Bava Metzia 7a — the Talmud in English

Rather—

necessarily—

what can you say?

That an animal whose obligation to be tithed is uncertain is exempt by virtue of its being uncertain! And therefore, there is no obligation to tithe it in any event, for only one who is

certainly

the tenth, says the Merciful One,

must be tithed,

but not

one who is

possibly the tenth; and here, anyone who emerges tenth from the pen is not certainly the tenth, because perhaps the exempt one emerged among the ten lambs and is not included in the count, and it turns out that he is not the tenth but the ninth!

And if so, Abaye argues,

here too,

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

certainly the tenth, says the Merciful One,

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

but not one who is possibly the tenth.

For here we have uncertainty whether the doubtful lamb is indeed a redemption of a firstborn donkey and belongs to the priest, in which case it is not joined with the nine lambs. And it follows that the tenth emerging from the pen is uncertainly subject to the animal tithe and uncertainly not subject to the animal tithe, and if it does not become consecrated at all with the sanctity of the animal tithe.

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

And therefore, Rabbah properly proved from the law that the doubtful redemptions of a firstborn donkey enter the pen to be tithed, since the priest has no basis of acquisition in them; rather, we say: “If the priest seizes it, we remove it from his possession,” and the Israelite does not exempt his property with the property of a priest.

And now the Gemara returns to discuss the words 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 uncertain firstborn animals is the Mishna discussing?

If you say uncertain firstborn animals

themselves, referring to offspring of pure animals, where it is uncertain whether they were born as firstborn or whether earlier births preceded them.

That cannot be: they cannot enter the pen to be tithed with the animal tithe.

For “the tenth

shall be holy”

says the Merciful One.

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 the tithe who

already

was

consecrated

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

an uncertain redemption of a firstborn donkey.

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.

And since such a lamb certainly belongs to the Israelite, it enters the pen to be tithed with the animal tithe,

as in the ruling of Rav Naḥman.

For Rav Naḥman said in the name of Rabbah 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 one who seeks to extract property from his fellow. Only the tenth is an animal-tithe offering, and he offers it and eats it.

And now, after Rabbah rejected Rav Hamnuna’s proof to resolve the uncertainty concerning the bathhouse—from the Mishna concerning an uncertain firstborn animal, which is prohibited for shearing and labor—and after Rav Ḥananya assisted Rabbah—from the Mishna that doubtful cases enter the pen to be tithed—the Gemara returns to discuss what became of the question concerning the bathhouse:

What conclusion was reached concerning the bathhouse?

What is the resolution of the problem whether it is permitted to bathe in this bathhouse, over which two people make claims of ownership, and one of them consecrated it?

Come and hear,

come and hear a proof to resolve the uncertainty, from that

which

Rabbi

Ḥiyya bar Avin said:

There was an incident;

such an incident occurred, and such a question was brought,

before

before

Rav Ḥisda,

and Rav Ḥisda brought this question

before

before

Rav Huna.

And he resolved it—

Rav Huna resolved this question—

from this,

from the principle

that Rav Naḥman said: Any property that

the claimant to ownership of it

cannot extract through the courts,

because he has no proof of his ownership of it, if he

consecrated it—

it is not consecrated!

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

That is, Rav Huna resolved the uncertainty concerning the bathhouse from Rav Naḥman’s principle, even in a situation in which the object is not stolen, and even when the consecrator has the right to seize it—in this case, under the rule that whoever is stronger prevails—and even when it concerns land, which in every matter stands in the possession of its owner, even if another stole it and is dwelling in it. Nevertheless, he cannot consecrate it, because of the deficiency that he cannot extract it through the courts, which renders it as though it is “not in his possession.”

