Bava Batra 168a — the Talmud in English

Abaye said: Even though the Sages stated

a general rule concerning a witness who wishes to retract his testimony, that he cannot retract it, rather,

once he has testified

his testimony,

he can no longer retract and testify

testimony contradicting his initial words. And if so, apparently, we should not have needed to accept Rav Yirmeya bar Abba’s retraction of what he initially said, that this was not the same woman for whom he had signed the receipt, but

a tzurva me-rabbanan,

a Torah scholar like Yirmeya bar Abba,

it is not his way to examine carefully,

it is not his way to look so closely at women and identify them. Therefore, what he initially said, that he did not recognize her, does not have the force of “testimony” that would prevent him from retracting his words afterward. Rather, we believe him in what he says: that after paying attention, he realized that indeed this was the same woman, except that now her voice had aged.

The Gemara now brings another incident involving a receipt.

There was a certain receipt upon which Rav Yirmeya bar Abba was signed. She said to him,

the woman claimed:

It was not I!

I am not the woman for whom you signed her receipt.

He said to her,

Rav Yirmeya bar Abba:

Indeed, you

were!

Indeed, you are the one for whom I signed.

Abaye said: Even though it is not the way of a tzurva me-rabbanan to examine carefully,

although it is not the way of a Torah scholar to be so exact in identifying women, nevertheless

once he examined carefully, he examined carefully.

If he says that he examined carefully and found that this is the same woman, we rely on him and exempt the husband from paying her ketuba.

Abaye said: This Torah scholar who goes to betroth a woman,

a Torah scholar who goes to betroth [to become engaged to] a woman,

should speak with an ignoramus together with him,

he should take an ignoramus with him,

lest they exchange her for him.

Perhaps when he reaches the time of marriage, they will exchange her and give him another woman, since a Torah scholar does not look so closely at women. Therefore, he should take with him an ignoramus who looks carefully at the woman whom he is betrothing.

We learned in the Mishna:

And the husband gives the fee

of the scribe of the bill of divorce.

And the Gemara discusses:

What is the reason

that he must pay the scribe’s fee?

And it explains: Because

the verse says [Deuteronomy 24:3]

“

And he shall write

for her a document of severance

and he shall give

it into her hand,” implying that the husband who gives the bill of divorce must write it at his own expense.

And the Gemara adds:

And nowadays, when we do not practice in this manner,

in our times, when the practice is not so, but the practice is that the woman pays the scribe, the reason for the matter is that

the Sages placed it upon the woman,

the Sages instituted this and imposed payment of the scribe’s fee upon the woman,

so that he would not delay her.

So that the husband would not cause her to remain bound by refusing to pay the scribe’s fee.

We learned in the Mishna:

They write a document for the borrower even though the lender is not with him

and so on, and the borrower gives the fee.

And the Gemara discusses:

Obviously,

that the borrower must pay the scribe’s fee, for only he benefits from the loan!?

The Gemara explains:

It is necessary

for the Mishna to teach this,

in a business investment

where he gives him the money not as a loan but as a business investment, that is, so that the recipient will engage in business with it and both of them will divide the profits. Nevertheless, only the recipient pays the scribe’s fee for the business-investment document, because he is the principal beneficiary of the transaction, as he profits from the money of the giver.

We learned in the Mishna:

They write a document for the seller even though the buyer is not

with him, and so on, and the buyer gives the fee.

And the Gemara discusses:

Obviously

that the buyer must pay the scribe’s fee, for the buyer of a field is always the one who benefits from the sale!?

The Gemara explains:

It is necessary

rather,

when one sells his field because of its defect,

because it has a major defect, or because it is far from him; and the Mishna teaches that nevertheless the buyer benefits more than the seller. We learned in the Mishna:

They do not write betrothal documents

and marriage documents except with the knowledge of both of them, and the groom gives the fee.

And the Gemara discusses:

Obviously

that the groom must pay the scribe’s fee, for he acquires the woman!?

The Gemara explains:

It is necessary, even if

the groom is

a Torah scholar, for his father-in-law is pleased to become related to him,

as his father-in-law desires his marriage, since he is marrying his daughter to a Torah scholar; nevertheless, the groom must pay the scribe’s fee.

We learned in the Mishna:

They do not write a sharecropping or tenant-farming document

except with the knowledge of both of them, and the recipient gives the fee.

And the Gemara discusses:

Obviously

that the recipient must pay the scribe’s fee, for he is the one who profits from the transaction!?

The Gemara explains:

It is necessary,

rather,

in a fallow field.

A field that must be left fallow for a year or two, and the Mishna teaches us that although the recipient meanwhile profits nothing from the field, nevertheless he must pay the scribe’s fee because of the future profit.

We learned in the Mishna:

They do not write documents of clarification except with the knowledge of both of them.

And the Gemara discusses:

What are

“documents of clarification”?

documents of arbitration’?”

The Gemara explains:

Here they explained,

here in Babylonia they explained that the reference is to

documents of claims.

The court scribes write the litigants’ claims in a document so that afterward they cannot make different claims, and the judges issue the ruling according to those claims.

Rav Yirmeya bar Abba said:

They write in a document,

“This one chooses one for himself, and this one chooses one for himself,”

meaning that this particular litigant chose this particular judge for himself, and that particular litigant chose that particular judge for himself [and the two judges together choose a third judge, and they will be the court that will adjudicate their matter].

