Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 35a

R. Huna's dictum be correct, since the creditor must swear that it is not in his possession, how can he produce it? — Said Raba:¹  There are witnesses that it was burnt.²  If so, whence can he produce it? — But, said, R. Joseph, there are witnesses that it was stolen. Yet after all, whence can he produce it? He may exert himself and bring it. If so, when the creditor swears, the debtor may take pains and bring it! — [No.] As for the creditor['s producing it], it is well: he knows who enters and leaves his house, and so he can go, exert himself, and produce it. But does the debtor know who enters and leaves the creditor's house?

Abaye said: We fear lest he plead, saying to him, 'I found it after the oath.' R. Ashi said: Both must swear: one [sc. the creditor] that it is not in his possession; and the other, how much it was worth — And this is its meaning: Who swears first? The creditor must swear first [that the pledge is not in his possession], lest the other swear and then he produce the bailment.

R. Huna b. Tahlifa said in Raba's name: The first paragraph of the second clause refutes R. Huna. '"You did lend me a sela' on it, whilst it was worth two," and the other replies, "Not so: I lent you a sela' on it and it was [only] worth a sela'," he is free [from an oath.]' But if R. Huna's dictum is correct, since the creditor must swear that it is not in his possession, let him also swear, in virtue of a superimposed oath, how much it was worth!³  — Said R. Ashi: I repeated this discussion before R. Kahana, whereupon he observed to me: Let this apply where he believes him.⁴  Then let the debtor believe the creditor in this too [viz.,] how much it was worth! — [The debtor reasons,] he [the creditor] did not fully ascertain it [sc. the value]. Then let the creditor believe the debtor, since he does fully know it? — [Nevertheless,] he does not believe him. Wherein lies the difference, that the debtor believes the creditor, but not vice versa? — The debtor applies to the creditor, The integrity of the upright shall guide them:⁵  whereas the creditor applies to the debtor, but the perverseness of transgressors shall destroy them.⁶

A man once deposited jewels with his neighbour. When he demanded, 'Give me my jewels,' he replied, 'I do not know where I put them.' So he came before R. Nahman, Who said to him: Every [plea of] 'I do not know' is negligence; go and pay. Yet he did not pay, so R. Nahman went and had his house seized. Subsequently the jewels were found, [by which time] they had appreciated. Said R. Nahman: Let the jewels be returned to their [first] owner, and the house to its owner. Raba observed: I was sitting [then] before R. Nahman and it [the subject of our study] was the chapter, 'IF ONE ENTRUSTS [etc.];⁷  so I quoted to him, IF HE [THE BAILEE] PAYS, DECLINING TO SWEAR [etc.],⁸  but he did not answer me.⁹  And he did well not to answer me. Why? — There he did not trouble him to go to court,¹⁰  whereas here he troubled him.

Shall we say that in R. Nahman's opinion a valuation is returnable?¹¹  — [No.] There it is different, because it was a valuation made in error, since the jewels were in existence from the first.¹²  The Nehardeans said: A valuation is returnable until twelve months. Amemar said: Though I am of Nehardea, I hold that a valuation is always returnable. None the less, the law is that a valuation is always returnable, because it is said, And thou shalt do that which is right and good.¹³

Now it is obvious,if a valuation was made on behalf of a creditor,¹⁴  and he went and valued it for his own creditor: we say to him [the second creditor], You are no better than the man in whose power you come.¹⁵  If he sold, bequeathed or gifted it, these [the recipients] certainly entered it [the distrained estate] originally with the intention of [possessing] the land, not the money.¹⁶  If it was appraised in favour of a woman [creditor], and she married:¹⁷  or if a valuation was made of a woman's [estate] and she married, and then died: the husband ranks as a purchaser in respect to a wife's property: he neither returns [the estate to the debtor], nor is it returned to him.¹⁸  For R. Jose b. Hanina said: In Usha it was enacted:¹⁹  If a woman sells of her 'property of plucking' in her husband's lifetime and then dies, her husband [as heir] can claim it from the purchasers.²⁰

1. [MS.: R. Joseph.]
2. Consequently no oath is imposed.
3. For superimposed oaths, v. supra 3a
4. This clause means that the debtor believes the creditor that the pledge is lost and does not demand that he swear thereto. Hence there is no superimposed oath either.
5. Prov. XI, 3; i.e., he assumes that the creditor's prosperity proves his trustworthiness.
6. Ibid. This is a natural reasoning when the belief in material reward and punishment is strong.
7. I.e., we were then studying the present chapter.
8. The Mishnah proceeds to state that the double repayment belongs to the bailee, thus proving that once he pays he is entitled to all rights therein. So here too, since he had paid, albeit against his will, the increased value of the jewels should be his.
9. Disdaining to reply.
10. Hence he willingly gives over his rights to the bailee, in consideration of having received payment.
11. V. supra, p. 99.
12. But if an article is distrained because a debtor cannot repay, it may be that it is not returnable even if he subsequently acquires money.
13. Deut. VI, 18.
14. I.e., the debtor's goods were assessed, distrained, and given to the creditor.
15. Just as he would have had to return the goods if the debtor could repay the loan, so must you too.
16. Therefore it is not returnable to the debtor. The creditor himself would have had to return it on account of the verse quoted, for it is applicable to him, since in the first place he demanded money, not land. But it is inapplicable to these recipients, seeing that their thought was land, not money.
17. And this seized estate became either the husband's, as 'property of iron flock,' or remained the wife's, the husband enjoying its usufruct, as 'property of plucking.'
18. If he wishes to settle his wife's debts.
19. V. p. 558, n. 2.
20. For he ranks as a previous purchaser.

