Babylonian Talmud: Tractate Baba Bathra

Folio 5a

[One] Ronya had a field which was enclosed on all four sides by fields of Rabina. The latter [fenced them and] said to him: pay me [towards] what I have spent for fencing.¹  He refused to do so. Then pay [towards] the cost of a cheap fence of sticks.²  He again refused. Then pay me the hire of a watchman.³  He still refused. One day Rabina saw Ronya gathering dates, and he said to his metayer: Go and snatch a cluster of dates from him. He went to take them, but Ronya shouted at him, whereupon Rabina said: You show by this⁴  that you are glad of the fence. If it is only goats [you are afraid of], does not your field need guarding? He replied: A goat can be driven off with a shout.⁵  But, he said, don't you require a man to shout at it? He appealed to Raba, who said to him: Go and accept his last offer,⁶  and if not, I will give judgment against you according to R. Huna's interpretation of the ruling of R. Jose.⁷

Ronya bought a field adjoining a field of Rabina. The latter thought he was entitled to eject him in virtue of his right of preemption.⁸  Said R. Safra the son of R. Yeba to Rabina: You know the saying, The hide costs four zuzim, and four are for the tanner.⁹

MISHNAH. IF THE PARTY WALL OF A COURTYARD FALLS IN, EACH OF THE NEIGHBOURS CAN BE COMPELLED BY THE OTHER TO [CONTRIBUTE TO THE COST OF] REBUILDING IT TO A HEIGHT OF FOUR CUBITS.¹⁰  [EACH OF THEM] IS ALWAYS PRESUMED TO HAVE GIVEN HIS SHARE¹¹  UNTIL THE OTHER BRINGS A PROOF THAT HE HAS NOT GIVEN.¹²  FOR REBUILDING HIGHER THAN FOUR CUBITS NEITHER CAN BE COMPELLED [TO CONTRIBUTE]. IF, HOWEVER, [THE ONE WHO HAS NOT CONTRIBUTED]¹³  BUILDS ANOTHER WALL CLOSE TO IT,¹⁴  EVEN THOUGH HE HAS NOT YET PUT A ROOFING OVER THE SPACE BETWEEN, THE [PRO RATA] COST OF THE WHOLE DEVOLVES UPON HIM,¹⁵  AND HE IS PRESUMED NOT TO HAVE GIVEN UNTIL HE ADDUCES PROOF THAT HE HAS GIVEN.¹⁶

GEMARA. Resh Lakish has laid down: If a lender stipulates a date for the repayment of a loan, and the borrower pleads [when the date of payment arrives] that he paid the debt before it fell due, his word is not accepted. Let him only pay when it does fall due! Abaye and Raba, however, both concur in saying that it is not unusual for a man to pay a debt before it falls due; sometimes he happens to have money, and he says to himself, I will go and pay him,

1. According to the ruling of R. Jose as interpreted by R. Huna.
2. According to the same ruling as interpreted by Hiyya b. Rab.
3. According to one version of the opinion of the Rabbis.
4. By the fact that you do not want people to enter your field.
5. [Adopting the reading of the BaH, v. D.S.]
6. Lit., 'appease him with what he is willing to be appeased with,' i.e., the hire of a watchman.
7. Viz., to contribute half of his actual outlay, this being the halachah.
8. As owner of the adjoining field.
9. Apparently R. Safra meant that by having two fields instead of one, Ronya, who was a poor man, would save expense, and therefore Rabina ought to let him keep it. But the exact application of the saying here is obscure. v. Rashi and Tosaf.
10. This being the minimum to prevent overlooking.
11. In case he is sued by the other after the wall is built.
12. Because, as most people know the rule about contributing, we presume that if the other had not paid as soon as the wall was finished, he would have sued him at once.
13. To the rebuilding higher than four cubits.
14. With the intention of roofing over the intervening space.
15. Because he makes it clear retrospectively that he is well satisfied to have the wall at its present height.
16. Because this rule is not so well known, and the builder of the first wall may have learnt only some time after that he was able to recover his outlay.

so as to be quit of him.¹

We have learnt: EACH IS PRESUMED TO HAVE GIVEN HIS SHARE UNTIL THE OTHER BRINGS PROOF THAT HE HAS NOT GIVEN. How are we to understand this? Are we to suppose that he says to the claimant: I paid when the payment was due?²  Then it is self-evident that he is presumed to have given.³  We must suppose then that he pleads: I paid you before the payment was due. This would show, [would it not], that it is not unusual for a man to pay a debt before it is due? — Here the case is different, because with every layer [of the wall that is finished some] payment becomes due.⁴

Come and hear [this]: HE IS PRESUMED NOT TO HAVE GIVEN UNTIL HE ADDUCES PRO OF THAT HE HAS GIVEN. How are we to understand this? Are we to assume that he says to him: I paid you when payment became due?⁵  If so, why should we not take his word? We must suppose therefore that he says, I paid you before payment became due; which would show, [would it not], that it is not unusual for a man to pay before the time? — The case here is different, since he may say to himself, How do I know that the Rabbis will make me pay?⁶

R. Papa and R. Huna the son of R. Joshua followed in practice the ruling of Abaye and Raba, whereas Mar son of R. Ashi followed Resh Lakish — The law is as stated by Resh Lakish, and [the ruling applies] even to orphans,⁷  in spite of what has been laid down by a Master, that one who seeks to recover a debt from the property of orphans need not be paid unless he first takes an oath, because the presumption is that a man does not pay a debt before it falls due. The question was raised: If the creditor claims payment some time after the debt falls due, and the debtor pleads, I paid it before it fell due, how do we decide? Do we say that even where there is a presumption [against him]⁸  we plead [on his behalf], 'what motive has he to tell a lie',⁹

1. Lit., 'so that he may not trouble me'.
2. Viz., when the wall reached a height of four cubits.
3. According to the rule that in money claims the word of the defendant is taken against that of the claimant.
4. Because each is equally under obligation to build the wall.
5. l.e., as soon as the wall was finished.
6. As explained above, p. 19, n. 7. And therefore we do not believe him even if he says that he paid when payment fell due.
7. That is to say, if the debtor dies, the payment may be recovered from his orphans in the same way as from himself, i.e., without taking an oath.
8. E.g., the presumption that a man does not pay before the time.
9. And we therefore accept his word.