharged their father's debt and has thus become, so to speak, the creditor, cannot exact payment from them.
(24) The reason why the orphans need not refund the guarantor is not that given by R. Papa, since orphans also are subject to the performance of such a commandment as that of paying their Father's debts (cf. 'Ar. 22a).
(25) The father of the orphans.
(26) The creditor.
(27) As a security for his loan. The guarantor, consequently, should not have repaid the debt before obtaining the return of the valuables. Since he overlooked this, he has himself to blame, and there is no obligation on the part of the orphans to indemnify him. He may, however, sue them when they obtain their majority.
Talmud - Mas. Baba Bathra 174b
What [is the practical difference] between them?1 - [The difference] between them is [the case] where the debtor admitted [liability],2 or3 where he was placed under the ban4 and died [while still] under the ban.5 [A message] was sent from Palestine:6 [Where one] was placed under a ban5 and died under the ban, the law is in accordance with [the view of] R. Huna the son of R. Joshua.7
An objection was raised: A guarantor who produced8 a bond of indebtedness9 cannot exact payment.10 If, however, it contains the entry,11 'I12 received13 from you' he14 may exact payment.15 [Now], according to R. Huna the son of R. Joshua one can well understand [this law]16 to be applicable in the case where the debtor had admitted [liability].17 According to R. Papa.18 however, there is a difficulty!19 - There it is different; since20 he21 took the trouble to write22 for him, 'I received,'23 for this [very object].24
A certain guarantor to a gentile once paid the gentile before he sued the orphans.25 Said R. Mordecai to R. Ashi:26 Thus said Abimi of Hagronia27 in the name of Raba: Even according to him who said [that the possibility that] bundles [of valuables were deposited with the creditor was] to be taken into consideration,28 this is only applicable to29 an Israelite,30 but [in the case of] a Gentile, since he [invariably] goes [for payment] to the guarantor31 [the possibility that] bundles [of valuables were deposited with the creditor] need not be taken into consideration.32 [The other]33 said unto him: On the contrary; even according to him who said that [the possibility that] bundles [of valuables were deposited with the creditor] need not be taken into consideration, this is only applicable to34 an Israelite, but [in the case of] gentiles, since their judges [invariably] go to the guarantor, [it may be taken for granted] that had not [the debtor] deposited with him35 [some] bundles [of valuables] at the outset, he would not have accepted [any responsibility whatsoever].36
AND SO SAID R. SIMEON B. GAMALIEL: WHERE [A MAN] IS GUARANTOR FOR A WOMAN IN [RESPECT OF] HER KETHUBAH ETC. Moses b. Azri was guarantor for the kethubah of his daughter-in-law. Now his son, R. Huna, was a scholar but in poor circumstances.37 Said Abaye: Is there no one who would go and advise R. Huna to divorce his wife, so that she might go and collect her kethubah from his father, and then re-marry her?38 'But,' said Raba to him, 'have we [not] learned that [the husband] MUST VOW TO DERIVE NO [FURTHER] BENEFIT FROM HER?' 'Does everyone who divorces [his wife]', said Abaye to him, 'do it39 at a court of law?'40 Finally, [however], it was discovered that he41 was a priest.42 'This is just what people say', exclaimed Abaye, 'poverty follows the poor'.43
Could Abaye have said such a thing?44 Surely Abaye had said, 'Who is a cunning rogue? He who counsels to sell an estate, in accordance with R. Simeon b. Gamaliel'!45 - [The case of] one's son is different, and [the case of] a scholar is [also] different. But, surely, he46 [was only] a guarantor, and a guarantor for a kethubah, it has been definitely established,47 is not responsible for payment? - He was a kabbelan.48 This [reply] would be quite correct according to him who said that, though the husband had no property, a kabbelan for a kethubah is responsible for payment; what, however, can be replied according to him who said [that] he is responsible for payment [only] where the [husband]49 has [property], but is not responsible for payment where the husband has not?50 - If you wish, I might say: [R. Huna] did have property51 but it was struck with blast. And if you prefer, I might Say: A father in the case of his son always undertakes responsibility,52 for it was stated: A guarantor for a kethubah is, in the opinion53 of all, not responsible for payment;54 a kabbelan for a creditor is, in the opinion of all, responsible for payment; [in the case, however, of] a kabbelan for a kethubah or a guarantor for a creditor, there is a dispute. [One] Master holds that he55 is responsible only where the debtor has property, but if he has none, he is not responsible;56 and the [other] Master holds that he55 is responsible whether [the debtor] has, or has not any property. And the law [is that a guarantor] is responsible for payment in all57 [cases],58 with the exception of a guarantor for a kethubah who is not responsible for payment even though the husband possessed property. What is the reason? - He59 was [merely] performing a religious act60 and [the woman]61 had lost nothing.62 R. Huna said: If a dying man consecrated all his property and then stated 'I owe63 a maneh to X',he is believed, because it is known that no one would form a conspiracy against sacred property.64 R. Nahman demurred: Would a person form a conspiracy against his children65 and yet both Rab and Samuel stated that if a dying man said, 'I owe a maneh to X', if he [specifically] added, 'Give [it to him]', it is to be given, but if he did not [specifically] say, 'Give', it is not to be given,66 from this it clearly follows [that] a person is wont to disclaim wealth for67 his children;
(1) R. Papa and R. Huna. Whatever the reason, the guarantor is not entitled to exact payment from the orphans!
