Babylonian Talmud: Tractate Baba Bathra

Folio 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. [H] (rt. [H] '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. [H] (rt. [H] '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. [H] (rt. [H] '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.

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.