Babylonian Talmud: Tractate Baba Bathra

Folio 159a

it [must] have been made: [If] a son sold the estate¹  of his father, during the lifetime of the father,²  and he died, his son³  may take [it] away from the buyers;⁴  and this it is that presents a difficulty in civil law;⁵  for they⁶  could say to him, 'Your father has sold and you are taking away'!⁷

What objection is this! Could he⁸  not⁹  reply. 'I succeed to the rights of the father of [my] father'?¹⁰  You may know [that such a plea is justified] for it is written, Instead of thy fathers shall be thy sons, whom thou shalt make princes in all the land.¹¹  If, however, [a message was sent to which] objection [is to be raised, it may be] the following:¹²  'A firstborn son who sold the share of [his] birthright during the lifetime of his father, and he died during the lifetime of his father, his son may take [it] away from the buyers; and this it is that presents a difficulty in civil law', [for] his father sold [it] and he takes [it] away! And if it be suggested [that] in this case¹³  also [he might plead]. 'I come as successor to the rights¹⁴  of my father's father', [it may be retorted.] 'If he comes as successor to the rights of his father's father what claim has he upon the portion of the birthright?'¹⁵

But what difficulty [is this]? Could he not¹⁶  reply, 'I succeed to the rights of [my] father's father¹⁷  but take [also] the place of [my] father'?¹⁸  If, however, [a message was sent to which] objection [is to be raised it might be] the following.¹⁹  'If a person was in a position to tender²⁰  evidence for one²¹  [in respect of a transaction that was recorded] in a deed,²²  before he turned robber, and [then] he turned robber,²³  he is not [permitted] to attest his handwriting,²⁴  but others may attest it.'²⁵  Now, if he [himself] is not trusted²⁶  [shall] others be trusted!²⁷  This, then, [it is] which [presents] a difficulty in civil law.

What difficulty [is this]? [It is] possible [that the Palestine message refers to] a case where his²⁸  handwriting was endorsed at a court of law!²⁹  If, however, [a message was sent to which] objection [is to be raised, it might be] the following.³⁰  'If a person was in a position to tender³¹  evidence for one³²  [in respect of a transaction that was recorded] in a deed,³³  before it³⁴  had fallen as an inheritance to him, he is not eligible to identify his handwriting³⁵  but others may identify his handwriting.'³⁶

What difficulty, however, [is this]? [Is it not] possible [that] here also [the reference is to] a case where his handwriting was endorsed at a court of law?³⁷  If, however [a message was sent to which] objection [is to be raised, it might be] the following.³⁸  'If a person was in a position to tender evidence for one, before he became his son-in-law and he [subsequently] became his son-inlaw, he is not [permitted] to attest his handwriting,³⁹  but others may attest it. [Now. if] he is not trusted [shall] others be trusted!⁴⁰  And if it be suggested [that] here also [the reference is to] a case where his handwriting was endorsed at a court of law, surely, [it may be retorted], R. Joseph b. Manyumi said in the name of R. Nahman, 'Even though his handwriting was not endorsed at a court of law'!⁴¹

What difficulty, however, [is this]? [It is] possible [that] it is a decree of the king⁴²  that he⁴³  shall not be trusted [as a witness] while others⁴⁴  shall be trusted; and [the reason is] not because he might lie!⁴⁵  for should not [this explanation] be accepted,⁴⁶  [could it be imagined that] Moses and Aaron [are not permitted to act as witnesses] for their fathers-in-law because they are untrustworthy! [The] only [possible explanation] then [is that] it is a decree of the king that they⁴⁷  shall not act as witnesses for them,⁴⁸  [so] here also [the explanation may be that] it is the decree of the king that he⁴⁹  shall not attest his handwriting in favour of his father-in-law.⁵⁰

Hence [the message sent from Palestine was in fact just the one that was mentioned at first;⁵¹  and as to your objection [from the verse]. Instead of thy fathers shall be thy sons,⁵²  [it may be pointed out that] this was written in [connection with] a blessing.⁵³  But can it be said [that this verse] was written [only] in [connection with] a blessing

