Bava Metzia 7a (ז.) — the Talmud in English

Rather:

necessarily,

what can you say?

That a doubtful animal subject to the obligation of tithe is exempt because it is doubtful? Therefore, there is no obligation to tithe it in any event, since only one who is

definitely

tenth, the Merciful One said

must be tithed,

but not

one who is

doubtfully tenth. Here, every animal that emerges tenth from the pen is not definitely the tenth, since perhaps the exempt animal emerged among the ten lambs and is not included in the count, in which case the animal is not the tenth but the ninth!

And if so, Abaye argues,

here too,

with regard to the doubtful redemption of a firstborn donkey, where I established the case as one in which there are nine lambs subject to the animal tithe and the tenth is a doubtful redemption of a firstborn donkey, there is no obligation of tithing at all. This is because the tenth animal cannot become consecrated, since only the one who emerges

definitely tenth, the Merciful One said,

becomes consecrated with the sanctity of an animal-tithe offering,

but not a doubtful tenth.

For here there is doubt whether the doubtful lamb is in fact the redemption of a firstborn donkey, in which case it belongs to the kohen and is not counted together with the nine lambs. It follows that the tenth animal to emerge from the pen is doubtfully subject to the animal tithe and doubtfully not subject to it, and if it does not become consecrated at all with the sanctity of an animal tithe,

therefore, one cannot say that it should be tithed in any event, since wherever there is doubt, there is no obligation of animal tithe at all.

Therefore, Rabba properly demonstrated from the ruling that doubtful redemptions of firstborn donkeys enter the pen to be tithed, since the kohen has no claim of ownership over them at all; rather, we say: “When the kohen seizes it, it is taken from him,” and the Israelite does not exempt his property by means of property belonging to a kohen.

The Gemara now returns to discuss the statement of the Mishna in tractate Tohorot, that doubtful cases enter the pen to be tithed.

Rav Aḥa of Difti said to Ravina:

What are the

“doubtful cases”?

Which doubtful firstborn does the Mishna address?

If you say it refers to doubtful firstborn

themselves—that is, offspring of kosher animals concerning which there is doubt whether they were born as firstborn or whether earlier offspring had preceded them—

it is impossible that they should enter the pen to be tithed with the animal tithe.

For “the tenth

shall be holy,”

the Merciful One said. This means that the animal that now, at the time it is designated as animal tithe, becomes consecrated for the first time with the sanctity of an offering is fit to become animal tithe,

That is, one who now, at the time he is designated for the animal tithe, becomes consecrated with sanctity of an offering for the first time is fit to become an animal tithe,

but not one who is consecrated with the sanctity of an offering and

one who is consecrated with the sanctity of the tithe who

already

was

consecrated with the sanctity of an offering. For example, a firstborn, which is already consecrated from the moment of its birth, cannot have an additional sanctity of an animal-tithe offering imposed upon it.

with the sanctity of an offering. For example, a firstborn animal, which is already consecrated from the time it is born, cannot have an additional sanctity of an animal-tithe offering imposed upon it.

Rather,

necessarily, this refers to a lamb that is a

doubtful redemption of a firstborn donkey. That is, an Israelite had a doubtful firstborn donkey and redeemed it with a lamb in order to remove its sanctity; since the lamb itself has no sanctity whatsoever, because of the doubt it remains in the Israelite’s possession.

That is, an Israelite had a doubtful firstborn donkey, and he redeemed it with a lamb in order to remove its sanctity from it, and this lamb has no sanctity whatsoever; therefore, because of the uncertainty, it remains in the possession of the Israelite.

Such a lamb, since it is certainly the property of an Israelite, enters the pen to be tithed with the animal tithe,

as in the ruling of Rav Naḥman.

As Rav Naḥman said in the name of Rabba bar Avuha: An Israelite who has ten doubtful firstborn donkeys in his house sets aside ten lambs for them,

in order to remove their doubtful sanctity and permit them for shearing and labor,

and tithes them

with the animal tithe,

and they are

all

his,

because the burden of proof rests upon the claimant. However, the tenth is an animal-tithe offering, and he offers it and eats it.