Where, however, he [the debtor] himself gave it to him [the creditor] for his debt,¹  R. Aha and Rabina differ thereon: one maintains, It is returnable: the other, It is not. He who rules that it is not returnable holds that it is a true sale, since he voluntarily gave it in payment. But he who rules that it is returnable holds that it is not a true sale, and as for his giving it to him voluntarily and not going to court, — he gave it to him [merely] through shame.

And from what time can he [the creditor] enjoy the usufruct?²  Rabbah said: As soon as he receives the adrakta.³  Abaye said: The witnesses [to the adrakta], by their signatures, acquire the right for him.⁴  Raba said: When the days of public announcement are ended.⁵

MISHNAH. IF A MAN HIRES A COW FROM HIS NEIGHBOUR, LENDS IT TO ANOTHER, AND IT DIES A NATURAL DEATH, THE HIRER MUST SWEAR THAT IT DIED NATURALLY, AND THE BORROWER MUST PAY THE HIRER.⁶  SAID R. JOSE: HOW SHALL ONE DO BUSINESS WITH HIS NEIGHBOUR'S COW?⁷  HENCE THE [VALUE OF THE] COW MUST BE RETURNED TO ITS OWNER.

GEMARA. R. Idi b. Abin said to Abaye: Let us see: how does the hirer acquire the cow?⁸  By his oath!⁹  Then let the owner say to the hirer, 'Take yourself off with your oath, whilst I bring an action¹⁰  against the borrower!' — Do you think, he replied to him, that the hirer acquires it through his oath! He acquires it from the time of its death, the oath being only to placate the owner.¹¹

R. Zera said: It may sometimes happen [on the basis of this Mishnah] that the owner must render many cows to the hirer. How so? — If A hired it [an animal] from him [B] for one hundred days, and then B re-borrowed it from him for ninety days;¹²  then A rehired it from B for eighty days [out of the ninety], and B. re-borrowed it from A for seventy days, and it died within the period of borrowing. Now on account of each separate borrowing he becomes liable for one cow.¹³  R. Aha of Difti said to Rabina: Let us see, only one animal is involved, which was brought into [a certain state] and taken out [thence]: it was taken out of hiring and brought into borrowing, taken out of borrowing and brought into hiring! — Is the cow then still in existence, he replied, that we should say thus to him?¹⁴  Mar son of R. Ashi said: He has a claim only in respect of two cows, one in respect of borrowing and one in respect of hiring, [for] there is one designation of borrowing and one designation of hiring.¹⁵  That in respect of borrowing belongs entirely to him [the hirer],¹⁶  whilst as for that of hiring, he must work therewith for the period of hiring and return it to its owner.¹⁷

R. Jeremiah said: Sometimes both [the hirer and the borrower] are liable to a sin-offering,

1. I.e., without waiting for a court order of distraint, to which all the previous rulings apply.
2. When the court makes an order for distraint.
3. V. Glos.
4. Even before he receives the document.
5. The estate to be distrained was announced for public sale, to go to the highest bidder; after the period of announcing is passed (the period is discussed in 'Ar. 21b seq.) without its being sold, the creditor has a right to the usufruct.
6. A hirer is free from liability in the case of natural death, but not a borrower.
7. Surely it is inequitable that the hirer shall be paid for an animal that never belonged to him!
8. I.e.,the freedom from responsibility for it, and the right to be paid by the borrower.
9. By swearing that it died a natural death.
10. Lit., 'will talk in an action.'
11. That it had actually died a natural death.
12. Out of the hundred, so that at their expiration A would have another ten days.
13. For the Mishnah states that the hirer owes nothing to the owner, but the borrower is liable to the hirer. This is a general rule, and holds good even if the borrower is actually the owner, for the principle is the same. Furthermore, each borrowing is a separate transaction, notwithstanding that the borrowings run concurrently, and each imposes a separate liability. Hence the owner may have to pay several animals to the hirer.
14. Since the cow is dead, that argument cannot be used, and each borrowing and hiring is a separate transaction.
15. He agrees with R. Aha of Difti. Notwithstanding that there were two borrowings, they are regarded as one in the final analysis.
16. Therefore the borrower, here the actual owner, must pay for it.
17. I.e., the owner must supply him with an animal for the remaining period of hiring — in this case, ten days.