Babylonian Talmud: Tractate Baba Bathra

Folio 43a

How so? Are they not interested parties?¹  — We are assuming here that the one [who gives evidence] makes a written declaration stating: I have²  no claim on this field. And suppose he does make such a declaration, what does it matter, seeing that it has been taught: If a man says to another,³  I have no claim on this field, I have no concern in it, I entirely dissociate myself from it,⁴  his words are of no effect?⁵  — We are assuming here that the other partner obtained from him a formal transfer.⁶  And suppose he does obtain from him a formal transfer, what does it matter? The other can still keep it safe for his own creditor,⁷  as we learn from the statement of Rabin b. Samuel, who said in the name of Samuel: If a man sells a field to another [even] without accepting responsibility,⁸  he cannot give evidence as to the latter's title, because he may [want to] keep it safe for his own creditor?⁹  — We are assuming that he has accepted responsibility [towards his partner]. Responsibility in respect of whom? If we say, responsibility in general,¹⁰  then all the more would he prefer it [to be in the hands of the partner, and he is therefore an interested party]! — We must therefore say, responsibility in respect of his own debt.¹¹

And suppose the partner does renounce his interest in the property, does he do so sincerely?¹²  Has it not been taught: If a scroll of the Law belonging to the inhabitants of a town has been stolen, the judges of that town must not try [the alleged culprit] nor can the inhabitants of the town give evidence [against him]?¹³  Now if a partner can renounce his interest, why cannot two of the townspeople renounce their interest in, the scroll and try [him]?¹⁴  — A scroll of the Law is different, because it is for public reading.¹⁵  Come and hear: If a man says: Distribute a maneh to the inhabitants of my town [and it is stolen], the judges of that town must not try [the alleged culprit] nor may the inhabitants give evidence against him. Why [should this be]? Cannot two of them renounce their share in the gift and try him? — Here too [we are dealing with] a scroll of the Law.¹⁶  Come and hear: If a man says: Distribute a maneh to the poor of my town [and it is stolen, the alleged culprit] is not to be tried by the judges of that town and the inhabitants of that town cannot give evidence in the case. What! Do you imagine then that, because the poor receive, the judges are to be disqualified?¹⁷  What therefore you mean to say is this: the case must not be tried by the poor judges of that town, nor may the poor of the town give evidence. Why now should this be? Cannot two of them renounce their share and try the case? — Here too we [are dealing with] a scroll of the Law, and the reason why the donor designated the recipients as 'poor' is because all are poor in respect of a scroll of the Law. Or if you like again I can indeed say that the poor literally are meant, and the particular poor referred to are those whose support devolves on the judges.¹⁸  How are we to understand this? If there is a fixed levy,¹⁹  let two of them give their contribution and then try the case.²⁰  We assume therefore that there is no fixed levy.²¹  Or if you like I can say that there is indeed a fixed levy, yet still the rich are pleased [that the maneh should be given to the poor], because after all there is a surplus.²²

[Samuel said above that partners] may stand to one another in the relation of paid keepers of their common property.

