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Babylonian Talmud: Tractate Baba Bathra

Folio 46a

We must suppose therefore that there were no witnesses, and the ruling stated is that the word of the workman is to be taken;1  since he is able to plead that he has bought it,2  his word is taken as to his payment. — [To which Abaye answers]: No. The case, in fact, is one in which there were no witnesses [to the original transfer], but we suppose that the owner has not seen it [in the hands of the workman].3

R. Nahman b. Isaac raised an objection [against Rabbah's opinion from the following]: A CRAFTSMAN HAS NO HAZAKAH, from which we infer that other persons have hazakah [in such a case]. In what circumstances? If there are witnesses [who saw the article transferred], why have other persons hazakah?4  We must suppose therefore [that the rule applies to the case] where there are no witnesses,5  and yet it is laid down that a craftsman has no hazakah! This refutation of Rabbah is decisive.

Our Rabbis have taught: If a man receives another person's articles [of clothing] instead of his own from the workshop [where they have been sent for repair etc.], he may use them until the other comes and claims them.6  If they have become exchanged in the house of a mourner or at a party he must not use them, [but must keep them on one side] until the other comes and claims them. Why should the ruling in these two cases be different?7  — Rab said: I was sitting before my uncle8  and he said to me, It is no unusual thing for a man to say to the workman, Sell my garment for me.9

R. Hiyya the son of R. Nahman said: This rule holds good only where the workman himself [gave him the coat], but not if it was given him by his wife or his sons.10  And even so he must not use it11  unless the workman says, Here is a garment,' but if he says, 'Here is your garment,' he must not use it, because this is not his garment.

Abaye said to Raba: Come and I will show you a trick of the sharpers of Pumbeditha. A man will say [to his tailor], 'Give me back my cloak [that I gave you to repair].' The other will deny all knowledge of the matter.12  'But,' the owner will say, 'I can bring witnesses [to declare] that they saw it in your possession'. 'That was a different one,' he will reply. The owner will then say to him, 'Bring it out and let us see.' To which he will reply. 'To be sure! I don't bring it out.'13  Raba said to him: That is very clever of him,14  seeing that

To Part b

Original footnotes renumbered. See Structure of the Talmud Files
  1. Where the garment has not yet been returned.
  2. Even though it has been seen in his possession, as Rabbah ruled in the case above.
  3. And therefore no inference can be drawn from this case to the one above.
  4. Seeing that they cannot plead that they bought it, supposing that it is seen in their possession, for if it is not so seen, then the workman also has hazakah.
  5. So that they can plead that they bought it.
  6. Because we assume that the workman gave them to him purposely. V. infra.
  7. Lit., 'Why this difference between the first and latter (clauses)?'
  8. R. Hiyya.
  9. Hence it is possible to suppose that the tailor by mistake sold another man's coat and then gave that other man one to go on with until he should recover it, and since the tailor acted knowingly he may use it.
  10. Because the presumption is that they made a mistake.
  11. Lit., 'we do not say'.
  12. Lit., 'there were no such matters'.
  13. As if to say, 'I refuse to show you someone else's property.' Herein lay the deceit.
  14. Viz., to say that he knows nothing about the matter, and not to plead that he has bought it, since then the fact that it or one like it has been seen In his possession would militate against him. V. Tosaf. s.v. [H]
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Baba Bathra 46b

the rule laid down1  is that the owner must see it [in the hands of the craftsman].2  Said R. Ashi: If he [the owner] is clever, he will procure a sight of it by saying to the tailor, The reason why you are keeping back the coat is because I owe you money, is it not? Why not then bring it out and have it valued so that you can take what is yours and I can take what is mine?3  R. Aha b. R. Awia said to R. Ashi: The tailor can say to him, I do not require your valuation, it has already been valued by the people before you.4

A METAYER HAS NO HAZAKAH. Why so, seeing that at first he took only half [the produce]5  and now [for three years] he has taken the whole?6  — R. Johanan said: We are speaking here of hereditary metayers.7

R. Nahman said: A metayer who instals other metayers8  in his place has hazakah, because a man will not usually allow metayers to be installed in his field and say nothing.

R. Johanan said: A metayer who assigns parts of his field to other metayers9  has no hazakah. Why so? Because we may presume that permission was given him to do so.10

R. Nahman b. R. Hisda sent [an inquiry] to R. Nahman b. Isaac [saying]. Would our teacher [be so good as to] instruct us, whether a metayer can testify [to the title of his employer]11  or not. R. Joseph was sitting before him, and said to him: Samuel has definitely laid down that a metayer may so testify. But it has been taught that he may not testify? — There is no conflict of opinion. In the one case [we suppose] that there is produce on the land, in the other that there is no produce on the land.12

(Mnemonic 'AMaLeK)13 

Our Rabbis taught: A surety may testify on behalf of the borrower,14  provided that the borrower has other land [besides that which is being claimed from him.]15  A lender may testify on behalf of a borrower,14  provided that the borrower has other land [besides that which is being claimed from him].16  A first purchaser may testify on behalf of a second purchaser,17  provided that the latter has other land18  [besides that which is being claimed from him].19

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Original footnotes renumbered. See Structure of the Talmud Files
  1. Supra 45b.
  2. And since he has not seen it (and the witnesses are not sure that the one they saw was the same) he cannot invalidate the other's plea that he knows nothing about it.
  3. I.e., take the coat in payment of the debt and give me the surplus.
  4. And I know it is not worth any more than the sum you owe me.
  5. This being the condition on which the field is transferred to him.
  6. And therefore there is a presumption that he purchased the field.
  7. Who take the whole produce for three or more years and then give the whole to the owners for the same number of years.
  8. And does not himself work with them.
  9. And himself works with them.
  10. And therefore the owner saw no need to raise a protest. This is the rendering of Rashb. The Aruch renders, 'The owner regards him simply as an overseer,' and therefore saw no need to protest.
  11. Supposing that it is contested by a third party.
  12. If there is produce on the land, then if the land is assigned to the claimant the metayer will lose his share in it; hence he is an interested party and must not give evidence on behalf of his employer. If, however, there is no produce on the land, it is a matter of indifference to him to whom the land is assigned, as he will always be able to find employment.
  13. A ='Areb (surety); M = Malveh (lender); L = Loveh (borrower); K = Kablan (go-between).
  14. In regard to land claimed from him by a third party.
  15. Because in that case, even if the land is assigned to the claimant, the borrower will still have land on which the creditor can distrain if he fails to pay his debt, and the surety will not feel himself jeopardised; hence he is not an interested party.
  16. The same reason applies as to the surety.
  17. E.g., if A has sold land to B and then sold other land to C, and C's title is contested by a third party. then B may testify on behalf of C.
  18. I.e., which he has bought from A.
  19. The rule is that if a creditor has a lien upon land which his debtor has sold, he must seize first the land which the debtor has sold last. Hence in this case, if A's creditor is authorised to seize land which he has sold to others, he cannot seize the land sold to B until he has first seized the land sold to C. Hence if more land has been sold to C than that actually claimed from him, B is not an interested party and may give evidence on his behalf. Similarly B may give evidence on behalf of A himself if he possesses other land besides that which is being claimed from him, and the rule might have been stated in the form 'the purchaser may testify on behalf of the seller', etc.
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