Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 19a

lost a bill of divorcement in the Beth Hamidrash.¹  [When it was found] he said [to the finders]: If you [attach importance to] a distinguishing mark, I have one on it; if, [however, you attach importance to] recognition by sight,²  I am able to recognise it. [Whereupon the bill] was returned to him. He then said: I do not know whether it was returned to me because of the distinguishing mark³  [I indicated], and the view was held that [the indication of] distinguishing marks [entitles the loser to recover his property] in accordance with Biblical law, or whether it was returned to me because of my ability to recognise it by sight, and [such recognition would be accepted from] a Rabbinic scholar only⁴  but not from an ordinary person.

The above text [states]: 'If one finds in the street a bill of divorcement, [the law is that] when the [former] husband admits [its validity] it shall be returned to the woman, but if the husband does not admit [its validity] it shall not be returned to either of them.' At all events [we are taught that] when the husband admits, [the bill of divorcement] is to be returned to the woman — ought we not to apprehend that [the husband] may have written it with the intention of giving it [to the wife] in Nisan but [in reality] did not give it to her till Tishri⁵  and the husband may have gone and sold the fruit [of his wife's property]⁶  between Nisan and Tishri, and she may then come, produce the bill of divorcement that was written in Nisan, and take away [the fruit] from the buyers unlawfully?⁷  This would be right according to him who says that as soon as the husband has made up his mind to divorce her he is no more entitled to the fruit [of her property],⁸  [and] it would be in order [for her to reclaim the sold fruit],⁹  but according to him who says that the husband is entitled to the fruit [of her property] until the date on which he hands her [the bill of divorcement] — how is it to be explained? — When she comes to take away [the sold fruit] from the buyers we say to her: Bring proof when the bill of divorcement came to your hand. But why is [a bill of divorcement] different from notes of indebtedness, regarding which we have learnt: 'If one finds notes of indebtedness [the law is that] if they contain a clause pledging [the debtor's] property one shall not return them',¹⁰  and this is interpreted [as applying to a case] where the debtor admits [the debt], and the reason [why the notes are not returned] is that they may have been written in Nisan and the loan may not have been granted till Tishri, so that [the creditor] may take away [the debtor's sold property]¹¹  from the buyers unlawfully — [why do we not say] there also [that the documents] should be returned, and that when [the creditor] will come to take away [the debtor's sold property] from the buyers we shall tell him: Bring proof when the note of indebtedness came to your hand?¹²  — The answer is: In the case of a bill of divorcement the person who bought [from the husband the fruit of the wife's property] will come and demand of her [the proof],¹³  saying: The reason why the Rabbis gave her back the bill of divorcement is that she may not be condemned to permanent widowhood,¹⁴  but now that she has come [with the bill] to take away [the fruit of her property which I bought from her husband] let her go and bring proof when the bill of divorcement came to her hand! But in the case of a note of indebtedness the buyer will not come to demand [proof]. He will say [to himself]: As the Rabbis gave him back the note of indebtedness it is obvious that the purpose for which they gave it to him was [to enable him] to take away [the debtor's sold property from the buyer, and] this shows that the Rabbis made sure of the matter,¹⁵  and that the note of indebtedness came to the hand [of the creditor] before my [purchase].¹⁶

[DEEDS OF] LIBERATION OF SLAVES, etc. Our Rabbis taught: If one finds a deed of liberation in the street, [the law is that] when the master admits [its validity] one shall return it to the slave, [but when] the master does not admit [its validity] one shall not return it to either of them. Thus [we are taught that] when the master admits, [the deed of liberation] is to be returned to the slave — why [is this so]? Ought we not to apprehend that [the master] may have written it with the intention of giving it [to the slave] in Nisan but [in reality] did not give it to him till Tishri, and the slave may have gone and bought property between Nisan and Tishri,¹⁷  and the master may have gone and sold it, and [the slave] may then produce the [deed of] liberation which was written in Nisan, and take away [the property] from the buyers unlawfully? This would be right according to him who says¹⁸  that it is an advantage to a slave to be liberated from his master,¹⁹  regard being had to Abaye who says, 'the witnesses acquire it for him by affixing their signatures';²⁰  [and] it would be in order [for him to buy property as soon as the deed of liberation is signed]; but according to him who says that it is a disadvantage to a slave to be liberated from his master²¹  — how is it to be explained?²²  — When [the slave] comes to take away [the property sold by the master] we say to him: 'Bring proof when the [deed of] liberation came to your hand.'

