Bava Kamma 112b (קיב:) — the Talmud in English

He said to him

Rabbi Avin:

But do they accept witnesses

not in the presence of the litigant!?

And your sister’s son is the litigant; is he not a minor? And this is as though it were not in his presence.

Rabbi Yirmeya said to him:

And

if

not,

do they not accept witnesses not in the presence of the litigant?

But it is taught

in the earlier beraita that, according to the first tanna,

both adults and minors are liable,

as the robbed party brings witnesses that the stolen property belongs to him, and it is taken from the minors?

He said to him

Rabbi Avin:

The dispute of Sumakhos is right beside you!

For Sumakhos indeed disagrees and exempts the minors, because witnesses are not accepted against minors, as this is as though it were not in the presence of the litigant.

Rabbi Yirmeya

said:

Did everyone convene and adopt the position of Sumakhos

—did they all take the position of Sumakhos—

to dispossess me

in order to dispossess me of my house?

Meanwhile,

in the interim,

the matter unfolded and came

to be

before Rabbi Abbahu.

He said: Have you not heard,

have you not heard

that

Rabbi Yosef bar Ḥama

said in the name of Rabbi Oshaya!?

For Rabbi Yosef bar Ḥama said in the name of Rabbi Oshaya: If a minor seizes his slaves

taking his slaves with him so that they would assist him [or, he seized them and declared that they were his]

and entered his fellow’s field and said: “It is mine,” we do not say: Let us wait until he comes of age,

so that in the meantime he will retain possession of the field,

rather, it is removed

from the field

from his possession immediately.

And when he comes of age, he may bring witnesses, and we shall see

whether it is truly his or not.

Thus, the property is removed from the minor’s possession until he comes of age and the matter is clarified. Here too, the minor should be removed from the house, and Rabbi Yirmeya should retain possession of it until the minor comes of age and the matter is clarified.

We reject the proof:

Are the cases comparable?

Rabbi Yirmeya’s case is not comparable to that case.

There, it is that we remove it from him

—the field is removed from the minor’s possession—because

he does not have an ancestral presumption of ownership

he had no ancestral presumption of ownership of this field.

But where he has an ancestral presumption of ownership,

as in Rabbi Yirmeya’s case, where the minor’s ancestors had always held possession of this field,

we do not

remove it from him. Rather, we wait until he comes of age; then Rabbi Yirmeya will bring his witnesses and litigate with him.

Rav Ashi

said in the name of Rabbi Shabtai: Witnesses are accepted not in the presence of the litigant.

Rabbi Yoḥanan pondered this,

he found the matter difficult:

But do they accept witnesses not in the presence of the litigant!?

Rabbi Yosei bar Ḥanina received this tradition from him

from Rav Ashi, who said it in the name of Rabbi Shabtai: that witnesses are accepted not in the presence of the litigant only in a case

such as where he was ill,

where the claimant who seeks to bring the witnesses was dangerously ill and near death.

Or

where

his witnesses were ill,

in danger, and if not now, when?

Or his witnesses sought to travel overseas, and they sent word to him

the litigant,

but he did not come,

in which case the witnesses are accepted even not in his presence.

Rav Yehuda said in the name of Shmuel: Witnesses are accepted not in the presence of the litigant.

Mar Ukva said: The matter was explicitly explained to me by him,

by Mar Shmuel:

Shmuel explained to me that this applies only in a case

such as where they initiated the case before him

where they had already begun the litigation

and sent word to him

that he should come,

but he did not come.

But if they had not initiated the case before him,

if they had not yet begun the litigation,

he can say to him

the defendant can say that he does not wish to litigate at all before this court, but

“I will go to the Great Court,”

I wish to litigate before the Great Court.

We raise a difficulty:

If so, when they have also initiated the case before him,

even when they have already begun the litigation,

he can say to him,

why can he not say:

“I will go to the Great Court”?

We answer:

Ravina said: This is a case where he holds a writ from the Great Court,

where the claimant has in his possession a letter from the Great Court stating that they sent word to the local court that it should compel the defendant to litigate before them.

Rav said: A document is authenticated not in the presence of the litigant,

if the witnesses who signed the loan document wish to travel overseas, the lender brings them before the court, and they testify that this is their handwriting. The court writes at the bottom of the document that they have verified and authenticated it.

And Rabbi Yoḥanan said: A document is not authenticated not in the presence of the litigant.

Rav Sheshet said to Rabbi Yosei bar Avuha: I will explain Rabbi Yoḥanan’s reasoning to you: The verse says

with regard to a forewarned ox [Exodus 21:29], “‘

And it was testified against its owner, and he did not guard it’”—

the Torah said: Let the owner of the ox come and stand over his ox!

Since testimony is not given about a person without him being present, a document is likewise not authenticated without the litigant’s presence.

Rava said: The halakha is: A document is authenticated not in the presence of the litigant.

And even if he is standing

the litigant

and shouting

“Do not authenticate it, for it is forged,” we do not heed him, and the document is authenticated not in his presence.

And if

after the document had been authenticated, and the court said to the borrower: “Pay your debt,”

the borrower said

to the court:

“Set a date for me,”

set a time for me

“until I bring witnesses and invalidate the document,”

until I bring witnesses to challenge the authenticity of the document,

we set a date for him,

and in the meantime we do not descend upon his property.

If he comes, he comes;

if he arrives at the court at that time, all is well.

If he does not come,

if he does not arrive,

we wait for him on the second, fifth, and second days,

we wait for him an additional sequence of Monday, Thursday, and Monday.

