Bava Batra 43b (מג:) — the Talmud in English

The Gemara had assumed that they act like ordinary partners, with each one guarding part of the partnership’s property in his own house. Therefore, we ask:

Why

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

safekeeping with the owners present!?

That is, the Torah states in the passage concerning guardians: “If its owner is with him [with the borrower, engaged 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, with regard to partners, part of the partnership’s property is in this one’s house, and part of the partnership’s property is in that one’s house. When one guards the other’s property, the other also guards his property, and it follows that the owners of the object are working together with the guardian, so the guardian is not liable to pay!?

Rav Pappa said

he answered:

Here we are dealing

with a case in which the two partners do not guard one another simultaneously, but rather one partner says to the other:

He said to him:

“Guard for me,

today

all the partnership’s property,

and

in return

I will guard it for you tomorrow

all the partnership’s property.” Thus, at the time of the guardianship, he is not working together with him, and the guardian is not exempt. Nevertheless, he is a paid guardian, since he guards his fellow’s property in return for his fellow guarding his property.

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 on its behalf

against a claimant who asserts that the field is his and that the seller sold him property belonging to someone else,

because its responsibility

the responsibility for the house or field

rests upon him,

the seller. The initial assumption is that the seller cannot testify on behalf of the purchaser because if the claimant prevails, the seller will have to compensate the purchaser; consequently, he has a personal interest in the testimony, in order to remove the claimant’s claim against the purchaser.

But

if he sold him a cow,

or if he

sold him a cloak,

he may

testify on its behalf, because he bears no responsibility for it,

and the Gemara proceeds to explain this.

The Gemara asks:

What is different in the first clause,

in which he may not testify,

and what

is different in the latter clause,

in which he may testify? Surely the matter depends only on whether he accepted responsibility upon himself or did not accept responsibility, and the seller accepts responsibility for movable property just as he does for a field!?

The Gemara answers:

Rav Sheshet said

he answered:

Rav Sheshet: The beraita is not discussing the seller’s testimony on behalf of his purchaser. Rather:

The first clause

deals with what case?

With Reuven who robbed a field from Shimon,

and sold it to Levi, and Judah came and asserted his claim,

saying: “It has always been mine”—

The beraita comes to teach us

that Shimon should not go

the one who was robbed

to testify for Levi

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

it is satisfactory to him

Shimon, the one who was robbed,

that it should return to him

[that the field should return to him]. That is, he wants the field to remain in Levi’s possession, so that ultimately it will return to him. [The continuation of the sugya explains why Shimon prefers to remove it from Levi, even though he could likewise remove it from Judah.]

The wording of the beraita is therefore understood as follows: “If [the robber] sold him a house, if he sold him a field, he may not testify on its behalf [the one who was robbed may not testify for the purchaser] against another claimant, because its responsibility [the responsibility of the one who was robbed, and the fact that ultimately he will] rest upon him [the purchaser, to remove it from him].

“If [the robber] sold him a cow, if he sold him a cloak, he may testify on its behalf [the one who was robbed may testify for the purchaser] against another claimant, because he bears no responsibility for it.” That is, the one who was robbed cannot remove it from Levi, because Levi acquired it through despair of recovery and change of possession; and since Shimon will not ultimately reclaim it from Levi, he may testify on Levi’s behalf against another claimant.

The Gemara asks:

And once he testifies for him

Shimon

that it belongs to Levi, how can he remove it from him? [

For if Shimon testifies that the field does not belong to Judah but belongs to Levi, he no longer has a personal interest in the testimony, since he will no longer be able to remove it from Levi, having admitted that it belongs to Levi]!?

The Gemara answers: Here we are dealing with a case where

he said,

Shimon, the one who was robbed, in his testimony:

I know that this land does not belong to Judah [

I know that it is not Judah’s]. However, he does not testify that it belongs to Levi, and therefore he is not prevented from later claiming that it does not belong to Levi either.

The Gemara nevertheless asks: What personal interest does Shimon have in the field remaining in Levi’s possession, so that he can remove it from him?

And

after all,

with that same right by which he can remove it from Levi, let him remove it from Judah [

with the same power and legal right that he would use to remove it from Levi, he could also remove it from Judah]. It follows that he has no greater interest in its being in Levi’s possession than in Judah’s possession, and he has no personal interest in his testimony that would cause it to remain in Levi’s possession!? The Gemara answers: There is concern that

he said

Shimon in his heart:

The second [

that is, the first Levi]

is preferable to me

to litigate with, whereas

the first [

that is, the second Judah]

is more difficult than he is;

and since there is reason to suspect that he has such an interest, we cannot believe him.

Alternatively, if you wish, say

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

Here we are dealing with a case

where there are witnesses

for one [

for Judah] that the field belongs to him,

and there are witnesses for the other [

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.