Babylonian Talmud: Tractate Baba Kamma

Folio 12a

After R. Nahman went out 'Ulla said to the audience: 'The statement made by R. Eleazar refers even to the case of heirs.' R. Nahman said: 'Ulla escaped my criticism'. A case of this kind arose in Nehardea and the judges of Nehardea¹  distrained [on slaves in the hands of heirs]. A further case took place in Pumbeditha and R. Hana b. Bizna distrained [on slaves in the hands of heirs]. But R. Nahman said to them: 'Go and withdraw [your judgments], otherwise I will distrain on your own homes [to reimburse the aggrieved heirs].'²  Raba, however, said to R. Nahman: 'There is 'Ulla, there is R. Eleazar, there are the judges of Nehardea and there is R. Hana b. Bizna [who are all joining issue with you]; what authorities is the Master following?' — He said to him:³  'I know of a Baraitha, for Abimi learned: "A prosbul⁴  is effective only when there is realty⁵  [belonging to the debtor] but not when he possesses slaves⁶  only. Personalty is transferred along with realty⁷  but not along with slaves."'⁶

May we not say that this problem is a point at issue between the following Tannaim? [For it was taught:] 'Where slaves and lands are sold, if possession is taken of the slaves no title is thereby acquired to the land, and similarly by taking possession of the lands no title is acquired to the slaves. In the case of lands and chattels, if possession is taken of the lands title is also acquired to the chattels,⁷  but by taking possession of the chattels no title is acquired to the lands. In the case of slaves and chattels, if possession is taken of the slaves no title is thereby acquired to the chattels,⁸  and similarly by taking possession of the chattels no title is acquired to the slaves. But [elsewhere] it has been taught: 'If possession is taken of the slaves the title is thereby acquired to the chattels.'⁹  Now, is not this problem the point at issue: the latter Baraitha⁹  maintains that slaves are considered realty [in the eye of the law], whereas the former Baraitha¹⁰  is of the opinion that slaves are considered personalty? — R. Ika the son of R. Ammi, however, said: [Generally speaking] all [authorities] agree that slaves are considered realty. The [latter] Baraitha stating that the transfer [of the chattels] is effective, is certainly in agreement; the [former] Baraitha stating that the transfer [of the chattels] is ineffective, may maintain that the realty we require is such as shall resemble the fortified cities of Judah in being immovable. For we have learnt: 'Property which is not realty may be acquired incidentally with property which is realty¹¹  through the medium of either [purchase] money, bill of sale or taking possession.' [And it has been asked:]¹²  What is the authority for this ruling? And Hezekiah thereupon said: Scripture states, And their father gave them great gifts of silver and of gold and of precious things with fortified cities in Judah.¹³  [Alternatively] there are some who report: R. Ika the son of R. Ammi said: [Generally speaking] all [authorities] agree that slaves are considered personalty. The [former] Baraitha stating that the transfer [of the chattels] is ineffective is certainly in agreement; the [latter] Baraitha stating that the transfer of the chattels is effective deals with the case when the chattels [sold] were worn by the slave.¹⁴  But even if they were worn by him, what does it matter? He is but property¹⁵  in motion, and property in motion cannot be the means of conveying anything it carries. Moreover, even if you argue that the slave was then stationary, did not Raba say that whatsoever cannot be the means of conveying while in motion cannot be the means of conveying even while in the state of standing or sitting?¹⁶  — This law applies to the case where the slave was put in stocks. But behold has it not been taught: 'If possession is taken of the land, title is thereby acquired also to the slaves'?¹⁷  — There the slaves were gathered on the land.¹⁸  This implies that the Baraitha which stated that the transfer of the slaves is ineffective,¹⁹  deals with a case where the slaves were not gathered on the land. That is all very well according to the version that R. Ika the son of R. Ammi said that slaves are considered personalty; there is thus the stipulation that if they were gathered on the land, the transfer is effective, otherwise ineffective. But according to the version which reads that slaves are considered realty, why the stipulation that the slaves be gathered on the land?

