Bava Batra 168a (קסח.) — 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, but

once he has testified

the witness has given his testimony,

he can no longer retract and testify

testimony that contradicts his initial words. If so, seemingly, we should not have accepted 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. However,

a Torah scholar,

a scholar such as Yirmeya bar Abba,

is not accustomed to scrutinizing,

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

The Gemara now cites another incident involving a receipt.

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

the woman claimed:

“It was not I!”

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

He said to her,

Rav Yirmeya bar Abba:

“Indeed, you

were!”

Indeed, you are the woman for whom I signed.

Abaye said: Even though a Torah scholar is not accustomed to scrutinizing,

although a Torah scholar is not accustomed to being so precise in identifying women, nevertheless

once he is precise, he is precise.

When he says that he examined her carefully and determined that she is the same woman, we rely on him and exempt the husband from paying her marriage settlement.

Abaye said: When a Torah scholar goes to betroth a woman,

a Torah scholar who goes to betroth a woman,

he should take an ignoramus with him,

he should take an ignoramus along,

lest they exchange her for another.

Perhaps, when the time comes for the marriage, they will exchange her and give him another woman, since a Torah scholar is not accustomed to looking closely at women. He should therefore take an ignoramus with him, who will carefully examine the woman whom he is betrothing.

We learned in the Mishna:

“And the husband pays the fee”

of the scribe who writes the bill of divorce.

The Gemara asks:

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

and write

her a bill of severance

and give

it into her hand,” indicating that the husband, who gives the bill of divorce, must have it written at his expense.

The Gemara adds:

“But nowadays, when we do not do so,”

in our time, when the practice is not so, but rather the woman pays the scribe, the reason for this practice is that

the Sages imposed it upon the woman,

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

“so that he will not delay her.”

This is so that the husband will not leave her agunah by refusing to pay the scribe’s fee.

We learned in the Mishna:

“One writes a document for the borrower even though the lender is not with him,”

and so on, and the borrower pays the fee.

The Gemara asks:

Obviously,

the borrower must pay the scribe’s fee, since he alone benefits from the loan!?

The Gemara explains:

It is necessary

for the Mishna to teach this

in the case of an iska,

where he gives him the money not as a loan but as an iska—that is, the recipient engages in business with it, and they divide the profits. Nevertheless, only the recipient pays the scribe’s fee for the iska document, because he benefits primarily from the transaction, as he earns money from the giver’s funds.

We learned in the Mishna:

“One writes a document for the seller even though the buyer is not

with him,” and so on, and the buyer pays the fee.

The Gemara asks:

Obviously,

the buyer must pay the scribe’s fee, since the purchaser of a field always benefits from the sale!?

The Gemara explains:

It is necessary

rather

in the case of one who sells his field because of its poor quality,

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

“One does not write documents of betrothal

and marriage except with the consent of both parties, and the groom pays the fee.”

The Gemara asks:

Obviously,

the groom must pay the scribe’s fee, since he is acquiring the woman!?

The Gemara explains:

It is necessary, even if

the groom is

a Torah scholar, whose father-in-law is pleased to become his relative,

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

We learned in the Mishna:

“One does not write a document of sharecropping or a lease

except with the consent of both parties, and the recipient pays the fee.”

The Gemara asks:

Obviously,

the recipient must pay the scribe’s fee, since he profits from the transaction!?

The Gemara explains:

It is necessary,

rather

in the case of a fallow field.

The field must be left uncultivated for a year or two, and the Mishna teaches us that although the recipient presently derives no benefit from the field, he must nevertheless pay the scribe’s fee because of the future benefit.

We learned in the Mishna:

“One does not write documents of arbitration agreements except with the consent of both parties.”

The Gemara asks:

What are

“documents of arbitration agreements”?

documents of arbitration’?”

The Gemara explains:

Here they interpreted:

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 they cannot later present different claims, and the judges issue their ruling on the basis of those claims.

Rav Yirmeya bar Abba said:

They write in the document: “

This one chooses one, and that one chooses one,

meaning that one litigant chose a particular judge, and the other litigant chose another judge [and the two judges together choose a third judge, and they constitute the court that will adjudicate their case].

