Babylonian Talmud: Tractate Baba Bathra

Folio 70a

The judges of the Exile,¹  however, say that all which are bent back by the yoke²  are not reserved, but all those which are not bent back by the yoke are reserved. There is really no conflict of opinion, because the former [speaks] of date trees³  and the latter [speaks] of other trees.⁴

R. Aha b. Huna enquired of R. Huna: [If the vendor says, I sell you the whole field] with the exception of such-and-such a carob tree or such-and-such a sycamore, how do we decide? Is it that carob alone which the purchaser fails to acquire, while he acquires all the rest, or does he fail to acquire the rest also?⁵  — He replied: He does not acquire them. R. Aha then raised an objection [from the following]: [If the vendor says], Except such-and-such a carob tree, except such-and-such a Sycamore, he does not obtain possession. Does this not mean that he fails to acquire possession of that carob, but he does acquire possession of the rest? — No, he replied; he fails to acquire possession of the other carobs also. The proof is this. Suppose [he was selling him a field and] said to him, 'My field is sold to you with the exception of such-and-such a field',⁶  would this mean that the purchaser failed to acquire ownership of that field alone, but did acquire ownership of all the other fields [belonging to the vendor]? Of course he would not acquire ownership.⁷  So here too he does not acquire ownership.

Some report this discussion as follows. R. Ahab. Huna inquired of R. Shesheth: [If the vendor said, 'I sell you the field] with the exception of half of such-and-such a carob tree', or 'half of such and-such a sycamore', how do we decide? Of course he does not acquire the other carobs.⁸  The question is, does he acquire the half left over in the carob specified,⁹  or does he fail to acquire even that? — He replied: He does not acquire it. R. Aha then raised an objection [from the following]: '[If the vendor says], "Except half of such-and-such a carob, half of such-and-such a sycamore", he does not acquire the remaining carobs'. Does not this mean that he only fails to acquire the remaining carobs, but he does acquire the remainder of that carob? — No, replied R. Shesheth; even the remainder of that carob he does not acquire. The proof is this. Suppose [he was selling him a field and] said to him, 'My field is sold to you with the exception of half of such-and-such a field', would he fail to acquire only that half and acquire the other half? Obviously he would not acquire it; so here too he does not acquire.

¹⁰R. Amram inquired of R. Hisda: If a man deposits something with another and receives a written acknowledgment for it, and the other subsequently asserts, 'I returned it to you', how do we decide? Do we argue that since we should accept his word if he cared to say that he had lost it through circumstances over which he had no control,¹¹  now too we accept his word,¹²  or [do we accept the plea of] the other if he says, 'How comes your acknowledgment in my hand?'¹³  — He replied: We accept the word [of the defendant]. But the claimant can plead, 'How comes your acknowledgment in my hand?' — Said he [R. Hisda]: On your own argument, if the defendant said, 'I lost it through circumstances over which I had no control,' could the claimant plead, 'How comes your acknowledgment in my hand?'¹⁴  He [R. Amram,] replied: When all

1. Samuel and Karna (Rashb.); v. p. 209, n. 5.
2. When the ground under the tree is ploughed by oxen and the yoke knocks against it.
3. Which being slender can be bent back even when well grown.
4. The fruit of which can be plucked without the use of a ladder.
5. If the vendor had said nothing, the purchaser would not have acquired any of the carob trees, since these are not sold with the field (v. Mishnah). Since therefore he goes out of his way to except this carob tree, do we presume that he desires to include the rest in the sale?
6. Bordering on the other.
7. Because obviously the vendor only meant to sell him one field, in spite of his foolish manner of expressing himself.
8. Since it would be impossible to press so much into the word 'except' in this case.
9. Does the 'except' avail for this?
10. This passage is introduced at this place because it contains a ruling of the 'judges of the Exile' mentioned above.
11. According to the rule laid down in Ex. XXII, 10-11, If a man deliver unto his neighbour an ass etc. to keep,' and it die, or be hurt, or be driven away, the oath of the Lord shall be between them both … and the owner thereof shall accept it.
12. Since he is putting forward a weaker plea.
13. I.e., if, as you say, you returned it to me, why did you not take back the acknowledgment?
14. This would not be any evidence, because the defendant could say that seeing he was pleading force majeure he thought it unnecessary to take back the acknowledgment.

is said and done, even if he pleads that it was taken from him by violence, is he not required to take an oath?¹  Here too, when I say that we accept his word, I mean that we accept it on his taking an oath.

