Bava Batra 44a (מד.) — the Talmud in English

And we raise a difficulty against Rav Sheshet, who interpreted the beraita as referring to a robbery victim who may not testify for one who purchased from the robber,

and

if so,

let it teach

the beraita

with regard to the robber

himself!? That is, why did the beraita formulate this law with regard to a robber who sold the property to another? The very same law could have been taught by the beraita with regard to the robber himself, who did not sell it to another: The robbery victim may not testify for him against Judah, because the robbery victim wants and prefers to recover the field from the robber rather than from the claimant.

And we answer:

Because he wanted to teach in the latter clause: If he sold him a cow or sold him a cloak

he may testify for him concerning it,

for

this law applies

specifically

if

the robber sold

the cow or the cloak. In the case of a cow or cloak, the robbery victim has no vested interest, because he can no longer recover it from Levi,

as there was despair of recovery

while it was in the robber’s possession

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 cloak, 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 cloak. Therefore,

the first clause also teaches: If he sold it

the robber.

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

the latter clause as well

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

although Shimon despairs

of recovering

the item itself

of the object—that is, although Shimon knows that the stolen object itself will not return to him, because the purchaser acquired it through despair of recovery and a change of possession—

does he despair of its monetary value as well [

does he also despair of collecting from the robber the value of what was stolen]? In other words, does he waive the monetary value of what was stolen to the robber!? Since he does not waive it, it follows that he has an interest in the testimony when he testifies that the cow or cloak does not belong to Judah, so that he can collect the value of what was stolen from Reuven the robber. For if it belongs to Judah, the robber owes him nothing!? And we answer:

It is necessary—

that is, what are we dealing with here?

The robber died,

and Shimon lost his money, because his heirs are not obligated to pay, as

we learned:

a. Rabbi Yona added the following here: Therefore, he has a personal interest in the testimony, because if Yehuda removes it from Levi through witnesses who testify that Reuven stole it from him, Shimon will not collect its value from Reuven, even if Shimon brings witnesses who testify that Reuven stole it from him. Reuven could deny the claim and say: “I stole it from Yehuda, as the witnesses he brought testify, and the cow has already returned to him”;

One who robs and feeds his sons,

or who stole

and placed

the stolen object itself

before them,

these heirs

are exempt from paying,

since they did not steal it.

And we ask:

Let it establish it

with regard to an heir!?

That is, if in any event we must explain that the robber died, why did the beraita itself need to establish its law in a case where the robber sold it to another, thereby disqualifying 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 rather the robber died, and Judah came to recover the stolen object from the heir. In that case there is a distinction between a field, concerning which he may not testify because he has an interest in the testimony, so that he can recover it from the heir, and a cow or cloak, concerning which he may testify because in any event he cannot recover it from the heir, who acquired it through despair of recovery and a change of possession!?

The Gemara further explains its question:

This 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 object to his heirs, they do not acquire it,

it is well—it is understandable why the beraita needed to state that the robber sold it to another.

But

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

if so,

what can one say

!? Why did the beraita state that the robber sold it? Once he left it to his heirs, they had already acquired the cow or cloak, and they need not return it to Shimon; therefore, Shimon no longer has an interest in the testimony!?

And there is another difficulty for Abaye

concerning the essence of Rav Sheshet’s interpretation of the beraita: Are the expressions

“because its liability is upon him”

and

“its liability is not upon him”

really the appropriate expressions for distinguishing between a field, which returns to Shimon, and a cow or cloak, which do not return to him!? It should have said:

“because it returns to him,”

and

“it does not return to him”

the tanna should have said

!

Rather, the beraita returns to what the Gemara initially thought was its interpretation: that the seller may not testify for the purchaser. However, the reason is not that if the claimant takes it from the purchaser, the purchaser will then seek payment from the seller, for concerning this there is a difficulty: What difference is there between a house and field and a cow and cloak, as the Gemara asked above? Rather, the beraita is dealing with a case in which the seller did not accept liability if the claimant takes it from the purchaser,

but nevertheless he may not testify concerning it

in accordance with the ruling of Ravin bar Shmuel! For Ravin bar Shmuel said in the name of Shmuel:

One who sells a field to another without liability [

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 an interest in the testimony,

as

since

the seller

places it

before

his creditor,

who will collect the land in payment of the seller’s debt. If Judah prevails with regard to it, his creditor will not collect the debt from this land.

And this is the meaning of the beraita:

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