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

For without his words, one might have said that where the consecrator has the right to seize the object, and is considered to be holding it—as in the case of two holding a garment, where he holds one side of the garment, or as in the case of one consecrating land, which everywhere is presumed to be held by its owner—he can indeed consecrate it, as Rabbi Zeira assumed as one side of the uncertainty above. And Rav Naḥman stated his principle only in a case where he is not considered to be holding the object, such as movable property in a bathhouse that was not stolen; and likewise, since the object contains no acquisitions of theft, Rabbi Yoḥanan’s principle does not apply, but only Rav Naḥman’s principle.

And from now, according to Rav Huna’s understanding of Rav Naḥman’s principle, Rabbi Zeira’s uncertainty at the beginning of the sugya is also resolved: even when two are holding a garment, neither of them can consecrate it, despite having the right to seize it—when the other is silent and ultimately cries out—and holding the side of the garment, since it is property that one cannot extract through the courts.

But 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. And therefore the Gemara also assumed that Rav Huna resolved from Rav Naḥman’s words two laws, in both directions:

One: any property that one can extract through the courts, its owner can consecrate, and even the person from whom it was stolen can consecrate the stolen object before it has been extracted from the robber’s possession, since he has proofs of his ownership.

And the second: property that one cannot extract through the courts, its owners cannot consecrate, even if it is not currently in the robber’s possession, and even if no other person is holding it at all, as in the case of the bathhouse, where neither person is holding it, and even if he has the right to seize it under the rule that whoever is stronger prevails, and even if it concerns land, which is considered to be in the possession of its owners everywhere, even if another stole it and is dwelling in it, since he cannot extract his property through the courts.

And according to this assumption, the Gemara raises a difficulty concerning the first law:

It follows that

in this case,

if the person from whom it was stolen

could extract it—

this property—

through the courts,

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

his consecration would be effective,

even though

it had still

not been extracted,

for 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 implies that Rav Huna resolved the problem from Rav Naḥman’s principle in both directions, saying that everything depends on the consecrator’s ability to extract it through the courts: if he can extract it through the courts, the consecration takes effect immediately, even before he extracts it; and if he cannot extract it, the consecration does not take effect.

But it is impossible to say that if he can extract it through the courts, the consecration takes effect even when he has not extracted it:

For Rabbi Yoḥanan said:

One who

stole

property from his fellow,

and the owners did not despair

of the stolen object,

neither of them can consecrate it,

neither the owner nor the robber.

This one,

the robber, cannot consecrate it because

the

stolen property

is not his.

And this one,

the person from whom it was stolen, cannot consecrate it

because it is not in his possession.

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

And concerning this difficulty, the Gemara answers:

Do you think that we are dealing with movable property in a bathhouse,

such as a basin in which people bathe, which it is possible to steal, and that Rav Huna came to resolve from Rav Naḥman’s words that even if one of them stole it from the other, the latter can consecrate it if he had proof, since it is property that one can extract through the courts—and therefore you raised a difficulty from Rabbi Yoḥanan’s words?! It is not so.

Rather, here

we are dealing with land in a bathhouse,

a bathhouse built upon land, and it is not subject to theft, because land cannot be stolen, since even when a robber is dwelling in it, it is considered to be present in the possession of its owner. And concerning such a bathhouse, Rav Huna properly resolved from Rav Naḥman’s words the other side as well,

for when

the owner

can extract it through the courts,

he can consecrate it even if the other seized it and took possession of it, since

in the possession

of its true owner, who has proofs, it

stands!

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

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

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 the courts is not consecrated. Nevertheless, he was uncertain in the case of two holding a garment, because perhaps the right of seizure—when the other is silent and afterward cries out—when he is holding the side of the garment, means that there is no deficiency of its being not in his possession.

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

C. The Gemara brings the problem of the bathhouse, which one of the two claimants to its ownership consecrated, and where there is a right of seizure under the rule that whoever is stronger prevails, and there is uncertainty whether the consecration takes effect.

