Bava Kamma 112b — the Talmud in English

He said to him

Rabbi Avin:

But do they accept witnesses ![](pamud.bmp "

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not in the presence of the litigant!?

And he is your sister’s son; 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 accept witnesses not in the presence of the litigant?

But it is taught

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

both adults and minors are liable,

for the robbed person brings witnesses that the robbery belongs to him, and they remove it 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 they do not accept witnesses against minors, as it is as though it were not in the presence of the litigant.

Rabbi Yirmeya

said:

Did everyone join together and stand according to Sumakhos

and did everyone adopt the view of Sumakhos

to dispossess me

in order to dispossess me of my house?

Meanwhile,

in the interim,

the matter rolled along and came

the matter developed and reached

before Rabbi Abbahu.

He said: Have you not heard

have you not heard

that

which

Rav Yosef bar Hama said in the name of Rabbi Oshaya!?

For Rav Yosef bar Hama said in the name of Rabbi Oshaya: A minor who seized his slaves,

who took his slaves with him so that they would assist him [or who seized them and said that they were his]

and descended into his fellow’s field, and said: It is mine! We do not say: Let us wait until he grows up

and meanwhile he will maintain possession of the field

but we remove

the field

from his possession immediately.

And when he grows up, he will bring witnesses, and we shall see

whether it is truly his or not.

It follows that they remove it from the minor’s possession until he grows up and the matter becomes clear; here too, the minor must be removed from the house, and Rabbi Yirmeya will maintain possession of it until he grows up and the matter becomes clear.

And 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

we remove the field from the minor’s possession, because

he does not have an ancestral presumption

he did not have an ancestral presumption concerning this field,

but where he has an ancestral presumption

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

not

do we remove it from him; rather, we wait until he grows up, and then Rabbi Yirmeya will bring his witnesses and litigate with him.

Rav Ashi

said in the name of Rabbi Shabbetai: They accept witnesses not in the presence of the litigant.

Rabbi Yohanan was perplexed by it,

he found the matter difficult:

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

Rabbi Yosei bar Hanina received it from him

from Rav Ashi in the name of Rabbi Shabbetai, that the statement that they accept witnesses not in the presence of the litigant applies only

for example, when he was ill

the claimant who wishes to bring the witnesses was dangerously ill and tending toward death.

Or

when

his witnesses were ill,

in danger, and if not now, when?

Or his witnesses were asking to go overseas, and they sent to him

to the litigant

but he did not come,

in which case they accept the witnesses even not in his presence.

Rav Yehuda said in the name of Shmuel: They accept witnesses not in the presence of the litigant.

Mar Ukva said: For me, it was explained to me by him

by Mar Shmuel

Shmuel explained to me that this applies only

for example, when they opened the matter of his litigation before him

when they had already begun to litigate

and they sent to him

that he should come

but he did not come.

But if they had not opened the matter of his litigation before him,

if they had not yet begun to litigate,

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.

And we raise an objection:

If so, when they also opened the matter of his litigation before him,

also when they had already begun to litigate,

he can say to him,

why should he not be able to say:

“I will go to the Great Court”?

And we answer:

Ravina said: For example, when he holds a writ from the Great Court

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

Rav said: They authenticate a document not in the presence of the litigant

if the witnesses who signed the promissory note wish to go overseas , the lender brings them before the court, and they testify that this is their handwriting, and the court writes at the bottom of the document that they approve and authenticate it.

And Rabbi Yohanan said: They do not authenticate the document not in the presence of the litigant.

Rav Sheshet said to Rabbi Yosei bar Avuha: I shall explain to you Rabbi Yohanan’s reason: The verse says

concerning the goring ox [Exodus 21:29]

“and it was testified against its owner, but he did not guard it”:

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

Since one does not testify concerning a person not in his presence, likewise one does not authenticate the document not in the presence of the litigant.

Rava said: The halakha is: They authenticate the document not in the presence of the litigant.

And even if he stands

the litigant

and cries out

“Do not authenticate it, for it is forged,” they do not heed him and authenticate the document 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 document’s authenticity,

we set a time for him,

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

If he comes, he comes;

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

If he does not come,

if he does not come,

we wait for him on Monday, Thursday, and Monday,

we wait for him for another Monday, Thursday, and Monday.

If he does not come,

if he still does not come afterward,

we write a writ of excommunication against him

we write against him a writ of excommunication because he is not paying the debt, and he remains under excommunication for

ninety days.

