Babylonian Talmud: Tractate Gittin

Folio 14a

that for the sake of the benefit which the borrower derives from the difference [in time of payment] between the old debt and the new one, he willingly pledges himself to the new creditor.¹  Said Huna Mar the son of R. Nehemiah to R. Ashi: If that is so, what of people like those from the house of Bar Eliashib, who force their debtors to pay at once? Do they not acquire possession in such a case as this?²  And if you say they do, then you apply different standards to different people? — The truth is, said Mar Zutra, that there are three laws which the Rabbis have laid down arbitrarily without [giving] a reason. One is this one. A second is the one laid down by Rab Judah in the name of Samuel: If a [dying] man assigns in writing all his property to his wife, he only makes her a trustee for it.³  The third is the one laid down by R. Hananiah: If a man celebrates the marriage of his son who is over age in a special house, the son becomes the owner of the house.⁴

Rab once said to R. Aha Bardala: You have a kab of saffron of mine, give it to So-and-so, and I am telling you in his presence that I do not mean to change my mind. Are we to understand from this that if he had desired to change his mind he could have done so? — What Rab meant was that instructions such as these⁵  cannot be retracted. But this has already been laid down by Rab, since R. Huna said in the name of Rab: If a man says to another, You have a maneh of mine in your possession, give it to So-and-so, if he says this in the presence of the third party, [the latter] becomes legal owner? — If I had only that dictum to go by, I should suppose that this rule applies only to a big gift, but that for a small one it is not necessary for the third party to be present: now I know [that this is not so].

Some market gardeners [who were in partnership] once squared accounts with one another, and found that one had five staters⁶  too much. Said the others to him in the presence of the owner of the land, 'Give it to the owner of the land',⁷  and they duly acquired' from him.⁸  Afterwards he reckoned up by himself, and found that he had nothing over. He went to consult R. Nahman. Said [the latter] to him: What can I do for you? For one thing, there is the rule laid down by R. Huna in the name of Rab,⁹  and for another thing, they¹⁰  duly 'acquired' from you. Said Raba to him: Does this man say. I am unwilling to pay? What he pleads is, I do not owe the money. Whereupon R. Nahman said: If so, possession has been transferred in error, and in such a case the money must always be returned.

It has been stated: If a man says to another, 'Take to So-and-so the maneh which I owe him', Rab says. he continues to be responsible for it, and he is not at liberty to retract the commission, whereas Samuel says that since he is still responsible he is at liberty to retract. May we presume that the point at issue between them is this, that one authority¹¹  was of opinion that 'take' is equivalent to 'accept on behalf of',¹²  and the other¹³  was of opinion that 'take' is not equivalent to 'accept on behalf of'? — No. Both are agreed that 'take' is equivalent to 'accept on behalf of', and the point at issue is this, that one was of opinion that we make one ruing¹⁴  because of another,¹⁵  and the other was of opinion that we do not. It has been taught in agreement with Rab:¹⁶  If a man says to another, Take to So-and-so the maneh which I owe him, give So-and-so the maneh which I owe him, take to So-and-so the maneh which he has given me in trust, give So-and-so the maneh which he has given me in trust, he remains responsible for the money, yet if he wishes to retract the commission he is not at liberty to do so. Why should he not be able to retract in the case of trust money, on the plea that [the depositor] does not desire his money to be in the hand of another [party]? — R. Zera answered: We assume that [the sender in this case] is known as a man who denies [his obligations].¹⁷  R. Shesheth had some money owing to him in Mahuza for some cloaks [which he had sold there]. He said to R. Joseph b. Hama [who was going there]: When you come back from there, bring the money with you. [R. Joseph] went [to them] and they gave him the money. They said to him: 'Give us a quittance'.¹⁸  At first he said, 'yes', but afterwards he excused himself. When he returned, R. Shesheth said to him: You acted quite rightly,¹⁹  not to make yourself a borrower [who] is the slave of the lender.²⁰  According to another version he said to him: You acted quite rightly: 'a borrower is the slave of the lender.'²¹

R. Ahi the son of R. Josiah had a silver cup²²  in Nehardea.

1. Even if the latter had not yet been born at the time of the loan.
2. If the debt is transferred to them.
3. And not absolute owner.
4. For fuller notes v. B.B. (Sonc. ed.) pp. 616 ff.
5. Made in the presence of the third party.
6. A silver stater = half a zuz.
7. [Trani adds: for ground-tax.]
8. [So Trani. That is, they made him obligate himself by means of a Kinyan (v. Glos.) to carry out his undertaking: cur. edd. 'he' is evidently an error.]
9. [That a transfer of claims made in the presence of the third party takes immediate effect.]
10. [So cur. edd.]
11. Nab.
12. For this reason he may not retract, though he still continues to he responsible, as the creditor did not give him the permission to entrust the money to the bearer.
13. Samuel.
14. That he is at liberty to retract: lit., 'that we say since'.'
15. That he is still responsible.
16. Tosef. Git. I.
17. And therefore the recipient is satisfied that the money should be in the hands of the hearer.
18. Lit., 'let us obtain a kinyan from you', relieving us of all further responsibility.
19. In refusing to assume responsibility.
20. Prov. XXII, 7.
21. I.e., my debtors are still under obligation to me.
22. [ [G], v. Krauss. TA. II, 415.]