(2) While dying he stated that he had not deposited any valuables with the creditor.
(3) Lit., 'or also'.
(4) for refusing to obey an order of the court for the payment of the debt.
(5) In both these cases it is obvious that the debtor had not entrusted the creditor with any valuables as a security for the loan. Hence, according to R. Huna, the orphans, whose duty it is to discharge their father's debts, must indemnify the guarantor. According to R. Papa. however, they are not obliged to pay even in such cases.
(6) Lit., 'from there'.
(7) That the guarantor who discharged the debt of such a debtor is entitled to exact payment from the orphans; since, in such a case, it is certain that no valuables were deposited by the debtor with the creditor.
(8) Lit., 'from under whose hand goes out'.
(9) Which ho received from the creditor on payment of the debt incurred by the father of the orphans.
(10) from the orphans, while they are still minors; since it is possible that he never repaid the loan, but accidentally found the bond which the creditor may have lost. When, however, the orphans obtain their majority they may be sued by the guarantor who, on taking the required oath, must be duly compensated.
(11) Lit., 'written in it'.
(12) The creditor.
(13) The amount of the debt.
(14) The guarantor.
(15) In this case it is certain that the bond was not found by him but that it was delivered to him by the creditor.
(16) That the guarantor may exact payment from the orphans where the receipt for the debt is entered on the bond.
(17) V. supra p. 767. n. 7.
(18) Who holds that orphans are not obliged to discharge the debts of their father.
(19) Why should the orphans be made to indemnify the guarantor?
(20) Cf. Bah, a.l.
(21) The creditor.
(22) Lit., 'and wrote'.
(23) I.e., he has given him a receipt for the amount received.
(24) In order that the guarantor may become the legal possessor of the bond. The amount now due to him can no longer be regarded as a verbal loan but as one secured by a written bond. R. Papa exempts orphans from the payment of a verbal loan only, but not from that which is secured by a bond. The payment of such a bond on the part of the orphans is obligatory.
(25) Whose father was the debtor.
(26) When the claim of the guarantor for compensation from the orphans was submitted to him for decision.
(27) [A suburb of Nehardea, v. Obermeyer, op. cit. 265 ff.]
(28) V. supra 174a (end), and notes.
(29) Lit., 'these words',
(30) Who knows the law that before calling upon the guarantor to pay, the creditor must first approach the debtor. Hence it is possible that valuables might have been deposited with him by the debtor.
(31) V. supra 173b.
(32) As the debtor well knows that the gentile would, in any case, exact payment from the guarantor, who would not entrust him with any valuables which would only enable the gentile to collect the debt twice.
(33) R. Ashi.
(34) V. p. 768, n. 15.
(35) The guarantor.
(36) Knowing full well that the creditor would exact payment from him. Hence, he cannot recoup himself from the orphans while they are still minors. Cf. p. 767. n. 15 end.
(37) Lit., 'and the thing was pressing him'.
(38) And thus come into the possession of some money.
(39) Lit., 'divorce'.
(40) The divorce could be arranged in the presence of witnesses out of court where no one would compel the husband to vow that he would derive no further benefit from his wife.
