Babylonian Talmud: Tractate Baba Bathra

Folio 154a

In what [manner is] proof [produced]?¹  — R, Huna said: Proof [is produced] by witnesses.²  R. Hisda and Rabbah, son of R. Huna, said: Proof³  [is produced] by the attestation of the deed.⁴  R. Huna said, 'Proof [is produced] by witnesses' [for he holds that] they⁵  differ on [the same] principles⁶  [as those] of R. Jacob and R. Nathan;⁷  (Mnemonic: MeNIaH)⁸  R. Meir [is of the same opinion] as R. Nathan⁹  and the Rabbis¹⁰  [are of the same opinion] as R. Jacob.¹¹  R. Hisda and Rabbah, son of R. Huna, said, 'Proof [is produced] by the attestation of the deed,' [because] they differ [on the question whether, in the case] where a person admitted that he wrote a deed, [independent] attestation¹²  is required;¹³  for R. Meir is of the opinion [that] where one admitted that he wrote a deed,¹⁴  no [independent] attestation is required¹⁵  and the Rabbis¹⁶  are of the opinion [that], where one admitted that he wrote a deed, [independent] attestation [also] is required.¹⁷

But [did] they¹⁸  [not], however, once dispute on this [question]?¹⁹  For it was taught [in a Baraitha]: They²⁰  are not believed [so far as] to invalidate it;²¹  these are the words of R. Meir.²²  But the Sages say: They are believed!²³  — [Both are] required. Because if [their] dispute] had been stated [in connection with] that [alone],²⁴  [it might have been assumed that] in that [case only] did the Rabbis say [that attestation of the witnesses was necessary] because the witnesses are all-powerful and they themselves impair [the validity of] the document,²⁵  but here,²⁶  where all [the force of the document] does not depend on him,²⁷  it might have been assumed [that he is] not [believed].²⁸  And if [their dispute] had been stated in [connection with] this [alone], [it might have been assumed that] in this [case only] did R. Meir say [that the donor is not believed], but in that [case] it might have been assumed [that] he agrees with the Rabbis. [Hence both were] required.

Rabbah likewise stated [that the] proof²⁹  is by witnesses. Abaye said unto him: What is the reason?³⁰  If it be said³¹  'Because in all [deeds]³²  it is entered,³³  "As he was [able] to walk about³⁴  in the street", and in this [deed] no such entry is made,³⁵  [therefore] it is to be concluded [that when the gift was made] he was a dying man', [it may be retorted], 'On the contrary! Since in all [deeds]³⁶  it is entered,³³  "As he was lying sick in his bed,", and [in] this [deed] no such entry is made,³⁵  [therefore] it is to be concluded [that when he made the gift] he was in good health!' — As one inference is just as reasonable as the other,³⁷  [replied Rabbah,] the money³⁸  is to remain in the possession of its [original] owner.³⁹

And [the following are] in the [same] dispute.⁴⁰  For R. Johanan said: Proof [must be produced] by witnesses; and R. Simeon b. Lakish said: Proof [consists] in the attestation of the deed. R. Johanan pointed out [the following] objection against R. Simeon b. Lakish: It once happened at Bene-Berak that a person sold his father's estate, and died. The members of the family, thereupon,⁴¹  protested [that] he was a minor at the time of [his] death.⁴²  They⁴³  came [to] R. Akiba and asked whether the body might be examined.⁴⁴  He replied to them: You are not permitted to dishonour him; and, furthermore, [the] signs [of maturity] usually undergo a change after death.⁴⁵

