Babylonian Talmud: Tractate Baba Bathra

Folio 34a

How are the judges to decide this case? Shall we make him pay? — There are not two witnesses against him. Shall we let him off scot free? — There is one witness.¹  Shall we administer an oath to him? — But he admits that he snatched the article, and since he admits that, he is, as far as this case goes, a robber.²  Said R. Abba to him: He is [in the position of a man who is] legally under obligation to take an oath and is yet unable to take it; and the rule is that whoever is under obligation to take an oath which he cannot take must pay.³  Abaye, however, said to the Rabbis: Are the two cases on all fours? [There in the case of the bar of metal] the witness comes to oppose [the defendant], and if there were another witness with him we should make him give up the article. Here [in the case of the land] the witness comes to support [the defendant], and if there were another witness we should confirm his title to the land.⁴  If you do wish to draw a parallel with the case of R. Abbah, it would be in the case of one witness [who testifies that the occupier has had the use of the land] two years, and [where the claim is for] the produce.⁵

1. And therefore, since the claim is a pecuniary one, he could be called upon to deny the allegation on oath (V. Shebu. 40a).
2. And therefore he is disqualified in this case from taking an oath in court.
3. In the case of the land the occupier ought to take an oath to deny the allegation of the one witness, but he cannot take an oath since he admits that he made use of the produce. Hence he should not only give up the land but make restitution for the produce he has consumed.
4. Since therefore the witness is in support of the occupier he cannot be made without more ado to pay for the produce, but might take an oath to confirm his claim in regard to the produce, though in the absence of two witnesses to prove his right he would have to return the land; v. Yad Ramah, a.l.
5. Here the witness is against the occupier, since he testifies that he occupied it only two years and not three, and if another witness made the same statement he would have to pay. Hence he is under obligation to deny the statement of the one witness on oath. This, however, he cannot do, as he admits that he has consumed the produce for two years. Hence he must pay.

There was a certain river boat about which two men were disputing.¹  One said, 'It is mine', and the other said, 'It is mine. One of them went to the Beth din and appealed to them: 'Attach the boat²  until I bring witnesses to prove that it belongs to me.' [In such a case] should we attach the boat or not?³  R. Huna says we should attach it,⁴  and Rab Judah says we should not.⁵  [The Beth din having attached the boat],⁶  the man went to look for his witnesses but did not find them, whereupon he requested the Beth din to release the boat, leaving it to the stronger to obtain possession.⁷  In such a case should we release or not? Rab Judah says we should not release,⁸  R. Papa says we should release.⁹  The accepted ruling is that we should not attach in the first instance, but if we have attached we should not release.¹⁰

[If there are two claimants to a property¹¹  and] one says,' It belonged to my father,' while the other says, 'To my father' [without either of them bringing any evidence], R. Nahman says that whichever is stronger can take possession.¹²  Why, [it may be asked,] should the ruling be different here from the case in which two deeds [of sale or gift relating to the same property and] bearing the same date

1. But apparently without having actually seized the boat, since in that case the law would be that they should divide it, according to B.M. ad init.
2. So that the other should not sell it in the meanwhile.
3. I.e., which course is more likely to assist the rightful owner to obtain possession?
4. Because we presume that he will succeed in finding witnesses, and therefore we prevent the boat from being disposed of in the interval.
5. Because we are afraid he will not find witnesses and we shall not know to whom to restore the boat, and therefore it is best to leave it alone.
6. It is not clear from the text whether this is a hypothetical case, or whether the Beth din really did attach the boat, perhaps on the request of both parties.
7. Lit., 'to prevail' — whether by argument or by force.
8. Because once property has come into the hands of the Beth din, it is not right that they should release it except to restore it to the proper owner.
9. Because they only attached it from the first on this condition.
10. I.e., the halachah follows R. Judah.
11. Whether landed property or other.
12. v. supra n. 7.