Babylonian Talmud

Rodkinson 1918 — source 11, scan section 33

whose control it is." But what is the law in the above case of the bath-house, after all ? Come and hear : R. Hyya bar Abin said : " A similar case happened to R. Hisda, and he questioned R. Huna, and his decision was based upon R. Na'hman's following decision : That such property which must be replevined by the court, even if it is consecrated by one of the parties, it is not holy." But how is it if it could be replevined ? The consecration would be valid, although he did not as yet take possession thereof. Did not R. Johanan say : " If one has robbed a thing, and the owner has not yet resigned the hope to regaining it, it cannot be consecrated by one of them ? ( See First Gate, page 155.) Do you think the bath-house in question was a movable property, to which the rule that the plaintiff must bring evidence applies? This was a real estate, that, if he can replevin it by the decision of the court, it is considered as if it were already under his control." R. Thalifa of Palestine taught in the presence of R. Abbahu : TRACT BABA METZIA (MIDDLE GATE). u " If two appear before the court, both holding one garment, each of them gets the part he holds in his hand, and the remainder they divide equally." Remonstrated R. Abbahu: But not without an oath. (Asked the Gemara) : If it is so, how is our Mishna to be explained, which states: It shall be divided, and it does not state that, ' only the part that he holds in his hand.' How is the case to be explained ? Said R. Papa : When both hold only the X^9X'^^ (the fringes). Said R. Mesharshias : " Infer from this that a sudariuju, which usually the buyer must take in his hand when he wishes to consummate his agreement,* is enough when he takes in his hand the size of three fingers square, as this piece which he holds is considered as if cut off, and the expression [Ruth, iv. 7], " and gave it to the other," is applied. Rabha said : " The case in our Mishna, even when the gar- ment was covered with gold (on some places), it is nevertheless to be divided. Is this not self-evident ? Rabha means to say that the gold cover was placed in the centre of the garment. But even this is self-evident ? The case was that the gold covering was nearer to the hand of one of the parties. Lest one say, that the garment shall be divided so that the gold shall remain his share, he comes to teach us that the other party has the right to demand that the gold shall also be divided. The rabbis taught : When two hold a note (the lender and the borrower), the lender claims : " The note is not yet paid, but I dropped it, and it was found by the borrower " ; and the bor- rower says : " The note is paid, and it is mine now " ; the note is still in force, if the signature is certified to by the court. So is the decree of Rabbi. R. Simeon ben Gamaliel, however, says : " The value of it must be divided." If, however, the note falls into the hands of the judge, nobody can compel him to give it away. R. Jose, however, says : " Even then the note is in full force." The master says : " It is in force if the signature," etc. And what is then — does the lender collect the whole amount? which contradicts the statement of our Mishna. Said Rabba in the name of R. Na'hman : " If the note is approved by the court, all of them (the Tanaim who are named in the above Boraitha) agree * In ancient times, and even now in our day in those places where the Jews use their own law, all transactions and even marriage contracts are conclusive only when the buyer or the husband takes in his hand a garment which belongs to the other party to the agreement. This is called Kabboloth Kinyan, which means the taking possession of what he has bought. And this is based upon the Scripture [Ruth, iv. 7J. 12 THE BABYLONIAN TALMUD. that the value of it must be divided (because it is considered as money or a garment, the law of which is stated in our Mishna). They differ, however, when the note is not approved by the court. " Rabbi holds that even when the borrower admits that it is his note, it must be nevertheless approved by the court." If they do so, the value is divided ; but if they do not, it is not to be divided. Why so ? Because the note would not have any value whatever. Who then makes it a valid note ? The borrower, by the admission of his signature, but in the same time he claims that the note is paid. R. Simeon ben Gamaliel, however, is of the opinion that when the signature is admitted, it need not be approved by the court, and therefore it has a positive value, which must be divided. The text above says : " If it falls in the hands of the judge," etc. Why? Is the judge not a human being as any other? Said Rabha : "It means thus: If a stranger has found a note, on which the certification of the court is to be seen, much less when there is no certification by the court, neither of the parties mentioned in the note can make use of it. (Therefore it must not be returned to any of them), for fear that either it was written by the borrower, and he has not received any money as yet, or (if it was certified to by the court) perhaps it was paid. But R. Jose holds that, so long as it is not marked that the note is paid, it is in force, and there is no fear that it is a paid note." R. Elazar said : " R. Simeon ben Gamaliel and Rabbi differ when both parties hold the text of the note, or both hold the signatures of the witnesses or court ; but when one holds the text and the other the signatures, each of them may keep what he holds." R. Johanan, however, said : " It makes no difference what they hold, it must always be divided." But is it not stated : " Each takes what he holds " ? The case was, when the certifica- tion of the court or signatures to the note were in the centre of it. If it is so, what is there new in that he comes to tell us? The case was, that the signatures were nearer to one than to the other. (This is to be explained, as in the above case, when covered with gold.) Said R. Aha of Diftha to Rabbina : " According to R. Elazar, who says that one takes the text and one the signatures, for what purpose do the parties need it, to use it as a cover for a utensil ? " Rejoined Rabbina : " It means its value, namely : The difference in value is to be appraised between the text and the signatures ; and the explanation is thus : A note which is certified to by the court, and the date is stated, has more value, as such can be collected even from property that was mortgaged TRACT BABA METZIA (MIDDLE GATE). 13 after the date of certification, which is not the case with a note in which the date of certification is not stated. In this case the one who holds the certification gets the amount, which is as mort-