WILLS, DEEDS OF GIFT, etc. Our Rabbis taught: What is meant by WILLS?²³  — [Documents which contain the words:] 'This shall be established and executed,'²⁴  so that when [the author of the document] dies, his property becomes the possession of the person named [in the document].²⁵  [What are] DEEDS OF GIFT?²⁶  — All [documents conferring a gift] which contain [the words]: 'From to-day — but after my death.'²⁷  But does this mean that only if it is written [in the document] 'From to-day — but after my death,' the person acquires [the gift], but if not, he does not acquire it!²⁸  — Abaye answered: The meaning is this: 'Which gift of a healthy person is like the gift of a dying person in that [the person named] does not acquire it until after the death [of the donor]'? Every [gift regarding which] it is written [in the document conferring it]: 'From to-day — but after my death.'²⁹

The reason why [the documents named in the Mishnah are not returned] is that [ — as indicated in the Mishnah — the persons who lost them] did not say, 'Give them [to the persons named in the documents],' but if they said, 'Give them,' they would have to be given. Does not this contradict [the following Baraitha]: 'If one finds wills, mortgage deeds,³⁰  and deeds of gift, even if both [parties concerned] admit [their validity], one shall not return [the documents] to either of them'?³¹  — R. Abba b. Memel answered: It is no contradiction:

1. The College, where the Rabbis and their disciples assemble for study.
2. I.e., not by particular marks but by its general appearance when produced.
3. [Though it was not a Precise mark.]
4. Whose word can be trusted and may be regarded as clear and definite.
5. The divorce would then have taken effect in Tishri, and up till then the husband would have been entitled to use, or to sell, the fruit of his wife's estate ([H]).
6. The wife's inherited estate (referred to in the previous note) of which the husband may use the income, without incurring any responsibility for loss or damage or deterioration affecting the estate itself. Cf. B.K. 89a.
7. As the husband is entitled to the income of his wife's estate up to the day on which he hands her the bill of divorcement she would have no right to the income disposed of by the husband between Nisan and Tishri.
8. Cf. Git. 17b.
9. I.e., the fruit sold by the husband between Nisan and Tishri.
10. V. supra 12b.
11. I.e., the property sold by the debtor between Nisan and Tishri.
12. I.e., when the debtor actually borrowed the money and handed over to the creditor the note of indebtedness.
13. As to the actual date on which her divorce took effect.
14. I.e., that she may not be prevented from marrying again by the lack of evidence as to her divorce from her previous husband.
15. I.e., the Rabbis made sure that the creditor was legally entitled to seize the debtor's sold property.
16. I.e., before the debtor sold his property he had already incurred his debt to the creditor and given him the note of indebtedness.
17. In which case the property would belong to the master, as everything acquired by a slave becomes the possession of his master.
18. Git. 12b.
19. As he becomes a member of the community of Israel. Anything that confers a benefit upon a person may be done for him in his absence, or without his knowledge, and for this reason a deed liberating a slave would take effect as soon as it is signed by the witnesses, even before it is handed to the slave.
20. Cf. supra 13a; infra 35b.
21. As it deprives him of certain privileges which a slave enjoys, and puts upon him new obligations.
22. As the liberation, according to this view, is a disadvantage to the slave, and as nothing disadvantageous may be done to anyone in his absence, or without his knowledge, the deed of liberation cannot become effective until it is handed to the slave, and the signature of the witnesses cannot be said to acquire it for him before the date on which the document is received by him.
23. [H] = last will and testament (cf. [G]).
24. [H] This is no etymological derivation but a mere play on words.
25. Without any further formality, as the words of a dying person have the legal validity of a document written and delivered.
26. Of a healthy person.
27. Indicating that the gift is to become from that date the property of the person named in the document but cannot be used by him until the death of the donor.
28. The question is: Why should it be necessary for the donor to write in the deed of gift the words 'But after my death' in order to enable the person named in the deed to acquire the gift? In the case of a dying person it is natural that the gift should not become valid till after the donor's death, as this was obviously the donor's intention. But in the case of a healthy person there is no reason why such a condition should be included in the document. The donor ought to be able to make the gift absolute at once.
29. I.e., in ordinary cases the gift of a healthy person does become absolute at once. But in the case quoted, the Rabbis wished to indicate that the gift of a healthy person may be conferred on the same condition as that of a dying person — by including in the deed the words, 'But after my death.'
30. Referring to a second mortgage taken out on the same property.
31. For the reason given below.