And the Gemara attempts to resolve the problem of the bathhouse from the law of the sanctity of an uncertain firstborn animal, on the assumption that the firstborn’s sanctity derives from the priest’s right to seize it from the Israelite—when the Israelite is silent and ultimately cries out.

D. The Gemara rejects this, saying that the firstborn’s sanctity comes automatically and does not depend on the priest’s right to seize it; and likewise the Gemara proves the principle that “if the priest seizes it, we remove it from his possession.”

E. Finally, the Gemara brings the resolution of the problem from Rav Huna’s words. He holds that Rav Naḥman’s principle—that all property which one cannot extract through the courts cannot be consecrated—applies also to a bathhouse, despite having the right to seize it, and even to land in a bathhouse, which is considered to be in the possession of its owners.

And according to him, also in Rabbi Zeira’s case, he cannot consecrate it, since he cannot extract it through the courts.

Rav Taḥlifa bar Ma’arava taught before Rabbi

Abbahu: Two

who were

clinging to a garment,

holding it with their hands,

this one takes up to the place his hand reaches, and this one takes up to the place his hand reaches, and the remainder they divide equally.

He indicated to him—

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

Rabbi Abbahu

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

“and with an oath,”

for the division is only when they take oaths, as explained in our Mishna.

But the Gemara is astonished at what Rav Taḥlifa taught, that each one takes up to the place his hand reaches:

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 up to the place his hand reaches”—how can you find this?

Rav Pappa said:

Our Mishna is speaking in a case such as

where they are holding the fringe,

the threads of the weave extending from the garment at its edge, so that they are not holding the garment itself.

Rav Mesharsheya said: Infer from this

from what Rav Taḥlifa taught, “This one takes up to the place his hand reaches”: Its meaning is that an object placed in a person’s hands belongs to him, even if another person holds the other part of that same object. Similarly, with regard to an acquisition through barter, which is performed by the buyer giving a cloth to the transferor, it is sufficient for the transferor to seize part of the cloth in his hands for that part to be considered already received by the transferor from the buyer, and thereby the object that he wishes to transfer is acquired by the buyer; the transferor need not seize the entire cloth.

And therefore,

this cloth,

the “cloth”—a garment or small piece of fabric, like a scarf—used for an acquisition through barter, if the buyer extended the cloth to the transferor so that, through the transferor’s pulling it, the buyer would acquire the transferor’s object,

since he holds it—

the transferor holds part of the cloth—of the measure of

three

fingers

by three

fingers, which is the measure fit to be called a garment in its own right,

we apply to it

the words of the verse stated in the Scroll of Ruth concerning acquisition through barter,

“and he gave it to his fellow,”

because

the

part of the cloth held in his hand 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 cloth, and thereby he transfers the object that the buyer is acquiring from him.

But the Gemara asks:

And in what way is

this law different

from that of Rav Hisda?

For Rav Hisda said: If one gives a bill of divorce to his wife, and a cord was tied to the bill of divorce, and he gave the bill of divorce to the woman, but

the

bill of divorce is in her hand and the cord [the other end of the cord]

the other end of the string ]

is in his hand

of the husband, then

if

the cord was sufficiently strong so that

the husband can

pull the cord forcefully and

tear it away

from the woman’s hand,

and bring it to himself,

then she

is not divorced.

But if not,

if the cord was not sufficiently strong for the husband to pull the bill of divorce from the woman, then she

is divorced.

And the Gemara assumed that she is not divorced when the husband can pull the bill of divorce toward himself because it is stated regarding the giving of the bill of divorce: “And he placed it in her hand.” And the Gemara proves that as long as the giver retains the ability to pull the object being given toward himself, this is not “giving.” Therefore it asks: Why, regarding the giving of the cloth, is the matter considered giving, even though the giver can pull it toward himself!?

And the Gemara distinguishes:

There,

with a bill of divorce, the deficiency is not in the giving; rather, the deficiency there is because

“severance” is required,

the giving of the bill of divorce must be in a manner of complete separation between the husband and the wife,

and there is none!

