Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 16a

[it could not be applied to this case], as he [the buyer] is dead.¹  But according to the view [of R. Ashi, viz.,] 'he wished to vindicate his honesty,' [it could be applied even to this case], as he [the robber] would wish to vindicate his honesty before [the buyer's] children also. [But, it is argued,] would not the buyer's children call him [who sold the field to their father] a robber?²  — Therefore [we must say that] the difference between them would appear [in a case] where the robber died.³  According to the view [of Mar Zutra, viz.], 'he wished that he should not call him a robber,' [it could not be applied to this case,] as he [the robber] is dead.⁴  But according to the view [of R. Ashi, viz.,] 'he wished to vindicate his honesty,' [it could be applied even to this case,] as he [the robber] would wish that his honesty should be vindicated even when he is dead. [But, it is argued,] would not his children after all be called the children of a robber?⁵  — Therefore [we must say that] the difference between them would appear [in a case] where he [the robber] gave [the field] as a present: According to the view [of R. Ashi, viz.], 'he wished to vindicate his honesty,' [it could be applied even to] a present, [in regard to which] he would also wish to vindicate his honesty. But according to the view [of Mar Zutra, viz.], 'he wished that he should not call him 'a robber,' [it could not be applied to this case, for he could say [to the recipient of the gift], 'What have I taken away from you [that I should be called a robber]?'

It is obvious that if he [who robbed a field and sold it], subsequently sold it [to another person], or bequeathed it to his heirs, or gave it away as a present, [and then bought it from the original owner, we must assume that] he did not, [in buying the field,] intend to secure it thereby for the [first] buyer.⁶  If it came to him as an inheritance⁷  [we must assume this, too, for] an inheritance comes of itself, and he did not trouble himself to get it.⁸  If he took it in payment of a debt [due to him from the original owner of the field],⁹  then our attitude is [as follows]: if [the original owner] had other land, and [the robber] said, 'I want this,' [we assume that the robber, in acquiring the field,] intended to secure it thereby for the [first] buyer,¹⁰  but if not,¹¹  [we assume] that he merely wanted to be paid [his] money.¹²

[In a case where the original owner] gave him [the robbed field] as a present, R. Abba and Rabina differ: One says, Gifted property is like inherited property, in that it [also] comes of itself.¹³  But the other says, Gifted property is like bought property, for if the recipient had not exerted himself to win the favour [of the donor, the latter] would not have given him the present, and the reason why he [the recipient] exerted himself to win the favour [of the original owner of the field] was that he [the recipient who first robbed the field] might vindicate his honesty. And till when does he wish to vindicate his honesty?¹⁴  — R. Huna says: Until [the buyer of the robbed field is] summoned to appear in court.¹⁵  Hiyya b. Rab says: Until he [the buyer] receives the decree of the Court [entitling him to seize the robber's property].¹⁶  R. papa says: Until the days of the announcement [of the public sale of the robber's property] begin.¹⁷  To this Rami b. Hama demurred:¹⁸  Seeing that this buyer acquired this land [from the robber] only by the deed of sale, [is not the sale invalid because] the deed is a mere potsherd?¹⁹  — Raba answered him: It is a case where [the buyer] believes him [the robber]: Because of the pleasure [it gives the robber] that he [the buyer] said nothing to him, but trusted him implicitly, he [the robber] exerts himself to acquire the field for him [the buyer], and determines to confer upon him the rightful ownership [of the field].²⁰  R. Shesheth then asked: [It has been taught:²¹  If one says to another,] 'What I am to inherit from my father is sold to you,' [or,] 'What my net is to bring up²²  is sold to you,' [it is as if] he [had] said nothing.²³  [But if he says,] 'What I am to inherit from my father to-day is sold to you,' [or,] 'What my net is to bring up to-day is sold to you, his words are valid?²⁴  — Rami b. Hama said [to that]: 'There is a man and there is a question!'²⁵  Raba retorted: 'I see the man but I do not see [the force of] the question.'²⁶  Here²⁷  he [the buyer] relied on him [the seller]; there he did not rely on him: Here he relied on him that he would exert himself and acquire [the robbed field] for him [the buyer] so that he might not call him a robber; there he did not rely on him.²⁸  [The question of R. Shesheth] was then submitted to R. Abba b. Zabda, [and] he said: This [question] does not need [to be brought] inside [the College].²⁹  Raba said: It does need [to be brought] inside, and even to the innermost [part]:³⁰  Here he [the buyer] relied on him [the seller]; there he did not rely on him. A case occurred in Pumbeditha, and the question [of R. Shesheth] was asked. R. Joseph then said to them [who asked the question]: This does not need to be brought inside [the College]. But Abaye said to him [R. Joseph]: It does need to be brought inside, and even to the innermost part: Here²⁷  he [the buyer] relied on him [the seller]; there he did not rely on him. And wherein does the first part [of the teaching quoted by R. Shesheth] differ from the last part? R. Johanan said: The last part, [viz.] 'What I am to inherit from my father to-day' — because of his father's honour;³¹  'What my net is to bring up to-day'

