Bava Batra 35a — the Talmud in English

Rav said: They shall divide it

the land between them. Some say because it is uncertain who acquired it first, and some say because it is certain that both of them acquired the land.

And Shmuel said: shuda

of the judges,

that is to say: the one toward whom the heart of the judges inclines, and 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, where their hearts incline to the view that he is the owner of the field and not the other litigant. And if so, an explanation is required: what is different in the case of the uncertainty concerning the boat, where we rule, “Whoever is stronger prevails,” whereas in the uncertainty concerning two documents we say, according to Shmuel, “shuda de-dayanei”; and according to one approach in 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 arrive at a clarification of the truth of the uncertainty], and therefore the court is compelled to resort to this and rule.

But

here—

But

here—

with regard to “This one says, ‘It belonged to my ancestors,’ and this one says, ‘It belonged to my ancestors’”—behold,

there is a possibility of determining the matter [there is a possibility that the truth will be clarified through witnesses], and therefore the court does not resort to them to adjudicate a case whose end will be to come to distortion, when it becomes clear to whom the field belongs; and therefore they leave them, and “Whoever is stronger prevails,” until witnesses come and clarify the matter.

what is the difference—

And we are still perplexed:

what is different—

“This one says, ‘It belonged to my ancestors,’ and this one says, ‘It belonged to my ancestors,’” for the court rules, “Whoever is stronger prevails

and

after he pulled the donkey it became clear that

it gave birth

the cow

; and likewise the seller

of

his maidservant and

it became clear that

she gave birth

the maidservant:

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

This—

the seller of the cow or the maidservant—

says: “

Before I sold her, she gave birth

, and when I sold her, I sold only a cow or an empty maidservant, 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 this one nor that one has proof for his claim, and neither this one nor that one is holding the offspring, such as when she is standing in a lake that is the domain of neither of them, behold, because of the uncertainty

the seller and the purchaser shall divide

the offspring!

And here as well, with regard to “This one says, ‘It belonged to my ancestors,’ and this one says, ‘It belonged to my ancestors,’” we should likewise have said that because of the uncertainty they shall divide the field or the boat between them.