Bava Batra 43a (מג.) — the Talmud in English

And this is referring to a case in which one partner testifies on behalf of the other, to establish that the property remains in his possession against someone from the marketplace who comes to challenge him and say: “It is all mine.”

This is difficult:

Why

do they testify for one another? But

they have an interest in their testimony:

if they do not say that the field belongs to their partner, then they too will have no share in the field, since the challenger will acquire it. Why, then, should the partners be believed

? And we answer:

Here, with what are we dealing? With a case in which he wrote to him

—one partner to the other—

“I have no legal claim or involvement with regard to

this field!”

This is as though he said to him: “I shall have no legal claim or involvement in this field, and I am removing myself from being your partner; rather, it will all belong to you.” Therefore, he may testify on behalf of his fellow partner, since the latter alone is the exclusive owner of the field.

And we challenge this:

But if he wrote to him

the partner this wording,

what does it accomplish [

what benefit is there in this wording]!?

But it was taught in a beraita: One who says to his fellow [

to his partner]:

“I have no legal claim or involvement

[I shall have none]

with regard to this field

in which we are partners,

and I have no

[I shall have no]

involvement in it, and my hand is removed from it, has said nothing;

until he says this in the language of a gift

! And we answer:

Here, with what are we dealing? With a case in which they acquired it from him

through a kinyan sudar. When an act of kinyan sudar accompanies the utterance of these expressions, these expressions too are effective.

And we continue to challenge:

But if they acquired it from him, what does it accomplish [

what benefit does this removal provide in allowing him to testify on behalf of his partner]!?

And

behold,

in any event, he has an interest in the testimony, because

he establishes

the field—the testifying partner—

before his creditor,

who will collect his debt from it, as a creditor with a documented loan collects from purchasers. Why, then, is he fit to testify!?

And indeed we find that he is disqualified from testimony for this reason,

as Rabin bar Shmuel said in the name of Shmuel:

One who sells a field to his fellow without a guarantee [

he does not undertake to pay the purchaser if a challenger prevails in court and takes the field from him],

may not testify for him—

the seller on behalf of the purchaser—

regarding it,

against a challenger who claims: “It was always mine, and the seller sold you what was mine.” And

because he establishes

the field that the seller sold to the purchaser—

before his creditor,

who can collect his debt from it, since it came to the purchaser from the seller. If so, a partner who sold his share to his fellow should likewise be unable to testify on his behalf for the same reason!?

And we answer:

Here, with what are we dealing? With a case in which he undertook

—the partner who sold—

a guarantee

for the sale, as the Gemara proceeds to explain.

And we explain:

A guarantee belonging to whom [

a guarantee against whom did the partner undertake]!?

If you say

that he undertook

a guarantee against everyone,

meaning that if a challenger from the marketplace comes to claim the land and prevails in court, the partner will be liable to his fellow—this cannot be said. For if so,

all the more so, it is preferable to him

that his partner prevail concerning the field rather than the challenger, so that he will not become liable under the guarantee. How, then, can we say that he may testify on his behalf!?

Rather,

here, with what are we dealing? With a case in which the partner undertook

a guarantee that comes to him

because of him [

a guarantee against the one who comes to collect the field because of him, namely, his creditor]. Now it is understandable that he testifies on behalf of his partner, since he gains nothing by establishing the field before his creditor, for he will have to pay the guarantee to the purchaser. What difference is there to him whether he will be “a wicked borrower who does not pay” to his own creditor, or “a wicked borrower who does not pay” to the purchaser who bought from him with a guarantee?

And we continue to challenge:

And

if

he removes

the partner

himself from it, is he thereby removed—that is, does removal render him fit to testify, even though he previously had an interest in the testimony!?

But it was taught in a beraita

that removal is not effective to render him fit, because we say that he made a conspiracy in order to testify and will then return to his previous status.

As it was taught in a beraita:

Residents of a city whose Torah scroll was stolen may not judge

the thief—the one who claims that he purchased it with money or makes any other claim regarding the scroll—

before judges of that city, nor may they bring proof from residents of that city,

meaning that they may not testify, “We saw you steal it,” or testify that this Torah scroll belongs to the residents of that city

— for they are all partners and have an interest in their testimony.

