Babylonian Talmud: Tractate Baba Bathra

Folio 51a

The Judges of the Exile,¹  however, say that one can obtain hazakah. The halachah said Rab, is that of the Judges of the Exile.²  Thereupon R. Kahana and R. Assi said to him: Does our Master retract his ruling? — He replied: You may suppose I refer to such a case³  as that mentioned by R. Joseph.⁴

A WIFE HAS NO HAZAKAH IN THE PROPERTY OF HER HUSBAND. Surely this is self-evident; since the husband has to maintain her, [we suppose that when she occupies the field] she is merely deriving her maintenance from it? — The rule had to be stated [to cover the case] where he assigned her another field for her maintenance.⁵

[Since the Mishnah says only that the wife has no hazakah], we infer that if she brings proof⁶  [that the field has been sold to her] the sale is valid. But cannot the husband plead against this that he merely desired to see if she had any money?⁷  May we then not learn from this [Mishnah] that if a man sells a field to his wife, she becomes the legal owner and we do not say that he merely desired to see if she had any money? — No; we infer [rather] thus: but if she brings a proof it is effective in the case of a deed of gift [though not of a deed of sale].⁸

R. Nahman said to R. Huna: A pity your honour was not with us last night at the boundary,⁹  when we drew up an exceptionally fine rule.¹⁰  Said the other: What was this exceptionally fine rule which you drew up? He replied: If a man sells a field to his wife, she becomes the legal owner, and we do not say that he merely desired to see if she had money. Said R. Huna: This is obvious. Take away the money, and she still becomes legal owner by means of the deed.¹¹  For have we not learnt: [Ownership in] landed property is acquired by means of money payment, deed, or hazakah?¹²  But, said R. Nahman, has not the following rider been attached to this [Mishnah]: Samuel said that this¹³  was meant to apply only to a deed of gift, but if the deed is one of sale, legal ownership is not acquired until the money payment has been made? And, [rejoined R. Huna] did not R. Hamnuna refute this [by quoting the following]: 'How is property acquired by a deed? Suppose he [the seller] writes on a [piece of] parchment or on a potsherd,¹⁴  which in themselves may be worth nothing, My field is hereby sold to you, my field hereby becomes your property, it is effectively sold or given!¹⁵  — But did not R. Hamnuna counter his own objection¹⁶  by adding: This holds good only where a man sells his field because it is practically worthless?¹⁷  R. Ashi said: He [the seller referred to above]¹⁸  really meant to transfer his field to the other as a gift, and the reason why he made the transfer in the form of a sale was in order to make the recipient's title more secure.¹⁹

An objection²⁰  was raised [from the following]: If a man borrows money from his slave and then emancipates him, or from his wife and then divorces her, they have no claim against him [for the money so lent].²¹  What is the reason for this? Is it not because we say that his object [in borrowing] was only to see if they had any money? These cases are different,²²  because [we presume that] a man would not readily place himself in the position of 'a borrower who is a servant to the lender.'²³  R. Huna b. Abin sent [the following message:²⁴  'If a man sells a field to his wife, she becomes the legal owner,