(41) R. Huna.
(42) Who is forbidden to marry a divorced woman.
(43) B.K. 92a, Hul. 105b.
(44) That R. Huna should be so advised.
(45) V. supra 137a. How then could he have contemplated giving such advice to R. Huna.
(46) R. Huna's father.
(47) Rashal. Lit., 'established for us', v. infra.
(48) V. Glos.
(49) Lit., 'to him'.
(50) Since R. Huna was poor, he could not have been the possessor of any property. His father, consequently, though a kabbelan, could not have become liable for the payment of the kethubah.
(51) At the time his father undertook to be kabbelan.
(52) Even where the son is destitute.
(53) Lit., 'words'.
(54) The reason is given infra.
(55) The guarantor.
(56) Since no one would guarantee a loan where it is known that the debtor has no means wherewith to meet his obligations. A guarantee in such a case must not, therefore, be taken seriously.
(57) V. Bah and Rashal, a.l.
(58) Whether the debtor, has or has no property.
(59) The guarantor.
(60) By his guarantee he was helping to bring about the marriage of the parties. A guarantee in a matrimonial affair is not to be taken seriously as pledging actual payment, but as a mere expression of confidence in the honesty and integrity of the party concerned.
(61) Who, it is assumed, always prefers married life to spinsterhood.
(62) It is certain that even if she had known that her kethubah would not be paid, she would still have consented to the marriage. In the case of a loan, however, it is clear that had it not been for the guarantee, given by the guarantor, the creditor would not have risked his money. In the latter case, therefore, the guarantor is liable.
(63) Lit., 'in my hand'.
(64) Hence, his statement15 accepted, and the maneh he mentioned is to be paid to the creditor named.
(65) To deprive them of their due in favour of a stranger.
(66) Though ho clearly admitted liability.
(67) Lit., not to satisfy'. i.e., a person is in the habit of concealing the wealth of his children in order to ward off envy.
Talmud - Mas. Baba Bathra 175a
[could it not then be said] here1 also [that] a person is wont to disclaim wealth for himself!2 - R. Huna gave his ruling there1 only when [the creditor] was in possession of a bond of indebtedness.3 [Does this] imply that Rab and Samuel [deal with a case] where the [creditor] is not in possession of a bond?4 [Why, then,] is [the maneh] to be given [where the dying man] said 'Give'? [This, surely,] is [only] a verbal loan, and both Rab and Samuel stated [that] a verbal loan may be recovered neither from the heirs nor from the buyers!5 - But, said R. Nahman, both6 [are cases] where [the creditor] is in possession of a bond, but7 there is no contradiction. The one [is a case of a bond] that was authenticated;8 the other where it was not authenticated. [Consequently,9 if] he said, 'Give,' he [thereby] confirmed10 the bond. [If, however], he did not say, 'Give,' he did not confirm11 the bond.
Rabbah stated: If a dying man said, 'I owe a maneh to X', and the orphans stated, 'We have paid it'< they are believed. [If, however, he said,] 'Give a maneh to X', and the orphans stated, 'We have paid it', they are not believed. Topsy-turvy!12 [Does not] the reverse stand to reason? If he13 said, 'Give a maneh', since their father had given a definite order,14 it might be [justly] assumed that they discharged [the debt]; [if, however, he said.] 'I owe a maneh to X', since their father did not give a definite order, it ought to be assumed that they did not discharge it!15 - If, however, [such a statement] was made, it was made16 in the following terms: If a dying man said, 'I owe a maneh to X', and the orphans declared, 'Our father subsequently told us that he paid',17 they are believed. What is the reason? He might have [subsequently] recalled it18 to his mind. [If, however, he said,] 'Give a maneh to X', and his orphans declared, 'Our father subsequently told us that he paid',17 they are not believed; for had it been the case that he paid it, he would not have used [the word], 'Give'.19
Raba inquired: What [is the law where] a dying man admitted [a debt]? Is it necessary [for him] to say [also] 'Be you my witnesses,20 or is it not necessary to say, 'Be you my witnesses'? [Is it assumed that] a man21 might jest in the hour of his death or that a man does not jest in the hour of his death? Is it necessary [for him] to say. 'Write',22 or is it not necessary to say, 'Write'? - After having raised these questions, he answered them himself:23 No one jests in the hour of [his] death, and the words of a dying man are regarded [legally] as written and delivered.24
MISHNAH. IF A MAN LENT [MONEY] TO AN OTHER ON [THE SECURITY OF] A BOND OF INDEBTEDNESS,25 HE MAY COLLECT [THE DEBT] FROM MORTGAGED PROPERTY.26 [IF, HOWEVER, THE LOAN WAS MADE] BEFORE27 WITNESSES,28 HE29 MAY RECOVER [HIS DEBT] FROM FREE PROPERTY [ONLY].