We learned in the Mishna:

Rabban Shimon ben Gamliel says: For both of them they write two, one separately for this one and one separately for that one.

And the Gemara discusses:

Let us say,

should we explain and say,

that they disagree concerning “we compel concerning the measure of Sodom.”

For this is the measure of Sodom, to say, “What is mine is mine, and what is yours is yours,” and so too here, when one of the litigants does not wish to pay the scribe’s fee for the shared document of clarification, but wants one separate document for himself and one separate document for his fellow.

And should we say that the First Tanna and Rabban Shimon ben Gamliel disagree in this:

For

the First Tanna

holds: We compel

concerning the measure of Sodom. Therefore, if one of the litigants wants a separate document, we do not agree to the matter; rather, the court compels him to agree to a shared document, in order to save the other half the expense, since he loses nothing through this.

And

Rabban Shimon ben Gamliel

holds: We do not compel

concerning the measure of Sodom, and therefore he may insist that he wants a separate document, despite this being the measure of Sodom.

And we reject this:

No!

Rather,

everyone

holds that we compel concerning the measure of Sodom.

And here, this is the reason of Rabban Shimon ben Gamliel:

because he holds that this is not the measure of Sodom on the part of the one who refuses a shared document of clarification, because

he says to him

to his litigant:

I do not want your right to be with my right.

I do not want my claims to be written in one document together with your claims,

for you appear to me like a lurking lion

[for you resemble in my eyes a lurking lion], meaning, you are a quarrelsome person, and whenever you examine the document and see your claims and my claims there, you will attack me and we will come to quarrel.

Mishna:

One who paid part of his debt,

a borrower who paid part of the debt written in the document, and they did not wish to trouble themselves to write a receipt for the amount paid,

and entrusted his document to a third party,

the lender and the borrower agreed between themselves to entrust the document temporarily to a third party who was trusted by them.

And he said to him,

the borrower said to the third party:

If I do not give you

the remainder of the debt

from now until a certain day, give him

to the lender his

document!

So that he will be able to collect everything written in it, even what had already been paid.

The

stated

time

arrived,

and he did not give

the borrower did not give the remainder of the debt to the third party:

Rabbi Yosei says: He shall give

the third party shall give the document to the lender, and he may collect everything stated in it, for this is what the borrower undertook.

Rabbi Yehuda says: He shall not give

the third party shall not give the document to the lender, despite the borrower’s undertaking, and the Gemara will immediately explain the reason for their dispute.

Gemara:

And the Gemara discusses:

With regard to what do Rabbi Yosei and Rabbi Yehuda disagree? And the Gemara explains: They disagree concerning the law of asmachta, whose matter is as follows: One who promises his fellow to do a certain thing for him, and if he does not do so he undertakes to give him such-and-such, there is room to say that even if in the end he does not do what he promised, his undertaking does not take effect, because he did not truly intend to undertake it for him; rather, he made this promise because he relied on himself that he would be able to fulfill his promise and would not need to carry out his undertaking.

between Rabbi Yosei and Rabbi Yehuda? The Gemara explains: They disagree about the law of an asmachta, meaning the following: When a person promises another that he will do a particular thing for him, and if he does not do so, he undertakes to give him a specified amount, there is room to say that even if in the end he does not do what he promised, his undertaking does not take effect. This is because he did not truly intend to undertake the obligation; rather, he made the promise because he relied on himself to be able to fulfill it and therefore would not have to carry out the undertaking.

And here too, they disagree concerning this undertaking that the debtor gave to the trustee, since it is in the category of asmachta [for the reason that what the debtor said was only because he relied on himself that he would be able to pay the balance of the debt by a certain day]—whether it takes effect or not.

Rabbi Yosei holds: Asmachta acquires. That is, the undertaking takes effect and is acquired by the other party; therefore, the trustee must give the document to the creditor, as the debtor undertook.

That is, the undertaking takes effect and the money or property is acquired by the other party; therefore, the trustee must give the document to the creditor, as the debtor undertook to do.

And Rabbi Yehuda holds: Asmachta does not acquire. Such an undertaking does not take effect; therefore, the trustee should not give the document to the creditor.

Such an undertaking does not take effect, and therefore the trustee must not give the document to the creditor.

Rav Naḥman said that Rabba bar Avuha said that Rav said: The halakha is in accordance with Rabbi Yosei,

that asmachta acquires.

When they came before Rabbi Ami,

when a case concerning the laws of asmachta came before Rabbi Ami,

he said to them: But

since Rabbi Yoḥanan teaches us time and again

how many times he taught us that

the halakha is in accordance with Rabbi Yosei, what can I do?!

How can I rule that asmachta does not acquire!?

And the Gemara concludes:

The halakha is not in accordance with Rabbi Yosei

but rather, asmachta does not acquire.

Mishna:

One whose debt document was erased,

because water fell upon it or it became blurred from the passage of many days,

he appoints witnesses concerning it,

he brings witnesses who know what was written in the document,

and he comes before the court,

And these witnesses

make a validation for him

before the court, that is, they write for him:

So-and-so son of so-and-so, his document was erased

which was written

on such-and-such a day,

And so-and-so and so-and-so

were

its witnesses,

who signed that document. And afterward, these witnesses sign their names at the end.