1. Generally referring to R. Adda b. Minyomi; Sanh. 17b.
2. As he considered them to have acted against established law, and so ultra vires; cf infra pp. 584ff. and Sanh. 33a.
3. I.e., R. Nahman to Raba.
4. [G] i.e., an official declaration made in court by a lender to the effect that the law of limitation by the Sabbatical year shall not apply to the loans contracted by him; cf. Sheb. X. 4 and Git. 36a. V. Glos.
5. As realty even when sold by the debtor could be distrained on in the hands of the purchasers; cf. Git. 37a.
6. As these are considered personalty. They cannot therefore be distrained on in the hands of heirs.
7. I.e., the acquisition of land confers title to chattels bought at the same time. Kid. 26a; v. infra, p. 49.
8. Slaves seem thus to be not realty.
9. In this Baraitha slaves are treated like realty.
10. Stating that by taking possession of slaves no title is acquired to chattels.
11. Lit., 'property which affords no surety may be acquired along with property which does afford surety' (to creditors in case of non-payment of debts); Kid 26a.
12. Kid. 26a.
13. II Chron. XXI, 3: with [H] is taken in the sense by means of.
14. They are therefore part and parcel of the slave.
15. Lit., a courtyard.
16. Git. 21a, 68a; B.M. 9b.
17. Apparently on account of the fact that these are treated like personalty.
18. In which case even if they are not personalty their transfer has to he valid.
19. When only incidental to the transfer of land.

Did not Samuel say that if ten fields in ten different countries are sold, as soon as possession is taken of one of them, the transfer of all of them becomes effective?¹  — But even if your reasoning be followed [that it is in accordance with the version reading that slaves are considered personalty], why again the stipulation that the slaves be gathered on the land? Has it not been established that the personalty' need not be gathered on the land? You can therefore only say that there is a distinction in law between movable personalty²  and immovable personalty. Likewise here also [we say] there is a distinction in law between movable realty³  and immovable realty: slaves [if realty] are movable realty whereas there [in the case of the ten fields] land is but one block.

THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE HAS NO APPLICATION etc. So long as [the penalty of] Sacrilege does not apply. Who is the Tanna [of this view]? — R. Johanan said: This is so in the case of minor sacrifices according to R. Jose the Galilean, who considers them to be private property; for it has been taught: If a soul sin and commit a trespass against the Lord and lie unto his neighbour⁴… this indicates also minor sacrifices,⁵  as these are considered private property;⁶  so R. Jose the Galilean. But, behold, we have learnt: If one betroths [a woman] by means of the priestly portion, whether of major sacrifices or of minor sacrifices, the betrothal is not valid.⁷  Are we to say that this Mishnah is not in accordance with R. Jose the Galilean?⁸  — You may even reconcile it with R. Jose the Galilean; for R. Jose the Galilean confines his remark to sacrifices that are still alive, whereas, in the case of sacrifices that have already been slaughtered, even R. Jose the Galilean agrees that those who are entitled to partake of the flesh acquire this right as guests at the divine table.⁹  But so long as the sacrifice is still alive, does he really maintain that it is private property? Behold, we have learnt: A firstling, if unblemished, may be sold only while alive; but if blemished [it may be sold] both while alive and when slaughtered. It may similarly be used for the betrothal of a woman.¹⁰  And R. Nahman said on behalf of Rabbah b. Abbuha:¹¹  This is so only in the case of a firstling at the present time,¹²  in which, on account of the fact that it is not destined to be sacrificed, the priests possess a proprietary right; but at the time when the Temple still existed, when it would have been destined to be sacrificed, the law would not have been so.¹³  And Raba asked R. Nahman: [Was it not taught:] If a soul sin and commit a trespass against the Lord and lie unto his neighbour…¹⁴  this indicates also minor sacrifices, as these are considered private property;¹⁵  this is the view of R. Jose the Galilean? And Rabina replied that the latter case¹⁶  deals with firstlings from outside [Palestine] and is in accordance with R. Simeon, who maintains that if they were brought [to Palestine] in an unblemished condition, they will be sacrificed.¹⁷  Now this is so only if they were brought [to Palestine, which implies that] there is no necessity to bring them there in the first instance for that specific purpose.¹⁸  Now, if it is the fact that R. Jose the Galilean considers them private property while alive,

1. Kid. 27a.
2. That is to he acquired along with realty; v. Kid. 27a.
3. Which needs to be gathered on the land.
4. Lev. V, 21.
5. E.g., peace offerings, as these belong partly to the Lord and partly to the neighbour; some parts thereof are burnt on the altar but the flesh is consumed by the original owners.
6. Pes. 90a.
7. Kid. 52b.
8. For according to him the flesh is private property and alienable,
9. I.e., as merely invited without having in them any proprietary rights.
10. M.Sh. I, 2.
11. Tem. 7b.
12. When no sacrifices are offered.
13. The priests would not have had in it a proprietary right nor have been able to use it for the betrothal of a woman.
14. Lev, V, 21.
15. Even in Temple times, since the text requires the offender to bring a trespass offering.
16. Where they are considered private property.
17. Tem. III. 5.
18. And since they need not be brought and sacrificed they are considered the private property of the priests as stated by R. Jose the Galilean.