1. His share of the inheritance.
2. I.e., while it was still in his father's possession.
3. The son of the dead man who sold his share in his father's estate.
4. That which his father had sold them. That sale was invalid because his father's father having been alive at the time, his father was not yet in possession of the land he sold; and, since he died before his father, the land has never come into his possession. Hence the son (the grandson of the owner) inherits that land from his grandfather and is entitled therefore, to take it away from the buyers, on his grandfather's death.
5. V. p. 691, n. 9.
6. The buyers.
7. The son's title to the estate is solely due to the rights of his father, how then, could he lay any claim to that which his father himself had sold
8. The son, the grandson of the original owner.
9. Lit., 'perhaps'.
10. And not to those of his father. As the Torah conferred upon a son the right to inherit from his father so it has also conferred upon the son's son the right to inherit from his grandfather. Hence, the inheritance has passed directly from the grandfather to the grandson who should, therefore, be entitled to seize the estate which has never come into the possession of his father who, consequently, had no right to sell it.
11. Ps. XLV, 17. This proves that a person's son takes the place of his father, i.e., the grandson succeeds his grandfather.
12. Lit., 'that (is) a difficulty'. But the message in the form given supra, as explained, presents no difficulty at all.
13. Lit., 'here'.
14. Lit., 'from the power'.
15. Were it not for the rights of his father who was a firstborn son, he should not have been entitled to the double portion!
16. Lit., 'perhaps'.
17. As regards the right to be heir,
18. I.e., he inherits from his grandfather as if he himself had been the firstborn (Rashb.). V. Mishnah supra 116a.
19. V. p. 692 n. 10.
20. Lit., 'knew'.
21. Lit., 'for him'.
22. Which be signed as a witness.
23. Who is ineligible to act as a witness. Cf. Ex, XXIII, 1.
24. Cf. previous note.
25. And the deed is valid.
26. Presumably because the deed may have been forged.
27. Granted that the signature is his, there is no proof that the deed itself is not a forgery!
28. The robber's.
29. Before he embarked on his lawless career. At that time his word could be relied upon; and the deed is, therefore, valid if the witnesses now testify that they signed the endorsement when he was still an upright man.
30. V. supra, p. 692, n. 10.
31. Lit., 'knew'.
32. Lit., 'him'.
33. E.g., a loan for which a bond of indebtedness has been given.
34. The bond, i.e., the debt.
35. He is now an interested party and is, consequently. disqualified from acting as witness.
36. Since it has been said that he himself is not trusted, it is apparently assumed that he might have forged the document, why then should it be valid if others confirm his handwriting? Could not that very handwriting represent a record of an imaginary transaction? This then may have been the message sent from Palestine which presents a difficulty in civil law.
37. CF. mutatis mutandis, supra, n. 13.
38. V. supra p. 692, n. 10.
39. I.e., his signature on any document in favour of his father-in-law.
40. CF. supra p. 693, n. 20.
41. This, then, may have been the Palestine message and the difficulty in civil law that it presented.
42. A divine precept, a statute without a reason.
43. A relative such as a son-in-law.
44. Strangers, attesting his signature.
45. Hence, the correctness of the statements in the deed never having been doubted, the deed is valid if strangers attest the signature.
46. Lit., 'for if you will not say so'.
47. Moses and Aaron as any other relatives.
48. Their fathers-in-law (or other relatives).
49. A son-in-law.
50. What, then, could have been meant by the 'difficulty' mentioned?
51. The case of a son who sold his share in his father's estate during the latter's lifetime (supra).
52. V. supra.
53. From an expression used in reference to a blessing no law may be derived.

and that with respect to [a matter of] law, [it is] not [applicable]? Surely it was taught: [In the case where] a house collapsed upon a man and his father [or] upon a man and those whose heir he is, and [that man] had against him [the claim of] a woman's kethubah or [that of] a creditor, [and. in the first case]. the heirs of the father plead [that] the son died first and the father afterwards, while the creditor[s] plead [that] the father died first and the son afterwards;¹  [now,] 'sons'²  [denote] 'the heirs of the father',³  do they not? and 'brothers'⁴  'those whose heir he is'? If then it could be assumed [that] one cannot plead. 'I come by virtue of the rights of the father of [my] father', because the verse,⁵  Instead of thy fathers shall be thy sons, [was] written in [connection with] a blessing. what avails⁶  it [for the heirs] that the son died [first] and the father died afterwards, the creditor [surely] could say to them,⁷  'I collect [my debt from] the inheritance of their father'!⁸  — No; [by] 'the heirs of the father','his brothers'⁹  [are meant; and by] 'those whose heir he is' the 'brothers of his father'¹⁰  [are meant].

R. Shesheth was asked: May a son in the grave¹¹  be heir to his mother¹²  to transmit [her estate] to his paternal brothers?¹³  — R. Shesheth said to them, You have learnt it: If a father was taken captive [and died] and his son died in the [home] country, or if a son was carried into captivity [where he died] and his father died in the [home] country. [the estate] is to be divided between the heirs of the father and the heirs of the son. How is this to be understood? If it be suggested [that it is to be understood] as was taught,¹⁴  who then are the heirs of the father and who are the heirs of the son?¹⁵  [Must it] not then [be concluded that it is] this that was meant: If a father was taken into captivity [where he died] and the son of his daughter died in the [home] country, or if the son of one's daughter was taken into captivity [where he died], and the father of his mother died in the [home] country; and it is not known which of them died first, [the estate] is to be divided between the heirs of the father and the heirs of the son. Now, if it were so,¹⁶  granted even that the son died first, he should in his grave inherit [the estate] of the father of his mother and transmit it to his paternal brothers! [Must it] not consequently be inferred that a son in the grave does not inherit [the estate of] his mother to transmit [it] to his paternal brothers?

R. Aha b. Manyumi said to Abaye. 'We also were taught [to the same effect]: IF THE HOUSE COLLAPSED UPON ON A MAN AND HIS MOTHER, BOTH AGREE THAT [THE ESTATE IN DISPUTE] IS TO BE DIVIDED.¹⁷  Now, if it were so,¹⁶  granted even that the son had died first, he should in his grave inherit [the estate] of his mother and transmit it to his paternal brothers! [Must it] not then be concluded that a son in the grave does not inherit [the estate of] his mother to transmit [it] to his paternal brothers?' This proves it.