We learned in the Mishna:

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

The Gemara asks:

Shall we say

that we should explain that

they disagree with regard to ‘we compel one to avoid the practice of Sodom’?

For it is characteristic of Sodom to say, “What is mine is mine and what is yours is yours,” and the same applies here, when one litigant does not wish to pay the fee for a joint document of arbitration agreements, but wants to have a separate document for himself and a separate document for his counterpart.

Shall we say that the tanna kamma and Rabban Shimon ben Gamliel disagree on this point:

The one who

the tanna kamma

holds: We compel

one to avoid the practice of Sodom. Therefore, if one litigant wants a separate document, the court does not agree; rather, it compels him to agree to a joint document, in order to save the other half the expenses, since he loses nothing by this.

And the other one,

Rabban Shimon ben Gamliel,

holds: We do not compel

one to avoid the practice of Sodom. Therefore, he may insist that he wants a separate document, even though this is the practice of Sodom.

The Gemara rejects this:

No!

Rather,

everyone

holds that one is compelled to avoid the practice of Sodom.

And here is the reason for Rabban Shimon ben Gamliel’s ruling:

He holds that this is not the practice of Sodom on the part of the one who refuses a joint document of arbitration agreements, because

he says to him,

to his litigant:

“I do not want your rights to be together with my rights.”

I do not want my claims written in the same document as your claims,

“for you seem to me like a lurking lion” [because you seem to me like a lurking lion], meaning that you are quarrelsome, and whenever you examine the document and see your claims and mine recorded there, you will attack me, and we will come to a quarrel.

for you are a quarrelsome person, and whenever you examine the document and see your claims together with mine, you will attack me, and we will come to quarrel.

Mishna:

With regard to one who repaid part of his debt,

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

and placed his document in escrow,

the lender and the borrower agreed to leave the document temporarily in the possession of a third party whom they trusted.

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

the lender his

document!”

So that he could collect everything written in the document, including even the amount that had already been paid.

The

specified

time

arrived,

and he did not give

the remainder of the debt to the third party:

Rabbi Yosei says: He shall give

the document to the lender, who may collect everything stated in it, since this is what the borrower undertook to do.

Rabbi Yehuda says: He 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:

The Gemara discusses:

What is the point of their dispute,

Rabbi Yosei and Rabbi Yehuda? And the Gemara explains: They disagree concerning the law of asmachta, which means the following: When one promises another to do a particular thing for him, and if he does not do so he obligates himself to give him a certain amount, there is room to say that even if ultimately he does not do what he promised, his obligation does not take effect, because he did not truly intend to obligate himself to him. Rather, he made the promise because he relied on himself that he would be able to fulfill it and would not need to actualize his obligation.

Here too, they disagree concerning the obligation that the borrower made to the trustee, since it falls within the category of asmachta [for the borrower said this only because he relied on himself that he would be able to pay the balance of the debt by a certain date]—whether it takes effect or not.

Rabbi Yosei holds: Asmachta effects acquisition.

That is, the obligation takes effect and the creditor acquires the right to it; therefore, the trustee must give the document to the creditor, as the borrower obligated himself to do.

And Rabbi Yehuda holds: Asmachta does not effect acquisition.

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

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

that asmachta effects acquisition.

When they came before Rabbi Ami,

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

he said to them: But

since Rabbi Yoḥanan has taught us, once and twice,

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 effect acquisition?

The Gemara concludes:

The halakha is not in accordance with Rabbi Yosei

but rather, asmachta does not effect acquisition.

Mishna:

In the case of one whose document of debt was erased,

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

he must establish witnesses concerning it,

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

and he comes before the court,

And these witnesses

authenticate it

before the court, meaning that they write for him:

“So-and-so, son of so-and-so, his document was erased,” [

which was written

on such-and-such date,

[and here they write everything that was written in that document].

“And so-and-so and so-and-so [

were

its witnesses,”

who signed that document. The witnesses then sign their names at the end.