Bava Batra 41b — the Talmud in English

Once the error had become clear,

Rav Kahana and his litigant came

before

Rav Yehuda.

The neighbor went

and

brought two witnesses, [

the neighbor went and brought two contradictory witnesses]:

One said: He entered two rows, [

one said: two rows of land Rav Kahana had encroached upon his boundary].

And one said: He entered three rows, [

and the second said: he encroached upon three rows].

Rav Yehuda said to him,

to Rav Kahana: “

Go and return two out of the three,” [

go and return two rows out of the three concerning which both witnesses agree], even though concerning the third there is a contradiction.

Rav Kahana said to him,

to Rav Yehuda: “

In accordance with whom,” [

according to whose opinion did you issue this ruling to me], so as not to invalidate their testimony because of the contradiction concerning the third row?

Rav Yehuda said to Rav Kahana: “

In accordance with

the opinion of Beit Hillel, according to

Rabbi Shimon ben Elazar—”

As it was taught in a beraita: Rabbi Shimon ben Elazar said:

Beit Shammai and Beit Hillel did not disagree concerning two sets of witnesses

that contradict one another:

That

one

of the sets

of witnesses

says: One hundred dinars

Reuven lent Shimon on a certain day, at a certain hour, and in a certain place,

and

the

other says: Two hundred dinars

he lent him on that same day, at that same hour, and in that same place. The lender collects one hundred dinars from the borrower, because

one hundred is included within two hundred,

and it turns out that both sets agree concerning one hundred and contradict one another only concerning the additional one hundred; and in any event, one set of witnesses is truthful in testifying concerning the one hundred.

Concerning what did

Beit Shammai and Beit Hillel disagree?

Concerning one set

in which one witness contradicts the other:

One

says:

One hundred dinars

he lent him,

and

the

other says: Two hundred dinars

he lent him:

For Beit Shammai say: Their testimony is divided,

for there is no joining of two witnesses here, since one testifies concerning one hundred and the other concerning two hundred.

And Beit Hillel say: One hundred is included within two hundred,

and the two witnesses are therefore found to testify concerning one hundred, which is collected; but the additional one hundred, concerning which they contradict one another, is not collected.

The same applies in the present case: according to Beit Hillel, Rav Kahana is obligated to return the two rows concerning which both witnesses agree.

Rav Kahana said to him,

to Rav Yehuda: “

But I can bring you a letter from the West, stating that the halakha is not in accordance with Rabbi Shimon ben Elazar,” [

but I can bring a letter from Eretz Yisrael stating that the halakha is not in accordance with Rabbi Shimon ben Elazar]!

He said to him,

Rav Yehuda to Rav Kahana: “

When it comes,” [

once you bring the letter, we will reconsider the matter], but in the meantime go and return the two rows, as I ruled.

There was an incident involving

a certain man who lived in an upper story in Kashta for four years, [

an incident involving a man who lived in an upper story in the city of Kashta for four years].

The owner of the house came and found him

and

said to him: “

What are you doing in this house?” [

the owner of the upper story came, found him, and asked him the reason for his presence in the upper story]!

He said to him,

the occupant of the upper story to the owner of the upper story: “

I purchased it from a certain man who purchased it from you,” [

I purchased it from so-and-so—and I have the deed in my possession—and he told me that he had purchased it from you].

The man came

the certain man

before Rabbi Hiyya

to ask about his legal status:

Rabbi Hiyya said to him:

Rabbi Hiyya said:

If you have witnesses that the man from whom you purchased it lived there, even for only one day, we will establish it in your possession; but if not, we will not, [

if you produce witnesses that the one who sold it to you lived there, even for only one day, I will establish the upper story in your possession; but if not, I will not], because residence for one day provides some indication that the person who sold it to him had indeed purchased it, and in such a case we advance the claim on behalf of the purchaser that the seller had purchased it from its owner.

