Babylonian Talmud: Tractate Baba Bathra

Folio 44a

But [if the explanation of R. Shesheth is correct],¹  why should the rule not be stated in reference to the robber himself?²  — Because It was necessary to state the second clause [viz.]: 'if he sells him a cow or a garment.' For in this case the selling is essential, in order that there may be both giving up [on the part of the original owner] and change of ownership,³  but if the robber does not sell the article, since in this case the original owner may still recover it, he may not give evidence.⁴  Hence in the first clause also the 'selling' is inserted. But [is this rule sound in regard] even to the second clause? Granted that the original owner abandons his claim to the article itself, he has not abandoned his claim to the money, has he?⁵  — The rule requires to be stated to cover the case where the robber has died, as we have learnt: If a man robs [someone of food] and gives it to his children to eat or bequeaths it to them, they are not under obligation to repay it. But [if this explanation is correct], why should not the rule be stated in reference to the heir [of the thief]?⁶  It is true, there is a reason [why it should not] if we accept the opinion that the ownership of an heir [of a thief] is not on the same footing as the ownership of a purchaser [from a thief],⁷  but on the view that the ownership of the heir is on the same footing as the ownership of the purchaser, what are we to say? And Abaye finds yet another difficulty [in the explanation of R. Shesheth, viz. that the expressions] 'because he is responsible for it,' 'because he is not responsible for it' [are on this theory improperly used,⁸  and] the Baraitha should say, 'because it may be recovered by him', 'because it cannot be recovered by him'? — We must therefore [understand the above rulings] in the light of the dictum enunciated by Rabin b. Samuel in the name of Samuel, viz. If a man sells a field to another [even] without [accepting] responsibility, he cannot give evidence as to the latter's title, because he can keep it safe for his own creditor.⁹  This applies only to a house or a field, but in the case of a cow or a garment, not only is there no question

1. That we are dealing with a case where the land has been stolen.
2. I.e., that Simeon must not testify to the title of Reuben himself if it is challenged by a third party. The rule in fact should be stated thus: If a man wrongfully seizes a house or a field, the original owner must not testify on his behalf because the thief is responsible to him for it.
3. If a man is robbed of something (other than land), he does not lose his claim to it until (a) he has given up hope of recovering it, and (b) it has changed hands. Hence until the cow or the garment is sold, Simeon still has an interest in it and therefore is debarred from giving evidence. But in the case of land, a man never loses his claim, and therefore even if the land has been sold, Simeon may not give evidence.
4. In favour of one who has obtained it from the robber, if his title is contested by a third party.
5. He still has a claim on the thief for the value of the article, and is therefore still an interested party.
6. Viz., in the following form: 'If a man robs another of a house and bequeaths it to his son, the original owner cannot testify etc. … if he robs him of a cow and bequeaths it … etc.'
7. I.e., that inheritance does not constitute 'change of ownership' and that an heir is liable so long as the article stolen is in his possession and the original owner has not given op hope of recovery, and therefore the owner would be an interested party even in the case of a cow, etc.
8. According to the explanation of R. Shesheth, the expression here means that the purchaser (Levi) is responsible, but elsewhere it invariably means that the seller is responsible.
9. V. supra p. 184, n. 3.

that [if he sells them without] having declared them security [to a creditor], the creditor has no lien on them¹  (the reason being that they are movables, and movables cannot be mortgaged to a creditor; and even if the debtor gives a written promise to pay 'from the coat on his back', that is only binding so long as they are actually there but not if they are not there), but even if he did declare them to be security, the creditor still has no lien on them.²  The reason is to be found in the dictum of Raba, for Raba said: If a man declares his slave security for a debt, and then sells him, the creditor can seize him [in satisfaction of the debt], but if he declares his ox or his ass security for the debt and then sells it, the creditor cannot seize it [in payment of the debt],³  the reason being that the former [the hypothecating of a slave] becomes generally known, but the latter [that of an ox or an ass] does not become generally known.⁴  But is there not a possibility⁵  that he [the seller] mortgaged to him [the creditor] movables along with landed property,⁶  and Raba has laid down that if a man mortgages to another movables along with landed property, the latter acquires a lien over the land and acquires one over the movables also⁷  (providing — R. Hisda adds — he inserts in the bond the words,'this bond is no mere asmakta⁸  or draft form')? — We assume here that the seller sold [the cow or the garment] immediately after himself acquiring it.⁹  But is there not still a possibility that this is a case where [the seller has given his creditor a bond on movables which] he will hereafter acquire,¹⁰  and may we not learn from this fact¹¹  that if [a man gives his creditor a bond on movables which] he is hereafter to acquire, and then acquires them and sells them or acquires them and bequeaths them, the creditor has no lien on them?¹²  — This,¹³  however, was only meant to apply to the case where the witnesses say, We know that this man never owned any land.¹⁴

But has not R. Papa said: Although the Rabbis have laid down that if a man sells his field to another without a guarantee¹⁵  and his creditor comes and seizes it, the purchaser cannot recover [the price of the field] from him, yet if it is found that the field did not belong to him, he can recover?¹⁶  — In this case we suppose that the purchaser recognises the ass [he bought] as being the foal of an ass belonging to the seller.¹⁷  R. Zebid, however, says that even if it is found that the field did not belong to the seller, the purchaser cannot recover from him, because he can say to him, That was precisely why I sold to you without a guarantee.

[To revert to] the above text, 'Rabin b. Samuel said in the name of Samuel: If a man sells a field to another without [accepting] responsibility, he cannot give evidence as to the latter's title, because he can keep it safe for his own creditor'.¹⁸  How can this be?

1. And therefore the seller who is also the debtor has no special interest in confirming them in the possession of the purchaser and so can testify on his behalf.
2. And therefore the seller can still testify on the purchaser's behalf.
3. Therefore the seller, since he knows that his own creditor cannot seize the ox or ass in question, has no special interest in their retention by the man to whom he sold them, and therefore he may testify on his behalf if his title to them is challenged by a third party.
4. And therefore it is not fair that the purchaser should be penalised.
5. Lit., 'Let us apprehend perhaps'.
6. I.e., he gave his creditor a lien on his landed property along with the movable property contained therein.
7. Therefore if the borrower afterwards sells the movables, the creditor can distrain on them in the same way as on the land.
8. [H] Lit., 'assurance': a statement by a debtor on paying part of his debt that if he does not pay the rest by a certain time he will again become liable for the whole. Such a declaration has no legal force.
9. And therefore we are quite certain that he did not mortgage it for a debt of his own. Hence he may testify to the purchaser's title, as he has no personal interest in the matter.
10. I.e., when borrowing the money, he has given the lender the right to recover from his land and all the movables which it contains or shall hereafter contain.
11. That we disregard this possibility.
12. This question is discussed infra 157a and left undecided.
13. That we disregard the possibility of the seller having mortgaged movables along with landed property.
14. In this case the movables cannot be mortgaged, and there is no objection to the seller giving evidence on behalf of the purchaser.
15. That he will make restitution if the field is attached by a third party.
16. Hence if the cow or the ass is claimed from the purchaser by a third party who proves that it was stolen from him, the purchaser can recover from the seller, and it is therefore to the latter's interest that it should remain in his possession and he cannot testify on his behalf.
17. And similarly with a garment, that it was woven in his house. This is tantamount to an admission on his part that the animal or garment did belong to the seller, and after such an admission he cannot claim restitution from him.
18. V. supra p. 184