(1) In the case of consecrated property.
(2) Consequently, it might be rightly assumed that his admission of indebtedness to a creditor amounted to no more than a desire to conceal his wealth. How then could R. Huna state that the sum specified must be paid to the creditor?
(3) And the dying man only confirmed it. Had there been no bond, but a verbal admission only, R. Huna would not have authorised payment to the alleged creditor.
(4) And this is the reason why the creditor must not be paid if the dying man did not add, 'Give'?
(5) Of the debtor.
(6) Lit., 'these and those'. The statement of R. Huna, on the one hand, and that of Rab and Samuel on the other.
(7) As to the question why in the case dealt with by Rab and Samuel it was necessary for the instruction, 'Give', to be added.
(8) By the Court.
(9) In the latter case.
(10) And the sum is to be paid to the creditor though his bond had no authentication.
(11) Hence the possibility of his desire to conceal his children's wealth must be taken into consideration, and the sum must not be paid in the absence Of an authentication in court.
(12) V. supra p. 435. n. 27.
(13) The dying man.
(14) Lit., 'cut off the thing'.
(15) Why, then, did Rabbah give a decision which is directly opposed to such logical reasoning5
(16) Lit , 'it was said'.
(17) Lit., 'I paid'.
(18) The fact that ho had already repaid that debt.
(19) His use of the definite order, 'Give', implies that he was absolutely certain that the debt had not been discharged.
(20) As is the case with a man in good health (cf. Sanh. 29a), otherwise he can subsequently deny all liability, pleading that his admission was a mere jest.
(21) For his order of the text, of. Bah and Rashal, a.l.
(22) I.e., a bond. In the case of a pots in in good health such an order is essential to the validity of the creditor's claim (cf. supra 40a).
(23) Lit., 'after he enquired he returned and solved it'.
(24) Hence there is no need to add, 'Be my witnesses', or, 'Write out a bond'.
(25) Even though the clause pledging security had not been entered (v. B.M. 15b, and cf. supra 157a).
(26) Which was mortgaged subsequent to the date of the loan, and certainly from property in possession of the debtor.
(27) Lit., 'by the hands of'.
(28) And no bond was written.
(29) Cf. Bah, a.l.
Talmud - Mas. Baba Bathra 175b
[IF A PERSON] PRODUCED AGAINST ANOTHER HIS1 NOTE-OF-HAND2 [SHOWING] THAT [THE LATTER] OWES HIM [A SUM OF MONEY], HE MAY RECOVER [IT] FROst HIS FREE PROPERTY.3 [IF THE GUARANTEE AND SIGNATURE OF] A GUARANTOR APPEAR4 BELOW THE SIGNATURES TO BONDS OF INDEBTEDNESS, [THE CREDITOR] MAY RECOVER [HIS DEBT] FROM [THE GUARANTOR'S] FREE PROPERTY.5 SUCH A CASE ONCE CAME BEFORE R. ISHMAEL, WHO DECIDED THAT [THE DEBT MAY] BE RECOVERED FROM [THE GUARANTOR'S] FREE PROPERTY. BEN NANNUS [HOWEVER] SAID TO HIM, '[THE DEBT MAY] BE REPLIED NEITHER FROM SOLD PROPERTY NOR FROM FREE PROPERTY.' 'WHY?' THE OTHER ASKED HIM. BEHOLD', HE REPLIED TO HIM, 'THIS IS JUST AS IF A CREDITOR] WERE [IN THE ACT
(IF] THROTTLING A DEBTOR6 IN THE STREET,7 AND HIS FRIEND FOUND HIM AND SAID, "LEAVE HIM ALONE AND8 WILL PAY YOU", HE WOULD [CERTAINLY] BE EXEMPT [FROM LIABILITY], SINCE THE LOAN WAS NOT MADE THROUGH TRUST IN HIM.8 BUT WHAT MANNER OF GUARANTOR, HOWEVER, IS LIABLE [TO REFUND A DEBT]? [IF THE GUARANTOR SAID], LEND HIM [A SUM OF MONEY] AND I WILL REPAY [IT] TO YOU", HE IS LIABLE, SINCE THE LOAN WAS MADE THROUGH TRUST IN HIM.
