Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 7a

You must therefore conclude that [the decision of the Mishnah is prompted by another consideration, viz..] that the Divine Law states 'the tenth', [which means] the certain [tenth] but not the doubtful tenth,¹  the same consideration applies here;²  the Divine Law states the certain tenth, but not the doubtful tenth.³

R. Aha of Difti said to Rabina: What kind of doubtful cases [does the above Baraitha refer to]? If it refers to doubtful firstlings, the Divine Law says, [The tenth] shall be holy,⁴  excluding the animal which is already holy.⁵  — It must therefore refer to [the lamb which has been used for] the redemption of the doubtful firstling of an ass, and in accordance with [the view of] R. Nahman, for R. Nahman said in the name of Rabbah b. Abbuha: If an Israelite has ten doubtful firstlings of asses in his house, he sets apart ten lambs as substitutes for them,⁶  and he tithes these [lambs], and they belong to him.⁷

What was [the ultimate decision concerning] the bath-house? — Come and hear what R. Hiyya b. Abin said: A similar case came before R. Hisda, and R. Hisda brought it before R. Huna, and he gave his decision on the ground of what R. Nahman said: Property that cannot be reclaimed by legal proceedings [cannot be dedicated to the Temple.⁸  and] if it has been dedicated, the dedication is invalid.⁹  But [it is asked], would the dedication be valid if the property could be reclaimed by legal proceedings, even though [the rightful owner] has not obtained possession of it? Does not R. Johanan say [that] property which has been acquired by robbery, and which the rightful owners have not given up as lost, cannot be dedicated either by the robbers or by the owners: the former [cannot do it] because it is not theirs, and the latter because it is not in their possession?¹⁰  — You evidently think that the case under discussion is of a bath that is movable. [No.] The discussion concerns a bath-house which is immovable property, and therefore, where it can be reclaimed by legal proceedings, it is [regarded as being] in the possession of [the claimant].¹¹

R. Tahlifa, the Palestinian, recited in the presence of R. Abbahu: Two [people] cling to a garment; [the decision is that] one takes as much of it as his grasp reaches, and the other takes as much of it as his grasp reaches, and the rest is divided equally between them. R. Abbahu pointed [heavenward and said:] But with an oath! But, [if so] our Mishnah, which teaches that [the value of the garment] shall be divided between [the two litigants], and which does not teach that each takes as much of it as his grasp reaches — to what particular case does it refer? — R. Papa said: [It refers to a case] where [both litigants] hold the fringes [of either end of the garment]. Said R. Mesharsheya: Hence we deduce: [If a seller] grasps the kerchief¹²  by a piece measuring three by three fingers, [he has rendered the sale valid, as] we apply to it [the Scriptural term]: 'And he gave it to his neighbour'. [The part that he holds] is considered as if cut off, and by this means [the buyer] acquires [the article sold to him].¹³  And why is [this case] different from that of R. Hisda? For R. Hisda says: When the bill of divorcement is in her hand,¹⁴  and the cord [to which it is tied] is in his hand,¹⁵  then if he is able to snatch [the bill of divorcement out of her hand by means of the cord] and to pull it to himself, she is not divorced,¹⁶  but if not she is divorced! — There separation is necessary, and there is none,¹⁷  but here it is the act of giving that is necessary, and this has taken place.¹⁸

Rabbah said: If the garment was embroidered with gold, it is divided [between the two litigants].¹⁹  But is not this self-understood? — It is necessary [to state this] when the gold is in the centre [of the cloth]. But is not this also self-understood? — It is necessary [to state this] when [the gold] is nearer to one side. You might assume that one could say to the other. 'Divide it this way;'²⁰  therefore we are informed that the other may say to him, 'What makes you think of dividing it this way? Divide it the other way.'²¹

Our Rabbis taught:²²  Two [people] cling to a bill, the lender saying, 'It is mine; I dropped it and found it again,' and the borrower saying, '[True.] it was yours, but I paid you;'²³  [the validity of] the bill has to be established by its signatories [verifying their signatures]²⁴  — this is the view of Rabbi. Rabban Simeon b. Gamaliel says: They shall divide [the amount], If it [the bill] fell into the hand of a judge, it must never be produced again. R. Jose says: It retains its validity.²⁵

The Master said above: '[The validity of] the bill has to be established by its signatories'. Does he mean that the creditor may demand payment of the whole amount, and does he disapprove of the Mishnah, TWO HOLD A GARMENT etc.? — Raba replied in the name of R. Nahman: If the document has been endorsed [in Court].²⁶  all are agreed that [the litigants] divide [the amount between them].²⁷  The difference of opinion only arises in the case of an unendorsed [document]. Rabbi is of the opinion that even when one [i.e., a debtor] acknowledges the writing of a bill, it still requires endorsement [at Court], and if it is endorsed, [the amount] is divided, but if it is not endorsed [the amount] is not divided. For what reason? It is merely a potsherd.²⁸  Who renders the document valid? [Only] the borrower.²⁹  But he says, 'It is paid!'³⁰  Rabban Simeon b. Gamaliel, however, is of the opinion that when one acknowledges the writing of a bill, it does not require endorsement [at Court], and therefore even if it is not endorsed, [the litigants] divide the amount.³¹

'If it [the bill] fell into the hands of a judge, it must never be produced again.'

1. Seeing that the animal that jumped back after being counted cannot be numbered again, and it cannot be identified, there is a doubt regarding each tenth whether it is really the tenth, as, if the disqualified animal is among the previous nine, the tenth is really the ninth.
2. In the Baraitha which R. Hananiah quoted in support of Rabbah.
3. Accordingly, had the priest a right to a doubtful firstling it could not be admitted to the stall for tithing.
4. Lev. XXVII, 32.
5. A firstling is in itself 'holy', even if it is a doubtful firstling. It cannot therefore be used as tithe.
6. For the purpose of redeeming the asses, so that he may use them for work.
7. They are not 'holy', and as the priest has no absolute right to them (on account of the doubt as to the primogeniture of the asses) the Israelite may retain possession of them.
8. If the claimant cannot prove his title to the property by legal evidence, he has no right to dedicate it.
9. For the same reason the dedication of the bath-house would be invalid. This conclusion is based on the assumption that neither of the claimants of the bath-house could produce evidence in support of his claim.
10. Which would prove that in order to be able to dedicate property one has not only to own it legally but also to be in actual possession of it.
11. The question of being in possession does not arise in the case of a bath-house, which is immovable property, and as regards legal ownership — it is vested in the claimant who dedicated it, if he can produce evidence to substantiate his claim.
12. [This was a recognised or legal manner of confirming a transaction, known as Kinyan Sudar, [H], (cp. lat. sudarium) and derived from Ruth IV, 7: … to confirm all things a man plucked off his shoe and gave it to his neighbour. Any article can be used in the same way as the shoe if it measures three by three fingers.]
13. [The seller establishes his claim to the part of the kerchief which he holds, and thus proclaims himself the owner of the entire kerchief. By this symbolic action the seller confirms the sale of any article which is to become the property of the buyer. See, however, infra 47a.]
14. In the hand of the wife who is to be divorced.
15. In the hand of the husband who is divorcing her.
16. According to this view the bill of divorcement is not regarded as having been given to the wife as long as the husband holds one end of the cord attached to the bill. In the same way we ought to say that when the seller holds one end of the kerchief he does not transfer the purchase to the buyer.
17. In the case of a husband divorcing his wife the ceremony is to indicate the separation of the couple, the severance of the marriage tie. The cord in the hand of the husband, if it is strong enough to pull the bill of divorcement out of the hand of the wife, contradicts this idea.
18. In the case of a seller grasping the kerchief with his hand, the significance of the act lies in the giving of the kerchief by the one to the other.
19. I.e., even if the garment is embroidered with gold it has to be divided equally.
20. Lengthwise.
21. Widthwise, so that each may get half of the gold.
22. V. B.B. 170a.
23. 'And on being paid you returned the bill to me and I lost it.' This is the version given by Rashi in accordance with the wording of our text. Other texts have, 'It is mine' as the plea of the borrower (i.e. [H] instead of [H]) which is much simpler.
24. And when the validity of the document has been thus endorsed, the creditor is entitled to demand payment.
25. And the creditor could demand the return of the document and enforce payment.
26. I.e., if the document has been produced in Court and the witnesses have verified their signatures, the judges certifying the endorsement.
27. If the document is properly endorsed, and therefore quite valid, the litigants are in the same position as those who found the garment and were holding on to it. They therefore divide the amount of the debt recorded in the bill.
28. I.e., the document is without any value.
29. By admitting its genuineness.
30. Since the unendorsed document becomes valid only as a result of the admission of its genuineness by the borrower, he is to be believed when he says that he has paid the debt.
31. Even if the bill is not endorsed, the borrower cannot, when the document is produced by the lender, plead that he has paid the debt. The validity of the document does not, to that extent, depend on the plea of the borrower. Hence it is right that they should divide the amount.

