Bava Batra 41b (מא:) — 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 opinion is more reasonable

(It is reasonable to accept the words of Rabbi Hiyya: one does not advance the claim on behalf of a purchaser that the person who sold it to him acquired it from the claimant, unless the seller had lived there for one day.) And the proof is from

what it teaches

in our Mishna: “

One who comes by inheritance does not need a claim,”

and it follows from the fact that it does not teach, “One who comes by inheritance does not need anything,” that a

claim—“

my father acquired it from you”—

is what he does not need

[the possessor does not need to make this claim], but

proof

from witnesses who will say, “His father lived there for one day,”

he does need

the possessor.

Just as a claim is advanced on behalf of an heir only when his father had lived there for one day, so too a claim is advanced on behalf of a purchaser only when the person who sold it to him had lived there for one day.

The Gemara raises an objection to Rava’s proof:

a.

Perhaps neither proof nor a claim is required

[perhaps the heir needs neither proof nor a claim]!?

b.

And if you wish, say

to reject Rava’s proof: They said that proof of one day is required only with regard to an heir, but

a purchaser is different

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

it is

a logical presumption:

a purchaser does not cast

his

money away for nothing

[a purchaser does not throw away his money for no reason], and certainly, before purchasing the upper story, the purchaser investigated and ascertained that the person who sold it to him had indeed acquired it from the claimant.

The members of the academy raised a dilemma

:

If the seller or the testator did not live there for one day, but

was seen

there

in it

when he was inspecting it in order to purchase it,

what

is the halakha? Does this serve in place of proof that he lived there for one day?

Abaye said: It is the same!

Rava said:

This alone is insufficient, because

a person may inspect land without purchasing it

[a person may inspect land to assess whether to purchase it, and ultimately not purchase it].

The Gemara introduces a halakha:

Three purchasers combine for the presumption of ownership

That is, if Reuven claims that he purchased the field from its owner and held it for one year without protest, then went and sold it to Shimon, who likewise held it for one year, and Shimon then went and sold it to Levi, who likewise held it for one year, the three years during which all of them held it combine, by virtue of Reuven’s claim, to establish Reuven’s claim that he purchased the field from its owner.

Rav said:

And

only provided that the sale to

all

of them—Reuven to Shimon, and Shimon to Levi —was

by deed

, for if Reuven or Shimon sold it without a deed, but through another form of acquisition, then the sale would have no public knowledge, and the claimant could assert: “I did not know that Shimon 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 that is why I did not protest.”

And we challenge this:

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

[is that indeed so, that Rav holds that a sale by deed becomes publicly known, whereas a sale before witnesses does not become publicly known]!?

But Rav

himself

said: One who

sells his field

in the

presence of

witnesses

, the purchaser

collects

his guarantee

from encumbered property

[from property that was sold to another purchaser after the sale]; this necessarily demonstrates that a sale before witnesses becomes publicly known, and purchasers could easily have taken care not to purchase land from a person who had any debt, since otherwise we would not be able to collect from property in the possession of purchasers, because of the loss that would be caused to the purchasers, who did not know that their seller was a debtor.

It is therefore necessary to conclude that even a sale before witnesses, without a deed, becomes publicly known. If so, the claimant would have known that the three purchasers were occupying the field by virtue of a sale that one had made to the next, and he should have protested!?