Babylonian Talmud: Tractate Baba Bathra

Folio 52a

If one has taken a deposit from a child, he should invest it for him,¹  or, if he dies, restore it to his heirs. If any of them at the time of his death says, The article belongs to so-and-so, he should act according to their intimation. Otherwise he should act according to his discretion.²  When the wife of Rabbah b. Bar Hana was on her deathbed, she said: Those [precious] stones belong to Martha³  and his daughter's family. He consulted Rab about it, and the latter said to him: If you think she was telling the truth, act according to her instruction, and if not, use your own discretion.⁴  According to another version, Rab said to him: If you think her a wealthy enough person,⁵  act according to her instruction, and if not, use your own discretion.

'If he has taken from a child, he should invest it for him.' How invest it? — R. Hisda said: He should buy with it a scroll of the Law;⁶  Rabbah son of R. Huna said: He should buy with it a date tree, of which the child can eat the fruit.

A FATHER HAS NO HAZAKAH IN THE PROPERTY OF HIS SON NOR A SON IN THE PROPERTY OF HIS FATHER. R. Joseph said: This applies even if they have parted.⁷  Raba,⁸  however, said that if they have parted the rule no longer applies. R. Jeremiah of Difti said: In a case which occurred, R. Papi decided according to the ruling of Raba. R. Nahman b. Isaac said: I have been told by R. Hiyya from Hormiz Ardeshir,⁹  who was told by R. Aha b. Jacob in the name of R. Nahman b. Jacob, that if they [the father and son] have parted, the rule [of the Mishnah does] not apply.¹⁰  The law is that where they have parted they have no hazakah against one another. It has also been taught to the same effect: A son who has left his father's roof and a wife who has been divorced are on the same footing as strangers [in regard to the father or husband].

It has been stated: [If a number of brothers live together and] one of them has the management of the house,¹¹  and if there are deeds¹²  and bonds¹³  current in his name and he asserts, 'They are mine,¹⁴  and I obtained them from the legacy of my maternal grandfather',¹⁵  Rab says that the onus probandi lies upon him, and Samuel says that the onus probandi lies upon the brothers.¹⁶  Said Samuel: Abba¹⁷  must at least admit that if he dies [and leaves children], the onus probandi lies on the brothers.¹⁸  R. Papa strongly questioned this. Do we ever, he said, advance a plea on behalf of orphans which their father could not have advanced [on his own behalf]?¹⁹  And further, did not Raba order some orphans to return a pair of shears for clipping wool²⁰  and a book of Aggadah which were claimed from them, though the claimants adduced no proof [that they had lent them],²¹  these being articles which are commonly lent or hired,

1. Lit., 'make it a keepsake'. The expression is explained infra.
2. Lit., 'he should make an explanation to their explanation.' Rashb. explains this to mean that if he thinks they say this merely to hide the fact that they have stolen the article, he should restore it to the husband or master.
3. The brother of R. Hiyya.
4. I.e., keep it for yourself.
5. To have acquired these things.
6. So that he may learn from it, and thus obtain a kind of interest on the investment while the principal is secure.
7. Because we say that they are still not particular with one another, and therefore do not trouble to protest.
8. [V.L. Rabbah.]
9. Ardeshir was a town not far from Ctesiphon. 'Hormiz Ardeshir' may have been a village in the neighbourhood.
10. I.e., they have hazakah against one another.
11. I.e., the brothers leave all the affairs of the joint property in his hands after the father's death.
12. Of sale, to the effect that he has bought property.
13. To the effect that he has lent money.
14. And the brothers have no share in them.
15. I.e., he obtained the money for buying the property or for lending not from the estate of his father or his father's father, in which case the other brothers would be entitled to share with him, but from the estate of the father of his mother, he and his brothers having been born from different mothers.
16. Rab lays stress upon the fact that he usually disposes of the joint property in his own name, Samuel on the fact that the documents are made out in his name.
17. Rab's proper name was Abba Arika.
18. Because his children cannot be expected to know so easily where to find proof.
19. Viz., in this case, that his name on the documents gives him a presumptive right to them.
20. Lit., 'Scissors of a woollen cloak'. [Var. lec. 'A pair of trousers'. V. Krauss, op. cit., I, 612.]
21. The claimants asserted that the articles were lent, the orphans that they were bought, and Rab took the word of the former, as he would have done had the claim been made against the father. Hence a plea is not valid on behalf of an heir which is not valid on behalf of the testator.