1. This question may apply to the statements of both R. Meir and the Sages.
2. Who testify as to the state of the health of the donor at the time the gift was made.
3. Required by the Sages. (For the proof required by R. Meir, v, infra.)
4. The signatures of the witnesses on the deed must be verified before a court, and only when the validity of the deed had been established, independently of the donor's admission, have the donees established their right to the ownership of the gift.
5. R. Meir and the Sages in our Mishnah.
6. Lit., 'in dispute'.
7. Supra 153b. V. p. 665, n. 14.
8. As an aid to memory in pairing the Tannaitic authorities. M = Meir, N = Nathan, I (Y) = Jacob, H = Hakamim, the Sages, the Rabbis.
9. That the condition of the person at the time the lawsuit is before the court is the determining factor. And since the donor is then in good health it is assumed that he was in a similar condition when the gift was made. Hence it is for him to bring witnesses who could testify that at that time he was lying sick.
10. The Sages of our Mishnah.
11. Who maintains that the gift cannot be taken out of the confirmed possession of its original owner (the donor), unless witnesses can be brought by the donee to testify that at the time the gift was made he was in good health.
12. Before a court.
13. So that the validity of the deed shall not in any way be dependent on the donor's own word.
14. And he only disputes its present force, by pleading, for instance, in the case of a deed of a gift, that he was lying sick when he made the gift, or, in the case of a note indebtedness, that he repaid the debt.
15. Hence, the deed spoken, of in our Mishnah is valid, and the donor must bring witnesses as proof that he was a sick man at the time the gift was made.
16. V. n. 3, supra
17. Hence it is incumbent upon the donee to procure the necessary attestation.
18. R. Meir and the Sages.
19. Whether a deed acknowledged by its writer as genuine, also requires attestation before a court.
20. Witnesses who identified their signatures on a deed.
21. By asserting that they signed under compulsion or when they were minors.
22. Who requires no attestation of a document on the part of the witnesses in a case where the debtor himself admitted that he wrote it. The validity of the deed, which has been acknowledged by the debtor, cannot, therefore, be impaired by the statements of the witnesses.
23. A document, though admitted by the debtor to be genuine, requires the attestation of the witnesses before a court; and since the witnesses are, accordingly, the sole authorities for its validity, they are also to be believed when they declare it to be disqualified. Now, since the dispute between R. Meir and the Sages in the Baraitha depends on the same principles as those underlying their dispute in our Mishnah, why should a repetition be necessary?
24. The Baraitha.
25. Hence the debtor's admission is disregarded.
26. Our Mishnah.
27. The donor.
28. When, after admitting that he wrote the deed, he states that he was a sick man when he made the gift.
29. Referred to in our Mishnah.
30. Why do the Sages require the donee, and not the donor, to produce the proof?
31. Lit., 'we shall say'.
32. Given by a man in good health.
33. Lit., 'in all of them it is written'.
34. Lit., 'walking on his feet'.
35. Lit., 'it is not written in it',
36. That are given by dying men.
37. Lit., 'it may be said thus and it may be said thus'.
38. Or property.
39. Hence the gift cannot be taken away from the donor unless reliable proof is produced by the donee.
40. I.e., they differ on the same points as R. Huna on the one hand, and R. Hisda and Rabbah, son of R. Huna, on the other, supra.
41. Lit., 'and stood up' Cf Rashb.
42. A minor, under twenty years of age, is not eligible to sell any of his father's estate. Hence, the property he sold should belong to the surviving members of the family. [The words 'of his death' do not occur in some MSS.; v.D.S].
43. I.e., 'the buyers'. This is the present assumption of R. Johanan. V. answer of R. Lakish, infra.
44. Lit., 'what is he to examine him'; to exhume him, so as to ascertain his age by a post-mortem.
45. Cf. Semahoth IV, 12; infra 155a. Hence the examination could not produce any reliable evidence of his age.

