R. Simeon b. Gamaliel holds [that] 'letters' are not acquired by delivery1 and Rabbi holds [that] 'letters' are acquired by delivery.
Said Abaye to him: If so,2 [this would present] a disagreement with the Master!3 [The other] replied to him, 'Then let there be disagreement!'4 'I mean to say to you this', said [Abaye] to him, '[that] the Baraitha cannot be [well] explained except on the lines which the Master had laid down; and since [that is] so, [there would emerge] a contradiction between one statement of R. Simeon b. Gamaliel and the other statement of his!'5 But, said Abaye, here it is a case6 where one of them7 was found to be a relative8 or [otherwise] disqualified; and they differ on the [same principle that underlies the] dispute of R. Meir and R. Eleazar. Rabbi holds the [same] View as R. Eleazar who maintains [that] the witnesses to the delivery9 effect the legal separation;10 while R. Simeon b. Gamaliel is of the [same] opinion as R. Meir who maintains [that] the witnesses who signed11 [the letter of divorce] are the main factor in the legal separation.12
But, surely. R. Abba had said: R. Eleazar agrees that [a deed] is invalid if the irregularity is internal!13 — But, said Rabina, all agree14 that [the deed] is invalid if it15 contains the entry.16 'we have dealt with the evidence of the witnesses and their evidence was found to be irregular'.17 in accordance with [the law laid down by] R. Abba; they only differ in [the case of] a deed which bears no [signatures of] witnesses at all [in] which [case] Rabbi holds the [same] view as R. Eleazar who maintains [that] the witnesses to the delivery effect the legal separation;18 while R. Simeon b. Gamaliel holds the [same] view as R. Meir who maintains [that] the witnesses who signed the deed19 effect the final separation.20
If you prefer, however, I might say, [that] they differ on [the question whether in the case] where a person21 admitted that he wrote a deed,22 [independent legal] attestation is required. For Rabbi holds [that where a person] admitted that he wrote a deed, no [independent] attestation is required;23 while R. Simeon b. Gamaliel holds [that independent] attestation is required.24
[Did] we [not], however, hear [that] they hold contrary [views]? for it was taught:25 Where two men26 cling to a deed, the creditor pleading. 'It is mine, I dropped it, and you found it', and the borrower pleading. 'It is27 [indeed] yours but I have paid you'. the [validity of the] deed is established by those who signed it.28 So29 Rabbi. Rabban Simeon b. Gamaliel said: Let them30 divide it.31 And when this was discussed [the following] question was raised: Does not Rabbi accept32 what we have learnt: Where two [men] hold a cloth, one pleading, 'I found it' and the other [also] pleading, 'I found it', the one must take an oath that he possesses in it no less than a half and the other must take an oath that he possesses in it no less than a half and they divide [it]?33 And Raba in the name of R. Nahman replied: In [the case of] an attested34 [deed] no one disputes [the law] that they35 must divide;36 they differ only in [the case of a deed] which has not been attested, [since] Rabbi holds the opinion [that where one] admitted that he wrote a deed [independent] attestation is required, and [consequently] if [the creditor is able to] secure its attestation he collects a half, and if not [the deed is regarded as] a mere potsherd; while Rabban Simeon b. Gamaliel holds the opinion [that where one] admits that he wrote [a deed] no [independent] attestation is required and they divide!37 — Reverse.38
If you prefer, however, it may be said [that] there is really no [need] to reverse [the reported opinions],39 but the dispute here40 is on [the question of] proving [all one's pleas];41 such as [the case] of R. Isaac b. Joseph [who] claimed [a sum of] money from R. Abba. [When] he came before R. Isaac Nappaha. [R. Abba] pleaded. 'I repaid to you in the presence of X and Y'. 'Let X and Y come', said R. Isaac to him, 'and let them give [their] evidence'. 'If they will not come', said [R. Abba] to him, 'am I not to be believed? Surely we have it as an established law [that] a loan made in the presence42 of witnesses need not be repaid43 in the presence of witnesses!' 'In this [case', R. Isaac] replied to him, 'I am of the same opinion as [that in] the reported statement of the Master.44 for R. Abba in the name of R. Adda b. Ahabah in the name of Rab said: Where one said to another, 'I paid you [your debt] in the presence of X and Y', it is necessary that X and Y should come and give evidence. 'But surely', said [R. Abba] to him,45 'R. Giddal said in the name of Rab: The halachah is in accordance with the statement of R. Simeon b. Gamaliel;46 and even Rabbi
Original footnotes renumbered.