And what is the reason? — Abaye replied: 'Remove' is mentioned in [the case of the inheritance of] a son,¹⁸  and 'remove' is [also] mentioned in [the case of the inheritance of] a husband,¹⁹  as [in the case of] removal [of an estate] mentioned in [respect of] the husband, a husband in the grave does not inherit [the estate of] his wife, so [also in the case of the] removal [of an estate] mentioned in [respect of] the son, a son in the grave does not inherit [the estate of] his mother to transmit [it] to his paternal brothers.

A man once said to his friend, 'I am selling you the estate of Bar Sisin.' [In it] there was [a plot of] land that bore the name of Bar Sisin, [but the seller] told him, 'This does not belong to Bar Sisin, though it bears the name of Bar Sisin.'²⁰  [When the matter] was brought before R. Nahman he decided in favour of the buyer.²¹  Said Raba to R. Nahman: 'Is this the law? [Surely], he who claims from the other has to produce the proof!'

A contradiction was pointed out between two statements of Raba²²  and between two statements of R. Nahman.²³  For, once a person said to another, 'What claim have you upon this house?' [The other] replied to him, 'I bought it from you and enjoyed [undisturbed] usufruct [during the three] years [required to establish the legal right] of possession.' [The first] said to him, 'I occupied [however], the inner rooms.'²⁴  [When the matter] was brought before R. Nahman he said [to the buyer]. 'Go [and] bring proof of your [undisturbed] enjoyment of the usufruct.' Said Raba to R. Nahman, 'Is this the law? [Surely], he who claims from the other has to produce the proof!' [Does not this present] a contradiction between the two statements of Raba and between the two statements of R. Nahman!²⁵  — There is no contradiction between Raba's statements, [because] here,²⁶  the seller is in possession of his property;²⁷  and there,²⁸  the buyer is in the possession of his property.²⁷  There is [also] no contradiction between the statements of R. Nahman, [because] since here²⁶  he spoke to him, of the estate of Bar Sisin and [that plot] bore the name of Bar Sisin, It is incumbent upon him²⁹  to prove that it does not belong to Bar Sisin; here,²⁸  [however.] [granted] that he has no [less a claim] than [one] who holds a deed, do we not [even in such a case] say [to the holder], 'Attest your deed and you will retain possession of the estate'?³⁰

1. Supra 157a, q.v. for notes.
2. Of the son who was killed.
3. 'The father of their father', i.e., their grandfather. They claim that their inheritance does not come to them from their father, who was in debt, but from their grandfather; and that for this reason they (and not the creditors) are entitled to the estate.
4. V. supra n. 2.
5. Lit., 'when it is written'.
6. Lit., 'what is'.
7. The court.
8. Since their inheritance, as has been assumed, cannot come direct from their grandfather but from their father. As, however. they are allowed to advance such a plea, it follows that even in legal matters (not only in a blessing) grandchildren succeed directly to the estate of their grandfather
9. The brothers of the son that was killed, who are, of course, the sons of the father that was killed whose entire estate they inherit, in the case where their brother died first and afterwards their father.
10. The uncles of the son that was killed. The Mishnah, in the second case, refers to an uncle and a nephew upon whom a house collapsed. If the nephew died first, the brothers of the uncle (the 'heirs of the father' who is one of the brothers of the uncle) are entitled to the entire estate. If, however, the uncle died first, the nephew is entitled as the heir of his father (one of the brothers) to share the estate with them.
11. I.e., who predeceased his mother.
12. And thus keep away her estate from, her other living heirs (e.g., her brothers).
13. Who are complete strangers to his mother.
14. That it is a case of a father and his own son,
15. Both, surely. are represented by the very same heir or heirs. If the son has no issue the heirs of the father would also inherit the sons' estate, and if he has issue, his sons would inherit the estate of their grandfather as well as that of their father.
16. That a son in the grave inherits the estate of his mother.
17. Supra 158b.
18. V. Num. XXXVI, 7. So shall no inheritance … remove, which refers to the inheritance of a son from his mother. Cf. supra 112b.
19. So shall no inheritance remove. Num. XXXVI, 9, which refers to a husband's inheritance from his wife. Cf. supra l.c.
20. It is his in name only, not in fact.
21. Lit., 'he placed it firmly in the hand of the buyer'.
22. Lit., 'Raba on Raba'.
23. Lit., 'R. Nahman on R. Nahman'.
24. Since the occupier of the inner rooms is making use of the outer ones, the enjoyment of the usufruct for three years in the latter does not establish the right of ownership.
25. Cf. supra notes 5 and 6.
26. The case of the land of Bar Sisin.
27. Hence it belongs to him.
28. In the dispute about the outer rooms.
29. The seller.
30. Hence, it is the buyer who has to produce the proof. On the whole passage, v. supra 29b, 30a.