[Now]. according to my interpretation¹  [of our Mishnah that] evidence [is produced] by [the testimony of] witnesses, one can well understand why, when he²  asked the buyers [to] bring witnesses and they [could] not obtain [them]. they came to ask him whether the body might [not] be examined. But according to your interpretation³  that evidence [consists] in the attestation of the deed, why should they [wish] to examine [the body]? Let them procure the attestation of their deeds and [thus] gain possession of the property!⁴  — Do you think, [replied R. Lakish], that the property was in the possession of the members of the family and that the buyers came to protest? [This was not the case.] The property was in the possession of the buyers, and the members of the family came and protested.⁵  Logical reasoning also [supports] this [view]. Since when he⁶  said to them, 'You are not permitted to dishonour him', they remained silent. If it is granted [that] the members of the family protested, one can well understand why they remained silent;⁷  if, however, it be assumed [that] the buyers protested, why [it may be asked] did they remain silent? They should have replied to him, 'We paid him money; let him be dishonoured!'⁸  — If [only] because of this⁹  [there would be] no argument. [for R. Akiba may] have said to them¹⁰  thus: In the first place,¹¹  [a post mortem must not be held] because you are not permitted to dishonour him; and, furthermore, in case you might say. 'He took [our] money. let him be dishonoured', the signs [of maturity] usually undergo a change after death.

R. Simeon b. Lakish enquired of R. Johanan: With reference¹²  to what has been taught in the Mishnah of Bar Kappara¹³  [that], 'If a person was enjoying¹⁴  [the usufruct of] a field on the strength¹⁵  of the current belief that it [was] his, and someone lodged¹⁶  a protest against him claiming.¹⁷  "It is mine"; and the first¹⁸  produced his deed, stating,¹⁷  "You sold it to me" or "You gave it to me as a gift", if [the latter] said, "I never saw this deed",¹⁹  the deed is to be attested by those who signed it;²⁰  if, [however], he said, "It was a deed of trust²¹  or a deed [given on] trust²²  [for something] which I sold you but [for which] you did not pay me the price", then if witnesses²³  are available, one must be guided by²⁴  witnesses, but if [they are] not [available] one is to be guided by²³  the deed.'²⁵  Are we to assume [asked Resh Lakish, that] this²⁶  is [in accordance with the opinion of] R. Meir, who stated that where one admits that he wrote the deed, attestation is not required, but not [in accordance with the view of] the Rabbis?²⁷  — He [R. Johanan] replied to him: No; because I maintain [that] all²⁸  agree²⁹  [that where] one admitted that he wrote a deed no attestation is required. But, surely, [Resh Lakish rejoined,] they³⁰  are actually in dispute [on this question]; as it was taught, 'They are not believed [so far as] to invalidate it; these are the words of R. Meir. But the Sages say: They are believed'!³¹  — He replied to him: [Should] he, because³²  witnesses are all-powerful and [may] impair [the validity of] a deed,³³  [have the same power as if] all depended on him!³⁴  But, Resh Lakish asked him again, in your [own] name it was reported that, 'the members of the family have justly protested'!³⁵  — He replied to him, 'This [was] said [by] Eleazar;³⁶  I have never said such a thing.'

R. Zeira said: If R. Johanan could contradict his disciple R. Eleazar,³⁷  would he contradict his master R. Jannai? For R. Jannai said in the name of Rabbi: [Though] one admits that he wrote a deed, attestation is [nevertheless] required. And R. Johanan said to him: 'Is not this, Master, [the law enunciated in] our Mishnah [where it is stated] AND THE SAGES SAY: HE WHO CLAIMS FROM THE OTHER HAS TO PRODUCE THE PROOF, [and] proof [can be produced] only through the attestation of the deed?'³⁸  Acceptable, however, are the words of our master Joseph. For our Master Joseph, in the name of Rab Judah in the name of Samuel, said: 'This³⁹  is the view of the Sages. but R. Meir said: [Though] one admits the writing of a deed, attestation is [nevertheless] required;⁴⁰  and [as to the expression] 'all agree',⁴¹  [the words] of the Rabbis in relation to [those of] R. Meir [may be described as] the words of all. But, surely, we learnt the reverse: AND THE SAGES SAY: HE WHO CLAIMS FROM THE OTHER HAS TO PRODUCE THE PROOF?⁴²  — Reverse [the order].⁴³  But, surely. it was taught. 'They are not believed [so far as] to invalidate it; these are the words of R. Meir. And the Sages say: They are believed'?⁴⁴  — Reverse [the order]. But, surely, R. Johanan said: Proof [must be produced] by witnesses?⁴⁵  — Reverse [the order].⁴⁶  Is it [then] to be assumed [that] the objection also is to be reversed?⁴⁷  — No;