1. And he cannot call the seller a robber any more.
2. Even when the buyer is dead, the desire on the part of the seller to vindicate his honesty may still have been the motive for his action in buying the field from the rightful owner, as the children of the dead buyer would call him a robber when they discover that the field was sold to their father unlawfully, and that they could not retain possession of it.
3. After he bought it from the original owner, and the question arises whether the robber's children inherit the field and are entitled to take it away from the person to whom their father sold it unlawfully.
4. Even if the robber did buy the field from the original owner in order to vindicate his honesty he would only have been concerned about his reputation during his life-time.
5. There is therefore a good reason why the robber should have wished that his honesty should be vindicated even after his death.
6. If the robber sold the field a second time (to another person), or disposed of it in some other way after selling it to the first person, it is obvious that his subsequent action in buying the field from the original owner was not due to a desire to secure the field for the first buyer, and must have been prompted by a different motive. The first buyer would not then be entitled to keep the field, which would legally belong to the person to whom it was subsequently sold, given or bequeathed.
7. If the person, from whom the field was taken away unlawfully, died, and the robber proved to be his heir, so that the latter became the rightful owner of the field.
8. As the robber acquired the field merely as a result of the death of the owner, and not because of any steps or trouble he took to acquire it, it cannot be assumed that the robber, in acquiring the property, manifested a desire to secure its possession for the person to whom he sold it unlawfully.
9. If, after appropriating the field illegally and selling it, the robber claimed it as payment of a debt due to him from the original owner.
10. The fact that the robber insisted on getting this field as payment, while there were other fields owned by the debtor which he could have taken, would show that he was prompted by the motive of securing that field for the person to whom he sold it unlawfully.
11. If the debtor had no other field to offer.
12. He only took the field because he wanted payment, not because he wished to secure it for the buyer.
13. I.e., without any effort on the part of the recipient.
14. Up till what stage in the proceedings do we assume that the robber, in buying the field from the original owner, intended to secure its possession for the person to whom he sold it unlawfully?
15. Until legal steps are taken by the original owner to retrieve his property from the person who bought it from the robber. As the latter's reputation is thus lost it cannot be said that he bought the field from the original owner in order to 'vindicate his honesty'.
16. [H] (from [H] 'to pursue'), a document authorising a creditor to search for property belonging to the debtor and to seize it wherever it may be.
17. I.e., when property belonging to the robber has been discovered and the Court has begun to advertise its public sale for the purpose of compensating the person to whom the robber sold the field unlawfully. The period of such advertising usually extended over thirty days. Cf. 'Ar. 21b.
18. He raised an objection to Rab's decision that the robber, in buying the field from the original owner, intended to secure its possession for the person to whom he sold it unlawfully, and that therefore the latter's purchase became legal.
19. The document is invalid because the robber did not own the field, and therefore had no right to sell it. 'A potsherd' is a common term for an invalid document, like the modern term 'a scrap of paper'.
20. We assume that the robber bought the field from the original owner because he appreciated the confidence placed in him by the person to whom he sold it unlawfully and who did not question the robber's right to sell it. It was for this reason — we assume — that he wanted to legalise the sale.
21. Tosef. Nedarim, Ch. VI end.
22. I.e., any animals or birds or fishes that may be caught in the net (or snare).
23. His words are of no consequence.
24. The sale is legal. In the first instance the sale is not legal because at the time of selling the goods were not yet the property of the seller, and the sale does not become legalised by what took place after the sale. This contradicts the view of Rab who, in he case of the robber who bought the field after selling it unlawfully, says that he intended to sell his future rights, and thus this legalises the sale.
25. It is a great question worthy of the great man who asked it.
26. He admits that R. Shesheth is a great man, but he does not admit that the question is great.
27. In Rab's case.
28. In the case referred to by R. Shesheth, the person to whom the goods to be acquired were sold had no occasion to rely on the seller; it did not depend upon the seller whether he would ultimately acquire the goods or not.
29. As no-one inside the College will be able to answer it (Rashi). In the [H] (cited by Rashi) this phrase is explained as meaning that the question is not good enough to be discussed in the College.
30. Literally: 'into the inside of the inside,' the meaning being obviously that the question was so important that it ought to be discussed by the best men in the College.
31. By saying, 'What I am to inherit from my father to-day is sold to you' the seller indicates that his father is dying, and that he requires the money for the purpose of giving his father a decent burial.