[and Raba acting] according to the message sent by R. Huna b. Abin, 'If things that are usually lent or hired [are found in a man's possession] and he pleads that he has bought them, his word is not accepted?' — This is really a difficulty.¹

R. Hisda said: The rule just laid down²  applies only if the brothers share a common table,³  but if they eat separately, the one [against whom the claim is brought] can say that he saved up [money] from his food allowance. What sort of proof is required [of the brother]? — Rabbah said: The testimony of witnesses; R. Shesheth said: The confirmation of the document.⁴  Raba said to R. Nahman: Here we have the opinion of Rab and of Samuel, and again that of Rabbah and R. Shesheth: with whom do you agree? He replied: All I know is a Baraitha. For it has been taught: [If brothers live together and] one of them has the management of the house, and if deeds and bonds are current in his name and he asserts: I obtained them from the legacy of my maternal grandfather, the onus probandi lies upon him.⁵  Similarly, if a woman has the management of a house, and deeds and bonds are current in her name, and she asserts: They are mine, as I obtained them from the legacy of my paternal or maternal grandfather, the onus probandi is upon her. Why 'similarly'?⁶  — You might think that as it is a matter of pride for a woman for [people] to say that she has the charge of orphans she would not rob them.⁷  Hence we are told [that we must not assume this].

THIS RULE OF THREE YEARS APPLIES ONLY TO OCCUPIERS, BUT ONE WHO IS PRESENTED WITH A PIECE OF LAND OR BROTHERS WHO DIVIDE AN INHERITANCE OR ONE WHO SEIZES THE PROPERTY OF A PROSELYTE etc. Are then the others mentioned⁸  not occupiers? — There is a lacuna [in the Mishnah], and it should read as follows: This rule [of three years] applies only to occupation which requires to be supported by a plea, as for Instance if the seller says, I did not sell it, in which case the other has to plead, I did buy it.⁹  But where the occupation needs no plea to support it, as for instance in the case of the recipient of a gift or brothers dividing [an inheritance] or one who seizes the property of a proselyte where nothing more is required than to establish ownership¹⁰  — IF HE DOES ANYTHING AT ALL IN THE WAY OF SETTING UP A DOOR OR MAKING A FENCE OR AN OPENING, THIS CONSTITUTES A TITLE OF OWNERSHIP.

R. Hoshaia learned in the [Tractate] Kiddushin edited in the school of Levi:¹¹  If he [the buyer] does anything at all in the way of setting up a door or making a fence or an opening in his [the seller's] presence, this constitutes a title of ownership. Are we to suppose that this is only [the case if the act is done] in the seller's presence, and not otherwise? — Raba replied: The meaning is this. [If the act is done] in his presence, he has no need to say [to the buyer], Go, occupy and acquire ownership;¹²

1. And Samuel has no answer to it.
2. By Rab, who said that the onus probandi is on the brother.
3. Lit., 'are not separated in their dough'.
4. The so-called 'honpak' (lit., 'it was produced'): the endorsement of the Beth din that they had examined the signatures and found them genuine. This would create a presumption in favour of the brother, but would not be so convincing as the testimony of witnesses.
5. As laid down by Rab. V. supra 52a. As to the nature of the proof required, R. Nahman offers no opinion.
6. This term should by rights introduce a statement which adds something material to the preceding statement, which does not seem to be the case here.
7. And therefore the onus probandi is on the other party.
8. The recipient of a gift and brothers who divide an inheritance and one who seizes the property of a proselyte.
9. And without this plea his three years' occupation is of no avail.
10. I.e., there is no need to hand over money.
11. Levi also drew up a Tosefta like R. Hiyya and R. Oshiah (Rashb.). [V. however, Halevy, Doroth II, 595.]
12. I.e., the transaction is complete without this.