Now, after Rabba rejected Rav Hamnuna’s proof for resolving the question concerning the bathhouse from the Mishna dealing with doubtful firstborn, which are prohibited for shearing and labor, and after Rav Ḥananya supported Rabba from the Mishna stating that doubtful cases enter the pen to be tithed, the Gemara returns to discuss what conclusion was reached regarding the question they had raised about the bathhouse:

What conclusion was reached concerning the bathhouse?

What is the resolution of the question whether it is permitted to bathe in this bathhouse, which two people claim as their property, and one of them consecrated it?

Come and hear,

come and hear a proof for resolving the question, from that

which

Rabbi

Ḥiyya bar Avin said:

There was an incident:

an incident of this kind occurred, and such a question was brought

before

before

Rav Ḥisda,

and Rav Ḥisda brought this question

before

before

Rav Huna.

And he resolved

Rav Huna resolved this question

from this,

from the principle

that Rav Naḥman said: Any property whose

claimant to ownership

cannot extract it through a court,

because he has no proof of his ownership, if he

consecrated it—

it is not consecrated!

Here, since neither of the two has any proof of ownership of the bathhouse, neither of them can consecrate it!

That is, Rav Huna resolved the question concerning the bathhouse from Rav Naḥman’s principle even in a situation where the object is not stolen, where the consecrator has the right to seize it—in this case, under the rule that whoever is stronger prevails—and where the object is real estate, which in every respect remains presumed to be in the possession of its owner, even if it was stolen by another person who is residing there. Nevertheless, he cannot consecrate it, because he cannot extract it through a court, which gives it the status of something that is “not in his possession.”

This understanding of Rav Naḥman’s principle is Rav Huna’s innovation.

For had he not said this, one might have maintained that wherever the consecrator has the right to seize the object and is considered to be holding it—such as in the case of two people holding a garment, where each holds one side of it, or in the case of one who consecrates real estate, which everywhere is presumed to be held by its owner—he can indeed consecrate it, as Rabbi Zeira posited as one side of the question above. Rav Naḥman stated his principle only in a case where the person is not considered to be holding the object, such as a movable bathhouse that was not stolen;

and likewise, since the object does not have the legal features of stolen property, Rabbi Yoḥanan’s principle does not apply, but only Rav Naḥman’s principle does. From now, according to Rav Huna’s understanding of Rav Naḥman’s principle, Rabbi Zeira’s question at the beginning of the sugya is also resolved: even when two people are holding a garment, neither of them can consecrate it, despite having the right to seize it—when the other remains silent and ultimately protests—and despite holding the side of the garment, since it is property that one cannot extract through a court.

The Gemara now assumed that Rav Naḥman’s principle is that the definition of “not in his possession” depends solely on the owner’s ability to bring proof of his ownership. Therefore, the Gemara also assumed that Rav Huna derived two laws from Rav Naḥman’s statement, corresponding to both sides:

First, any property that one can extract through a court may be consecrated by its owner. Even a person from whom property was stolen may consecrate the stolen object before it has been taken from the thief, since he has proof of his ownership.

Second, property that one cannot extract through a court may not be consecrated by its owner, even if it is not currently in the thief’s possession, and even if no other person is holding it at all, as in the case of the bathhouse, which no one is holding; even if he has the right to seize it under the rule that whoever is stronger prevails; and even if it is real estate, which is considered to remain in the possession of its owner everywhere, even if another person stole it and is residing there—since he cannot extract his property through a court.

According to this assumption, the Gemara raises an objection concerning the first law:

It would appear that

here,

if the person from whom the object was stolen

could extract it

as property

through a court,

because he had proof of his ownership, and he consecrated it,

his consecration would take effect,

even though

it

had not yet been taken out

—he had not yet gone to court and extracted it—nevertheless his consecration would take effect!?