He said to R. Dosethai the son of R. Jannai and to R. Jose b. Kifar [who were going there]: When you come back from there, bring it with you. They went and got it [from the people who had it]. They said to them: 'Give us a quittance'. They said, 'No'. 'Then give it back', they said. R. Dosethai the son of R. Jannai was willing, but R. Jose b. Kifar refused. They gave him a thrashing,¹  and said to R. Dosethai: 'See what your friend²  is doing'. He replied: 'Thrash him well'.³  When they returned to R. Ahi, R. Jose said: 'Look, sir, not only did he not assist me, but he said to them, "Thrash him well". 'He said to R. Dosethai: 'Why did you do so?' He replied: 'Those people are like posts, and their hats as long as themselves.⁴  Their voice comes from their boots,⁵  and their names are outlandish — Arda and Arta and Pili Baris.⁶  If they give the order to arrest, you are arrested; to kill, you are killed. If they had killed [poor] Dosethai, who would have given Jannai my father a son like me?' 'Have these men', he asked, 'influence with the Government?' 'Yes', he replied. 'Have they a retinue [mounted on] horses and mules?'⁷  'Yes'. 'If that is so', he said, 'you acted rightly'.

If a man said to another, Take a maneh to So-and-so, and he went and looked for him, but did not find him [alive], one [Baraitha] teaches he must return the money to the sender, and another [Baraitha] teaches he must give it to the heirs of the man to whom it was sent. Shall we say that the point at issue [between the two authorities] is that one is of opinion that 'take' is equivalent to accept on behalf of', and the other that it is not? — Said R. Abba b. Memel: No. Both are agreed that 'take' is not equivalent to accept on behalf of', and there is no difference of opinion between them, as the one speaks of a sender who is in health and the other of one who is on a death bed.⁸  R. Zebid said: Both speak of a sender who is on a death bed, but the one [has in mind the case] where the recipient is alive at the time when the money was given [to the bearer], and the other [the case] where he was not alive at the time. R. Papa says: Both speak of a case where the sender was in health,⁹  but the one [had in mind the case] where the recipient died while the sender was still alive,¹⁰  and the other [the case] where the sender died¹¹  while the recipient was still alive.¹²

May we assert that the question whether 'take' is equivalent to accept on behalf of' is one on which there was a difference of opinion among the Tannaim, as it has been taught: [If a man said to another,] Take a maneh to So-and-so, and he went and looked for him and did not find him [alive], he must return the money to the sender. If the sender has also died meanwhile, R. Nathan and R. Jacob say that he should return it to the heirs of the sender; or as some say, to the heirs of the person to whom the money was sent; R. Judah the Prince said in the name of R. Jacob, who said it in the name of R. Meir, that it is a religious duty to carry out the wishes of the deceased: The Sages say that the money should be divided: while here [in Babylon]¹³  they say that the bearer should use his own discretion. R. Simeon the Prince said: I had to deal with a case of this kind, and it was decided that the money should be returned to the heirs of the sender. May we regard the point at issue here as being this, that the first Tanna was of opinion that 'take' is not equivalent to 'accept on behalf of', and that R. Nathan and R. Jacob were of the same opinion and also held that even where the sender has died in the meanwhile we do not in this case say that it is a religious duty to carry out the wishes of the deceased; that the 'some' [authorities] held that 'take' is equivalent to 'accept on behalf of'; that R. Judah the Prince speaking in the name of R. Jacob who again spoke in the name of R. Meir held that 'take' is not equivalent to 'accept on behalf of', only where the sender has died [in the meanwhile] we do say that it is a religious duty to carry out his wishes; that the Sages who say they should divide are in doubt [as to which principle to adopt], while here [in Babylon, other authorities] think that the bearer can best estimate for himself; and as for R. Simeon the Prince, he simply desired to give an illustration? — No. If the sender is in health, all authorities are agreed [that 'take' is not equivalent to 'accept on behalf of']. Here, however, we are dealing [with the case] where [the sender is] on a death bed, and the dispute here is analogous to the dispute between R. Eleazar and the Rabbis. For we learnt: If a man divides his property among his heirs by word of mouth, R. Eleazar says that whether he is in health or dangerously ill, immovable property can be transferred to the new owners only by money payment, by document, or by act of possession, and movable property only by 'pulling', whereas the Sages say that transference of ownership is effected in both cases by his mere word of mouth. Said [the Sages] to him: There is the case of the mother of the sons of Rokel who was ill and said, Let my brooch be given

1. Lit., 'they vexed him'.
2. Lit., 'the master'.
3. Al. 'He deserves his thrashing'.
4. Lit., 'they are a cubit and their hats are a cubit'.
5. Lit., 'they speak from their middles'.
6. [On this passage. and for an attempt to explain the names mentioned, v. Rappaport, Kerem Chemed VII p. 199.]
7. Lit., 'have they horses and mules running before them'.
8. Whose verbal instructions have the character of a written deposition. v. supra 15a.
9. And his verbal instructions have not the force of a written deposition.
10. And it goes back to the sender.
11. (At which point the gift takes immediate effect because the carrying out of the wishes of the dead is deemed a religious obligation.]
12. And the money now goes to the heirs of the recipient.
13. [This is quoted by Chajes in support of Sherira's view in his Epistle that Babylon was a centre of Torah studies from the earliest days, ever since the first deportation of Jews in 596 B.C.E. V. supra p. 17, n. 3 and Halevy, Doroth II, pp. 82ff.]