Bava Batra 43b — the Talmud in English

The Gemara had thought that they act in the manner of partners, each one guarding a little of the partnership in his house, and therefore we ask:

Why

is the partner liable if he did not guard it? Is this not

guarding with the owner present!?

That is to say, the Torah said in the section of guardians: “If its owner is with him [with the borrower, in the borrower’s work], he shall not pay,” and the same law applies that a paid guardian is not liable when the owners of the object perform work for the guardian; and if so, concerning partners: part of the partnership is in this one’s house, and part of the partnership is in that one’s house, and when this one guards for that one, the other also guards for him. It follows that the owners of the object are performing work with the guardian, and the guardian is not liable to pay!?

Said

he answered

Rav Pappa:

Here, with what are we dealing? With a situation in which the two partners are not guarding for each other at the same time, but one such as

he said to him

one partner to his fellow:

Guard for me today

all the partnership,

and

in return

I shall guard for you tomorrow

all the partnership. It follows that at the time of the guarding he is not with him in his work, and the guardian is not exempt; nevertheless, he is a paid guardian, for in return for his guarding, his fellow guards for him in return.

The Sages taught: If he sold him

a person to his fellow

a house,

or if he

sold him a field, he may not testify concerning it

against a challenger claiming that the field is his, and that the seller sold him the property of another,

because its liability

of the house or the field

is upon him

the seller. And it entered our mind to explain that the seller cannot testify for the purchaser, because if the challenger prevails, the seller will have to compensate the buyer; it follows that he has an interest in the testimony, to remove the challenger from the buyer.

But

if he sold him a cow,

or if he

sold him a cloak,

then he

may testify concerning it, because its liability is not upon him,

and it explains this and proceeds.

And we raise a difficulty:

What is different in the first clause

that he may not testify,

and what

is different in the latter clause

that he may testify? Surely the matter depends only on whether he accepted liability upon himself or did not accept it, and the seller accepts liability upon himself with movable property just as with a field!?

And we answer:

Said

he answered

Rav Sheshet:

The beraita is not dealing with the seller’s testimony for the benefit of his buyer, but rather:

The first clause

with what are we dealing?

With Reuven who robbed a field from Shimon,

and sold it to Levi, and Judah came and challenged him,

saying, “It has always been mine”—

And the beraita teaches us

that Shimon should not go

the robbed owner

to testify for Levi

the purchaser, that the field does not belong to Judah, because

it is pleasing to him

to Shimon, the robbed owner,

that it should return to him

to Shimon [that the field should return to him]. That is to say, he wants the field to remain in Levi’s possession, so that ultimately it will return to him; [and later in the sugya it is explained what advantage Levi has in Shimon’s eyes, such that he wishes to remove it from him, although in that same manner he could also remove it from Judah].

And the wording of the beraita is explained as follows: If he [the robber] sold him a house, if he sold him a field, he may not testify concerning it [the robbed owner to the purchaser] against another challenger, because its liability [of the robbed owner, and its eventual outcome] is upon him [for the purchaser to remove it from him].

If he [the robber] sold him a cow, if he sold him a cloak, he may testify concerning it [the robbed owner to the purchaser] against another challenger, because its liability is not upon him—that is, because the robbed owner cannot remove it from Levi’s possession, since he acquired it through despair and change of possession; and since Shimon will not ultimately bring a claim against Levi, he can testify on his behalf against another challenger.

And we ask:

And since he testified for him

Shimon

that it belongs to Levi, how can he remove it from him, [and if Shimon testifies that the field does not belong to Judah but to Levi, he is no longer interested in the testimony, since he can no longer remove it from Levi, for he has admitted that it is his]!?

And we answer: Here, with what are we dealing? In a case where

he said

Shimon, the robbed owner, in his testimony:

I know that this land does not belong to Judah [I know that it is not Judah’s],

but he does not testify that it belongs to Levi; therefore, he is not prevented from later claiming that it does not belong to Levi either.

And we still ask: What interest does Shimon have in the field being in Levi’s possession, so that he can remove it from him? And

behold,

by that same right with which he removes it from Levi, let him remove it from Judah, [with that same power and right that he will use to remove it from Levi, he can also remove it from Judah]. It follows that it is no more pleasing to him for it to be in Levi’s possession than in Judah’s possession, and he is not an interested witness in establishing it in Levi’s possession!?

And we answer: Because there is concern

that he said

Shimon in his heart: The second [the first Levi]

is pleasing to me

to stand in judgment with him, whereas

the first [the second Judah]

is more difficult than he;

and since there is room for concern that he has such an interest, we do not believe him.

And if you wish, say

to explain what advantage Shimon has in the field being in Levi’s possession, so that he may remove it from him.

For here, with what are we dealing? With

a case where he has witnesses

for this one

that [for Judah] the field is his,

and he has witnesses for this one

[for Shimon] that it is his,

and the Sages said

when there are witnesses against witnesses:

The land remains where it is [the land shall remain in the possession of the one in whose possession it is];

and it follows that if Judah removes it from Levi, Shimon will again be unable to remove it from Judah, since, on the contrary, we shall establish the land in his possession. Therefore it is preferable for Shimon that the field remain in Levi’s possession [who has no witnesses against Shimon’s witnesses], and he will remove it from him.

for Shimon] that it belongs to him,

and the Sages said

that when there are witnesses against witnesses:

The land remains where it is [

the land remains in the possession of the one who currently possesses it]. Thus, if Judah removes it from Levi, Shimon will no longer be able to remove it from Judah. On the contrary, we will leave the land in Judah’s presumptive possession. Therefore, it is preferable for Shimon that the field remain in Levi’s possession [since Levi has no witnesses against Shimon’s witnesses], and that he remove it from Levi.