For, as stated, Rabbi Ḥiyya bar Avin’s wording indicates that Rav Huna resolved the question from Rav Naḥman’s principle in both directions, saying that everything depends on the consecrator’s ability to extract the object through a court: if he can extract it through a court, the consecration takes effect immediately, before he has extracted it; and if he cannot extract it, the consecration does not take effect.

Yet it is impossible to say that if one can extract the object through a court, the consecration takes effect even when he has not extracted it:

But Rabbi Yoḥanan said:

One who

stole

property from another,

and the owners did not despair of recovering it

from the stolen object,

neither of them can consecrate it—

neither the owner nor the thief.

This one,

the thief, cannot consecrate it because

the

stolen property

is not his.

And this one,

the victim of the theft, cannot consecrate it

because it is not in his possession.

Ordinarily, in a case of theft, the owner has proof that the object belongs to him and can extract it through a court. Nevertheless, Rabbi Yoḥanan said that he cannot consecrate it, because a stolen object is considered “not in his possession”; therefore he cannot consecrate it even if he has proof of ownership and can extract it through a court.

And the Gemara answers this objection:

Do you maintain that we are dealing with movable property in the case of the bathhouse,

such as a tub in which people bathe, which can be stolen, and that Rav Huna came to derive from Rav Naḥman’s statement that even if one of them stole it from the other, the latter could consecrate it if he had proof, since it is property that one can extract through a court—and therefore you raised an objection from Rabbi Yoḥanan’s statement? It is not so.

Rather, here,

we are dealing with real estate in the case of the bathhouse,

a bathhouse built on the ground, which cannot be stolen, since land is not subject to theft: even when a thief is residing on it, it is considered to be in the possession of its owner. And concerning such a bathhouse, Rav Huna properly derived both sides from Rav Naḥman’s statement:

when he can

the owner

extract it through a court,

he can consecrate it even if the other person seized it and is holding it, since

it remains in his possession,

that of the true owner, who has proof,

it remains!

Summary of the sugya of “When the kohen seizes it,” according to Rashi’s method.

A. Rabbi Zeira was uncertain whether, when two people are holding a garment, one of them can consecrate it by virtue of his right to seize it—for example, when the other remains silent and ultimately protests.

B. Rabbi Zeira knew Rabbi Yoḥanan’s two principles: that a person from whom an object was stolen cannot consecrate something that is not in his possession, and that property which one cannot extract through a court is not consecrated. Nevertheless, he was uncertain in the case of two people holding a garment, because perhaps the right to seize it—when the other remains silent and then protests—when he is holding the side of the garment, means that the deficiency of “not in his possession” does not apply here.

And Rabbi Zeira derived the other side—that nevertheless it is not in his possession—from the exposition of the verse, “And if a man consecrates his house as holy,” whereas Rabbi Yoḥanan and Rav Naḥman stated their two principles based on logical reasoning!

C. The Gemara presents the question concerning the bathhouse, which one of the two claimants to ownership consecrated; there is a right of seizure under the rule that whoever is stronger prevails, and it is uncertain whether the consecration takes effect.

The Gemara attempts to resolve the question concerning the bathhouse from the law of the sanctity of a doubtful firstborn, based on the assumption that the firstborn’s sanctity derives from the kohen’s right to seize it from the Israelite—when the Israelite remains silent and ultimately protests.

D. The Gemara rejects this, saying that the sanctity of a firstborn takes effect automatically and does not depend on the kohen’s right to seize it. Likewise, the Gemara demonstrates the principle that “when the kohen seizes it, it is taken from him.”

E. Finally, the Gemara brings the resolution of the question from Rav Huna’s statement. He holds that Rav Naḥman’s principle—that property which one cannot extract through a court cannot be consecrated—also applies to the bathhouse, despite the right to seize it, and even to a bathhouse that is real estate, which remains in the possession of its owner.

According to him, even in Rabbi Zeira’s case, one cannot consecrate it, since one cannot extract it through a court.