If he does not come,

if he still does not arrive afterward,

we write a writ of excommunication against him

for failing to pay the debt, and he remains under excommunication for

ninety days.

Throughout that entire period, we do not descend upon his property, for the following reasons:

The first thirty days,

the first thirty days,

we do not descend upon his property,

we do not descend upon his property, because

perhaps he is exerting himself to obtain money by borrowing,

perhaps he is trying to find a loan with which to pay the debt.

The middle period,

the middle thirty days,

we likewise do not descend upon his property,

because

perhaps he was unable to find someone from whom to borrow

perhaps he did not find anyone who would lend him money,

and he is exerting himself to sell

and is trying to sell his property.

The final period,

the final thirty days,

we likewise do not descend upon his property,

because

perhaps the buyer himself is exerting himself to obtain money.

Perhaps the buyer who wishes to purchase his property is trying to obtain money.

He did not come.

If he did not arrive by the end of the ninety days, his excommunication is lifted, and

we write an adrakhta

against his property.

We write a court order stating that the lender may descend upon the borrower’s property and take it for the debt, and we give the document to the lender.

And this matter

that we wait for him throughout this entire period,

applies when he says, “I am coming,”

when the borrower says that he will still come to court.

But

if he

says, “I am not coming,”

I do not wish to come to court,

we write it immediately

we write the adrakhta immediately.

And this matter

that we wait

applies to a loan; but in the case of a deposit,

where a depositor has a deposit document in his possession, and the bailee does not wish to return the deposit and evades coming to court,

we write it immediately

the adrakhta against the bailee’s property.

And when we write

an adrakhta, do we write it only

against land,

against the borrower’s real property?

But against movable property

of the borrower,

we do not

write an adrakhta so that the lender can collect from it.

Perhaps the lender will consume and destroy the movable property.

Perhaps the lender will use up the movable property,

and when the borrower comes and brings witnesses who invalidate the document,

and when the borrower comes to court and brings his witnesses to invalidate the document,

he will find nothing from which to collect,

he will find none of his movable property remaining.

And if the lender has real property,

if the lender owns land,

we write

an adrakhta even against the borrower’s movable property, since if the movable property is consumed, the borrower can collect from the lender’s real property.

We conclude:

That is not so! We do not write an adrakhta against movable property!

And

even though he has real property

the lender,

we are concerned that it may deteriorate,

perhaps the lender’s real property will become barren and its value will decrease, and the borrower will be unable to collect from it.

And when we write an adrakhta, we inform him

we inform the borrower that an adrakhta has been written against his property.

And this applies when he is nearby,

when the borrower is present here, nearby.

But when he is far away,

if he is far from here,

no.

It is not necessary to inform him.

And if he is far away

if he is distant,

but there are relatives,

he has relatives here who remain in contact with him,

or alternatively, there are caravans that travel there and return,

there are caravans that go there and come back,

we delay it for twelve months.

We wait with the adrakhta for twelve months

until the caravan goes and returns,

until the caravan reaches there and returns, and meanwhile the borrower will be informed of the adrakhta that the court wishes to issue against him.

For example, that of Ravina, who waited for Mar Aḥa:

a man named Mar Aḥa had lent money to his fellow, but the borrower was not in the city, and Ravina waited before writing the adrakhta,

twelve months, until a caravan came and went from Bei Hozai,

until the caravans could return from Bei Hozai, where the borrower was.

And we reject this:

That is not so!

There is no proof from Ravina’s incident, because

there he was a powerful man:

Mar Aḥa was a violent man, and

if the adrakhta had reached him,

if he had received it and collected the borrower’s property,

it would not have been possible to take it from him.

It would no longer have been possible to recover the property from him if the borrower subsequently succeeded in proving that the promissory note was invalid and that he owed him nothing. Therefore, Ravina waited for the borrower until he could be notified.

But here,

in the case of an ordinary loan,

we do not wait for him.

We do not delay the adrakhta, even if caravans regularly travel to the place where the borrower is,

but only until the messenger goes on the third day of the week,

only when he is one day’s journey from here, in which case the beit din sends a messenger to notify him on Tuesday [since presumably they judged him on Monday, as the beit din sits on Mondays and Thursdays. Tosafot],

and he comes on the fourth day of the week,

he arrives on Wednesday,

and on the fifth day of the week he appears for his case.

On Thursday he stands trial regarding the adrakhta.

Ravina said: With regard to this messenger of the Sages,

the messenger of the beit din who went to summon a person to a Torah trial and returned and told the beit din that he did not wish to come,

we trust him as we would two witnesses,

the messenger is trusted regarding this matter like two witnesses, as presumably he would not lie before the beit din.

And this applies

to the messenger’s reliability

for shamta,

only for excommunicating him orally.

But for a petiha,

to write a writ of excommunication against him,

since it causes him monetary loss,

as his testimony causes the borrower financial damage,

since he must give money to the scribe,

because when the excommunication is lifted, the borrower must first pay the fee of the scribe who wrote the writ of excommunication,

no.

The messenger of the beit din is not trusted regarding this matter, because a single witness is not trusted to cause a person monetary loss.

Ravina said: We set a date for a court appearance through the mouth of a woman.

The beit din may summon a person to trial for a specified day through a woman who happens to be going there,

or through the mouths of his neighbors,

or through his neighbors. We rely on them to carry out their mission. And if he does not come to trial, we excommunicate him on the basis of this summons.

And we said this

that we rely on their carrying out the mission

only when he is not in the city,

when that person is not currently in the city where the beit din is located, and the messenger of the beit din tells his neighbors that when he returns home, they should inform him of the summons.