And throughout all that time we do not descend upon his property, for these reasons:

The first thirty,

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 and borrow

perhaps he is exerting himself to find a loan in order to pay the debt.

The middle,

the middle thirty days,

we likewise do not descend upon his property

because

perhaps, perhaps, he did not find someone from whom to borrow

perhaps he did not find someone who would lend him

and he is exerting himself and selling

and he is exerting himself to sell his property.

The last,

the last 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 exerting himself to obtain money.

He did not come.

If he did not come at the end of the ninety days, they release him from the excommunication and

we write an adrakhta

on his property.

They write against him a writ of judgment stating that the lender is entitled to descend upon his property and take it for the debt, and they give the writ to the lender.

And these matters

that they wait for him all this time

apply when he says, “I am coming,”

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

but

if

he said, “I am not coming,”

I do not wish to come to court,

immediately we write

we immediately write the adrakhta.

And these matters

that they wait

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

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

immediately we write

the adrakhta on the depositary’s property.

And when we write

the adrakhta, do we write it only

on land

on the borrower’s land?

But on movable property

belonging to the borrower,

not

do we write an adrakhta so that the lender may collect from it.

Perhaps the lender will take and consume the movable property.

Perhaps the lender will consume the movable property,

and when the borrower comes and brings witnesses and invalidates 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.

And if the lender has land,

if the lender has land,

we write

an adrakhta even on the borrower’s movable property, since if the movable property is consumed, the borrower will collect from the land.

And we conclude:

It is not so! We do not write an adrakhta on movable property!

And

even though he has land

the lender

we are concerned that it may deteriorate,

perhaps the lender’s land will become barren and its value will decrease, and the borrower will not be able to collect from it.

And when we write an adrakhta, we inform him

we inform the borrower that they wrote an adrakhta concerning his property.

And these matters apply when he is nearby,

when the borrower is 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 far away

and there are relatives,

he has relatives here who remain in contact with him,

or alternatively, there is a caravan that goes and comes there,

there are caravans going there and returning from there,

we delay it for twelve months of the year.

we wait with the adrakhta for twelve months

until the caravan goes and comes,

until the caravan reaches there and returns, and in the meantime they will inform the borrower of the adrakhta that the court wishes to issue against him.

For this is like that incident involving Ravina, who waited for Mar Aḥa:

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

twelve months, until the caravan went and returned from Bei Ḥuzai,

until the caravans would have time to return from Bei Ḥuzai, where the borrower was.

And we reject this:

It is not so!

There is no proof from Ravina’s incident, for

there he was a powerful man.

Mar Aḥa was a powerful man, and

if the adrakhta had reached his hand,

if he had received the adrakhta into his hand and collected from the borrower’s property,

it would not have been possible to take it out of him,

it would no longer have been possible to take the property from him in the event that the borrower succeeded in proving that the debt document was invalid and that he owed him nothing. Therefore Ravina waited for the borrower until he would be informed.

But here,

in the case of an ordinary lender,

we do not wait for him.

We do not wait with the adrakhta even if caravans are commonly found at the place where the borrower is,

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

only if he is located at a distance of one day from here, in which case the court sends him a messenger to inform him on Tuesday [since presumably they judged him on Monday, for the court 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 stands for his judgment.

And on Thursday he stands for judgment concerning the matter of the adrakhta.

Ravina said: This messenger of the Sages,

a court messenger who went to summon a person to a Torah judgment and returned and said to the court that he did not want to come,

we deem him reliable as two witnesses,

the messenger is deemed reliable concerning this like two witnesses, for presumably he will not lie before the court.

And this matter applies

that the messenger is deemed reliable

for excommunication,

only to excommunicate him orally.

But for a writ of excommunication,

to write a writ of excommunication against him,

since it causes him monetary loss,

for through his testimony he causes monetary damage to the borrower,

as he must give money to the scribe

for when they release the excommunication, the borrower must first pay the fee of the scribe who wrote the writ of excommunication,

no.

The court messenger is not deemed reliable concerning this, for a single witness is not deemed reliable to cause a person monetary loss.

Ravina said: We assign a date through the mouth of a woman.

The court may summon a person to judgment for a particular day through a woman who happens to be going there,

and through the mouth of neighbors,

or through his neighbors. And we rely upon them to carry out their agency. And if he does not come to judgment, they excommunicate him on the basis of this summons.

And we said this

that we rely upon their agency

only when he is not in the city,

when that person is not presently in the city where the court is located, and the court messenger tells his neighbors that when he returns to his home they should inform him of the matter of the summons.