1. Samuel and Karna. Thus Rashb.; v. however, San. 17b and note a.l., and cf. infra p. 279 no. 6.
2. [V.L. The view of the Judges of the Exile appears reasonable.]
3. [Another rendering: 'I merely said that it appears reasonable (cf. n. 1) in such a case etc.']
4. Rab did not actually mention R. Joseph, who was several generations after him, but described a similar case to that given by R. Joseph.
5. In which case, but for the rule of the Mishnah, I might suppose that three years' occupation would give her hazakah.
6. E.g., a deed of sale or witnesses.
7. He suspected that she had money hidden away and wanted to entice her to produce it, but he had no genuine intention of selling her the field.
8. I.e., if she produces a deed of gift, we say that he really has given her the field, for there is no question here of enticing her to produce money.
9. A Beth Hamidrash placed two thousand cubits (the limit of a Sabbath walk) from the town, so as to be accessible to the country people (Rashb.).
10. Lit., 'we said excellent things'.
11. I.e., if he gives her a deed of sale (without taking money from her), it is obvious that he does not desire to see if she has any money, since she becomes legal owner even without handing over any money (although of course she becomes indebted to him).
12. Kid. 26a; infra 86a. The word 'hazakah' here means occupation by means of some action which proclaims ownership, e.g. digging or fencing.
13. That ownership is acquired by a transfer of the deed.
14. [Blau, L. Ehescheidung, 63. renders 'on papyrus or on ostrakon'].
15. Kid. 26a. This would show that the deed of sale itself confers ownership, even before the money payment is made.
16. Lit., 'He raised the objection and he answered it.'
17. And so the money is of minor consequence, but this is not the case with an ordinary field.
18. In the Mishnah, 'Property … is acquired by money, deed, or hazakah.'
19. R. Ashi gives an alternative answer to that given by R. Nahman to the objection raised from this Baraitha. The deed referred to, he says, may be in form one of sale, but even so the land is really given, and the donor by drawing up a deed of sale expresses his readiness to defend the title of the recipient if it should be challenged. In the case of a sale, however, the deed alone does not confer ownership; hence R. Nahman's rule that a man may sell a field to his wife was still necessary.
20. Against the ruling that if a man sells a field to his wife she becomes the legal owner.
21. Even if he gave them a bond on his property.
22. I.e., in these cases it is legitimate to assume that he only wanted to see if they had any money, which he, as master or husband, was at liberty to appropriate.
23. v. Prov. XXII, 7. Hence if we can find any other explanation of his action we adopt it.
24. From Palestine to Babylonia.

but he still remains entitled to the produce. R. Abba, R. Abbahu, and all the chief authorities of that generation,¹  however, said that [in selling] his real intention was to make her a gift of it,²  and he only made out a deed of sale to her in order to make her title more secure.

An objection was raised [against this on the ground of the following]:³  'If a man borrows money from his slave and then emancipates him, or from his wife and then divorces her, they have no claim against him. What is the reason? Is it not because we say that he merely wished to see if they had any money?' — These cases are different, because we presume that a man would not readily place himself in the position of 'a borrower who is a servant to the lender.'

Rab said: If a man sells a field to his wife, She becomes the legal owner, but he is still entitled to the produce. If he makes her a gift of a field, she becomes the legal owner and he is no longer entitled to the produce.⁴  R. Eleazar, however, said that in either case the wife becomes the legal owner and the husband is not entitled to the produce. In a case which actually occurred, R. Hisda followed the ruling of R. Eleazar. Rabban 'Ukba and Rabban Nehemiah,⁵  the sons of the daughters of Rab, said to R. Hisda: Do you mean then, Sir, to abandon the greater authorities and follow the lesser?⁶  He replied: I also am following a great authority, for when Rabin came⁷  he said in the name of R. Johanan: In either case, the wife becomes the legal owner, and the husband is not entitled to the produce.

Raba said: The law is that if a man sells a field to his wife she does not become the legal owner and the husband is entitled to the produce, but if he gives it to her she becomes the legal owner and the husband is not entitled to the produce. [Do not the] two [halves of Raba's first statement contradict each other]?⁸  — There is no contradiction. The one [half] refers to the case where the wife had money hidden away,⁹  the other to the case where she had no money hidden away,¹⁰  since Rab Judah has laid down: [If the wife buys with] money hidden away, she does not acquire, if with money not hidden away, she does acquire.

Our Rabbis taught: Pledges should not be taken either from women or from slaves or from children.¹¹  If one has taken a pledge from a woman, he should return it to her;¹²  if she dies, to her husband. If one has taken a pledge from a slave, he should return it to the slave, or, if he dies, to his master.

1. [The generation preceding that of R. Huna b. Abin.]
2. And therefore he is not entitled to the produce.
3. The question and answer just recorded are here repeated.
4. Because it is assumed that a gift is given without reservation.
5. (V. L. Mar 'Ukba and Rab Nehemiah. Rabban was a title borne by exilarchs, v. Hul. 92a.)
6. R. Eleazar was a pupil of R. Johanan, who himself deferred to Rab.
7. From Palestine to Babylonia.
8. First he says, 'She does not acquire ownership,' i.e., either of the soil or of the produce, and then he says, 'and the husband is entitled to the produce,' which implies that the wife acquires ownership of the soil.
9. In this case we say that he merely wished to find out if the wife had any money, and she does not acquire ownership.
10. And this motive cannot be ascribed to the husband.
11. Because there is a probability that they have stolen the articles pledged or deposited.
12. Because we do not assume that she has stolen it.