R. ISHMAEL FURTHER STATED: HE WHO WOULD BE WISE SHOULD ENGAGE IN THE STUDY OF CIVIL LAWS,9 FOR THERE IS NO BRANCH IN THE TORAH MORE COMPREHENSIVE10 THAN THEY, AND THEY ARE LIKE A WELLING FOUNTAIN. AND HE THAT WOULD ENGAGE IN THE STUDY OF CIVIL LAWS LET HIM WAIT11 UPON SIMEON BEN NANNUS.
GEMARA. 'Ullah said: [According to] the word of the Torah, either a loan [secured] by a bond or a verbal loan may be recovered from mortgaged property. What is the reason? - The hypothecary obligation [involved] is Biblical.12 Why then has it been said [that] a verbal loan may be collected from free property only? - On account of [possible] loss to the buyers.13 If so,14 [the same law should apply] also [to] a loan [that is secured] by a bond!15 [In this case]16 they have brought the loss upon themselves.17
Rabbah, however, said: [According to] the word of the Torah either a loan [secured] by a bond or a verbal loan may be recovered from free property only. What is the reason? - The hypothecary obligation [involved] is not Biblical.18 Why then has it been said that a loan [secured] by a bond may be recovered from sold property? - In order that doors may not be locked in the face of borrowers.19 If so, [the same law should apply] also [to] a verbal loan! - In that case the loan is not [sufficiently] known.20
Did Rabbah, however, give such [a ruling]?21 Surely, Rabbah said: If land was collected22 he23 receives [a double portion,24 but] if money was collected, he does not, and R. Nahman said: If money was collected he has [a double portion]!25 And if it be suggested that [the statement] of Rabbah should be transposed to 'Ulla and that of 'Ulla to Rabbah,26 surely [it may be pointed out] 'Ulla said: [According to] the word of the Torah a creditor is to receive27 of the worst!28 - Rabbah [only] stated the reason of the Palestinians,29 but he himself does not share [their view].30
Both Rab and Samuel stated: A verbal loan may be recovered neither from the heirs31 nor from the buyer.32 What is the reason? - The hypothecary obligation [involved] is not Biblical. Both R. Johanan and R. Simeon b. Lakish stated: A verbal loan may be recovered either from the heirs33 or from the buyers.34 What is the reason? - The hypothecary obligation [involved] is Biblical. An objection was raised: If [a man] was digging a pit in a public domain and an ox falls upon him and kills him, [the owner of the ox] is exempt.35 Moreover, if the ox dies,36 [compensation for] its value must be paid to its owner by the heirs of the owner of the pit!37 - R. Elai replied in the name of Rab: [This law38 is applicable to the case only] where he39 appeared before [a court of] law.40 But, surely, it was stated that it killed him!41 - R. Adda b. Ahabah replied: [This is a case] where he was fatally injured.42 But R. Nahman, surely. said that a tanna43 recited [the statement as follows]: It killed and buried him!44 - That [is a case] where judges sat at the mouth of the Pit and convicted him.45
(1) The debtor's.
(2) And no other evidence.
(3) Mortgaged property may be seized only where the creditor can produce a bond duly signed by qualified witnesses. Y. Gemara, infra.
(4) Lit., 'which goes out'.
(5) But not from property he sold. Since the signatures of the witnesses do not appear below the guarantee, the guarantor's undertaking can have no more force than a verbal promise, or a loan that has not been secured by a bond, in which case no mortgaged property is pledged to the creditor.
(6) Lit., 'one'.
(7) I.e., using violence against him.
(8) Such a guarantee was offered for the sole purpose of rescuing the debtor from the creditor's violence. It cannot be regarded as a serious guarantee to discharge the debt, since the debt was incurred prior to the guarantee.