1. Lit., 'to me, that I said'.
2. [Var. lec., 'they', i.e., the members of the family.]
3. Lit., 'to you, that you said'.
4. Witnesses would not sign a deed of sale unless they were satisfied that the seller has attained the legal age. Their attested signatures would, consequently, supply sufficient evidence that the sale was legally valid.
5. Since the members of the family did not, of course, possess the deed, the question of their procuring attestation of the deed cannot possibly arise,
6. R. Akiba.
7. They had consideration for the honour of their relative.
8. Lit., 'let him be …' (bis). Would strangers consent to lose their purchase money out of consideration for the corpse of the men who appropriated their money?
9. If this argument had been the only proof that it was the relatives who protested.
10. The buyers.
11. Lit., 'one'.
12. Lit., 'this'.
13. [Bar Kappara was known as the author of a Mishnah which has not been preserved. On its character, see Weiss, Dor ii, 219.Cf. however Halevy, Doroth ii, 123-125.]
14. Lit., 'eating'.
15. Lit., 'and he came'.
16. Lit., 'called'.
17. Lit., 'to say'.
18. Lit., 'this (one)'.
19. I.e., it is a forged document.
20. The witnesses.
21. Heb., [H] (cf., pistis, [H] [G], trust), a deed of a feigned sale that the other had arranged with him for the purpose of making people believe that he is a landowner or a wealthier man than he actually is.
22. He entrusted the buyer with the deed before he received payment.
23. To testify that his statement, which invalidates the deed, is in accordance with the facts,
24. Lit., 'go after'.
25. I.e., since the seller once admitted that the deed was written by him, his attempt to disqualify it is disregarded.
26. The statement that one is to be guided by the deed (v. previous note).
27. Is it likely that Bar Kappara's Mishnah represents the view of an individual only?
28. Even the Sages. (This statement is modified infra.)
29. Lit., 'the words of all'.
30. R. Meir and the Sages.
31. Keth. 18b. Cf. supra 154a, q.v. for notes.
32. Lit., 'if'.
33. Witnesses, according to the Sages. are justly entitled to invalidate a deed, despite the debtor's admission that he wrote it.
34. Once he himself admitted that he wrote the deed, it is assumed that no witnesses would have signed it if it represented a purely fictitious transaction, and, consequently, even the Sages agree that he has no further power subsequently to invalidate it. Hence, no attestation is needed.
35. Although they admitted the authenticity of the deed, (i.e.. that the seller had written it), and only disputed its validity (by asserting that he was a minor). How, then, could R. Johanan say that once a person admitted the authenticity of a deed, (i.e., that he wrote it) he cannot any more dispute its validity?
36. A disciple of R. Johanan.
37. Who reported in his name.
38. Which clearly proves that, according to R. Johanan, the Sages require attestation even when the authenticity of a deed had been admitted.
39. That no attestation is needed when the giver of the deed had admitted writing it,
40. Thus it is the Sages, and not R. Meir, who require no attestation, when the writing of a deed had been admitted.
41. Lit., 'and what (is meant by) "the words of all"? Surely, according to what has been said, R. Meir disagrees'.
42. I.e., the donee; which shows that, according to the Sages. the admission by the donor that he wrote the deed does not remove from the donee the need of attestation, while according to R. Meir it does
43. The view in the last clause of our Mishnah, which is attributed to the Sages. is really the view of R. Meir, while the view attributed to R. Meir is in reality that of the Sages.
44. Supra, quoted from Keth, 18b. V. 154a for notes.
45. Supra 154a. How, then, could he say here, 'proof (can be produced) only through attestation of the deed'?
46. The view attributed, supra, to R. Johanan is really that of R. Lakish, and vice versa,
47. Is the objection which R. Johanan raised against R. Lakish (supra 154a) to be reversed and read as if R. Lakish had raised it against R. Johanan?