One law refers to [a gift made by] a healthy person, and the other law refers to [that of] a dying person:¹  Our Mishnah, which teaches [by implication] that if [the person who lost the document says,] 'Give it,' it is given, refers to [a gift made by] a dying person, who is in a position to retract.²  For we say: What is there to apprehend? That he may originally have written the deed for this person³  and then changed his mind and not given it to him, and that he may then have written a deed again for another person and given it to him, but now he has made up his mind not to let him have it!⁴  If he gave it to the latter as the gift of a healthy person the latter suffers no loss [as a result of the donor's present change of mind], for when the two [documents] are produced the later [document] confers possession, as he retracted from the former. If, however, he gave it also to the latter as the gift of a dying person, the latter suffers no loss either, as [in such a case] the last person acquires [the gift],⁵  because [the donor] withdrew it from the former. But the Baraitha, which teaches that even if both parties admit [the validity of the found document] it shall not be returned to either party, deals with a healthy person, who cannot withdraw,⁶  [and the reason why the document is not returned is] that we say: Maybe [the donor] wrote it originally for this person,³  and then he changed his mind and did not give it to him; he then wrote another [document] for another person and gave it to him, but now he has made up his mind not to let him have it, and he argues [thus]: I cannot [legally] withdraw [the gift from him]. I will [therefore] tell them [the judges] that I gave it to this [person], so that they will return the document to him, and when he produces this earlier document he will be entitled [to the gift]. We therefore say to him [the donor]: We cannot give this document to this [person],³  as it may be that you did write it for him but did not give it to him, and that you gave it to a different person instead, and now you have changed your mind again. Now, if you have not really given it to a different person, and you now wish to give it to this person, write him now another document and give it to him — for if you [formerly] did give [a document] to another person he will suffer no loss [because of the document you will write now], as [the person who holds the document with] the earlier date will be entitled to the gift.⁷  But, asked R. Zebid, do not both [the Mishnah and the Baraitha] deal with last wills?⁸  — Therefore R. Zebid said: Both teachings deal with [a gift made by] a dying person, and there is no contradiction: One deals with [the donor] himself,⁹  and the other deals with his son:¹⁰  Our Mishnah, which implies that if [the person who lost the document] says, 'Give it [to the person named in the document],' it is given to him, refers to [the donor] himself, who is entitled to withdraw, [and the reason why the document is thus given is] that we say: Even if [the donor] had given it to another person,¹¹  that person would suffer no loss [as a result of the donor's change of mind], for if the first [document] and the last [are produced] the last is valid, as the first was withdrawn.¹²  But the Baraitha, which teaches that even if both parties admit [the validity of the document] it shall not be returned to either party, refers to the son, [and the reason why the document is not returned is] that we say: Maybe the father wrote it for this person¹³  and he changed his mind and did not give it to him, and that after the father's [death] he [the son] wrote another deed for another man and gave it to him, but now he has made up his mind not to let him have it, [and] he argues [thus]: 'I cannot legally withdraw [the gift from him]. I will [therefore] tell them [the judges] that my father gave it to this person,¹³  so that they will give the document to him, and we shall go and take [the gift] away from this other person,¹⁴  as he [this person]¹⁵  will be legally entitled to it,¹⁶  and we shall both share [in the gain].'¹⁷  We therefore say to him [the son]: We cannot give this document to this person,¹⁵  as it may be that your father did write it [for him] but did not give it to him, and that you gave it to a different person instead, and have now changed your mind. Now, if you speak the truth [in saying] that your father gave it to him, go now and write him another deed, for then, even if your father did not give it to him, and you wrote it for a different person, that other person will suffer no loss, for if the first document and the last are produced, the first is valid.¹⁸

Our Rabbis taught: If one finds a receipt¹⁹  [the law is that] when the wife admits [its genuineness] one shall return it to the husband, [and that] when the wife does not admit [its genuineness] one shall not return it to either party. It is thus taught that when the wife admits, [the document] shall be returned to the husband: Ought we not to apprehend that she may have written it with the intention of giving it [to the husband] in Nisan, and that [in reality] she did not give it [to him] until Tishri,²⁰  and that in the interval between Nisan and Tishri she went and sold [the value of] her Kethubah for a consideration,²¹  while the husband may produce the receipt, [showing] that it was written in Nisan,²²  and he will thus be able to deprive unlawfully those who bought [the value of the Kethubah of what is due to them]? — Raba answered:

1. The deeds of gift are written differently in the two cases, the dying person's deed containing the formula: 'As he was ill and confined to his bed.'
2. I.e., he may yet change his mind and write a second deed, conferring the gift upon another person, and then the latter acquires it.
3. To whom he says the document should be returned.
4. Lit., 'he retracts from the one to whom he gave it.'
5. As it is always the last word of a dying person that has legal validity. [So that in any case the person to whom the deed was actually given stands to lose nothing by the return of the earlier dated deed to the one in whose name the found deed is made out.]
6. He cannot change his mind after he has made a gift to a person and handed him the document conferring the gift.
7. As a healthy person cannot invalidate a document by a later document.
8. How then could it be said that the Baraitha deals with the gift made by a healthy person?
9. I.e., the dying person, who is still alive when the document is found, and who orders the document to be given to the person named therein.
10. After the death of the father, and the son claims the document.
11. And then decided not to let him have it.
12. And a dying person is entitled to change his mind, and he who produces the document with the later date is legally entitled to the gift.
13. I.e., the person named in the found document to whom the son says the deed should be returned.
14. To whom the son gave it.
15. V. p. 121, n. 7.
16. Because of the son's statement that his father had given it to that person.
17. This indicates the motive which would prompt the son to make the false statement — a conspiracy between him and that person to obtain possession of the gift and to divide it.
18. As when the two documents have been written by the son, who is a healthy person, the owner of the first document will be entitled to the gift, and the writing of the second document will make no difference.
19. In which a wife acknowledged having received payment of her Kethubah while she was still living with her husband.
20. When she received payment.
21. Lit., 'for the benefit of a pleasure'; for a trifle, as in view of the possibility of the wife's death preceding that of her husband the buyer of the Kethubah stands to lose the price he pays, and this reduces the value of the Kethubah if sold before it becomes due.
22. So that the date of the receipt produced by the husband will be taken as proof that it preceded the sale of the Kethubah by the wife, and the buyer will lose his claim.