Bava Batra 70b — the Talmud in English

He said to him: ![](pamud.bmp "

exact page location") Rav Amram to Rav Hisda,

ultimately, when the

depositary says

“They were forcibly seized,” is it not an oath

of bailees

required!? And since, with the claim “They were forcibly seized,” he is liable for an oath, how can he be exempted by the claim “I returned them,” without swearing an oath, by virtue of the migo of the claim “They were forcibly seized,” which requires an oath!?

Rav Hisda said to him:

Here too,

when he claims, “I returned them,”

what is “he is deemed credible”

that I said

? —

He is deemed credible with an oath.

And the Gemara discusses:

Let us say,

whether we should say that the question whether the depositary is deemed credible to claim, “I returned them,” against the document of the depositor, which Rav Hisda and Rav Amram discussed, depends

on the dispute of these tannaim:

As it was taught: A partnership document issued against orphans —

that is, a “shtar iska,” since their father took money from another person in order to engage in business with it, and they would divide the profits from the business between them, he and the giver of the money. And so that there would not be a prohibition of interest in the matter, the Sages instituted that half of the sum would be given to the one engaged in the business as a deposit, and half as a loan, so that the profits arising from the deposit money would belong only to the giver of the money, whereas the profits arising from the loan money would belong only to the one engaged with the money. And in such a manner, the matter is convenient for the giver and for the one engaged in the business, because both bear responsibility for the loss equally, if the entire sum, or part of it, is lost.

However, the borrower must receive an additional share of the profits, more than the giver, for his engagement with the deposit money, so that he will not engage in it for nothing, because then the matter would be considered interest, as he engages for nothing in return for the loan that he gave him [half the sum].

And now, when the recipient of the business arrangement dies, the giver demands from the orphans the entire sum, both the half of the sum that was a loan in their father’s possession, and the half of the sum that was a deposit in their father’s possession.

And had their father borrowed an ordinary loan from his fellow without a business arrangement, the lender would have had to swear that their father had not repaid his debt, in accordance with the law concerning anyone who comes to collect from orphans their father’s debt.

And the reason that the lender must swear is because their father could have made him swear that he had not repaid him the debt, and everything that their father could claim, we claim for the orphans.

But since their father took the money by way of a business arrangement, the amoraim disputed the matter:

“The judges of the Diaspora,”

Shmuel and Karna,

say: He swears

the giver that their father did not repay either the half of the sum that was a loan, or return the half of the sum that was a deposit,

and collects all of it.

And the judges of the Land of Israel,

Rabbi Ami and Rabbi Asi,

say: He swears

that their father did not repay the half of the sum that was the loan,

and collects

only that

half,

but he does not collect from them the half of the deposit, since their father could have claimed, “I returned the deposit,” and we make this claim on behalf of the orphans. And against such a claim, the claimant is not deemed credible, even with an oath.

And the Gemara assumes:

And everyone holds in accordance with the view of Nehardea, for the scholars of Nehardea say: This business arrangement,

when one gives his money by way of a business arrangement,

half

of the money is

a loan, and half

is

a deposit.

What, is it not that here,

in the ruling of Rav Hisda, concerning collection of the half of the deposit,

they dispute

the judges of the Diaspora and the judges of the Land of Israel:

For one Master holds,

the judges of the Diaspora hold that he collects everything, because

the depositor can say to him

the depositary [during his lifetime], if he claims to him, “I returned it”:

“Why is your document in my possession!?”

And he collects from him also the portion of the deposit. And therefore he can also collect even the portion of the deposit from the orphans.

And one Master holds,

the judges of the Land of Israel, who say that he collects only the half of the loan but does not collect the half of the deposit, hold that if their father claims, “I returned it,”

he cannot

the depositor say to the depositary, “Why is your document in my possession?” Therefore we make on behalf of the orphans the claim that their father could have made, and the giver does not collect from them the portion of the deposit.

They said,

they said in the beit-midrash in rejection:

They did not

the tannaim dispute over this. Rather,

everyone holds in accordance with Rav Hisda’s ruling

that the depositary can claim, “I returned it,” even against the document.

And here,

in the case of a partnership document issued against orphans,

this is what they dispute:

For one Master holds,

the judges of the Diaspora hold that we do not make on behalf of the orphans the claim that perhaps their father returned the portion of the deposit, because

if it were so that he repaid it,

if it happened that their father indeed repaid and returned the portion of the deposit to the giver,

he would have said it.

He would have said this to his sons when he was giving them instructions concerning his property before his death. And since their father did not tell them that he had repaid it, and likewise there is a document in the giver’s possession, the giver swears and collects everything.

And one Master holds,

the judges of the Land of Israel hold that there is no proof from the fact that their father did not tell them at the time of his death that he had repaid the giver, because

perhaps, it is to be said, the Angel of Death is what forced him,

he killed their father before he had time to give instructions and tell his sons that he had repaid it.

Rav Huna bar Avin sent

two rulings:

A.

One who deposits [an item] with his fellow in writing, and says to him, “I returned it to you!” —

he is deemed credible.

B.

And a partnership document issued against the orphans —

he swears and collects all of it.

And the Gemara raises an objection: Surely these two rulings are

two

that contradict one another!

And the Gemara answers:

There it is different,

in the case of a promissory note issued against orphans,

for if it were so that he had repaid it

the father to the giver,

he would have said it

to his sons, that he had repaid it.

Rava said: The halakha:

a partnership document issued against orphans,

he swears, and collects half

of the loan only, and concerning the portion of the deposit, we claim for the orphans that their father returned it to him.

Mar Zutra said: The halakha is in accordance with the judges of the Diaspora.

Ravina said to Mar Zutra: But,

behold,

Rava said

that the halakha is not in accordance with the judges of the Diaspora, but

he swears and collects half!?

He said to him: We,

their words,

of the judges of the Diaspora,