Why is it different [if the bill fell] into the hands of a judge?¹  — Raba says: The meaning [of the clause] is this: If a third person finds a bill which has already been in the hands of a judge, that is, when it bears a legal endorsement,²  it must never be produced again.³  And [thus we learn that a found bill] must not be returned [to the claimant] not only when it bears no legal endorsement, so that it can be assumed that it was written for the purpose of securing a loan but the loan did not take place, but even when it bears a legal endorsement, as when it has been verified [in Court], because we apprehend that payment may have been made.⁴  But R. Jose says: It retains its validity — and we do not apprehend that payment may have been made.

But does not R. Jose really apprehend that payment may have been made? Has it not been taught [in a Baraitha]: In the case of a marriage-contract⁵  found in the street, if the husband admits [that he has not paid her the amount specified in the contract] it shall be returned to the wife, but if the husband does not admit it, it must not be returned either to him or to her; R. Jose says that if the wife is still with the husband it shall be returned to her,⁶  but if she has become a widow or has been divorced, it must not be returned either to him or to her?⁷  — Reverse [the Baraitha and read it this way]: If [a bill] fell into the hands of a judge, it must never be produced again; this is the view of R. Jose. And the Sages say that it retains its validity.⁸  But if so, the two opinions of the Rabbis contradict each other!⁹  — [The Baraitha which deals with] the [lost] marriage-contract [conveys] in its entirety [the view of] R. Jose, but a clause is omitted, and [the Baraitha] should read thus: If the husband does not admit [that he has not paid the wife the amount specified in the contract] it must not be returned either to him or to her. This, however, only applies to [the case of] a widow or a divorced woman, but [in the case of a wife] who is still with her husband it shall be returned to the wife; this is the view of R. Jose; for R. Jose says: If the wife is still with the husband, it shall be returned to her; but if she has become a widow or has been divorced, it must not be returned either to him or to her. R. Papa says: There is really no need to reverse [the Baraitha];¹⁰  R. Jose only states the case in accordance with the views of the Rabbis [and he says to them:] According to me we do not apprehend that payment may have been made even in the case of a widow or a divorced woman, but according to you — admit at least that when the wife is still with the husband [the marriage-contract] should be returned to her, as she is not entitled to receive payment [as long as she is his wife]. But the Rabbis answered him: Say, he handed her over bundles [of valuables] as security [and she has retained them]!¹¹  Rabina says: By all means reverse the first [Baraitha],¹²  and the reason why the Rabbis decide here [that if the husband does not admit liability, the marriage-contract must not be returned either to him or to her] is that we apprehend [lest the wife had] two marriage-contracts.¹³  And as to R. Jose — he does not apprehend [lest the wife had] two marriage-contracts.