May we say that the point at issue [between R. Hisda and R. Amram] is the same as that between the following Tannaim,²  as it has been taught: 'If a claim is made against orphans on the ground of a "purse bond",³  the judges of the Exile⁴  say that the claimant is entitled on taking an oath⁵  to recover the whole, but the judges of Eretz Yisrael⁶  say that he is entitled on taking an oath to recover only half.'⁷  Now all authorities accept the view of the Nehardeans who say that this transaction is half a loan and half a deposit.⁸  May we not say then that the point in which they differ is this, that the one authority [the judges of the Exile] holds that the claimant may plead effectively, 'How comes your bond to be in my hand',⁹  and the other holds that he cannot? — No; all concur in the view of R. Hisda [that he cannot], and here the point of difference is this, that the one [the judges of the Exile] holds that if the borrower had paid [before his death] he would have told [his children],¹⁰  while the other holds that we may presume death¹¹  to have prevented him.

R. Huna b. Abin sent a message¹²  that if a man places a deposit with another and receives an acknowledgment and the latter subsequently asserts that he has returned it, his word is accepted;¹³  and if a claim is made against orphans on the ground of a 'purse bond', the claimant is entitled on taking an oath to recover the whole.¹⁴  Have we not here two [contradictory rulings]? — In the second case there is a special reason, that if he had paid he would have told his children. Raba said: The law is that the claimant is entitled to take an oath and recover half.¹⁵  Mar Zutra said that the law follows the decision of the judges of the Exile.¹⁶  Said Rabina to Mar Zutra: Has not Raba laid down that he is entitled to take an oath and recover [only] half?¹⁷  — He replied: In our version the reverse opinion is ascribed to the judges of the Exile.¹⁸

1. According to the text quoted above.
2. The authorities actually quoted in the passage which follows are usually regarded as Amoraim, not Tannaim, v. nn. 8 and 20. [Funk, S., Die Juden in Bobylonien, I, n. 2, iv, regards the authorities cited here as Babylonian and Palestinian Tannaim respectively, belonging to the pre-Amoraic age, v. infra 100a. On the other hand, the words 'that between Tannaim as it has been taught' do not occur in MSS. v. D.S.]
3. A bond given by a borrower for money borrowed for business purposes, on condition that the profit shall be equally divided between him and the lender.
4. Samuel and Karna. V. pag. 209, n. 5.
5. That oath is the one that had to be taken by all persons recovering from orphans debts incurred by their father. V. supra 56b, 33a.
6. R. Ammi and R. Assi, v. Sanh. 17a.
7. The reason is given immediately.
8. If money was borrowed in this way, the Rabbis regarded it as consisting of two parts, one half a loan, the profit of which went to the borrower (the lender being forbidden to take it, because it is counted as interest), and the other half a deposit, the profit of which went to the lender. Hence the law of loan applies to one half of it and the law of deposit to the other half. If therefore it was forcibly taken from the borrower, he has to pay back one half to the lender (since a borrower is responsible for a loan), but he can release himself from payment of the other half on taking an oath that it was forcibly taken from him, according to the law of deposit quoted above. In this case we suppose that the borrower died and the claim is made against his children under age. That half is to be paid back there is no question; the only doubt is whether the claimant can recover the half which is regarded as a deposit.
9. And therefore we cannot plead on behalf of the orphans that the money had been returned, seeing that the father had he been alive could not have pleaded thus.
10. Therefore we cannot plead on their behalf that the money had been returned, although if the father had been alive he could have effectively pleaded thus, as explained above.
11. Lit., 'Angel of death'.
12. V. supra p. 211, n. 10.
13. According to the decision of R. Hisda recorded above.
14. This shows that if the orphans plead that the father had returned the money, their word is not accepted.
15. Viz., the half that is regarded as a loan.
16. That the claimant from the orphans can recover the whole.
17. And how can you contradict Raba who is an older authority than you?
18. I.e., we make them say that he recovers half.