- The production of the deed is, therefore, useless and the title to the land must rest entirely on the evidence of 'undisturbed possession'.
- That according to R. Simeon b. Gamaliel 'letters' are not acquired by delivery.
- Rabbah, who said supra that according to R. Simeon b. Gamaliel 'letters' are acquired by delivery.
- I.e., 'I do not mind differing from Rabbah'.
- Lit., 'R. Simeon etc' on R. Simeon etc.' V. supra notes 9 and 10.
- Lit., 'in what are we engaged'.
- The witnesses who signed an ordinary deed.
- Of one of the litigants.
- Of the letter of divorce to the woman.
- Lit., 'cut', the matrimonial relationship between husband and wife (v. Git. 9b). The signatures of the witnesses on the document, which are required 'for the sake of the social order' (cf. ibid. 86a). do not in any way affect the legal and final separation between husband and wife, which is entirely dependent on the presence of suitable witnesses at the time of the delivery of the document. Similarly in the case of a deed of purchase and sale, Rabbi regards the document as valid irrespective of the signatures or the qualification of the witnesses. Hence he maintains that the tight of ownership may be established even where one of the witnesses is a relative or is in any other way disqualified.
- Lit., 'witnesses of the signature'.
- Git. 21b. Cf. note 5. As in the case of a letter of divorce the validity of the document is entirely dependent on the witnesses whose signatures are appended to it so in the case of a deed of purchase or sale, unless the witnesses who signed it are eligible, the document is invalid. Hence R. Simeon b. Gamaliel maintains that, where one of the witnesses was found to be disqualified for any reason whatsoever, the entire deed is invalid, and right of ownership must be determined by the result of the evidence of witnesses on the statutory period of undisturbed possession of the land, on the part of the present holder.
- Git. 10b. Though a letter of divorce on which no signatures at all appear is valid (the witnesses to the delivery effecting the legal and final separations), where disqualified witnesses are signed on it, thereby causing an irregularity in the document itself, the deed is invalid. Similarly, in the case of the deed of purchase under discussion, how could R. Simeon b. Gamaliel regard it as valid when, owing to the disqualification of one of the witnesses, an internal irregularity arises in the deed itself!
- Rabbi and R. Simeon b. Gamaliel.
- The deed produced as evidence of the holder's tight of ownership. supra 169b, end.
- Lit., 'written in it'. [Read with Ms.M., 'If they dealt with the evidence, etc.']
- I.e., one of the witnesses was found to be disqualified.
- Cf. p. 743. n. 5.
- Cf. loc. cit. n. 6.
- V. loc. cit. n. 5.
- E.g. a seller.
- And he only disputes its validity. In the case under discussion, e.g., he might plead that he did not deliver the deed to the other party, as the sale never took place, but he lost the document and the other found it.
- Consequently, in the present case since the seller admits the writing of the deed and only disputes the buyer's claim, the latter's word is accepted and there is no need to hear witnesses on the question of undisturbed possession.
- Judgement, therefore, cannot be given in favour of the buyer on the strength of the deed alone; and his claim must be based on the evidence of undisturbed possession which is given by qualified witnesses. Cf. 154a; B.M. 7b; 72b.
- B.M. 7a.
- Creditor anti debtor.
- [Some texts: 'It sits yours'; v D.S.B M. 7a.]
- Since the original validity of the deed is thus established, the creditor is entitled to judgment in his favour.
- Lit., 'the words of'.
- Creditor and debtor.
- The amount of the debt, the debtor repaying only a half of the claim.
- Lit., 'is there not'.
- B.M. 2a. As the cloth in that case is divided so here the amount of the debt should be divided. Why, then, did Rabbi say that the entire amount of the debt was to be repaid to the creditor?
- Legally endorsed by a court of law.
- Creditor and debtor.
- The amount of the debt; as the cloth is divided between the two who claim to have found it. The creditor is entitled to his half by virtue of the endorsed deed; the debtor also is entitled to his half by virtue of his holding on to the deed jointly with the creditor.