Rav Taḥlifa bar Ma'arava taught the following before Rabbi

Abbahu: Two

who were

clinging to a garment,

holding it in their hands:

This one takes possession up to the place reached by his hand, and this one takes possession up to the place reached by his hand, and they divide the remainder equally.

He gestured to him

he showed him—that is, he hinted to him—

Rabbi Abbahu

upward with his fingers, indicating that he should add and say:

“and with an oath,”

since the division applies only when they take oaths, as explained in our Mishna.

The Gemara, however, raises a difficulty concerning Rav Taḥlifa’s teaching that each one takes possession up to the place reached by his hand:

Rather, our Mishna,

our Mishna,

which teaches

in it

that they divide it between themselves,

that they divide the garment equally,

and it does not teach

in it,

“This one takes possession up to the place reached by his hand”—how can you find such a case?

Rav Pappa said:

Our Mishna is speaking of a case in which

they are holding the warp threads,

the threads of the weave extending from the edge of the garment, rather than holding the garment itself.

Rav Mesharsheya said: Infer from this

from Rav Taḥlifa’s teaching, “This one takes possession up to the place reached by his hand,” that its implication is that an object placed in a person’s hand belongs to him even if another person is holding another part of that same object. Similarly, with regard to an acquisition through exchange, which is effected by the buyer giving a sudar to the seller, it is sufficient for the seller to hold part of the sudar in his hand for it to be considered that the seller has already received that part from the buyer, thereby effecting acquisition of the object that he wishes to transfer to the buyer; the seller need not hold the entire sudar.

Therefore,

this sudar,

the “sudar”—a small garment or piece of fabric, such as a kerchief—used for an acquisition through exchange, when the buyer extends the sudar to the seller so that, by the seller’s pulling it, the buyer will acquire the seller’s object,

since he holds it

the seller holds part of the sudar, measuring

three

fingerbreadths

by three

fingerbreadths—a measure fit to be called a garment in its own right—

we apply to it

the wording of the verse stated in the Scroll of Ruth concerning acquisition through exchange,

“and he gave it to his fellow,”

because

this

part of the sudar that he is holding,

is considered as though it were cut off,

as though it had been cut from the garment, with regard to his ownership of that part,

and he acquires

the seller acquires the sudar, and thereby transfers the object that the buyer is acquiring from him.

But the Gemara raises a difficulty:

And in what way is this different

this ruling

from the ruling of Rav Ḥisda?

For Rav Ḥisda said:

One who gives a bill of divorce to his wife, when a string is tied to the bill of divorce, and he gives the bill of divorce to the woman, but

the bill of divorce is in her hand and the string [

the other end of the string ]

is in his

hand, that of the husband, then

if

the string is sufficiently strong that

the husband can

pull the string forcefully and

detach it

from the woman's hand

and bring it to himself,

then she

is not divorced.

But if not,

if the string was not strong enough for the husband to pull the bill of divorce from the woman, then she is

divorced.

The Gemara assumed that she is not divorced when the husband can pull the bill of divorce toward himself because, with regard to the giving of a bill of divorce, it is stated: “And he shall place it in her hand.” The Gemara infers that as long as the giver has the ability to pull the object being given back to himself, this is not a giving. Therefore it asks: Why, with regard to the giving of the cloth, is the matter considered a giving, even though the giver can pull it toward himself?

The Gemara distinguishes:

There,

with regard to a bill of divorce, the deficiency is not in the giving itself. Rather, the deficiency is that

“severance” is required,

the giving of the bill of divorce must effect a complete separation between the husband and the woman,

and there is none!

If the husband can pull the bill of divorce toward himself, there is no complete separation between them.

Here,

with regard to the cloth,

a giving is required, and there is one.

Rava said:

If two people were holding a tallit, even

if the tallit were gold-embroidered, they divide it

equally.

The Gemara raises a difficulty:

Isn't this obvious!?

It answers:

No, it is necessary in a case where the gold is located in the middle.