(9) Lit., 'laws of monies' or 'property'.
(10) Cf. Bah, a.l.
(11) Lit., 'serve', as a disciple to his master.
(12) Cf. Deut. XXIV, 11. Every debt carries with it a pledge of the debtor's property in favour of the creditor.
(13) Who might not be aware of the existence of the loan and would thus purchase property which might at any time be taken away from them.
(14) That the interests of the buyers are to be safeguarded.
(15) Cf. n. 6.
(16) Lit., 'there', a loan secured by a bond.
(17) A loan that has been secured by a bond and made or acknowledged in the presence of witnesses receives due publicity, and intending buyers are well aware of its existence.
(18) V. B.M. 114b.
(19) No man would consent to lend any money if no land security were available.
(20) Lit., 'it has no voice'.
(21) Lit., 'say so', that the hypothecary obligation involved by debts is not Biblical.
(22) By sons, in payment of a debt that was due to their deceased father.
(23) The firstborn son.
(24) Because Biblically land is deemed to have been in their father's virtual possession, and a firstborn son is entitled to a double share in all that his father possessed. Cf. Deut. XXI, 17.
(25) V. supra 124b; B.K. 43a. At any rate, in view of this statement of Rabbah's, the debtor's land is Biblically deemed to be in the creditor's virtual possession; how then could ho say here that the hypothecary obligation is not Biblical?
(26) And thus Rabbah's view here would be that the pledging of property is Biblical, in agreement with his statement, supra 124b, that a firstborn receive a double portion where land was collected, and 'Ulla's view would be that the hypothecary obligation is not Biblical.
(27) Lit., 'his right'.
(28) Of the lands of the debtor. And this is deduced from a Biblical text (v. B.K. 8a). which proves that, according to 'Ulla, the debtor's landed property is pledged to the creditor Biblically.
(29) Who, as reported supra 124b, stated that a firstborn son takes a double portion in a loan.
(30) But maintains that, consistent with his view here that the hypothecary obligation is not Biblical, a firstborn son does not receive a double portion in a loan that was due to his deceased father, whether money or land was collected.
(31) Of the debtor.
(32) Though the dates of their purchases were later than the date of the loan.
(33) V. p. 775, n. 24.
(34) Cf. p. 775, n. 15.
(35) Since it is the fault of the digger of the pit that the ox had fallen upon him.
(36) Through the fall.
(37) The liability to compensation is, surely, of no greater legal force than that of a verbal loan (since no bond can be produced in support of it), and yet it has been said that it may be recovered from heirs; how, then, could Rab and Samuel state that heirs are not liable to repay a verbal loan incurred by their father?
(38) That heirs are to pay compensation for their father's liability.
(39) Who was digging the pit.
(40) And was ordered to pay compensation. An order made by a court has the same legal force as that of a loan that is secured by a written bond.
(41) A dead man could not appear before a court!
(42) The infliction of injuries from which one dies may be described as 'killing'. A man injured, though fatally, may be able to appear before a court.
(43) 'Ar. 7a.
(44) In the pit. How could it be said that he appeared before a court.
(45) Just before he died.
