Babylonian Talmud: Tractate Baba Bathra

Folio 45a

If he has other land, the creditor can seize that.¹  If he has no other land, what advantage has he [from the land remaining in the hands of the purchaser]?²  — The rule actually applies to the case where he has no other land, and the reason for it is that the seller is anxious if possible not to be a defaulter.³  But when all is said and done, he does become a defaulter in respect of the purchaser? — [The rule is still sound] because he says: It was for this very reason that I sold it to you without a guarantee.⁴

Raba [or some say, R. Papa] issued a proclamation: [Know] all you that go up [to Eretz Yisrael] or go down [to Babylon] that if an Israelite sells an ass to a fellow-Israelite and a Gentile comes and forcibly takes it from him,⁵  it is the duty of the first to help him to rescue It.⁶  This, however, only applies if the purchaser cannot recognise the ass as the foal of the seller,⁷  but if he can recognise it as the foal of the ass of the seller, [he need] not [help him].⁸  Further, we only say [that he has this duty] if the non-Jew does not forcibly take the saddle along with the ass,⁹  but if he takes the saddle along with the ass, [we do] not [say so]. Amemar said: Even without all these qualifications he need not help him, because generally speaking the heathen is a grabber,¹⁰  and so Scripture says of them, Their mouth speaketh vanity and their right hand is a right hand of falsehood.¹¹

A CRAFTSMAN HAS NO HAZAKAH. Rabbah said: This rule was meant to apply only to the case where the owner delivered the article to the craftsman in the presence of witnesses, but if he delivered it to him without any witnesses being present, since he [the craftsman] is able to plead [without fear of contradiction] that the transaction never took place at all,¹²  if he puts forward [the more probable] plea that he has purchased it [from the claimant],¹³  his plea is accepted.¹⁴  Said Abaye to him: If that is so,¹⁵  then even [if he has delivered it to him] in the presence of witnesses, since he is able to plead 'I have returned it to you',¹⁶  if he only pleads 'I have bought it', his word should certainly be accepted! Rabbah replied: Is it your view

1. Lit., 'he (the creditor) will come back on his (the debtor's property.
2. Because even if the purchaser has to give up the land, the seller has no assets from which he can obtain restitution.
3. Lit., 'a wicked man who borrows and does not repay.' Ps. XXXVII, 21.
4. I.e., so that if it is taken from you I shall not be called a defaulter, even if I do not make restitution.
5. On the ground that it was stolen from him.
6. By convincing the Gentile that it is not his. If, however, a Jew forcibly takes it, the seller need not help the purchaser, because the latter can summon the Jew for assault, even if the ass did rightly belong to him.
7. And therefore should he go to law with the Gentile, he will not be able to prove that the animal is not his.
8. Because he will be able to recover the ass from the Gentile by process of law.
9. Because this is a sign that he only desires to assert his right, but if he takes the saddle as well, the presumption is that he is a robber, and can be proved so in a court of law.
10. And he is likely therefore to have no case in a court of law.
11. p. 5, CXLIV, 8.
12. But that either he never had the garment or it was given him by someone else.
13. Lit., 'It is purchased in my hand.'
14. According to Rabbah, therefore, the essential point is whether the article was originally transferred in the presence of witnesses, and it makes no difference whether the owner has or has not seen it in the hands of the repairer.
15. Viz., that the fact of his seeing it in his hands makes no difference.
16. If it has not been seen in his possession.

that if a man entrusts an article to another in the presence of witnesses, the latter need not return it in the presence of witnesses?¹  This is quite wrong;²  if a man entrusts an article to another in the presence of witnesses, he must return it in the presence of witnesses.³

Abaye raised an objection [to this from the following]: If a man sees his slave in the possession of a craftsman or his garment in the possession of a fuller, and says to him: 'How comes this with you?' [and the other replies:] 'You sold it to me,' or, 'You made a present of it to me,' his plea is of no effect. [If he says], 'In my presence you told him to sell it or to give it to me,' his plea is valid. Why is the ruling here different in the second case and in the first?⁴  — Rabbah explains that the second ruling refers to the case where the slave or the garment is in the hands of a third party who says to the claimant: 'In my presence you told him [the craftsman] to sell it [to me] or to present it as a gift.' In such a case, since if he chose he could plead 'I bought it from you,' when he merely pleads 'In my presence you told him to sell it,' his plea is certainly accepted. Now⁵  the first ruling refers to the case where the claimant 'sees' [the article in the craftsman's possession]. What are the circumstances? If there are witnesses [that he entrusted the article to the craftsman], let him bring the witnesses and obtain possession.⁶  We must suppose therefore that there are no witnesses, and nevertheless if he sees the article he can seize it?⁷  — [Rabbah replies]: No; the case is in fact one where [the article has been entrusted] in the presence of witnesses, but we must suppose also that the claimant sees it [in the possession of the craftsman].⁸  But, [said Abaye,] you yourself said that if a man entrusts an article to another in the presence of witnesses he must return it in the presence of witnesses? — Rabbah replied: I retract [this opinion].

Raba sought to confute [Abaye and] to support Rabbah [from the following]: If a man gives his garment to a workman [to repair], if the workman says, You undertook to give me two [zuzim] and the owner says, I only undertook to give you one, then as long as the garment is in possession of the workman, it is for the owner to bring proof; if the workman has returned it, then if the prescribed time has not yet elapsed⁹  he can take an oath and recover his claim,¹⁰  but if the prescribed time has elapsed, then the rule applies that the onus probandi is on the claimant.¹¹  Now what are the circumstances? If [the owner gave the garment to the workman] in the presence of witnesses, then let us see what the witnesses say.¹²

1. Because only on this supposition would his plea that he has bought it be valid, this plea itself being only a modified form of the plea 'I returned it to you'.
2. Lit., 'It cannot enter your mind.'
3. Therefore he cannot plead, 'I returned it to you,' nor, consequently, 'I bought it'.
4. This question refers to the meaning of the above dictum; its bearing on the argument comes later.
5. Lit., 'At all events'. Abaye's objection is now stated.
6. Since according to you (Rabbah) the craftsman cannot plead that he returned it unless he had witnesses to that effect.
7. Which shows that the 'seeing' is the essential point, and not the delivery in the presence of witnesses.
8. Rabbah now lays down that two conditions must be fulfilled if the craftsman is not to have hazakah — the delivery in the presence of witnesses and the 'seeing'.
9. I.e., if the sun has not yet set. V. Deut. XXIV, 15.
10. In a dispute about wages between an employer and a workman, if there is no evidence on either side, the word of the workman if given on oath is accepted.
11. I.e., the workman. V. B.M. 112b; Shebu. 46a.
12. Presumably the witnesses also were aware of the payment stipulated.