- Cf. previous note. Thus it follows that Rabbi does not, and Rabban Simeon b. Gamaliel does require independent attestation. How, then, could it have been assumed supra that their respective opinions were directly the opposite?
- One or other of the two reported statements, so that Rabbi and Rabban Simeon b. Gamaliel should hold respectively the same opinions in both cases.
- OF Rabbi and Rabban Simeon b. Gamaliel.
- The Baraitha. supra 169b.
- In the case where one of two pleas is essential, and the other superfluous. According to Rabbi both pleas must be proved since they were both advanced together. Hence it is necessary for the buyer (supra 169b) to prove the validity of the deed though, had he based his claim on the tight of undisturbed possession only, there would have been no need for him to produce any deed at all, no one being expected to preserve a deed after three years which is the statutory period of undisturbed possession. Rabban Simeon b. Gamaliel, however, holds that the superfluous plea is altogether disregarded. Hence it is sufficient for the buyer to prove undisturbed possession to secure judgement in his favour.
- Lit., 'who lends to his friend with'.
- Lit., 'to pay him'. V. Shebu. 41b, Ket. 18a.
- Cf. Rashal, a.l.
- Who maintains that where a superfluous plea was advanced together with one which is essential, the former is altogether disregarded. Here, then, since it is not necessary to repay a loan in the presence of witnesses, why should it be necessary to bring the witnesses that were needlessly mentioned?
Baba Bathra 170b
disagreed1 only in respect of proving [one's statement]!'2 'I also', replied [R. Isaac] to him, 'require3 [the evidence of your witnesses] in order to prove [your plea]'.4
MISHNAH. IF A PERSON5 REPAID PART (OF HIS DEBT, R. JUDAH SAID, HE SHALL EXCHANGE [HIS BOND FOR ANOTHER].6 R. JOSE SAID: HE7 SHALL WRITE A QUITTANCE.8 R. JUDAH SAID: THUS, THIS [DEBTOR] WOULD HAVE TO GUARD HIS QUITTANCE FROM MICE!9 SAID R. JOSE TO HIM: SUCH [A COURSE]10 IS BETTER FOR THE CREDITOR11 AND HIS12 RIGHTS MUST NOT BE IMPAIRED.
GEMARA. R. Huna said in the name of Rab: The halachah is neither in accordance with R. Judah nor in accordance with R. Jose; but [only] a court of law [has the authority to] tear up the deed and to write for the creditor13 another deed14 entering the original date.15
Said R. Nahman to R. Huna, and others say [that] R. Jeremiah b. Abba said to R. Huna: Had Rab heard that Baraitha16 wherein it was taught, 'Witnesses may tear up a deed and write 'for [the creditor]; another deed entering the original date', he would have withdrawn.17 He said unto him: He heard it and he did not withdraw.
Original footnotes renumbered.
- Lit., 'said'.
- Legally however, Rabbi admits, this is not necessary (R. Gersh.)
- Lit., 'say'.
- I.e., R. Isaac holds the same opinion as Rabbi. Had not R. Abba mentioned witnesses his word alone would have been accepted. Since, however, he did mention witnesses, he must prove his statement or lose his case. [R. Gersh. 'I also require it merely to prove your plea, without however affecting the issue should you fail to bring the witnesses.']
- Lit., 'who'.
- For one in which the balance if the debt is entered, while the original deed is to be destroyed.
- The creditor.
- For the sum received; and delivered to the debtor.
- Lit., 'keep his receipt from the mice'. It is more equitable for the creditor to exchange the bond than for the debtor to be encumbered with the necessity of taking care of a receipt the loss of which might involve him in a claim for the repayment of the full loan.
- The writing of a receipt instead of changing the original deed.
- Lit., 'for him'.
- Lit., 'of this'.
- Lit., 'for him'.
- for the balance of the debt.
- Lit., 'from the first time'.
- Cited infra 171a.
- His ruling; and would have admitted the halachah to be in accordance with the ruling of R. Judah in our Mishnah. Since the original date is entered in the new bond, the creditor is involved in no loss or disadvantage whatsoever, and there should, therefore, be no difference whether the court or witnesses change the deed.