Babylonian Talmud: Tractate Kethuboth

Folio 85a

does not legally acquire it'.¹  Thereupon they²  seized it themselves, R. Papa rowing³  the boat while R. Huna the son of R. Joshua pulled it by the rope. One Master then declared, 'I have acquired all the ship'⁴  and the other similarly declared, 'I have acquired all of it'.⁵  They were met by R. Phinehas b. Ammi who said to them: Both Rab and Samuel ruled that '[Seizure is valid] only if [the produce] was piled up and lay in a public domain'.⁶  'We too', they replied, 'have seized it at the main current of the river'.⁷  When they appeared before Raba he said to them, 'Ye white geese⁸  that strip the people of their cloaks;⁹  thus ruled R. Nahman; [The seizure is valid] only if it took place during the lifetime [of the original owner].

The men of Be-Hozae¹⁰  once claimed a sum of money from Abimi the son of R. Abbahu, who sent it to them by the hand of Hama the son of Rabbah b. Abbahu. He duly went there and paid them, but when he asked them, 'Return to me the bond', they replied. 'This payment was made in settlement of some other claims'.¹¹  He came before R. Abbahu [to complain] and the latter asked him, 'Have you witnesses that you have paid them?' — 'No', he replied. 'Since', the former said to him, 'they could plead¹²  that the payment was never made,¹³  they are also entitled to plead that the payment was made in settlement of some other claims'.¹⁴

What is the law in respect of the agent's liability to refund? — R. Ashi replied; We have to consider the facts. If he¹⁵  said to him. 'Secure the bond and pay the money' he¹⁶  must refund it; [but if he¹⁵  said.] 'Pay the money and secure the bond', he is under no obligation to refund it. The law, however, is not so. He¹⁶  must refund it in either case, because the other¹⁵  may well say. 'I deputed you to improve my position, not to make it worse

There was a certain woman with whom a case¹⁷  of bonds was once deposited and when the heirs [of the depositor] came to claim it from her she said, 'I seized them¹⁸  during [the depositor's] lifetime'.¹⁹  R. Nahman to whom she came said to her, 'Have you witnesses that it²⁰  was claimed from you during [the depositor's] lifetime and that you refused to return it?' — 'No', she replied. 'If so', he said to her, 'your seizure is one that took place after [the owner's] death,²¹  and such a seizure is invalid.²²

A woman was once ordered²³  to take an oath²⁴  at the court of Raba, but when R. Hisda's daughter²⁵  said to him, 'I know that she is suspected of [taking false] oaths', Raba transferred the oath to her opponent.²⁶

On another occasion R. Papa and R. Adda b. Mattena sat in his presence when a bond was brought to him. Said R. Papa to him. 'I know that this bond is paid up'. 'Is there, [Raba] asked him, 'any other man with the Master [to confirm the statement]?' 'No', he replied. 'Although', the other said to him, 'the Master is present [to give evidence] there is no validity [in the testimony of] one witness'.²⁷  Said R. Adda b. Mattena to him, 'Should not R. Papa be [deemed as reliable] as the daughter of R. Hisda?'²⁸  — 'As to the daughter of R. Hisda [he replied] I am certain of her;²⁹  I am not sure, however, about the Master'.³⁰  Said R. Papa: Now that the Master has stated [that a judge who can assert,] 'I am certain of a person', may rely upon that person's evidence,³¹  I would tear up a bond on the evidence of my son Abba Mar of whose reliability I am certain. 'I would tear up'! Is such an act conceivable?³²  — He rather [meant to say,] 'I would impair a bond³³  on his evidence'.

A woman was once ordered to take³⁴  an oath at the court of R. Bibi b. Abaye, when her opponent suggested to them, 'Let her rather come and take the oath in our town,³⁵  where she might possibly feel ashamed [of her action] and confess'. 'Write out said she to them, 'the verdict in my favour³⁶  so that after I shall have taken the oath it may be given to me'. 'Write it out for her', ordered R. Bibi b. Abaye. 'Because', said R. Papi. 'you are descendants of short-lived people you speak frail words;³⁷  surely Raba stated, 'An attestation³⁸  by judges that was written before the witnesses have identified their signatures is invalid',³⁹  from which it is evident [that such an attestation] has the appearance of a false declaration, and so here also [the verdict]⁴⁰  would appear to contain a false statement'. This conclusion,⁴¹  however, is futile⁴²  [as may be inferred] from a statement of R. Nahman, who said; R. Meir ruled that even if [a husband] found it⁴³  on a rubbish heap, and then signed and gave it to her, it is valid; and even the Rabbis⁴⁴  differ from R. Meir only in respect of letters of divorce where it is necessary that the writing shall be done specifically in her name, but in respect of other legal documents they agree with him,⁴⁵  for R. Assi stated in the name of R. Johanan, 'A man may not borrow again on a bond on which he has once borrowed and which he has repaid.⁴⁶  because the obligation [incurred by the first loan]⁴⁷  was cancelled;⁴⁸  the reason then is because 'the obligation was cancelled', but that [the contents of the document] have the appearance

1. One has no right to acquire a benefit for one man at the expense of another, v. Git. 11b.
2. Who were also among the deceased's creditors.
3. A form of acquisition.
4. Rowing being in his opinion the proper form of acquiring legal possession of a ship.
5. Cf. supra n. 6 mutatis mutandis.
6. Supra 84b, infra 86b. The boat presumably lying at the river bank which, not being frequented by many boats, has the status of an alley, could not, therefore, be lawfully seized and acquired.
7. On which many boats ply and which has the status of a public thoroughfare where seizure is legal.
8. Metaph., 'old men'.
9. By giving a decision in their own favour and thus robbing the other creditors.
10. V. supra p. 504, n. 5.
11. Lit., 'these are (from other) sides'.
12. In the absence of witnesses to testify that the debt had been paid.
13. [H] lit., 'the things never were'.
14. V. supra p. 536, n. 23.
15. The man who sent him.
16. The agent.
17. [H] (rt. [H] 'to pluck'), a bag made of skins from which the hair has been plucked.
18. The bonds.
19. 'In payment of the debt he owed me'.
20. The case of bonds.
21. As long as he was alive the bonds were held by her as a deposit which was virtually in the possession of the depositor.
22. Since at the death of the depositor the bonds had passed directly into the possession of his heirs.
23. Lit., 'became liable'.
24. To confirm her denial of a monetary claim that had been advanced against bet.
25. Raba's wife.
26. The claimant who in such a case (cf. Shebu. 44b) is entitled to the sum claimed on confirming it by an oath
27. [Asheri, Alfasi and Isaiah Trani omit 'No … one witness'. According to this reading Raba required the confirmation by another person because R. Papa was related to one of the parties, v. Tosaf, and Strashun].
28. Whose testimony was regarded by Raba, supra, as sufficient to disqualify the defendant from taking an oath.
29. That I can rely upon her evidence.
30. [Did he mean to imply that he suspected R. Papa of lying? This is unlikely in view of the discussion that follows in which R. Papa seemed to betray no resentment at the affront. Yet this is the only meaning which can be attached to the text of cur. edd. Preference is consequently to be given to the reading of Asheri and Alfasi (v. n. 1); and what Raba meant was that, as a relative, R. Papa's evidence could not be accepted].
31. Even though no other witness is available Lit.. 'It is a thing'.
32. In money matters, surely, the evidence of two witnesses is required.
33. Sc. the holder would have to confirm the statement in the bond by an oath before an order for repayment could he issued (Tosaf.).
34. Lit., 'become liable'.
35. So BaH. Cur. edd. omit 'our'.
36. [H] pl. of [H], 'favourable judgment'.
37. Abaye was a descendant of the house of Eli who were condemned to die young (cf. I Sam. II, 32). [H] and [H] (rt. [H] 'to crush') 'frail things', 'frail words', 'frail or short-lived people'. A similar expression in Arabic means 'to be foolish'. Cf. B.B. 137b, Sone. ed. p. 582, n. 6.
38. Of a document, confirming the signature of the witnesses.
39. Git 26b, supra 21b.
40. Which the woman requested and the wording of which would have implied that when it was written she had already taken the oath.
41. That a document containing a statement which at the time of writing was not yet true is invalid even after the act it mentions has materialized.
42. Lit., 'and it is not'.
43. A letter of divorce he has prepared for his wife.
44. Who denied the validity of the document.
45. That the validity of the document (cf. supra n. 4) is not affected.
46. On the same day that he borrowed. Though the bond in such a case is not antedated it may not be used again.
47. Viz., the right to seize the debtor's property.
48. When it was repaid. The second loan, since no new bond was issued in connection with it, has only the force of a loan by word of mouth which does not entitle the creditor to seize any of the debtor's sold property. Should the first bond, however, be used for the second loan, the lender might unlawfully seize property to which he is not legally entitled. B.M. 17a.

of a false statement¹  is a matter which need not be taken into consideration.

A certain man once deposited seven pearls, wrapped in a sheet, with R. Miasha the son of the son of R. Joshua h. Levi. As R. Miasha died intestate²  they came to R. Ammi.³  'In the first instance', he said to them, 'I know that R. Miasha the son of the son of R. Joshua b. Levi was not a wealthy man,⁴  and secondly. does not the man⁵  indicate the marks?'⁶  This ruling, however, applies only to a man who was not a frequent visitor at the bailee's house,⁷  but if he was a frequent visitor there [the marks he indicates are no evidence of ownership since] it might well be assumed that another person has made the deposit and he happened to see it. A certain man once deposited a silver cup with Nasa; and Hasa died intestate.⁸  R. Nahman before whom [the heirs] appeared said to them, 'I know that Hasa was not a wealthy man? and, furthermore, does he⁵  not indicate the mark?'⁹  This, however, applies only to a man who was not an habitual visitor at the bailee's house,⁷  but if he was a frequent visitor there [the mark he indicates is no valid proof since] it might be said that another person had deposited [the cup] and he happened to see it.