— because of the need to support himself.¹  R. Huna said in the name of Rab: If one says to his neighbour: 'The field which I am about to buy shall, when I have bought it, be sold to you from now,' [the neighbour] acquires it.²  Raba said: It stands to reason that Rab's decision is right [when applied to a case where the seller refers] to a field in general, but in [a case where the seller points out the land sold by saying] 'this field' [it would] not [be right, for] who can say whether [the owner of that field] will sell it to him?³  But — by God! Rab himself did maintain that even when [the seller says] 'this field' [the sale is valid], seeing that Rab stated his law in accordance with [the view of] R. Meir, who said that a man may convey [to another person] a thing which has not yet come into existence, as it has been taught: If one says to a woman: Be betrothed to me after I shall become a proselyte, [or,] after thou shalt become a proselyte, [or,] after I shall be set free, [or,] after thou shalt be set free, [or,] after thy husband will have died, [or,] after thy brother-in-law will have given thee halizah,⁴  [or] after thy sister will have died, [the woman] is not betrothed.⁵  R. Meir says: She is betrothed.⁶  Now, the woman [in this case] is like 'this field,'⁷  and [yet] R. Meir says that she is betrothed.⁸

Samuel said: If one finds a deed of transfer⁹  in the street one shall return it to the owners.¹⁰  For even if [this were objected to] on the ground that [the deed] may have been written for the purpose of a loan and the loan may [in fact] not have been granted [the objection would not be valid] because [the borrower] pledged himself.¹¹  And if [this were objected to] on the ground that [the loan] may [in the meantime] have been repaid [the objection would not be valid either] because we are not afraid of repayment [having taken place], as [we assume that] if [the borrower] had repaid [the loan] he would have torn up [the deed]. R. Nahman said: My father was among the scribes of Mar Samuel's court when I was about six or seven years old, and I remember that they used to proclaim: 'Deeds of transfer which are found in the street should be returned to their owners.' R. Amram said: We have also learned so [in a Mishnah]: All documents executed by a court of law shall be returned [when found],¹²  which shows that we are not afraid of repayment. [But] R. Zera said to him: Our Mishnah treats of documents containing decrees of the Court which confirm the creditor's right to belongings appropriated from the debtor,¹³  and of documents authorising a creditor to search for the debtor's belongings and to seize them wherever they may be found,¹⁴  which [documents] are not concerned with repayment. Raba [then] said: And are not such [documents] concerned with repayment? Have not the Nehardeans¹⁵  said: [Property assigned in] valuation¹⁶  returns [to the debtor] until [the end of] twelve months,¹⁷  and Amemar said: I am from Nehardea and I am of the opinion that the [property assigned in] valuation always returns?¹⁸  Therefore Raba said: There¹⁹  the reason²⁰  is this: we say: He has himself to blame for the loss, for at the time when he paid [the debt] he should have torn up the document, or he should have [asked for] another document to be written [entitling him to claim the property], as according to law [the creditor] need not return the property], and it is only because [of the command], And thou shalt do that which is right and good in the sight of the Lord²¹  that the Rabbis declared that it should be returned: therefore he [the debtor] is [in the position of one who is] buying [the property] anew, and he ought to ask for a deed of sale to be written [and given to him].²²  [But] in regard to a note of indebtedness,²³  what may be argued [in favour of the return thereof is] that if it had been paid he should have torn up the note?²⁴  [To this] I say: He [the creditor] may have given an excuse by telling him [the debtor], 'I shall give it to you to-morrow, as I have not got it with me just now,' or he [the creditor] may have kept it back until he is refunded the scribe's fee.²⁵

