Bava Batra 44a — the Talmud in English

And we raise an objection to Rav Sheshet, who explained the beraita—a tannaitic source not included in the Mishna—as referring to a robbed person, who may not testify for one who purchased the property from the robber:

and

if so,

let it teach

the beraita

in the case of the robber

himself!? That is, why did the beraita formulate this law in a case where the robber sold the property to another person? The same law could have been taught in a case involving the robber himself, who did not sell it to another person: the robbed person may not testify for him against Yehuda, because the robbed person wants and prefers to remove the field from the robber rather than from the claimant.

And we answer:

because it wanted to teach in the latter clause: If he sold him a cow or if he sold him a garment

he may testify for him concerning it,

for

this law applies

specifically

if

the robber sold

the cow or the garment. This is because, in the case of a cow or a garment, the robbed person no longer has a personal interest, since he can no longer take it from Levi: there had already been relinquishment by the owner in the robber’s possession,

and a change of possession

in Levi’s possession, and Levi had already acquired it. Therefore, Shimon no longer has a personal interest in the testimony—

and a change of possession

while it was in Levi’s possession; Levi has already acquired it, and Shimon is no longer a party with an interest in the testimony—

But even in the case of a cow or a garment, he may testify only when the robber sold it,

but if the robber did not sell it, it returns to him [

that it returns to Shimon],

he may not

testify, even in the case of a cow or a garment. Therefore,

it also taught in the first clause: “he sold”

the robber.

And we continue to challenge Rav Sheshet’s explanation: But

the latter clause as well

does not allow Shimon to testify for Levi against Yehuda, because

although Shimon relinquishes

his claim to

the object itself

of the item, so that it will not return to him—that is, although Shimon knows that the stolen object itself will not return to him, because the purchaser acquired it through relinquishment by the owner and a change of possession—

does he relinquish his claim to its value [

does he also give up collecting from the robber the value of what was robbed]? In other words, does he forgive the robber the value of what was robbed!? Since he does not forgive him, it follows that he has a personal interest in testifying that the cow or garment belongs to Yehuda, so that he can collect the value of what was robbed from Reuven the robber. For if it belongs to Yehuda, the robber owes Shimon nothing!? And we answer:

No, it is necessary;

that is, what are we dealing with here?

A case where the robber died,

and Shimon lost his money, because the robber’s heirs are not obligated to pay, as

we learned:

One who robs and feeds his sons,

or who robbed an item

and left

the stolen object itself

before them,

those heirs

are exempt from paying,

because they did not rob it.

And we ask:

Let it teach it

in the case of an heir!?

That is, if we must in any event explain that the robber died, why did the beraita itself need to formulate its law in a case where the robber sold the item to another person and disqualify Shimon’s testimony on behalf of the purchaser? The beraita could have taught its law in a case where he did not sell it at all, but the robber died and Yehuda came to remove the stolen item from the heir. In that case, there would be a distinction between a field, concerning which Shimon may not testify because he has a personal interest in the testimony, so that he can remove it from the heir, and a cow or garment, concerning which he may testify because in any event he cannot remove it from the heir, who acquired it through relinquishment by the owner and a change of possession!?

The Gemara further explains its question:

That works well according to the one who says: An heir’s possession is not considered like a purchaser’s possession,

and if the robber bequeathed the stolen item to his heirs, they do not acquire it,

it is satisfactory

that the beraita had to say that the robber sold it to another person.

But according to the one who says: An heir’s possession is considered like a purchaser’s possession,

if so,

what can be said

!? Why did the beraita specify that the robber sold it? Once he left the cow or garment to his heirs, they had already acquired it, and they need not return it to Shimon. Therefore, Shimon no longer has a personal interest in the testimony!?

And there is another difficulty for Abaye

with regard to the essential explanation Rav Sheshet gave for the beraita: Is the wording

“because its responsibility rests upon him”

and

“its responsibility does not rest upon him”

really the appropriate wording to distinguish between a field, which returns to Shimon, and a cow or garment, which do not return to him!? Surely the wording

“because it returns to him”,

and

“it does not return to him”

should have been used

by the tanna to state!

Rather,

the beraita returns to what the Gemara initially thought was its meaning: that the seller may not testify for the purchaser. However, the reason is not that if the claimant takes the property from the purchaser, the purchaser will then seek payment from the seller, because regarding that point there is a difficulty: What is the difference between a house or field and a cow or garment, as the Gemara asked earlier? Rather, the beraita is dealing with a case where the seller did not assume responsibility if the claimant takes the property from the purchaser, and nevertheless he may not testify concerning it,

as taught by Ravin bar Shmuel! For Ravin bar Shmuel said in the name of Shmuel:

One who sells a field to another without liability [

One who sells a field to another person without a guarantee [

if a claimant takes it from him, the seller will not compensate him],

may not testify for him—

the seller for the purchaser—

concerning it

against a claimant who says, “It is mine,”

because

the seller has a personal interest in the testimony,

since

he

places

the seller

before his creditor,

so that the creditor can collect the land to repay the seller’s debt. If Yehuda wins the property, the creditor will not collect this land.

And this is the explanation of the beraita:

He sold him a house or a field; the seller may not testify for the purchaser [the seller may not testify for the purchaser], because the responsibility of his creditor [the seller’s creditor] rests upon him.