Bava Batra 32b (לב:) — the Talmud in English

He said to him

the claimant to the one sitting on the land: “

It is a forged document

[it is a forged document], for I never signed this document, nor any other document of sale.”

The one sitting on the land bent down and

whispered to Rabba: “

Indeed, it is a forged document; however, I had a valid document, but it was lost, and I said: Let me at least take this one in my hand, whatever it may be.”

[He bent down and brought the document toward Rabba, who was sitting in judgment, and whispered to him quietly so that the claimant would not hear: Indeed, this document that I am holding is forged, and the owner of the land indeed did not sign this paper; however, I had a genuine document of sale, but it was lost, and I brought this document because I said to myself: I should not come empty-handed.]

Rabba said:

He should be believed that he indeed purchased the land with another document, because of

“Why would he lie?”

that is, he should be believed by virtue of the law of migo:

For

if he had wanted, he could have said: “

It is a valid document,”

[if he had wanted, he could have refrained from admitting that this document was forged, and then the land would have remained in his possession].

Rav Yosef said to Rabba:

Why do you rely!?

You rely

on this document,

but

this document is merely a potsherd,

[what do you rely on this document for? This document is forged]! The Gemara cites a similar case involving a loan document, and Rabba and Rav Yosef likewise disagreed there, in accordance with their dispute above and based on the same reasoning. There was a certain

man

who said to his fellow: “

Give me the hundred zuz that you owe me, and here is the document,”

[give me the hundred zuz that you owe me, and here I have a loan document]!

And in Tosafot, tractate Bava Metzia 2a, the matter— according to the approach of the Ribam— is explained differently: There they wrote in the name of the Ribam that we do not say migo to extract money, and they raised an objection from our sugya, where Rabba holds that we do say migo to extract money. They explained: “There, the reason is that even had he remained silent and merely refrained from admitting that it was forged, he would have been believed, since the signature was recognizable to those standing there.” They wrote there concerning Rav Yosef: “Rav Yosef holds that there was not even a migo, since the first claim he makes concerning this document is false, and we say migo only where his first claim is true, by virtue of the fact that he could have made another claim. Therefore, it is not a migo even to preserve possession, as in the first incident.” Thus, according to the Ribam, they have stated the reasoning of Rabbi Yitzhak in Tosafot here; moreover, according to their words there, in the first incident this is not a migo to extract money. See also the Ramban, who discusses this sugya at length. The borrower said to the lender: “

It is a forged document

[it is a forged document]!”

The lender bent down and

whispered to Rabba,

who was sitting in judgment: “

Indeed, it is a forged document; however, I had a valid document, but it was lost, and I said: Let me at least take this forged one with me

, [indeed, this document is forged, but I had another document that was lost, and I said to myself: I will take with me, at any rate, a forged document].”

Rabba said: “Why would he lie!?”

For

if he had wanted, the lender could have said to him

the borrower: “

It is a valid document,”

and then the borrower would have been obligated to repay the loan!

Rav Yosef said to Rabba:

But

why do you rely!?

On this document? This document is merely a potsherd!

Rav Idi bar Avin said:

Since it is uncertain whose reasoning appears more compelling to us, therefore:

The halakha is in accordance with Rabba

in the first case in which they disagreed,

with regard to land

[that is, when the one sitting on the land claims ownership of it by virtue of these claims and this migo].

And the halakha is in accordance with Rav Yosef

in the second case in which they disagreed,

with regard to money,

that is, when the lender comes to demand a debt from the borrower by virtue of these claims and this migo.

And the reason is:

The halakha follows Rabba with regard to land,

because

wherever the land is situated, there it shall remain,

[wherever the land is situated—that is, in the hands of the one sitting on it—there it shall remain], in accordance with the established principle concerning every monetary doubt: “The burden of proof rests upon the one who seeks to extract from another.”

And

the halakha follows Rav Yosef with regard to money,

because

—

on the contrary,

wherever the money is situated, there it shall remain

[wherever the money is situated—that is, in the hands of the borrower—there it shall remain, and the lender may not extract his money from the borrower].

There was an incident involving

a certain guarantor

[who had guaranteed his fellow’s loan]

who said to the borrower—

to the one for whom he had served as guarantor—“

Give me the hundred zuz that I paid to the lender on your behalf, and here is the document

[give me the hundred zuz that I paid the lender in your place, when he demanded payment from me by virtue of my guarantee, and here is the loan document that the lender returned to me].”

The borrower said

to the guarantor: “But

did I not repay you!?”

The guarantor said

to the borrower: “Indeed, you gave me money, but

did you not then take it back from me

[did you not subsequently take the money back from me] as a loan?”

He sent

this matter to a court of Torah law

Rav Idi bar Avin before Abaye,

saying:

What is the law in a case such as this

[what is the law in this case]!?

Abaye sent to him

to Rav Idi bar Avin:

What is there for you to be uncertain about

[what is there for you to be uncertain about]!?

Here too we should say: Why do you rely—when claiming that the loan was not repaid—on this document? This document is merely a potsherd, since the guarantor admits that it was repaid, and he is coming to claim verbally that there was a new loan, for which the document was not written; it is impossible to use it again for the new loan, because “a document whose lien has been canceled cannot be used to borrow again”—

And

he himself

[Rav Idi himself]

said: The halakha follows Rabba with regard to land, and the halakha follows Rav Yosef with regard to money,

that the lender is not believed by means of such a migo, because it is uncertain whether it is effective, and we say:

Wherever the money was placed, there it shall remain

[wherever the money is found, there it shall remain]. In this case as well, since he is attempting to extract money from the borrower, the guarantor is not believed.

And this applies—

that the guarantor is not believed in his claim that he returned the money to the borrower—only in a case such as

where he said to him,

the guarantor to the borrower: “

You subsequently borrowed it from me

[according to the guarantor’s claim, he gave him the money as a loan]!”

But if he said to him,

the guarantor to the borrower: “

I returned it

to you because the coins were worn and reddish,”

I returned your money to you because the coins were not fit for use in commerce, either because their form had been worn away or because their copper had become excessively red, he is believed in this claim, because

the lien of the document still exists

[the lien recorded in the document still exists]!

That is, when the guarantor claims that there was a new loan, the document does not support his claim, since the loan recorded in it was already repaid, and he is coming to demand a loan orally, in which claim he is not believed [even by means of a migo]. However, if the guarantor claims that the loan recorded in the document was still unpaid—either because he did not pay him at all or because the borrower attempted to deceive him by paying with non-valid money—he is believed, because all he is claiming is, “I have still not been repaid”; the document supports him.

There was an incident involving

Rava

bar Shershom,

who

became the subject of a public rumor that he was consuming the land of orphans

[a rumor spread about him that he was improperly enjoying the produce of orphans’ land], for that was how the matter appeared!

Abaye said to him: “

Tell me, please, what was the actual incident

[tell me, then, what happened in the incident that formed the background to this report]?”

He said to him,

Rava bar Shershom said to Abaye, this is what happened: “

I was holding land that had been given as a mortgage by their father, the father of the orphans

, he owed me money and gave me land as a mortgage—that is, I was to consume its produce for a number of years, as stipulated in the document between us, since over those years the value of the produce would equal the value of the loan—