Bava Batra 70b (ע:) — the Talmud in English

He said to him

Rav Amram said to Rav Ḥisda,

Ultimately, when

the trustee says to him, “They were אונסים,”

is this not an oath

of bailees

that he must take!? Since, when he claims that the deposit was lost through אונס, he is obligated to take an oath, how can he be exempted through the claim “I returned them,” without taking an oath, by virtue of a migo based on the claim “They were אונסים,” which obligates him to take an oath!?

Rav Hisda said to him:

Rav Ḥisda said to him:

Here too,

when he claims, “I returned them,”

what do I mean by “he is נאמן”

when I said this? —

He is נאמן with an oath.

The Gemara analyzes this:

Let us say

that the question of whether the trustee is נאמן to claim, “I returned them,” in response to the promissory note held by the depositor, which Rav Ḥisda and Rav Amram discussed, depends

on the dispute between these tannaim:

As it was taught: A business note held against orphans —

That is, a shtar iska, since their father took money from another person in order to conduct business with it, with the profits from the business to be divided between them, between him and the provider of the money. And so that this would not involve the prohibition of interest, the Sages instituted that half of the sum would be given to the person conducting the business as a deposit, and half as a loan. Thus, the profits generated by the deposit funds belong exclusively to the provider of the money, while the profits generated by the loan funds belong exclusively to the person conducting the business with the money. In this manner, it is advantageous for both the provider and the person conducting the business, because they share equally in responsibility for any loss, if the entire sum or part of it is lost.

However, the borrower must receive an additional share of the profits, greater than that received by the provider, in return for his work with the deposit funds, so that he will not be working for free; for if he did, this would be considered interest, as he would be working for free in return for the loan that was given to him [of half the sum].

Now, when the recipient of the business arrangement dies, the provider demands the entire sum from the orphans: 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.

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, as is the law with regard to anyone who comes to collect their father’s debt from orphans.

And the reason the lender must swear is that their father could have required him to swear that he had not repaid the debt; and whatever their father could have claimed, we claim on behalf of the orphans.

But since their father took the money as a business arrangement, the amoraim disputed the matter:

“The Judges of the Exile,”

Shmuel and Karna,

said: He swears

that their father neither repaid the half of the sum that was a loan nor returned the half of the sum that was a deposit,

and he collects the entire amount.

And the Judges of Eretz Yisrael,

Rabbi Ami and Rabbi Asi,

said: He swears

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

and he collects

only that

half,

but he does not collect the half that was the deposit from them, since their father could have claimed, “I returned the deposit,” and we make that claim on behalf of the orphans. In response to such a claim, the claimant is not נאמן, even with an oath.

The Gemara assumes:

And everyone agrees with the view of Neharde’a, for the Sages of Neharde’a said: With regard to this business arrangement,

when one provides his money as a business arrangement,

half

of the money is

a loan, and half

is

a deposit.

Is it not the case that in this matter,

with regard to Rav Ḥisda’s ruling concerning collection of the half that was the deposit,

they disagree,

the Judges of the Exile and the Judges of Eretz Yisrael?

For one Sage holds

that the Judges of the Exile maintain that he collects the entire amount, because

the depositor can say to him

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

“If so, why is your document in my possession!?”

And he collects from him the portion that was the deposit as well. Therefore, he can also collect even the portion that was the deposit from the orphans.

And one Sage holds

that the Judges of Eretz Yisrael, who say that he collects only the half that was the loan but does not collect the half that was the deposit, maintain that if their father had claimed, “I returned it,”

the depositor could not

have said to the trustee, “If so, 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 provider does not collect the portion that was the deposit from them.

They said,

they said in the beit-midrash in rejection of this:

No,

the tannaim did not disagree about this. Rather,

everyone agrees with Rav Ḥisda’s ruling

that the trustee can claim, “I returned it,” even in response to the document.

And here,

in the case of a business note held against orphans,

this is the matter about which they disagree:

For one Sage holds

that the Judges of the Exile maintain that we do not make on behalf of the orphans the claim that perhaps their father returned the portion that was the deposit, because

if it is so that he repaid it,

if it indeed occurred that their father repaid and returned the portion that was the deposit to the provider,

he would have said so.

He would have told this to his sons when he instructed them concerning his property before his death. Since their father did not tell them that he had repaid it, and likewise the provider has the document in his possession, the provider swears and collects the entire amount.

And one Sage holds

that the Judges of Eretz Yisrael maintain 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 provider, because

perhaps it was the Angel of Death who prevented him,

and he caused their father to die before he had the opportunity to instruct them and tell his sons that he had repaid it.

Rav Huna bar Avin transmitted

two rulings:

A.

If one deposits an item with another person under a document, and says to him, “I returned it to you!” —

he is נאמן.

B.

And a business note held against orphans —

he swears and collects the entire amount.

The Gemara raises an objection: These two rulings are

two

that contradict one another!

The Gemara answers:

That case is different,

in the case of a debt document held against orphans,

for if it is so that he repaid it,

the father repaid the provider,

he would have said so

to his sons, that he had repaid it.

Rava said: The halakha:

in the case of a business note held against orphans,

he swears and collects half

that was the loan בלבד, while with regard to the portion that was the deposit, we make the claim on behalf of the orphans that their father returned it to him.

Mar Zutra said: The halakha is according to the Judges of the Exile.

Ravina said to Mar Zutra: But,

behold,

Rava said

that the halakha is not according to the Judges of the Exile, but rather

he swears and collects half!?

He said to him: We

accept the words

of the Judges of the Exile,