Rav said:

I was sitting before my uncle, [

I was sitting before my uncle, Rabbi Hiyya],

and I said to him [

and I expressed my astonishment to him]:

Is a person not likely to purchase and sell during the night [

is a person not likely to purchase the upper story at night and sell it that same night]? If so, why must he bring witnesses that the person who sold it to him lived there for one day? Rav added and said:

And I perceived his intention,

that of Rabbi Hiyya [I understood Rabbi Hiyya’s reasoning], that

if

he had said to him [

the possessor to the owner of the upper story]: “

He purchased it from you in my presence,”

he would be believed, by virtue of the migo that, had he wished, he could have said to him: “

I myself purchased it from you,” [

if the possessor had claimed that he had purchased the upper story from the owner in his presence, the possessor would have been believed, on the basis of the migo that he could have claimed, “I myself purchased it from you.”]

Rava said:

Rabbi Hiyya's view is more reasonable [

it is reasonable according to Rabbi Hiyya's words: one does not argue on behalf of the purchaser that the one who sold it to him acquired it from the claimant, unless the seller lived in it for one day! And the proof is from

as it teaches

in our Mishna: “

The one who comes by virtue of inheritance does not require a claim,”

and it implies, from the fact that it does not teach, “The one who comes by virtue of inheritance does not require anything,” that

a claim—“My father acquired it from you”—

is what he does not require,

but he does not need [

the possessor does not need to make a claim],

but proof

by witnesses who will say, “His father lived in it for one day,”

he does require

the possessor.

And just as one argues on behalf of an heir only when the father lived in it for one day, so one argues on behalf of a purchaser only when the one who sold it to him lived in it for one day.

The Gemara is astonished at Rava's proof:

a.

Perhaps he requires neither proof nor a claim [

perhaps the heir does not need either proof or a claim]!?

b.

And if you wish, say

to reject Rava's proof: they said that proof of one day is necessary only in the case of an heir, but

the purchaser is different—

for it is possible to say that he does not need proof of one day—and because

it

is a matter of reasoning:

he does not cast

the purchaser

money for nothing [

the purchaser does not throw away his money for nothing], and certainly the purchaser investigated, before acquiring the upper story, that indeed the one who sold it to him had acquired it from the claimant.

The scholars raised a question

the members of the academy:

If the seller or the inheritor did not live in it for one day, but

was seen

by

him

when he was inspecting it in order to purchase it,

what

is the ruling? Does this help in place of proof that he lived in it for one day?

Abaye said: It is the same thing!

Rava said:

It is not sufficient, because

a person commonly inspects land and does not buy it, [

a person may inspect land to examine it for purchase, and in the end he does not purchase it].

The Gemara teaches a halakha:

three purchasers combine

for the presumption of possession! That is, if Reuben claimed that he purchased the field from its owner and possessed it for one year without protest, and he went and sold it to Simeon, and he too possessed it for one year, and Simeon went and sold it to Levi, and he too possessed it for one year, the three years during which all of them possessed it combine by virtue of Reuben's claim, to strengthen Reuben's claim that he purchased the field from the owner of the field.

Rav said:

And

only if the sale was made to

all—

Reuben to Simeon, and Simeon to Levi —

by deed,

for if Reuben or Simeon sold without a deed, but through another form of acquisition, then the sale has no public knowledge, and the claimant can argue, “I did not know that Simeon or Levi had acquired the field; rather, you were afraid to hold the field for three years in the possession of one person, because it is not yours, and therefore I did not protest.”

And we raise an objection:

Does this mean that Rav holds: a deed has public knowledge, whereas witnesses do not have public knowledge [

is it indeed so, that Rav holds: a sale by deed has public knowledge, whereas a sale before witnesses has no public knowledge]!?

But Rav himself said

himself:

one who sells his field

with a guarantee,

in the presence of

witnesses,

the witnesses,

the purchaser

collects

his guarantee

from encumbered assets [

from assets that were sold to another purchaser after the time of the sale]; it is necessarily the case that a sale before witnesses has public knowledge, and the purchasers could easily have taken care not to purchase land from a person who had any debt whatsoever, for otherwise we could not collect from assets in the possession of purchasers, because of “the loss of purchasers,” who did not know that their seller was a debtor.

It is therefore compelled that even a sale before witnesses and without a deed has public knowledge, and if so, the claimant knew that the three purchasers were sitting in the field by virtue of a sale that one had made to the other, and he should have protested!?