Talmud - Mas. Baba Bathra 176a
R. Papa said: The law is [that] a verbal loan may be recovered from the heirs1 but may not be recovered from the buyers.2 It 'may be recovered from the heirs' in order that doors might not be locked in the face of borrowers;3 'but may not be recovered from the buyers', because it is not [sufficiently] known.4 [IF A PERSON] PRODUCED AGAINST ANOTHER HIS NOTE-OF-HAND [SHOWING] THAT [THE LATTER] OWED HIM [A SUM OF MONEY]. HE MAY RECOVER [IT] FROM FREE PROPERTY ETC. Rabbah b. Nathan inquired of R. Johanan: What [is the law in the case where] his handwriting5 was legally endorsed at a court of law?6 [The other] replied to him: Although one's handwriting had been legally endorsed at a court of law [the debt] may be recovered from free property only.7
Rami b. Hama raised an objection: [There are] three [kinds of] letters of divorce [which are] invalid;8 but, if [the woman did] remarry, her child is [deemed] legitimate.9 And they are the following: [A letter of divorce] written in the husband's handwriting, which bears no [signatures of] witnesses; [one] bearing [the signatures of] witnesses but no date; [and one] bearing a date and [the signature of] one witness only. These are the three [kinds of] letters of divorce [which are] invalid; did [the woman] however, re-marry, the child is [deemed] legitimate. R. Eleazar said: [A letter of divorce,] although it bears no [signatures of] witnesses but was given10 to the woman11 in the presence of witnesses, is valid;12 and [such a document entitles one to] collect from mortgaged property!13 - There14 it is different, because he15 pledged himself at the very time of writing.16
[IF THE GUARANTEE AND SIGNATURE OF] A GUARANTOR APPEAR BELOW THE SIGNATURES TO BONDS OF INDEBTEDNESS, etc. Rab said: [If the guarantee appears] before the signatures on the bond, [the debt] may be recovered from mortgaged property; if after the signatures on the bond, [it] may be recovered from free property [only]. At times, Rab said: Even [if the guarantee appears] before the signatures on the bond [the debt] may be recovered from free property only. [This, surely, presents] a contradiction [between one ruling] of Rab and the other ruling of his!17 - There is no contradiction. The one18 [refers to the case] where it was entered,19 'X is guarantor'; the other [speaks of a case] where it was entered, 'and X is guarantor'.20
R. Johanan. however, said: Either with the one or with the other21 [the debt] may be recovered from [the guarantor's] free property only; even though it was entered 'and X is guarantor', Raba raised an objection: A bill of divorce containing greetings, under which the witnesses have signed, is invalid,22 [because we apprehend that they might have signed the greetings [only];23 and R. Abbahu said: I had the [following] explanation of this law24 from R. Johanan: [The entry.] 'give greetings' [renders the bill] invalid, [but with the entry,] 'and give greetings'25 it is valid'!26 - Here also27 [it is a case] where the entry was,28 'X is guarantor'.29 If so, [this statement] is exactly the same [as that] of Rab!30 - Read,31 'and so said R. Johanan'.32
SUCH A CASE ONCE CAME BEFORE R. ISHMAEL etc. Said Rabbah b. Bar Hana in the name of R. Johanan: Although R. Ishmael praised Ben Nannus,33 the halachah is in accordance with his34 [own view].
A question was raised: What is R. Ishmael's view35 in [the case of] 'throttling'?36 - Come and hear that which R. Jacob said in the name of R. Johanan: R. Ishmael differed in [the case of] 'throttling' also. [Is the] halachah in accordance with his view or is the halachah [in this case] not in accordance with his view? - Come and hear: When Rabin came37 he stated in the name of R. Johanan: R. Ishmael differed in [the case of] 'throttling' also; and the halachah is in accordance with his view in [the case of] 'throttling' also.
Rab Judah said in the name of Samuel; [A guarantor, even in a case of] 'throttling', who was made to enter into a legal obligation,38 assumes responsibility [for the payment of the debt], [from this] it is to be inferred39 that a guarantor generally40 does not require a kinyan.41 And [this is] in disagreement with [the statement] of R. Nahman. for R. Nahman said:
(1) Of the debtor.
(2) V. p. 775, n. 15.
(3) No one would be able to obtain a loan if creditors could not be assured of recovering it from the debtor's heirs.
(4) V. p. 775, n. 3. Unlike a loan secured by a bond, it is neither made, nor acknowledged in the presence of witnesses nor in the presence of a scribe. Hence no one besides the lender and debtor may ever be aware of its existence. The buyers of the debtor's property must, therefore, be protected against loss not due to any Fault of theirs.
(5) I.e., the note-of-hand mentioned in our Mishnah.
(6) Does the endorsement confer upon the creditor the same rights as those of a bond signed by witnesses, and thus entitle him to seize the debtor's mortgaged lands as if the clause pledging security had actually been entered
(omission of the clause being regarded as the scribe's error); or does it merely establish the authenticity of the debtor's signature, while the creditor's rights remain unaltered?
(7) As a note-of-hand that has not been endorsed. The endorsement of a document by a court serves only the purpose of safeguarding its current force so that debtor or witnesses should not subsequently be able to deny their signatures.
(8) They do not entitle the woman to re-marry.
(9) The invalidity of the divorce not being so definite as to affect the legitimacy of the child.
(10) Lit., 'he (the husband) gave it'.