And if it is so

that removal is effective to render them fit,

let two of them remove themselves and judge,

let two remove themselves from their shares in the Torah scroll, and let the court adjudicate on the basis of their testimony!?

Since we learn that this is not so, it follows that even if they remove themselves, they cannot testify. This is difficult according to what we explained above concerning partners: If a partner removes himself from his share, he may testify on behalf of his partner against a challenger who challenges the entire partnership!?

And we answer: Removal is indeed effective, and we are not concerned about a conspiracy. Rather,

a Torah scroll is different,

since removal is not effective with regard to it, because

it is intended for public reading [

it is designated to be read in public]. Even after they remove themselves, they have a benefit from the return of the Torah scroll, so that they can fulfill their obligation through it.

Ta shma

from another beraita, to prove that removal is not effective to render one who has an interest in testimony fit:

One who says: “Give one hundred dinars to the residents of my city” [

for the needs of the residents of the city, for the city walls and for all communal needs],

may not be judged by judges of that city, nor may he bring proof from residents of that city—

And

if it is so that removal is effective to render them fit,

why

may he not bring proof from residents of that city?

Let two of them remove themselves and judge,

let two witnesses remove themselves from the one hundred dinars, so that they will derive no benefit from it at all, and let the court adjudicate on the basis of their testimony.

And we answer:

Here too—

this beraita likewise concerns—

a Torah scroll,

meaning that the donor specified: “Give one hundred dinars to the residents of my city to purchase a Torah scroll.” And in the case of a Torah scroll, since it is intended for public reading, they are disqualified.

Ta shma

from another beraita, to prove that removal is not effective to render one who has an interest in testimony fit:

One who says, “

Give one hundred dinars to the poor of my city,”

may not be judged by judges of that city, nor may he bring proof from residents of that city.

Before the Gemara completed its question, the Gemara expressed astonishment at the beraita:

Can you understand it so [

is it indeed the intention of the beraita that all the judges and witnesses are disqualified from testifying]?

The poor take

the one hundred dinars, but

the judges—

who are not poor—

are disqualified

from adjudicating!? If they are wealthy, they have no interest in this case at all!?

Rather,

this is what

say

in the beraita:

One may not be judged by judges who are poor residents of that city, nor may he bring proof from the poor of that city,

for they have an interest in their judgment and testimony.

The Gemara now returns to its question: If you would say that removal is effective to render them fit,

why

are the witnesses disqualified, even when they are poor?

Let two of them remove themselves and judge,

let two witnesses remove themselves from taking a share of these one hundred dinars, and they would be fit to testify!?

And we answer: The beraita is not discussing one who donated one hundred dinars to the poor of that city. Rather,

here too,

this beraita is discussing

one

who donated one hundred dinars to

the Torah scroll

of all the residents of the city, who are poor—

And why did he call them—

the donor—

poor!?

Because

everyone is poor with regard to a Torah scroll,

meaning that residents of a city who do not possess a Torah scroll are considered extremely poor in this respect.

And if you wish, say: In fact, it is as it is taught

that he gave one hundred dinars to

the genuinely poor, and

regarding your difficulty—let them remove themselves and testify—here, with what are we dealing?

With poor people who are dependent upon them [

poor people whose sustenance is imposed upon the residents of the city], so that all the residents of the city have an interest in the money being received and the burden upon them being eased.

And we object:

And what are the circumstances

[in what manner are the poor's needs imposed upon the townspeople]!?

If it is fixed for them

how much each of the townspeople must give, then the question still arises:

Let two of them give the amount fixed for them and let them judge

[let the witnesses give the amount fixed for them, and let the judgment be based on their testimony]!?

And we answer:

Here, with what are we dealing? Where it is not fixed for them

[there is no annual fixed amount for each of the residents of that city], but they give according to the needs of the poor; and if the poor are awarded this portion, the burden upon the townspeople will thereby be eased.

And if you wish, say: In fact, it is fixed for them

how much the townspeople must give each and every year,

and

nevertheless

it is preferable to them

that the witnesses have the poor receive the portion, because

once relief has been granted, relief has been granted

[since the burden upon the poor has been eased, it has been eased; why, then, should they give their fixed allocation].

The Master said:

And they become

partners

paid custodians for one another: