Babylonian Talmud: Tractate Baba Bathra

Folio 128a

you gave him to me as a gift, [but] if you wish, take an oath¹  and you will get him back';²  and [the first] took the oath; [the latter] is not allowed to retract.³  What does he teach us?⁴  [The obvious principle underlying the law] has [surely] been taught [elsewhere]:⁵  [If one of the litigants] said to the other,⁶  'I have full confidence⁷  in my father,⁸  I have full confidence in your father, I have full confidence in three oxherds',⁹  R. Meir says, he may retract,¹⁰  and the Sages say he may not!¹¹  He¹²  teaches us this: That the dispute¹³  [relates also to the case] where [a litigant declared], 'I will give it to you'¹⁴  and [that] the halachah is in accordance with the words of the Sages.

R. Abba sent to R. Joseph b. Hama: The halachah is that slaves may be seized [from orphans, in payment of a debt incurred by the father].¹⁵  R. Nahman. however, said they may not be seized.¹⁶

R. Abba sent to R. Joseph b. Hama: The halachah is that [a relative in the] third [degree] is qualified [to act as witness for or against a relative] in the second [degree].¹⁷  Raba said: Also [for, or against a relative] in the first [degree]¹⁸  also. Mar, son of R. Ashi permitted [a grandson to act as witness] for his father's father. The law, [however], is not in accordance with [the view of] Mar, son of R. Ashi.

R. Abba sent to R. Joseph b. Hama: If a person possessed evidence¹⁹  in one's favour [in the matter of a plot of] land, before he became blind, and [then] became blind, he is disqualified.²⁰  Samuel, however, said: He is permitted [to give evidence], [since] it is possible for him to gauge [the extent of] its boundaries; but [in the case of] a cloak [he is] not [to be admitted as witness].²¹  R. Shesheth said: Even [in the case of] a cloak [his evidence is admissible, for] it is possible for him gauge the measurements of its length and of its breadth; but not [in the case of] a bar of metal. R. Papa said: Even [in the case of] a bar of metal, [for] it is possible for him to gauge its weight.

An objection was raised: 'If a person possessed evidence²²  affecting another before he became his son-in-law, and, [subsequently,] he became his son-in-law, [or if that witness] had the faculty of hearing and became deaf, the faculty of seeing and became blind, sane and became insane, he is disqualified [from giving evidence]. If, however, he possessed evidence affecting him before he became his son-in-law, and when he became his son-in-law, his daughter died; [or if he] had the faculty of hearing, became deaf, and regained his hearing; [or if he] had the faculty of Seeing, became blind, and regained his eyesight; [or if] he was sane, became insane, and regained his sanity, [in all these cases] he is qualified [to act as witness]. This is the general rule: Whenever his beginning²³  or his end²⁴  was under a disqualification, he is disqualified, [but whenever] his beginning and his end [find him] in a suitable condition, he is permitted [to give evidence].²⁵

1. That he was neither sold nor presented.
2. Though, legally, the possessor cannot be compelled to accept the oath of the claimant.
3. Since he once consented to return the slave if the other took an oath he cannot subsequently withdraw that consent, and re-assert his former rights.
4. I.e., what new point or principle.
5. Sanh. 24a.
6. Lit., 'to him'.
7. I.e., he accepts as judge or witness.
8. A father, like any other relative, is disqualified from acting either as judge or as witness.
9. I.e., ignorant men, unsuitable to act as judges.
10. Since these are legally disqualified, and their authority for acting as judges or witnesses is derived solely from his verbal consent, he may retract and allow the matter to be settled in accordance with the accepted legal procedure.
11. Which shows, like the message of R. Abba, that once a man has renounced his legal rights, he cannot retract. Why, then, the need for R. Abba's statement, seeing that the underlying principle has already been enunciated in a Mishnah?
12. R. Abba.
13. Between R. Meir and the Sages
14. Against the view that the dispute has reference only to the case where a litigant declared, 'You may keep it.' R. Abba, by his statement that the defendant cannot retract but has to surrender the slave to the claimant, has taught us that the dispute between R. Meir and the Sages is not limited to the case where a claimant agrees to forfeit his claim in favour of the defendant on the ruling of relatives (or other disqualified persons), as in the view of one authority in Sanhedrin 24a, but applies also to that of a defendant who agrees to abide by the ruling of such disqualified persons and pay up; and that even in such a case the Sages hold the opinion that the defendant cannot retract.
15. Slaves are compared to real estate which may be seized from orphans by their father's creditors.
16. Like movable property which cannot be seized from orphans (v. B. K 11b).
17. To his father's first cousin. Brothers are relatives in the first degree, their sons in the second, and their grandsons in the third degree.
18. His grandfather's brother.
19. Lit., 'he knew'.
20. From acting as witness, A blind man cannot possibly indicate the exact position of the boundaries of a field, though he may have known them well before he lost his eyesight.
21. Because many cloaks are equal in size.
22. V. p. 533, n. 8.
23. The time of his observation.
24. When he appears for the purpose of giving evidence.
25. 'Ar. 17b.

