Bava Batra 45a (מה.) — the Talmud in English

If the seller has

land in his possession

elsewhere [if the creditor has additional land that he has not yet sold, apart from the land that he sold to the buyer—then this cannot be said]:

For

his creditor

would return to that land [he would turn to the additional land] to collect his debt, and not to the land that was sold to the buyer, since one does not collect from liened property when unencumbered property is available. If so, he has no personal interest in the testimony

!?

And

if he has no other land [and if he has no other land],

what difference does it make to him

what benefit does he derive from it!?

What benefit does he have from the land remaining in the buyer’s possession? In either case, he will not pay, since he has nothing; so what personal interest does he have in testifying that it should remain in the buyer’s possession rather than be placed before his creditor?

a. The Tosafot found this difficult: In any event, he has a personal interest in the matter if he becomes wealthy. If the creditor did not collect his debt now from the buyer, he would come to collect the debt from the seller when the seller became wealthy. The Tosafot wrote: Perhaps for this reason he should not be disqualified as a witness, since at present he does not gain immediately ; see also the Ramban in the name of the Ra’avad . b. The later authorities noted: It may be demonstrated from the words of the Gemara that even if he also has movable property, the creditor cannot collect land from purchasers. For otherwise, one could say that although he has no other land, he does have movable property, and he has a personal interest in testifying that the land belongs to the buyer, so that his creditor can collect from the land; perhaps the creditor will collect from the buyer and not from the movable property in the seller’s possession. c. As emerges from the words of Rabbeinu Yonah, the Gemara does not mean by “he has other land” that the court knows that he has other land and therefore he should not be disqualified. For even a witness with a possible personal interest is disqualified, and there is no way to know whether he has sufficient land to repay all his debts, since we do not know how much he owes . The meaning of the Gemara is: If he truly has other land sufficient to repay all his debts, he knows this and has no personal interest; but if you seek to disqualify him because perhaps he does not have sufficient land to repay all his debts, that is not a reason to disqualify him . The answer of the Gemara is that we disqualify him because of the concern that perhaps he does not have other land sufficient to repay all his debts; see there. And we answer:

Actually, he has no

other land

at all

with which to repay his debt. Nevertheless, he has a personal interest in the testimony, so that his creditor will collect his debt, because

the seller says

to himself:

“It is not desirable that this man be” a borrower who is wicked and does not pay,” [it is not desirable for him to be so, and he is referring to himself]. Therefore, he wants his creditor to collect his debt from the buyer.

a

“wicked borrower who does not pay.”

And we challenge this:

Ultimately,

what benefit does he have from this testimony? Even

with regard to the other one [the buyer],

the purchaser,

he is also “a borrower who is wicked and does not pay

,” since if the land is repossessed from the buyer, it turns out that he has caused the buyer a loss. What difference is there whether he causes a loss to the creditor or causes a loss to the buyer? In either case, he is a wicked borrower who does not pay

!?

And we answer:

For

he can

say

to the buyer:

“For this reason I sold it to you without liability,”

[I sold it to you without liability so that I would be exempt from every liability in the world]. Therefore he does not testify on behalf of the buyer, because only with regard to his creditor is he “a borrower who is wicked and does not pay.”

Rava announced—and some say

[and some say]

Rav Pappa

was the one who announced: Listen and hear,

you who ascend upward and descend downward

[those who ascend from Babylonia upward to Eretz Yisrael, and those who descend from Eretz Yisrael to Babylonia], the following ruling:

“In the case of this Jew who sold a donkey to his fellow Jew

[a Jew who sold a donkey to his fellow],

and a gentile came and forcibly took it from him

[and a gentile came and claimed without witnesses that it was his, and forcibly took it from the buyer],

the law is that he must rescue

it for him

[the law is that the seller must save the buyer from this act of coercion], by bringing the gentile to court. As will be explained below, it is apparent that the gentile was not merely acting as a violent aggressor, for he took only the donkey and not the saddle; certainly, then, it really is his”

The wording is “who rescued David, His servant, from the evil sword,” in Psalms 144:10, according to the Rashbam ; [and similarly there, verse 7: “Rescue me and save me from great waters, from the hand of foreigners”; this requires examination]. The Rashbam added the following explanation: “He should bring witnesses and litigate with the gentile, perhaps he will remove it from his possession through a court ruling, since gentiles comply with the law ; specifically a gentile; but if a Jew forcibly takes it from him, he need not rescue him. Rather, the buyer should take him to court, since a Jew has no power to steal a donkey from his fellow without witnesses.” The Ritva wrote regarding the beginning of the Rashbam’s words: “From our teacher’s language it appears that Rav Pappa obligated him only to go and litigate with the gentile, perhaps he could remove it from him through a court ruling; but if he cannot remove it from him, he is not obligated to pay, since this is coercion.” Regarding the end of the Rashbam’s words—“specifically a gentile”—he wrote there: “Our teacher was correct, for liability exists only when he repossesses it from him through a court ruling. Coercion and robbery are not included in liability in the language of a sale with liability.” So too, Rashi explained in Bava Metzia 14b regarding “Show me your deed of repossession and I will pay you”: that it means that it was repossessed from you through a court ruling . But here, since it is a gentile and it is impossible to stand against him in court, and there is some indication that he took it lawfully when he left the saddle, Rav Pappa said that the seller must rescue him by taking the trouble to litigate with the gentile. And Rava limits this ruling with two qualifications:

1.

And we said this

that the seller must save him

only

in a case where

the buyer does not recognize

that

it is the offspring of his donkey

belonging to the seller, for then it may indeed be said that the gentile is in the right.