(11) Lit., 'to her'.
(12) Because, in R. Eleazar's opinion, the legality of a document depends on the witnesses to its delivery, not on those who signed it.
(13) Git. 86a. Whether the document be a kethubah or (as has been explained in Git. 22b) a bond of indebtedness, from this it follows that, though no witnesses had signed the bond, the creditor is entitled to seize the debtor's mortgaged property if there were only witnesses testifying to the delivery to him of the bond; much more so when the bond had been endorsed in a court of law which has certainly more power than ordinary witnesses. How, then, could R. Johanan maintain that an endorsement by a court of a note-of hand does not entitle the creditor to the seizure of sold property?
(14) The Mishnah of Gittin.
(15) The husband (in case of a divorce), or a creditor (in the case of a bond).
(16) Of the document, i.e., it was originally written with the intention of delivering it in the presence of witnesses instead of having their signatures on the document. Since witnesses to the delivery confer upon a document the same force as witnesses who sign it, the document is valid. R. Johanan, however, speaks of a note-of-hand given to the creditor sometime after the loan was made as a token of indebtedness. Such a note, not being written in the form of a bond and bearing no signatures of witnesses, cannot transform a verbal loan into one secured by a bond.
(17) Lit., 'on Rab'.
(18) Where the guarantor's mortgaged property may not be seized.
(19) Lit., 'that he wrote in it'.
(20) In the latter case, 'and' indicates continuation, so that the guarantee forms a part of the bond the whole of which is attested by the witnesses whose signatures appear below. In the former case, the guarantee appears as a detached statement; and the witnesses may, consequently, be regarded as having attested the text of the bond only, exclusive of the guarantee.
(21) Lit., 'one this and one this', 'whether one or the other', i.e., whether the guarantee is entered above, or below the signatures of the witnesses.
(22) Lit., 'witnesses who are signed on an enquiry of peace in a letter of divorce'.
(23) Not the text of the divorce. Tosef., Git. VII.
(24) Lit., 'to me it was explained'.
(25) The conjunction, 'and', combining the greetings and the text into one unit.
(26) The signatures clearly bearing testimony to the entire bill (text of divorce and greetings). Now, since R. Johanan draws here a distinction between the insertion and the omission of the conjunction, how could he be said to hold that there is no such distinction in the case of a guarantee to a bond, and that whether 'and' was, or was not inserted, the debt may be recovered from Free property only?
(27) A guarantee on a bond, which does not entitle to the seizure of sold property.
(28) Lit., 'when he wrote'.
(29) Had the conjunction 'and' been inserted, the guarantee would have assumed full force and the guarantor's sold property also could be seized.
(30) Rab also draws the same distinction between the insertion, and the omission of the conjunction.
(31) Lit., 'say'.
(32) R. Johanan does not differ from, but agrees with Rab.
(33) Later in the Mishnah.
(34) R. Ishmael's; that free property may be seized.
(35) Lit., 'what to me said etc.'.
(36) The case cited by Ben Nannus in our Mishnah where the guarantee was made after the loan was granted for the purpose of saving the debtor from the creditor's power.
(37) from Palestine to Babylon.
(38) Lit., 'and they (witnesses) acquired from him', by means of a kinyan (v. Glos.).
(39) Since a kinyan is specifically postulated in this case.
(40) Lit., 'in the world'.
(41) He assumes responsibility though no kinyan had been effected.
Talmud - Mas. Baba Bathra 176b
only [in the case of] a guarantor appointed by a court of law is no kinyan required;1 in all other cases, however, kinyan is required.
And the law is: [If one] guarantees [a loan] at the time the money is delivered,2 no kinyan is required;3 if, after the money is delivered, kinyan is required;4 [and in the case of] a guarantor appointed by a court of law5 no kinyan is required, for, having regard to the pleasure he has in the confidence reposed in him,6 he [wholeheartedly] determines to shoulder the full responsibility.7
(1) The reason is given infra.
(2) I.e., when the loan was made.
(3) Since the loan was obviously made through trust in the guarantor, he assumes full responsibility.
(4) To enable the creditor to recoup himself.
(5) Though after the loan has been made.
(6) Lit., 'that he is trusted' by the court.
(7) Lit., 'and subjects himself to him', i.e., to the creditor.