A certain man once deposited a silk cloth¹⁰  with R. Dimi the brother of R. Safra, and R. Dimi died intestate.²  R. Abba, to whom [the depositor] came [to submit his claim.] said to them,¹¹  'In the first place I know that R. Dimi was not a wealthy man⁴  and, secondly, the man is here indicating the distinguishing mark.' This, however, applies only to a man who was not a frequent visitor⁷  at the bailee's house, but if he was a frequent visitor there [the indication of the mark is no valid proof since] it might well be suggested that another man deposited the object and he happened to see it.

A man once said¹²  to those around him,¹³  'Let my estate be given to Tobiah', and then he died. [A man named] Tobiah came [to claim the estate]. 'Behold', said R. Johanan. 'Tobiah has come'.¹⁴  Now if he said, 'Tobiah'¹⁵  and 'R. Tobiah'¹⁶  came, [the latter is not entitled to the estate, since] he said 'To Tobiah' but not 'To R. Tobiah'. If he,¹⁶  however, was on familiar terms with him¹⁷  [the estate must be given to him, since the omission of title might have been due to] the fact that he was on intimate terms with him. If two Tobiahs appeared,¹⁸  one of whom was a neighbour¹⁹  and the other a scholar, the scholar is to be given precedence.²⁰  If one [of the Tobiahs] is a relative and the other a scholar, the scholar is given precedence.²⁰  The question was asked: What is the position where one is a neighbour¹⁹  and the other a relative? — Come and hear; Better is a neighbour that is near than a brother far off²¹  if both²²  are relatives, or both are neighbours. or both are scholars the decision is left to the discretion²³  of the judges.

Come, said Raba to the son of R. Hiyya b. Abin, I will tell you a fine saying of your father's:²⁴  Although²⁵  Samuel said, 'If a man sold a bond of indebtedness to another person and then he²⁶  released the debtor, the latter is legally released;²⁷  and, moreover, even [a creditor's] heir may²⁸  release [the debtor]' Samuel, nevertheless, admits that, where a wife brought in to her husband²⁹  a bond of indebtedness and then remitted it, the debt is not to be considered remitted, because her husband's rights are equal to hers.³⁰

A relative of R. Nahman once sold her kethubah for the goodwill.³¹  She was divorced and then died. Thereupon [the buyers] came to claim [the amount of the kethubah] from her daughter.³²  'Is there no one', said R. Nahman to those around him,³³  'who can tender her advice?

1. The bond having been written not for the second but for the first loan.
2. Lit., 'he did not order'. And his heirs maintained that the pearls might have belonged to the deceased from whom they inherited them.
3. To obtain his ruling on the ownership of the deposit.
4. And he could not consequently have been the owner of costly objects.
5. The depositor.
6. That the pearls were (a) wrapped up in a sheet and (b) their number was seven (Rashi. Cf., however, Tosaf. s.v. [H]).
7. Lit.,' that be was not in the habit of entering and going out from there'.
8. He was accidentally drowned (v. Yeb. 121b).
9. That it was a silver cup.
10. [H] cf. [G], silk or silk cloth.
11. To the heirs.
12. While he was on his death bed.
13. Lit., 'to them'.
14. Sc. the estate must be given to this man.
15. I.e., if he assigned his estate to a person whom he named without describing him by the title by which he is usually known.
16. A scholar of the name of Tobiah who bears the title 'R(abbi)'.
17. The testator.
18. Claiming the estate.
19. Of the deceased.
20. A person is assumed to be more favourably disposed towards a scholar than towards any other person. On the merit and heavenly reward of him who benefits scholars, v. Bet. 34b.
21. Prov. XXVII, 10.
22. Who claim the estate.
23. [H] = [H] 'choice', 'singling out', 'discretion' (Jast.). Aliter. 'Favour', 'gift'. i.e., the judges in their verdict may favour, or make a gift of the estate to any of the claimants they prefer (cf. R. Tam in Tosaf. s.v. [H] and Levy s.v.). Aliter: [H] = [H] 'to throw', i.e., the judges must cast about for (gauge) the opinion of the testator to determine which of the claimants he preferred (Rashi). Cf. Golds. [H] ist unverkennbar das syn. [H] (confabulatio, colloquium) Rat, Beschluss der Richter'.
24. Lit., 'which your father said'.
25. This is the reading in the parallel passage elsewhere (cf. B.B. 147b). The reading here is [H], lit., 'that', 'as to that'.
26. The seller.
27. Because the buyer of a bond is entitled only to the same rights as those of the seller and since the latter, by his release of the creditor, has forfeited his claims upon the debt, the former also forfeits them; v. Kid., Sonc. ed. p. 239. n. 1.
28. When he inherits the estate of the creditor.
29. On marriage.
30. Lit., 'his hand is like her hand'; hence it is not within her power to remit the debt without her husband's consent.
31. Cf. Rashi. [H] lit., 'the goodness of a favour' (cf. the English idiom, 'a game for love'), i.e., receiving no full price for her kethubah from the buyers, who purchase it as a speculation in case her husband dies first it divorces her. Should she die first, they have no claim to the kethubah.
32. Who was the heir to her mother's kethubah.
33. Lit., 'to them'.