But

if

the buyer recognizes

that

it is the offspring of his donkey

belonging to the seller—that is, the buyer admits that this donkey was raised in the seller’s house— then

he is not

obligated to save the buyer. Since it was raised in the seller’s house, it presumably belongs to him, and the gentile forcibly took the donkey unlawfully, since an ordinary gentile is a violent aggressor.

2.

And we said this

that the seller is obligated to save him

only

in a case where

the gentile did not forcibly take

the donkey

and the saddle

[the donkey and its saddle], but took the donkey and left the saddle. In this manner, it is apparent that he is taking what belongs to him, since he did not forcibly take the saddle, which does not belong to him.

But

if

the gentile forcibly took

the donkey

and the saddle

together—

he is not

obligated to save the buyer, since we assume that an ordinary gentile is a violent aggressor, and he took a donkey and saddle that do not belong to him.

Ameimar

disagreed with Rava and

said:

Even if all these conditions are absent

[even when none of these conditions applies], that is, even if the buyer does not recognize that it is the offspring of the seller’s donkey, and even if the gentile took the donkey without the saddle—

he is not

obligated to save the buyer!

And we explain:

What is the reason?

For

it is known

[the matter is known]

that an ordinary gentile is a violent aggressor,

as it is stated: “Rescue me and save me from the hand of foreigners,

whose mouth speaks falsehood

and whose right hand is a right hand of deceit.”

We learned in the Mishna:

A craftsman

[“Craftsmen”]

has no presumption of ownership:

Rabba said: They taught

in our Mishna that the craftsman is not trusted to claim, “It is mine; I purchased it,”

only when the owner gave it to him

the utensil

in the presence of witnesses,

who saw how the owner gave him the utensil to repair. In such a case, if the craftsman claims, “I purchased it from you after you gave it to me to repair,” he is not trusted.

But if he gave it to him

to repair

without witnesses,

even though the craftsman admits that it came into his possession in his capacity as a craftsman, the law is as follows:

If the witnesses do not now see the object in his possession [“he did not see it”], he is trusted to say, “It is mine; I purchased it after I received it from you,” by means of a migo, since he could have said, “I returned it.”

a. This applies specifically when he gave it to him without witnesses; but if he gave it to him in the presence of witnesses, he does not have this migo, as will be explained later in the discussion: According to Rabba, “One who deposits an item with another in the presence of witnesses must return it to him in the presence of witnesses,” and he cannot claim, “I returned it.” b. See the words of the Tosafot on folio 45b and the early authorities here, who explained why he is not trusted to say, “It is mine; I purchased it,” by means of the claim “It was taken from me by force,” even though had he claimed “It was taken from me by force,” he would have been obligated to take an oath. Nevertheless, he should be trusted with an oath regarding the claim “It is mine; I purchased it.” And even if witnesses see the object in his possession [“they saw it”], so that he cannot claim, “I returned it,” he is trusted to say, “It is mine; I purchased it after I received it,” because

from

[a migo]

the fact that

the craftsman

could say to

the owner,

“It never happened”

[you never gave me this utensil to repair; rather, someone else gave it to me, because you sold the utensil to him and he sold it to me]— therefore,

when he also says to him

“Indeed, you gave it to me to repair, but now

it is mine; I purchased it

from you after you gave it to me,” he is also

trusted.

This has been explained according to the Rashbam. In the Tosafot Rid he wrote: “It appears to me that we should not read ‘from the fact that he could say, “It never happened,”’ for this expression applies only where he did not see the object in his possession. But below it is demonstrated that Rabba said that even though he saw the object in his possession, so that he could not deny it, he is nevertheless trusted.” Our teacher Shmuel wrote: “From the fact that he could say, ‘It never happened—that you did not give it to me; rather, someone else gave it to me, because you sold it to him and he gave it to me,’ when he also says, ‘You gave it to me and sold it to me,’ he is trusted by this migo.” He wrote regarding this interpretation that it has no basis: If he claimed that someone else gave it to him, why should he be more trusted than when he says, “You gave it to me”? The reason is rather that since it was given to him without witnesses, he is like someone else, and someone else is trusted without a migo. In my view, the correct version omits it . See also the Tosafot Rid there, and see further what the Tosafot and the Rashba wrote, as well as the note later in the discussion. [It should also be noted that if the Rashbam indeed means that a craftsman is not trusted to claim—even according to Rabba—“It came into my possession as a sale,” then a difficulty arises: Why did Rabba need to explain the Mishna in a case where it was given to him in the presence of witnesses for repair, and with regard to the claim “It is mine; I purchased it after you gave it to me to repair”? Why did he not explain the Mishna according to its simple meaning, teaching us that although everyone is trusted to say, “It came into my possession as a sale,” a craftsman is not trusted to claim, “It came into my possession as a sale”? For the essential presumption that whatever is in a person’s possession belongs to him, by virtue of which a person is trusted everywhere, is based on our saying: How did it come into his possession if not because he purchased it from him? We do not assume that he stole it, and therefore he is trusted to say, “It came into my possession as a sale.” It is precisely this case that the Mishna teaches us: With regard to a craftsman, we say that presumably it came into his possession in his capacity as a craftsman.]

He said

to him in astonishment

Abaye

to Rabba, concerning his position that even when the object was not seen in the craftsman’s possession, and it is possible that he returned it, he is nevertheless not trusted by means of a migo because it was given to him in the presence of witnesses:

If so

even

when he gave it to him

in the presence of witnesses as well,

should he be trusted to say that he purchased it after it was given to him!? For

from

[a migo]

the fact that

the craftsman

could say to

the owner,

“I returned it to you,”

when he says to him,

“It is mine; I purchased it,”

he should also

be trusted!?

He said

and answered

Rabba

to Abaye:

Do you think

[do you really think] that

one who deposits an item with another in the presence of witnesses need not return it in the presence of

the

witnesses!?