Bava Batra 34a — the Talmud in English

How shall the judges judge this case

how shall the judges judge this case, which is difficult to judge!?

Perhaps you will say that

he should pay, that is, the snatcher should return the ingot, as we would say if two witnesses had testified that he snatched it?

But

But

there are not two witnesses

there are not two witnesses to the snatching, but only one witness; and through the migo that he could have claimed, “I did not snatch it,” he should also be believed with regard to the claim, “I snatched what is mine.”

Perhaps you will say that

he should be exempt, and because of this migo, through which he could have claimed, “I did not snatch it”?

But

But

there is one witness

there is one witness testifying about the snatching, and had he claimed, “I did not snatch it,” he would have had to swear in order to deny him.

Perhaps you will say that

the snatcher should swear,

since the witness obligates him to swear?

He has said,

for he admits that

he snatched it,

whereas the witness obligates him to swear that he did not snatch it—

And

therefore it turns out that, since

the snatcher said

the snatcher

that he snatched it, he is like a robber

with regard to the other oaths, for he cannot swear to deny the witness, since he is disqualified from taking an oath—

And if so, how shall we judge this case!?

Rabbi Abba said to him

to Rabbi Ami:

This snatcher is

this snatcher

obligated to swear

because of the witness,

who cannot swear

for he does not deny him—

and anyone obligated to swear who cannot swear,

this one

pays.

And also our case, in which one witness comes concerning eating for three years, resembles the matter of “Rabbi Abba’s ingot,” for there is before us one witness that he ate produce, and he cannot swear to deny him, because he admits the eating, but claims, “I ate what was mine”; and if so, we should have said: since he cannot swear, he pays for the produce that he ate.

Abaye said to them

Abaye said to the Sages who were obligating him to return the produce that he ate, as in the law of Rabbi Abba’s ingot:

Are they comparable,

can this case be compared to the case of Rabbi Abba’s ingot!? B. The early and later authorities found difficulty: how is it possible to obligate him through “since he cannot swear, he pays,” for, in the end, he has a migo by which he should be believed that he snatched what is his, since, had he wished, he could have sworn to deny the witness? The early and later authorities elaborated in resolving this difficulty, and one of the explanations stated concerning the passage in Kehillot Yaakov [section 25 in the new edition] is brought here: Let us examine: when one witness testifies to obligate Reuven, and Reuven admits to his words, according to the one who says, “since he cannot swear, he pays,” there is no need for us to obligate Reuven by virtue of “the admission of a litigant”; rather, since he does not swear to deny the witness, he is automatically obligated on the basis of the witness, by the law of “since he cannot swear, he pays.” But according to the one who says that we do not say, “since he cannot swear, he pays,” where he admits to the words of the witness, his obligation is only by virtue of “the admission of a litigant,” and not by virtue of the words of the witness;

And we arrive at the law: in this incident of Rabbi Abba’s ingot, the reason that we do not acquit the snatcher by saying, perhaps he did not snatch it, is, according to Rabbi Abba, because of the testimony of the witness and by the law of “since he cannot swear, he pays.” But according to Rav and Shmuel, who do not hold of “since he cannot swear, he pays,” his obligation is only by virtue of his own admission, for he admitted that he snatched it, since “the admission of a litigant is like one hundred witnesses.” Now, it is known that the matter of migo and the matter of “the mouth that prohibited is the mouth that permitted” are two separate matters. The distinction between migo and “the mouth that prohibited is the mouth that permitted” is as follows: with “through the migo that, had he wished, he could have claimed,” the meaning is that the same claim which, had he wished, he could have made—so long as he did not make it, we do not take it into consideration. For example, a custodian who claims, “I returned it,” is believed through the migo of “it was forced from me”; so long as he did not say, “It was forced from me,” we do not take the forced loss into consideration—not because he himself admits that it was not forced from him, and similarly in comparable cases. But “the mouth that prohibited is the mouth that permitted” applies where we too are uncertain about and concerned for the claim that he could have made; only because of his verbal admission that it is not so is that concern removed, and it is on the basis of his word that we came to obligate him. In this regard we say that, since his entire obligation is only because of his words, and he adds words that acquit him, and “the mouth that prohibited is the mouth that permitted,” it is therefore impossible to obligate him on the basis of his word beyond what he says in all his claims together; The rule is: with migo, if we remove all his words, he would be obligated; whereas with “the mouth that prohibited is the mouth that permitted,” if you remove all his words, he would be exempt, and only on the basis of his word did we come to obligate him. Therefore “the mouth that prohibited is the mouth that permitted” is stronger: in either event, if you believe him, believe him in everything, and if not, do not believe him at all. This is not so with migo, for if you remove all his words, he is obligated, and only because, in any event, he has a means of being acquitted did we come to believe him; this is proof that presumably the truth is as he says, and this is much weaker than “the mouth that prohibited is the mouth that permitted.” From now on, in this case of Rabbi Abba’s ingot, according to the one who says, “since he cannot swear, he pays,” when we came to obligate him on account of the snatching, this was done on the basis of the witness, because of “since he cannot swear, he pays.” And if we come to believe him that “I snatched what is mine,” through the migo that, had he wished, he could have denied the witness, this is only a migo and not “the mouth that prohibited is the mouth that permitted,” since the matter of the snatching is not determined by virtue of his admission. The early authorities have already written that this is not a good migo, because he is not brazen enough to deny the witness. But according to the one who says that we do not say, “since he cannot swear, he pays,” for according to him it has been explained that the essential matter of the snatching is determined for us only by virtue of his admission, because “the admission of a litigant is like one hundred witnesses,” then when he claims, “I snatched what is mine,” it is “the mouth that prohibited.” This we properly say even in a place where it is difficult for him to be brazen, since, in any event, because his entire obligation is only on the basis of his word, his word says, “I snatched what is mine.” These are the words of Kehillot Yaakov. [And similarly it was explained in Even HaEzel [Hilkhot Sechirut, chapter 11] that migo is ineffective against the presumption, “what is in a person’s possession is his,” whereas “the mouth that prohibited is the mouth that permitted” is effective even against the presumption, “what is in a person’s possession is his.”] [But nevertheless, the wording of the Gemara still requires explanation, for it says, “For him to pay, there are not two witnesses; to exempt him, there is one witness,” and the Rashbam explained: “For him to pay, there are not two witnesses that he snatched it, and through the migo that, had he wished, he could have said, ‘I did not snatch it,’ he is also believed to say, ‘I snatched what is mine’]]; what is mine; “To exempt him from paying because of this migo, there is one witness, and had he said, ‘I did not snatch it,’ he would have had to swear to deny the witness.” Seemingly, the words of the Gemara contradict one another: at first we say that it is impossible to obligate him because he has a migo, and then we say that it is impossible to exempt him because he does not have a migo!?]. B. The wording of the Rashbam in this passage requires explanation, and this is his wording: “Here too it can be said in this manner: when there are two witnesses that he ate the years of possession, we establish it in the buyer’s possession; when there are no witnesses that he ate the years of possession, we remove it from him and return it to its owner; when there is one witness that he ate for three years, let him swear, for one witness comes to establish an oath. Even if there were no land, we would not make him swear concerning that about which the witness testified, for he does not deny him; rather, he admits to him that he ate, and claims, ‘Yes, I ate, and I ate what is mine.’” This requires examination: what is the meaning of what the Rashbam wrote, “When there are two witnesses that he ate the years of possession, we establish it in the buyer’s possession”? If so, even when there is one witness it is impossible to obligate him; and concerning Rabbi Abba’s ingot they did not say so, but rather that when there are two witnesses we would obligate him, and it is reasonable to say that therefore, when there is one witness, we should obligate him to swear. But if, when there are two witnesses, he acquires it, this is no reason to obligate him to swear when one witness comes!? Further, what the Rashbam wrote, “Even if there were no land, we would not make him swear concerning that about which the witness testified,” also requires explanation. It is evident that in truth the case here concerns land, and if so it requires explanation what relevance there is here to “since he cannot swear, he pays,” for one does not swear concerning land!? There,

