Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 39a

'Abandoned' implies against their will, as is is written, But the seventh year thou shalt let it rest and abandon it,¹  [i.e.,] by royal dispensation;²  whereas 'forsaken' implies voluntarily, as it is written, The mother shall be forsaken³  of her children.⁴

A Tanna taught: And for all these a valuation is made as for an aris.⁵  To what does this refer? Shall we say, To captives: if he is considered 'a zealous man who profits thereby,'⁶  can there be a question concerning his own improvements!⁷  But if to forsaken property — surely it is taught that they are ejected therefrom! — Hence It must refer to abandoned [property]. [Then] according to whom? Shall we say, according to the Rabbis: but they rule that he is ejected therefrom. If R. Simeon b. Gamaliel, surely he observed, 'I have heard that abandoned are as captives' [estates]! — 'They are as those of captives', but not altogether so:⁸  'as those of captives,'in that they are not ejected therefrom; 'but not altogether so,' for there [sc. in the case of captives' estate] he is considered a zealous man who profits thereby, whereas here a valuation is made for him as for an aris.⁹

Now, wherein does it differ from what we learnt: If a man incurs expenditure on his wife's property, [whether] he expended much and enjoyed little [usufruct] or the reverse, what he expended he expended, and what he enjoyed he enjoyed!¹⁰  This is analogous only to what we learnt:¹¹  If a man incurs expenditure for the property of his wife, a minor, he is regarded as though he had incurred it for that of a stranger.¹²  This shows that since he [her husband] could not place full reliance,¹³  the Rabbis enacted a measure on his behalf,¹⁴  in order that he might not cause them [the wife's estates] to deteriorate;¹⁵  so here too, the Rabbis enacted a measure on his behalf, so that he might not cause them [the abandoned estates] to deteriorate.

'And for all of these a valuation is made as for an aris.' What does 'all of these' include? — It includes R. Nahman's dictum in Samuel's name: If a man is taken captive, his next of kin is authorised to enter into his estates. If he leaves voluntarily, his next of kin is not permitted to enter upon his estates.¹⁶  Now R. Nahman, giving his own opinion, said: A fugitive is as a captive. Why does he flee? Shall we say, on account of poll-tax? But that is voluntary!¹⁷  — But [he means] one who flees on account of political offences.¹⁸

Rab Judah said in Samuel's name: If a man is taken captive, and leaves standing corn to be reaped, grapes to be vintaged, dates to be harvested, or olives to be gathered, Beth din enter his estate and appoint a steward who reaps, vintages, harvests and gathers; after that the next of kin is permitted to take possession.¹⁹  Then let a permanent steward be appointed!²⁰  — A steward is not appointed for bearded men.²¹

R. Huna said: A minor is not permitted to enter upon a captive's estates, nor the next of kin upon a minor's estates, nor a next of kin of a next of kin upon a minor's estates.²²  'A minor is not permitted to enter upon a captive's estates,' lest he injure them. 'Nor a next of kin of a next of kin upon a minor's estates' — this refers to a brother on the mother's side.²³  'Nor a next of kin upon a minor s estates:' since he [the minor] cannot protest, he may take presumptive possession thereof.²⁴  Said Raba: It follows from R. Huna's dictum that one cannot claim presumptive ownership of a minor s estate,²⁵

1. [H] Ex. XXIII, 11; the reference is to the seventh year, in which land and its produce must be 'abandoned' — i.e., left free for all.
2. By Scriptural command; hence against the owner's desire.
3. [H].
4. Hos. X, 14; Rashi explains that the reference is to voluntary flight, for fear of the ensuing war.
5. V. Glos.
6. And takes the whole of the produce (Rashi).
7. Surely they belong entirely to him, not merely a third or quarter, as in the case of an aris.
8. Lit., 'as captives and not as captives.'
9. For since it was not reported that the owner had died, the heir is assumed to have entered into his estates on the tacit understanding that he should be paid as an aris.
10. Keth. 79b. The reference is to 'property of plucking,' the usufruct of which belongs to the husband, whilst the principal remains the wife's, reverting to her on the husband's death or if he divorces her. — In this case then the husband or his heirs cannot strike a balance between expenditure and revenue, and the question is raised, Why not give the same ruling in the case of abandoned property, instead of regarding the next of kin as an aris.
11. In Keth. 80a the reading is: to what R. Jacob said in R. Hisda's name.
12. The wife referred to is a fatherless child, who had not attained her majority. By Biblical law, only a father could contract a marriage on behalf of his daughter, a minor, but the Rabbis extended the privilege to her mother or brothers, in the absence of a father. (She herself cannot contract a marriage, her actions, as a minor, having no legal validity.) This marriage having only Rabbinical force, she could annul it, on attaining her majority, by declaring that she did not want her husband (mi'un), whereon she became free without the formality of a divorce.
13. That the estate would remain in his possession, as she might annul the marriage.
14. Sc. that he should be paid as an aris if his wife annulled the marriage.
15. Through his neglect.
16. [Had he approved of his next of kin, he himself would have appointed him over his estate before he left.]
17. Surely he himself could have managed to appoint some one before he left, as there was no reason for the hasty flight.
18. Others: 'murder'. The penalty being a very heavy one, his flight is not voluntary. This case of R. Nahman is included in the term, 'all of these.'
19. And is paid as an aris. But he cannot take that which is completely grown without his toil.
20. Rashi: who will receive nothing for his stewardship.
21. No one is prepared to work for nothing on behalf of grown men. Stewards are indeed appointed on behalf of minors left fatherless, because stewardship then is regarded as a good deed.
22. E.g., A is the brother of B, a minor, by the same father, whilst C is A's half brother by his mother, hence no blood-relation of B at all.
23. As explained in n. 1.
24. If one enjoys three consecutive years' possession of an estate, without its owner formally protesting that it is not his, he is assumed to have bought or otherwise acquired it. Now, a minor cannot protest, and so the relative may claim it as his after three years, on the ground that he, and not the minor, had inherited them; the same applies to the relative's relative (as explained in n. 1), who may claim it as heir of the first next of kin.
25. A cannot claim that he bought the estate from B, the minor's father, on the strength of three years' undisturbed possession. This follows from the fact that R. Huna merely forbade a relative to enter upon a minor's estates, but not a stranger, which shows that a stranger's claim of presumptive ownership is ignored.

