Babylonian Talmud: Tractate Baba Bathra

Folio 31a

but if only six years, then no protest could be more effective than this.¹

[There was a case] where one said, '[This land belonged] to my father,'²  and the other pleaded, 'It belonged to my father'. The one brought witnesses to prove that it belonged to his father, and the other brought witnesses to prove that he had had the use of it for the period of hazakah. Rabbah said [in giving judgment]: What motive had he³  to tell a falsehood? If he liked, he could have pleaded [without fear of contradiction], 'I bought it from you and had the use of it for the period of hazakah.'⁴  Said Abaye to him: But the consideration, 'why should he tell a falsehood,' is not taken into account where it conflicts with evidence?⁵  So the occupier pleaded again, 'Yes, it did belong to your father, but I bought it from you, and what I meant by saying that it belonged to my father was that I felt as secure In it as if it had belonged to my father.'

[The question here arises:] Is a litigant allowed to alter his pleas⁶  [in the course of the case], or is he not allowed to alter his pleas? 'Ulla said: He is allowed to alter his pleas; the Nehardeans say, he is not allowed to alter his pleas. 'Ulla, however, admits that if this man had pleaded at first,' It belonged to my father and not to yours,' he could not later alter his plea [to say, 'It did belong to yours']. 'Ulla also admits that if a man does not amend his pleas in any way when in court, but after leaving the court comes In again and amends them, the rule that he may alter his original plea does not apply, because we assume that someone has suggested the amended plea to him. The Nehardeans [on their side] admit that if [after saying, 'It belonged to my father'] he pleads, 'my father who bought it from your father,' he is allowed to alter his plea [to this effect];⁷  also that if a man makes certain statements outside [the court] and then wants to plead something quite different in court, he may do so, because a man often does not wish to state his case save in actual court. Amemar said: I am a Nehardean, and I hold that pleas may be altered. And such is the accepted ruling, that pleas may be altered.

[A case arose in which] one said, 'This [land belonged] to my father,' and the other said, 'To my father,' but the one brought witnesses to prove that it had belonged to his father and that he had had the use of it for the period of hazakah, and the other brought witnesses [only] to prove that he had had the use of it for a sufficient number of years to confer a legal title. Said R. Nahman: The evidence that the one has had the use of it cancels out the evidence that the other has had the use of it, and the land is therefore assigned to the one who brings evidence that it belonged to his father. Said Raba to him: But the evidence has been confuted? — He replied: Granted that it has been confuted in regard to the user,⁸

1. Namely, the action of the original owner in selling the land after the occupier had been on it only two years, so that in reality he never acquired hazakah.
2. Lit., 'fathers'.
3. The latter, who occupied the field.
4. Which is a stronger plea and therefore we believe him when he says that he inherited it from his father.
5. In this case, the evidence brought by the claimant that the land had belonged to his father.
6. Lit., 'plead and again plead,' i.e., modify or expand the first plea, but not contradict it entirely. V. infra.
7. Because he is simply making his former plea more emphatic, and not altering it.
8. Lit., 'the eating of it.'

has it been confuted in regard to the father? May we say that [in principle] the difference between R. Nahman and Raba here is the same as that between R. Huna and R. Hisda in the following statement: If two sets¹  of witnesses contradict one another [so that one set must be giving false evidence], R. Huna says that each set may give evidence as a whole [in another case];²  R. Hisda, however, says, What have we to do with false witnesses?' May we say then that R. Nahman here follows R. Huna³  and Raba, R. Hisda? — No. There is no difference between them in the application of R. Hisda's ruling.⁴  Where they differ is in the application of R. Huna's ruling. R. Nahman would thus have acted on the ruling of R. Huna, whereas Raba [would maintain] that R. Huna only meant it to apply to evidence given in another case entirely, but not, as here, to another part of the same case.

He⁵  then brought witnesses to prove that the land had belonged to his father. R. Nahman [thereupon] said: As we put him out, so we can put him in;⁶  and we disregard any disrepute that this may bring on the Beth din.⁷  Raba [or others say R. Ze'ira] objected [to this ruling on the strength of the following]: If two witnesses declare that a man is dead and two others declare that he is not dead, or if two declare that his wife had been divorced from him and two that she had not been divorced, she must not marry again, but if she has married she need not leave [her husband]. R. Menahem, son of R. Jose, says that she must leave [the second husband]. Said R. Menahem, son of R. Jose: When do I say that she must leave the husband? — If the witnesses [who say he is not dead] came first and she married afterwards;⁸  but if she was married before these witnesses came she need not leave her husband.'⁹  R. Nahman replied: I was going to act [according to the declaration I just made].¹⁰  Now, however, that you have brought arguments against me and that R. Hamnuna in Sura has [likewise] refuted me, I shall not act so. [In spite of this statement, however,] he subsequently did act so Those who saw it thought he had made a mistake, but this was not the case, because he had the support of great authorities.¹¹  For we learnt: A man is not given the status of priest¹²  On the evidence of one witness. Said R. Eliezer: This is only when his title is called into question; but if no one calls his title into questions one witness is sufficient. Rabban Simeon b. Gamaliel said in the name of R. Simeon the son of the Segan:¹³  One witness is sufficient to prove a man's title to be a priest. Is not Rabban Simeon b. Gamaliel merely repeating R. Eliezer? And should you say that they differ in regard to the case where there is only one challenger, R. Eliezer holding that an objection is valid if raised by one challenger, and Rabban Simeon b. Gamaliel holding

1. In regard to all the discussion which follows it should be borne in mind that according to Jewish law, two witnesses are required to establish a case (v. Deut. XIX, 15).
2. I.e., it is not disqualified by the suspicion of having given false evidence in this case. But one witness from one set may not combine with one from the other in another case, because one of them has certainly given false evidence in this case.
3. In admitting the evidence of witnesses whose veracity is suspect.
4. Both would agree that according to R. Hisda the evidence in regard to the father cannot be accepted.
5. I.e., the occupier, having heard R. Nahman's decision.
6. Lit., we put him down and we can raise him up.'
7. Which will be criticised for altering its decisions.
8. Because in that case if she bad consulted the Beth din, they would not have allowed her to marry.
9. For fear that she might bring into disrepute the Beth din which gave her permission to marry again. This refutes R. Nahman.
10. And reverse the first decision on the production of new evidence.
11. Lit., 'trees'.
12. So as to be entitled to receive the priestly dues and perform the priestly functions.
13. The title given to the Deputy High Priest.