with regard to Rabbi Abba’s ingot,

the witness comes to weaken

the snatcher’s position, for according to his testimony he is obligated to return the ingot,

and when another comes with him, we remove it from him,

for had another witness come testifying like him, we would remove the ingot from the snatcher’s possession.

But

here,

with regard to one witness concerning possession for three years, behold, the witness

to assist

the possessor

comes,

for according to his testimony this one possessed it for three years and is believed in his claim; and

when another comes, we establish it in his possession,

for had another witness come testifying like this witness, we would establish the land in the possessor’s possession.

That is, this is understandable in the case of which Rabbi Abba spoke, for by virtue of the witness’s words we have grounds to obligate him. But here, if we accept the witness’s words, he is not obligated at all, for he ate the three years of possession and the land is his; and there is no obligation of an oath to discuss here at all.

Rather, if this case of Rabbi Abba’s is comparable,

if you wish to know to what circumstance the case of Rabbi Abba’s ingot is comparable, so that its law will be like it, it is comparable to the following:

To one witness, two years, and produce!

That is, for example, one witness came and testified about a certain person that he ate the produce of another’s field for two years, and the eater claims: “Indeed, I ate, but I ate what is mine, for I purchased it from you”—in this case the eater will indeed be obligated to pay for the produce of the two years, for according to the witness’s testimony he is obligated to pay for the produce of the two years that he ate, and since he cannot swear, he pays. It follows [from Rav and Shmuel’s words] that since he is obligated to swear that he did not receive this debt, and the orphans cannot swear this, but only “that our father did not command us,” which is not the oath imposed upon their father, and the borrower’s orphans likewise cannot swear that their father repaid him, Rav and Shmuel say that he may not collect. It follows that, concerning one obligated to swear who can swear neither this nor that, Rav and Shmuel hold, “the oath returns to Sinai,” and there is here neither an oath nor payment. Rabbi Abba, however, disputes them and says: heirs swear the heirs’ oath and collect; he does not hold like Rav and Shmuel. [The Rashbam’s words in all this follow the words of the Gemara in Shevuot 47a and Rashi’s explanation there; this is not the place to elaborate on Rashi’s method in the Gemara’s proof from Rav and Shmuel that they do not hold, “since he cannot swear, he pays.”] And there we say: this judge who acted according to Rabbi Abba acted properly; one who acted according to Rav and Shmuel acted properly. [If so, why is it evident here that the halakha is according to Rabbi Abba!?] Even so, the halakha is according to Rabbi Abba and not according to Rav and Shmuel, because there we say, “Let us not extend it.” [That is,] they instituted that we should not extend the words of Rav and Shmuel, deriving from this law of orphans collecting from orphans to other laws and saying, “the oath returns to Sinai.” Only in this law of orphans collecting from orphans is the established law, after the fact, according to Rav and Shmuel, because of the enactment for the borrower’s orphans, for we have concern for them, so that they should not be collected from without a proper oath. But in other laws the established law is according to Rabbi Abba, that one obligated to swear who cannot swear pays. Rabbenu Hananel also ruled that the halakha is according to Rabbi Abba.”