Babylonian Talmud: Tractate Baba Bathra

Folio 56a

[takes the two half-figs] in one state of unawareness into the same public place, he is penalised, but if into two different public places, he is not penalised.¹  This too, said Rabbah, is only the case if there is between the two public places a place the carrying into which [from either of them would] render him liable to a sin offering,²  but not if there is only a karmelith³  in between.⁴  Abaye said: Even if there is a karmelith between [he is not penalised], but not if there is. only a block [of wood].⁵  Raba said: Even if there is a block of wood between [he is not penalised]. Raba's view here [that such a block can form a partition] conforms with his other view that a 'place' in respect of Sabbath has the same meaning as a 'place' in respect of divorces.⁶  If there is no boundary nor cistus hedge [in the plain], what is the ruling?⁷  — R. Merinus explained in his [R. Eliezer's] name that 'all to which his name is applied [is reckoned as one field].' How are we to understand this? — R. Papa said: If for instance people call it, 'The field of so-and-so's well.'

As R. 'Aha b. Awia was once sitting in front of R. Assi, he laid down the following rule in the name of R. Assi b. Hanina: A cistus hedge forms a partition in the estate of a proselyte. What is a cistus hedge? — Rab Judah said in the name of Rab: The plant with which Joshua marked the boundaries of the land of Canaan for the Israelites.⁸

Rab Judah also said in the name of Rab: Joshua [in his book]⁹  enumerated only the towns on the borders.¹⁰

Rab Judah said in the name of Samuel: All the land which God showed Moses¹¹  is subject to [the obligation], of tithe. Which part of the land does this exclude?¹²  — It excludes the Kenite, the Kenizite and the Kadmonite. It has been taught: R. Meir says that [these are] the Nabateans, the Arabians and the Salmoeans.¹³  R. Eliezer says they are Mount Seir, Ammon and Moab. R. Simeon says they are Ardiskis, Asia and Aspamia.¹⁴

MISHNAH. IF TWO MEN TESTIFY THAT A CERTAIN MAN HAD THE USUFRUCT OF¹⁵  A PIECE OF LAND FOR THREE YEARS AND THEY ARE FOUND TO BE ZOMEMIM,¹⁶  THEY MUST PAY TO THE CLAIMANT ALL [THAT HE STOOD TO LOSE THROUGH THEIR FALSE EVIDENCE].¹⁷  IF TWO [TESTIFY THAT THE OCCUPIER HAD THE USUFRUCT] FOR ONE YEAR, TWO FOR A SECOND YEAR, AND TWO FOR THE THIRD YEAR, [AND THEY ARE FOUND TO BE ZOMEMIM],¹⁸

1. Because here too the two actions are not combined.
2. I.e., a private place, this being regarded as an effective division.
3. As for instance, an unfenced plain, which is not an effective division. For the meaning of karmelith, v. Glos.
4. Because the two public places are still regarded as one. Hence he is penalised.
5. Less than 10 handbreadths high and 4 broad.
6. If a man transfers his courtyard to his wife and then throws her a get into it and it lights on such a block, she is not divorced, because the block is not included in the courtyard transferred to the wife. Hence here he is not penalised.
7. How far does the danger of uncleanness extend? [This is a quotation from Tosef., Toh. VII; v. Tosaf.]
8. I.e., the boundaries between the tribes, families and individuals. According to tradition, this plant was chosen for the purpose because its roots go straight down and do not spread on either side; hence neither neighbour could complain that the other was encroaching.
9. According to the Talmud, Joshua was the author of the book which bears his name. V. supra 8a.
10. In Josh. XV-XIX.
11. v. Deut. XXXIV, 1-3.
12. I.e., which part of the land promised to Abram (Gen. XV, 18-21) was not shown to Moses on Mount Nebo?
13. Tribes of North Arabia.
14. Asia and Aspamia (Apamea) were names usually given to places in Asia Minor. But probably places nearer Palestine were meant. [V. Weinstein, Essaer, p. 18.]
15. Lit., 'ate'.
16. V. Glos.
17. I.e., not only does he recover the land from the occupier, but the witnesses have to pay him the amount of money he stood to lose.
18. That is to say, if all are found to be false.

EACH SET PAYS THE CLAIMANT A THIRD. IF THREE BROTHERS TESTIFY [ONE TO EACH YEAR] EACH ALONG WITH THE SAME SECOND WITNESS, THEN THREE TESTIMONIES [OF TWO WITNESSES EACH] ARE OFFERED¹  [ONE FOR EACH YEAR], BUT THE THREE ARE RECKONED AS ONE FOR THE PURPOSE OF DECLARING THE WITNESSES ZOMEMIM.²

GEMARA. Our Mishnah does not agree with R. Akiba, for it has been taught: Rabbi Jose said: When my father Halafta went to R. Johanan ben Nuri to study Torah with him (according to another report, when R. Johanan ben Nuri went to Abba Halafta to study Torah with him), he said to him: Suppose a man had the usufruct of a piece of land for one year to the knowledge of two people, and for a second year to the knowledge of two other people, and for a third year to the knowledge of two others, how do we decide? He replied: This constitutes a title. Said the other: That is my opinion also, but R. Akiba differs in this respect, for he used to say: [Scripture states:] A 'matter' [shall be established by two witnesses],³  and not half a matter.⁴  And how do the Rabbis apply the principle of a 'matter' and not half a matter?⁵  Shall I say that it is to invalidate the evidence where one witness says that there was one hair on her back and the other says that there was one hair in front?⁶  This is not only half a matter but also half a testimony! — 7 No; they would in virtue of it invalidate the evidence where two witnesses testify that there was one hair on her back and two that there was one in front.⁸

Rab Judah said: If one witness says that the occupier took crops of wheat off the land and the other that he took crops of barley, this constitutes hazakah.⁹  R. Nahman strongly dissented from this. On this ground, he said, if one witness said that he took crops in the first, third, and fifth years, and the other that he took crops in the second, fourth, and sixth, this would also constitute hazakah?¹⁰  — Said Rab Judah to him: Where is the parallel? There [in your case] the year referred to by the one [witness] is not referred to by the other, but here [in my case] both testify regarding the same year. And why do we ignore their discrepancy? Because people easily make a mistake between wheat and barley.¹¹

IF THREE BROTHERS TESTIFY EACH ALONG WITH THE SAME SECOND WITNESS, THEN THREE TESTIMONIES ARE OFFERED, BUT THE THREE ARE RECKONED AS ONE FOR THE PURPOSE OF DECLARING THE WITNESSES ZOMEMIM.

1. If two or three brothers testify to the same thing they are only counted as one witness, but here, as they testify to separate years, they are reckoned as separate witnesses, and each one forms a pair with the other witness.
2. I.e., they cannot be declared zomemim till the evidence of all four has been proved to be false, and in that case each pays one-sixth.
3. Deut. XIX, 15.
4. And here no two witnesses testify to more than one year of occupation, which is only a third of the matter in hand.
5. Who say that each set may testify to a different year.
6. The reference is to the two hairs which are the sign of puberty in a girl, v. Nid. 52a.
7. There being one witness where two are required.
8. But not where different witnesses testify to different years, each year being a 'whole matter'.
9. In spite of the discrepancy between the witnesses.
10. Here also there is a similar contradiction between the witnesses, since we suppose each of them to assert that in the intervening years the land was left fallow (Tosaf.).
11. Lit., 'What is there to be said? Between wheat and barley, people are not particular'.