[This, surely, presents an] objection against all of them!¹  — This is [indeed] an objection.

R. Abba sent to R. Joseph b. Hama: If one said [something] concerning a child among [his] sons, he is to be trusted.²  And R. Johanan said: He is not to be trusted.²  What does this mean? — Abaye replied: It is this that was meant: If one said concerning a child among [his] sons [that] he shall be heir to all his estate, he is to be trusted in accordance with [the view of] R. Johanan b. Beroka;³  and R. Johanan said [that] he is not to be trusted, in accordance with [the view of] the Rabbis.⁴

Raba pointed out a difficulty. [If] that [is the meaning, why the expressions], 'trusted' and 'not trusted'? 'He shall be heir' and 'he shall not be heir' should have been [the expressions used]! But, said Raba, it is this that was meant: If one said concerning a child among [his] sons [that] he was the firstborn, he is to be trusted,⁵  in accordance [with the view of] R. Judah;⁶  and R. Johanan said that he was not to be trusted, in accordance with [the view of] the Rabbis.⁶

R. Abba sent to R. Joseph b. Hama: If one said, 'Let my wife receive [a share in my estate] as [any] one of [my] sons,'⁷  she is to receive [a share] like [any] one of the sons. Raba said: But [only] in the property [which he had in his possession] at that time,⁸  and among the sons who may appear subsequently.⁹

R. Abba sent to R. Joseph b. Hama: [In the case when] one produces a bond of indebtedness against another, and the lender states, 'I received no payment at all', and the borrower pleads, 'I have paid a half', while witnesses testify that all [the debt] was paid, that [borrower] must take an oath,¹⁰  and the [lender] collects the [other] half from [the borrower's] free property but not from [that] which has been disposed of,¹¹  for [the buyers or the creditors] can say, 'We rely upon the witness.'¹²  And even [according] to R. Akiba, who said [that he¹³  is to be treated in the same way as] one who returns a lost object,¹⁴  these words [apply only to the case] where there are no witnesses, but where there are witnesses [his admission may be due to the fact that] he is simply afraid.¹⁵  Mar son of R, Ashi pointed out a difficulty: On the contrary, even [according] to R. Simeon b. Eleazar who said,¹⁶  [in the case mentioned, that] he¹⁷  is [to he treated as] one who admits part of the claim, these words, [it may be argued, are applicable only to the case] where there are no witnesses who support him, but where there are witnesses who support him, he [should] certainly [be treated as] one who returns a lost object!¹⁸

Mar Zutra taught in the name of R. Shimi b. Ashi: The law in [the case of] all these reported statements [is] in accordance with [the messages] which R. Abba sent to R. Joseph b. Hama. Rabina said to R. Ashi: What [about the law] of R. Nahman?¹⁹  He replied to him: We learnt that [message of R. Abba as], 'they may not be seized', and so said R. Nahman.²⁰  What, then, does [the declaration of] the law exclude?²¹

1. Samuel, R. Shesheth and R. Papa, all of whom admitted the evidence of a witness who lost his eyesight.
2. This is explained infra.
3. Who stated that a father has a right to assign all his property to one only among all his legal heirs.
4. The first Tanna, with whom R. Johanan b. Beroka is in dispute.
5. Though another son was the reputed firstborn.
6. Supra 127b.
7. In addition to her kethubah or marriage settlement; or (with her consent) in lieu of it.
8. Lit., 'of now', i.e., at the time he gave his instructions. She receives no share in any property that he acquires afterwards.
9. I.e., if the number of sons had increased, she is to receive a smaller share, the estate being divided in accordance with the number of heirs (all the sons and the widow) that are alive at the time of the distribution, not according to the number at the time the will was made.
10. That he repaid half the debt, in accordance with the law that the admission of part of a money claim, carries an oath on the remaining sum; v. B.M. 4a.
11. I.e., either sold or mortgaged.
12. Who testified that all the debt was paid. The admission of the borrower, they may claim, is due to collusion with the creditor to deprive them of their land.
13. Who admits part of the claim but more than can be proved against him.
14. And need not, therefore, take an oath.
15. That they might testify against him. Hence, in such a case, even R. Akiba agrees that the borrower must take an oath.
16. In his dispute with R. Akiba.
17. V. p. 535, n. 9.
18. How, then, could R. Abba subject the borrower in our case to an oath.
19. Regarding the seizure of slaves, supra. In civil matters the law is always in accordance with R. Nahman's views, while here it has been stated that the law is in accordance with R. Abba's message. How, then, is one to reconcile the laws of R. Nahman and R. Abba, which are mutually contradictory?
20. The two views are not contradictory, but identical.
21. The declaration cannot have for its object the mere statement of the law regarding the seizure of slaves. Since that is obvious from the fact that R. Nahman and R. Abba hold the same opinion, there was no need to state it.