If the husband can pull the bill of divorce toward himself, there is not complete separation between them.

Here,

regarding the cloth,

giving is required, and there is giving.

Rava said:

Two who were holding a tallit, even

if it was a gold-embroidered tallit, they divide it

equally.

And the Gemara asks:

Is this not obvious!?

And it answers:

It is necessary 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 portion equally, even though this tallit is not divided completely equally, for each one receives for himself the portion to which he is attached, and only the portion to which they are not attached is divided between them.

But the Gemara asks:

Is this too not obvious!?

For the portion to which they are not attached is divided equally!

And we answer:

It is necessary where

the gold-embroidered portion is

near one of them.

Lest you say, he says to him—the one who is attached to the tallit near the gold-embroidered portion says to the other:

“

Divide it in this manner,”

the tallit should be divided across its width, and I am entitled to receive the gold-embroidered portion that is near me.

It teaches us that the other says to him:

“The other”:

Why do you see fit to divide it in this manner,

across its width?

Divide it in this manner,

along its length, and the gold will be divided between both of us.

The Sages taught: Two

who were

attached to a promissory note

—the creditor and the debtor.

The creditor says: It is mine, and 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 promissory note shall be upheld by its signatures; these are the words of Rabbi.

And the Gemara assumed that his intention is to say that if witnesses come and authenticate the signatures on the document, and they say, “These are our signatures,” then the document retains its presumptive status as a valid promissory note with which one can collect, for it has not yet been repaid.

Rabban Shimon ben Gamliel: They divide.

If it fell into the hand of a judge, [

later the Gemara will explain that the intention is that it contains the confirmation of a court regarding the validity of the signatures],

they shall not collect with it ever.

Rabbi Yosei says: It retains its presumptive status

as a promissory note that has not been repaid, and the creditor collects with it.

The Master said,

Rabbi said in the beraita:

The promissory note shall be upheld by its signatures.

And the Gemara asks:

And

does

the creditor collect the entire amount

of all the debt written in the promissory note!?

And does he not have,

does Rabbi not hold that which is stated in the

Mishna: “Two holding

a tallit shall divide”!? And we answer:

Rava said that Rav Naḥman said:

Indeed,

with

a

authenticated

promissory note, containing the confirmation of a court regarding the signatures,

everyone agrees: They divide,

as in our Mishna.

They disagree in a case where it is not authenticated.

Rabbi holds that

if

the debtor admits

to the

promissory note that he wrote,

the creditor

still must authenticate it,

and as long as he does not authenticate it, the debtor is believed to claim that it has been repaid, as the Gemara will explain below as his reason.

And if he authenticates it, they divide,

and therefore here, where both are holding it, the creditor and the debtor divide the amount of the debt, according to the law of two holding a tallit. Since the promissory note has been authenticated, the debtor is no longer believed to claim that it has been repaid; but, 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 promissory note,

they do not divide,

the creditor does not gain half the debt; rather, the debtor is believed to claim that it has been repaid.

And the Gemara explains [a special explanation here, as explained in the note] why the creditor does not merit 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 a potsherd

merely

.

Who makes this document

a valid document? —

The debtor.

And the debtor

has said: “It has been paid!” [

And he is trusted by virtue of the principle, “The mouth that prohibited is the mouth that permitted,” as explained in the note].

And Rabbi Shimon ben Gamliel holds: One who admits the document that he wrote need not

the creditor

authenticate it,

for according to his view, the trustworthiness of “the mouth that prohibited” possessed by the debtor cannot overcome the force of the document possessed by the creditor, because once the document has been authenticated by the debtor, the creditor has witnesses concerning the debt written in it, and no trustworthiness can overcome the testimony of witnesses.

And

therefore, here, where both are holding the document,

even though it has not been authenticated, they divide.

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

If it fell into the hand of a judge, they shall not take it out ever.