R. Eleazar says: The division¹⁴  [takes place] when both [claimants] cling either to the form¹⁵  [of the bill] or to the operative part¹⁶  [thereof], but if one [claimant] clings to the form, and the other clings to the operative part, one takes the form and the other takes the operative part. And R. Johanan says: They always divide equally. [What!] Even if one clings to the form and the other to the operative part? Was it not taught: Each one takes as much as his hand grasps?¹⁷  — [Yes.] But it is necessary [to have R. Johanan's decision] in a case where the operative part is contained in the middle [of the document].¹⁸  But if so, what need is there to state it?¹⁹  — It is necessary [to state it that it may be applied to a case] where [the operative part] is nearer to one [of the claimants].²⁰  You might assume that one could say to the other, 'Divide it this way', therefore we are informed that the other may say to him: 'What makes you think of dividing it this way? Divide it the other way.' R. Aha of Difti said to Rabina: According to R. Eleazar, who says. 'One takes the form [of the bill] and the other takes the operative part.' — of what use are [the parts] to either of them? Does one need them to use as a stopper for one's bottle?²¹  — He [Rabina] answered him: [It is] the estimated value thereof [that has to be considered]. We estimate how much a dated document is worth as compared with one undated: with a dated document a debt may be collected from mortgaged property, but with the other [document] no debt can be collected from mortgaged property²²  — and one gives the other the difference [in the value of the two documents].

Also [the decision previously given in the words], 'They shall divide,' as quoted,²³  refers to the value [of the bill]. For if you do not assume this, [how explain:] 'TWO HOLD A GARMENT' [etc.]? Would you say that here also they divide [the garment] in halves? They would surely render it useless! — This presents no difficulty,

1. Why should the law be different when the bill falls into the hands of a judge than when it falls into the hands of any other person?
2. The endorsement of the Court before which the witnesses verified their signatures, and which established the validity of the document.
3. It must not be given either to the creditor or to the debtor, unless the ownership of the document is cleared up by evidence.
4. I.e. if the debtor pleads that the debt has been paid, we take this plea into consideration.
5. 'Kethubah', v. Keth. 10b and Glos.
6. For a man does not ordinarily pay his wife her Kethubah while she is still with him.
7. This shows that according to R. Jose we do apprehend that payment may have been made.
8. And it must be returned to the claimant who can prove his claim.
9. The view of the majority of the Rabbis in the case of the lost Kethubah, which the husband claims to have paid, and which the Rabbis say must not be returned either to the husband or to the wife, contradicts their view with reference to the lost bill which has been legally endorsed, as according to the new ('reversed') rendering of the Baraitha the Rabbis (i.e., the Sages) say that 'it retains its validity' and must be returned to the claimant.
10. The original version being correct.
11. In order to save his wife the trouble of litigation after his death the husband gave her money or valuables while he was still with her to be appropriated by her when the Kethubah becomes due.
12. The revised version is really the correct one, and there is no contradiction between the views of the majority of the sages. For their decision in the case of the lost Kethubah, the validity of which the husband contests, and which the Rabbis say must not be returned, is due to the apprehension that the husband may have given the wife a duplicate after the loss of the original document. The meaning of the words 'when the husband does not admit' would thus be that the husband pleads that the lost document should not be returned to her because he had given her another document, and she could, when she becomes a widow, produce both documents in succession to claim payment from his heirs. But so far as actual payment by the husband is concerned, the Rabbis would ignore such a plea, because when a bill is paid it is usually taken back and torn up.
13. The original one and a duplicate, as explained in the previous note.
14. I.e. the decision of R. Simeon b. Gamaliel that the two litigants who cling to a bill shall divide it between them.
15. The [H], [G], 'form', the general part, which may be written out in advance and does not contain the names of the contracting parties or the particulars of date, place, sum involved, etc.
16. The [H], (probably = [G]), the characteristic or essential part of a document, giving the names of the contracting parties, date, place, sum involved, etc.
17. So here also each claimant should receive the part which he holds, irrespective of its value or importance.
18. There is really no difference between the views of R. Johanan and R. Eleazar, as the words of R. Johanan are only intended to make clear that if the operative part happens to be in the middle of the document the litigants receive half each.
19. As it is in full accord with the view of R. Eleazar, and it would be self-understood.
20. R. Johanan deems it necessary to emphasise that 'they always divide equally' so as to include a case where the operative part is nearer to the grasp of one of the claimants, though not actually held by him.
21. A familiar expression used in connection with a document which has no value and can only be used as paper.
22. The absence of a date makes it impossible for a Court to say whether the debt recorded in the document was contracted before or after the mortgage was taken on the property. As the date is given in the operative part only, it enhances the value of that part.
23. The decision of R. Simeon b. Gamaliel; v. supra p. 32.