The gold is found in the middle of the tallit, and nevertheless they divide the gold-embroidered section equally, even though this tallit is not divided completely equally: each one receives for himself the part he is holding, and only the part that neither of them is holding is divided between them.

But the Gemara raises a difficulty:

Is this too not obvious!?

For the part that neither of them is holding is divided equally!

And we answer:

No, it is necessary in a case where

the gold-embroidered section is

near one of them.

Lest you say that he said to him—the one holding the tallit near the gold-embroidered section says to the other:

“To the other”:

Divide it this way,

divide the tallit across its width, and I am entitled to receive the gold-embroidered section that is close to me.

It teaches us that the other says to him:

“The other”:

What did you see that made you divide it this way,

across its width?

Divide it this way,

lengthwise, and the gold will be divided between the two of us.

The Sages taught: Two people who were holding

a

debt document

—the creditor and the debtor.

The creditor says: It is mine, it fell from me, and I found it,

and you have still not repaid your debt.

And the debtor said: It is mine, and I repaid it to you,

and therefore you returned it to me, and it fell from me—

The document shall be upheld by its signatures; this is the statement of Rabbi.

The Gemara assumed that Rabbi means that if witnesses come and authenticate the signatures on the document, saying, “These are our signatures,” then the document retains its presumptive status as a valid document with which the creditor may collect, since the debt has not yet been repaid.

Rabban Shimon ben Gamliel: They divide it.

If it fell into the hands of a judge, [

the Gemara will explain below that this means that it contains an attestation by the court confirming the authenticity of the signatures ],

they shall never bring it out.

Rabbi Yosei says: It retains its presumptive status

as a document whose debt has not been repaid, and the creditor collects with it.

The Master said,

Rabbi said in the baraita:

The document shall be upheld by its signatures.

The Gemara raises a difficulty:

And

does the

creditor collect the entire amount

of the debt written in the document!?

And does he not have,

does Rabbi not accept what is stated in the

Mishna: “Two people holding

a tallit divide it”!? And we answer:

Rava said that Rav Naḥman said:

Indeed,

in a

document that is

authenticated,

one containing a court attestation of the signatures,

everyone agrees that they divide it,

in accordance with our Mishna.

They disagree in a case where it is not authenticated.

Rabbi holds that

if the

debtor admits

the debt

in the document that he wrote,

the creditor

must still authenticate it,

and as long as he has not authenticated it, the debtor is believed to claim that it was repaid, as the Gemara will explain below as the reason for this.

And if he authenticates it, they divide it,

and therefore, here, since both are holding it, the creditor and the debtor divide the amount of the debt, as in the law of two people holding a tallit. Since the document has been authenticated, the debtor is no longer believed to claim that it was repaid; on the other hand, he is entitled to be exempt from half the debt, since he is holding it and claims that it fell from him.

And if he does not authenticate

the creditor

it,

the document,

they do not divide it;

the creditor does not receive half the debt. Rather, the debtor is believed to claim that it was repaid.

And the Gemara explains [a special explanation here, as clarified in the note] why the lender does not acquire half the debt, despite holding half the document in his hand:

What is the reason?

Since this document, as long as it has not been authenticated,

is merely a

potsherd,

nothing more.

Who makes this document

into a valid document? —

The borrower.

And the borrower

has said that it was paid!

[And he is believed under the principle, “The mouth that prohibited is the mouth that permitted,” as explained in the note].

And Rabban Shimon ben Gamaliel holds: If one admits a document that he wrote, the

lender

need not authenticate it,

because in his view, the credibility of “the mouth that prohibited” possessed by the borrower cannot overcome the force of the document possessed by the lender. For once the document has been established by the borrower, the lender has witnesses concerning the debt written in it, and no credibility can overcome the testimony of witnesses.

And

therefore, here, where both of them are holding the document,

even though it has not been authenticated, they divide.

And the Gemara continues to discuss the words of the beraita:

If it fell into the hands of a judge, they may never produce it.