even if he attained his majority.¹  Now, this applies only to a brother by his father,²  but there is no objection to a brother by his mother. And even of a brother by his father, this applies only to land; but there is no objection in respect of houses.³  And even in respect of land, this holds good only if no deed of partition was drawn up.⁴  But if a deed of partition had been drawn up, it is generally known.⁵  This, however, is not so. It makes no difference whether a brother by his father or a brother by his mother,⁶  whether land or houses, whether a deed of partition had been drawn up or not — we do not authorize them to take possession.

A certain old woman had three daughters; she and one daughter were taken captive, and of the other two daughters, one died, leaving a child behind. Said Abaye: What shall we do? Shall we [temporarily] assign the estates to the [third] Sister: but perhaps the old woman is dead, and a relative is not permitted to enter upon a minor's estates?⁷  Shall we assign the estates to the child, but perhaps the woman is not dead, and a minor is not permitted to enter a captive's estate? — Said Abaye: Therefore half is given to the [last] sister, and a steward is appointed in respect of the other half on behalf of the child. Raba said: Since a steward is appointed for one half, a steward is appointed for the other half too. Subsequently it was heard that the old woman was dead.⁸  Thereupon Abaye ruled: A third is given to the sister, a third to the child, and as for the remaining third,⁹  a sixth is given to the sister, and a steward is appointed for the other sixth on behalf of the child. Raba said: Since a steward is appointed for one sixth, a steward is appointed for the other sixth.

There came a brother to Mari b. Isak from Be Hozai,¹⁰  saying to him, 'Divide [my father's estates] with me.' 'I do not know you,' he replied. So they went before R. Hisda. Said he to him, 'He [Mari] speaks truly to you, for it is written, And Joseph knew his brethren, but they knew him not,¹¹  which teaches that he had gone forth without the stamp of a beard and came [before them] with one.¹²  Go then,' he continued, 'and produce witnesses that you are his brother.' 'I have witnesses,' he replied, 'but they are afraid of him, because he is a powerful man.' Thereupon he said to the other [Mari], 'Go you, and bring witnesses that he is not your brother.' 'Is that justice!' he exclaimed, 'the onus of proof lies on the claimant!' 'Thus do I judge in your case,' he retorted, 'and for all who are powerful men of your like'. 'But after all,' he argued, 'witnesses will come and not testify [the truth]'.¹³  'They will not commit two [wrongs],' he rejoined.¹⁴  Subsequently witnesses came [who testified] that he was his brother. 'Let him share with me the vineyards and gardens which he planted,' demanded he. 'He speaks rightly to you,' said he [R. Hisda], 'For we learnt: If one leaves sons, adults and minors, and the adults improve the property, they improve it for both equally;¹⁵

1. After which the stranger had it in his possession three years. But this does not establish a claim, since he took possession whilst the orphan was a minor, who on attaining his majority may not have known that the estates were his father's, and hence did not protest.
2. Who may claim that he inherited the estates.
3. Since the neighbours can testify to their rightful ownership.
4. Distinctly setting forth the portion of each.
5. Lit. 'it has a voice'. Hence there is no fear of a false claim.
6. [As he can still claim it to be property belonging to his mother in her own right, to which he is entitled as heir.]
7. For if she had died, part of her estates belonged to the grandchild.
8. But nothing was known of the daughter.
9. The share of the captive daughters.
10. V. p. 508, n. 2.
11. Gen. XLII, 8.
12. So Mari may not recognise you too, even if you are his brother.
13. If they are afraid of me, they will certainly testify in my favour whether it be the truth or not.
14. Witnesses who can testify to your disadvantage may repress their evidence through fear of you, which is one wrong. But they will certainly not commit another by testifying falsely in your favour.
15. Lit., 'in the middle'. (V. B.B. 143b.) I.e., the minors take an equal share of the improvements.