Bava Batra 35a (לה.) — the Talmud in English

Rav said: They divide it

between them. Some say this is because it is uncertain who acquired it first, while others say it is because both certainly acquired the land.

And Shmuel said: The judges’ discretion

of the judges,

meaning: the one whom the judges’ inclination favors, because it appears to them that the owner of the field intended to transfer the land to him, since he is his beloved or his relative—he is the one who will acquire the field. And likewise in every similar case, when the judges’ inclination is that he, and not the other litigant, is the owner of the field. If so, this requires explanation: what is the difference between the uncertainty in the case of the boat, where we rule, “Whoever prevails may take it,” and the uncertainty in the case of two documents, where, according to Shmuel, we say, “the judges’ discretion”; and according to one approach to Rav’s view, there we rule that they divide it because of the uncertainty!?

And we answer:

there—

with regard to two documents—there is always

no possibility of determining the matter it is impossible to ascertain the truth of the uncertainty], and therefore the court must address the matter and issue a ruling.

But

here—

with regard to the case in which one says, “It belonged to my ancestors,” and the other says, “It belonged to my ancestors”—there is

a possibility of determining the matter

[there is a possibility that the truth will be established through witnesses]. Therefore, the court does not need to adjudicate a case whose ruling will ultimately lead to distortion, once it becomes clear to whom the field truly belongs. Instead, it leaves the parties as they are, and “whoever prevails may take it,” until witnesses come and clarify the matter.

We still question:

what is the difference—

between the case in which one says, “It belonged to my ancestors,” and the other says, “It belonged to my ancestors,” where the court rules, “Whoever prevails may take it”

—from the case taught in the Mishna: One who exchanges a cow for a donkey

where the law is that through the pulling of the donkey, the cow is acquired by the other party,

and

after he pulled the donkey, it became clear that

the cow had given birth

to a calf

; and likewise, one who sells

his

maidservant and

it became clear that

the maidservant had given birth

to a child:

And the seller of the cow or the maidservant confronts the purchaser:

This—

the seller of the cow or maidservant—

says: “

Before I sold her, she gave birth;

when I sold her, I sold only a cow or maidservant without an offspring, and the offspring is mine.”

Whereas

this—

the owner of the donkey who acquired the cow, or the purchaser of the maidservant—

says: “

After I acquired her, she

gave birth”;

and neither party has evidence for his claim, and neither one is in possession of the offspring—for example, the animal or maidservant is standing in a marsh that belongs to neither of them—then, because of the uncertainty,

the seller and the purchaser divide

the offspring between them!

Here too, regarding the case in which one says, “It belonged to my ancestors,” and the other says, “It belonged to my ancestors,” we should likewise say that because of the uncertainty they divide the field or the boat between them.