R. Abbahu said in the name of R. Johanan: If one finds a note of indebtedness in the street, even if it contains the endorsement of the Court,²⁶  it shall not be returned to the owners: It is undoubtedly so when it does not contain the endorsement of the Court, as it may then be said that it was written for the purpose of a loan, and that [in fact] the loan was not granted. But even if it does contain the endorsement of the Court, which means that it is officially confirmed,²⁷  it shall not be returned, because we are afraid that [the loan] may [in the meantime] have been repaid. R. Jeremiah objected [to the ruling of] R. Abbahu [from the following Mishnah]: 'All documents executed by a Court of Law shall be returned [when found]'? [R. Abbahu] answered him: Jeremiah my son, not all documents executed by a court of law are alike! Indeed, [the Mishnah refers to a case where the debtor] has been found to be a liar.²⁸  Raba [then] said: And because he has been found to be lying once [must it be assumed] that he would not pay [his debts] any more?²⁸  — Therefore Raba said: Our Mishnah treats of a document containing a decree of the Court which confirms the creditor's right to belongings appropriated from the debtor, and of a document authorising a creditor to search for the debtor's belongings and to seize them wherever they may be found — and in accordance with [the interpretation of] R. Zera [given above].²⁹  As we have just dealt with the case of [one who was found to be] a liar, we shall say something [more] about it. For R. Joseph b. Manyumi said in the name of R. Nahman: If they [the members of the Court] said to him [the debtor], 'Go [and] give him [what you owe him];'

1. In the same way the word 'to-day' in the second case indicates that the seller depends for his livelihood on that day's catch. This is why the Rabbis decided in both these cases that the sale should be regarded as valid. But in the first part these reasons do not apply.
2. The moment the seller has bought the field from the original owner it becomes the property of the buyer, and the seller ends the transaction.
3. When a person sells or gives away a piece of land in general terms (without specifying it) the buyer, or the recipient, makes up his mind to acquire the land, as he knows that some land will be available for sale, and he believes that the person who offered the land to him will buy it and convey it to him. But when a person specifies the field he offers, the buyer or recipient will not take the offer seriously, as that field may not be in the market, and the person may not be able to realise his intention of buying that field and conveying it to his friend.
4. V. Glos.
5. The transaction is not valid, as the fulfilment of the conditions stipulated by the man is beyond the power or control of the woman.
6. Yeb. 93b.
7. Just as in the case of 'this field' the seller, or donor, is unable to compel the original owner to dispose of the field (to enable the former to convey it to his friend), in the case of the woman also the fulfilment of the condition necessary to render the transaction valid is beyond her power or control.
8. Which shows that according to the view of R. Meir on which Rab based his ruling, no distinction is made between 'the field' and 'a field'.
9. V. p. 72, n. 4.
10. As there is every reason to believe that the deed is still valid.
11. To let the lender have the property in any case. Cf. pp. 77-78.
12. Infra 200. This would include a note of indebtedness endorsed by the court and excluding the possibility of the loan not having been granted (cf. B.K. 112b) which would show that as long as we are sure that the loan was granted we do not suspect its validity on the ground that the loan may have been repaid.
13. [H] (from [H], to establish', make sure') = a document issued by the court authorising a creditor to keep certain properties allotted to him in payment of his debt.
14. V. p. 95, n. 8.
15. A famous town in Babylonia, near the junction of the Euphrates and 'Nahr Malka,' and the seat of the Academy rendered famous by Samuel and other great Rabbis. Among the natives of Nehardea was R. Nahman (v. Hul. 95b).
16. I.e., to the creditor.
17. If the debtor pays during that time.
18. There is no time limit, and whenever the debtor pays he is entitled to reclaim his property. [This being the case, the question of repayment arises also in these deeds of assignment, there being a possibility that the debtor had had his property restored on paying his debt, and in returning the documents to the creditor we empower the latter to seize anew the debtor's property.]
19. In the case of deeds of assignment dealt with in the Mishnah.
20. Why the document is to be returned.
21. Deut. VI, 18.
22. As a deed of transfer entitles the creditor to keep the seized property even when the debtor offers to repay the loan, and as the Rabbis decided that the property should be returned merely on the grounds of equity, the debtor, on failing to get the deed of transfer back, ought to have asked for a new deed — a deed of sale — as if the property had then been sold to him by the creditor.
23. Dealt with by Samuel.
24. And they apply to a note of indebtedness the same reason that is given for the law that a lost 'deed of transfer' has to be returned, viz., that since it has not been torn up the debt must still be due and the document still valid.
25. By the debtor in case the creditor laid it out for him, the scrivener's fee being charged to the debtor. The debt may thus have been paid even though for some reason or other the creditor did not return the note to the debtor, and this should preclude the return of the note to the creditor.]
26. [H]. V. p. 33, n. 1.
27. Cf. supra, ibid.
28. On another occasion it was established that he told a lie. Therefore he would not be believed if he pleaded in this case that he had paid the debt. This is why the documents must be returned.
29. That these documents are not concerned with the payment of money, and therefore are to be returned.