1. Lit., 'in contact with their evidence'.
2. I.e., I shall henceforth have.
3. I.e., his partner.
4. Lit., 'My hands are removed from it.'
5. Because all these expressions refer properly to something which has yet to accrue to a man, but he cannot divest himself of his ownership of something which he already possesses until he says expressly to the donee, 'I make the field over to you,' or words to that effect.
6. Lit., 'they acquired it from his hand' (by a kinyan sudar).
7. If A has borrowed money from C on the security of his share in a field and then makes over his share to his partner B, it is to his interest that the field should be recognised as belonging to B rather than to any other person, so that C may seize the mortgaged part of the field in consideration of the debt and A will thus be saved from becoming a defaulter. Hence if B's title to the field is contested, A is an interested party and cannot give evidence in B's favour, although he has himself formally renounced all share in the field.
8. That if the field is seized on account of a debt which he has previously contracted, he will refund the purchaser his money.
9. At the time when the creditor claims the repayment of the loan.
10. E.g., in respect of one who claims the land as having previously belonged to himself or his father, and not merely of a creditor.
11. As explained above in note 3. In this case, if he does not wish to become a defaulter, he must either pay his creditor or compensate his partner. Hence it makes no difference to him whether the land remains in the hands of his partner or not, and therefore his evidence is admissible.
12. Lit., 'does he renounce it'. Even if he transfers the property to the partner in such a way as to make his renunciation apparently complete (as explained above), is there not still the possibility of collusion between him and the partner, so that his evidence would still be inadmissible.
13. Because all the townspeople have a share in the scroll and are therefore interested parties.
14. Which shows that renunciation cannot be made by the process described above.
15. And therefore none of the townspeople can entirely divest himself of his interest in it, unless he leaves the town.
16. I.e., the gift was made for purchasing a scroll, and therefore none of the townspeople can entirely divest himself of his interest in it, unless he leaves the town.
17. This question relates to the form of the statement just made, which contains a manifest absurdity, and is therefore corrected in the next sentence.
18. Who are presumably wealthy.
19. On the rich for the support of the poor.
20. For then they are no longer interested in the donation.
21. But money is collected from the rich as occasion arises. Hence as long as the donation is in existence they have an interest in it.
22. Lit., 'since there is something over, there is something over', and for the time being they are not called on to pay.

Why should this be, seeing that this is a case of keeping with the owner present?¹  — R. Papa replied: [Samuel's rule applies] where one said to the other, You keep [the whole property for me] today and I will keep it [for you] tomorrow.²

Our Rabbis taught: If a man sells to another a house or a field, he is not allowed to testify to the latter's title to it³  because he is responsible to him for it.⁴  If, however, he sells him a cow or a garment, he can testify to his title to it, because he is not responsible to him for it. Why should the rule in the second case be different from that in the first? — R. Shesheth said: The first rule [applies to a case where, for instance,] Reuben wrongfully takes a field from Simeon and sells it to Levi, and then Judah comes and contests Levi's title, Simeon then must not go and give evidence in favour of Levi, thinking that [if Levi retains it] it will be easier for him to recover it.⁵  But if he has once testified that it belongs to Levi, how can he recover it from him?⁶  — [We suppose] that what he will say [in evidence] is, I know that this field does not belong to Judah.⁷  But cannot he recover it from Judah by means of the same proofs by which he recovers it from Levi?⁸  — He says: It is easier for me to deal with the second [Levi] than with the first [Judah].⁹  Or if you like I can reply that both [Simeon and Judah] have witnesses [to prove their title], and the Rabbis have laid down that in such cases the land shall remain in possession of its present owner.¹⁰

1. According to Tosaf, we must suppose that both commenced to keep watch over the property together. Hence at the beginning each was in the position of a man taking charge of an article while the owner is still with him, and in such a case the keeper, even if he receives a fee, is not responsible even if the owner subsequently departs (cf. Ex. XXII, 15, and B.M. 95a).
2. I.e., they made a special stipulation that each should be responsible in turn.
3. Supposing that a third party claims it from him.
4. The meaning of this is discussed later.
5. I.e., he may consider that he has a better chance of recovering it from Levi (from whom he may claim it as having been purchased from a robber) than from Judah, and therefore he has an interest in testifying on Levi's behalf.
6. And so how can he think any such thing?
7. Without committing himself to the statement that it belongs to Levi.
8. E.g., if Judah has claimed the property on the ground that Reuben sold it to him. In that case we should think there can be no objection to Simeon's testifying that Reuben sold the field to Levi, because even if the field is ultimately assigned to Judah, Simeon can recover it from him on the ground that Reuben took it from him (v. Tosaf. s.v. [H]).
9. Lit., 'the first is easy for me, the second difficult'.
10. And therefore, if the land is once assigned to Judah, Simeon will not be able to recover it from him. Hence if Judah claims it from Levi (from whom Simeon can certainly recover), Simeon must not give evidence against him.