Babylonian Talmud

Rodkinson 1918 — source 11, scan section 37

of one gives title to him, even without his knowledge? Yea, but this is said only of a closed yard in which things are preserved ; but in an open field, in which things are not, the title is acquired only when he is standing upon it, but not otherwise, as we learned in the following Boraitha : " If one was in the city and said : It is known to me that my employees have forgotten a sheaf in my field (I myself, however, did not forget it), it shall not be consid- ered a forgetfulness as mentioned in the Scripture, lest one say it is not called forgotten ; therefore it is written : ' And thou for- gettest a sheaf in the field.' There it is considered a forgetfulness, but not if he has recollected it when he was already in the city." How shall th3 Boraitha be understood ? It is said, first : " Lest one say it is not called forgetfulness, by which we see that the Boraitha would state that it is considered as forgotten, and afterwards is proved the contrary, that it is not considered as forgotten." TRACT BABA METZIA (MIDDLE GATE). 21 We must, therefore, say that when he was still in the field it first escaped his mind, and then the minds of his employees ; but if he kept it in his mind, and the employees forgot it, it is not considered as forgetfulness. And why so ? Because when he was standing upon it, his property gives him title to it, even if after- wards it escaped his mind. But when he was in the city, even if he was aware of it, and afterwards it escaped his mind, it is called forgetfulness ; because he was not on his field, his property does not give him title. And so it is, as Ula and also Rabba bar bar Hana explained our Mishna, that the case was only when he was standing upon his field. R. A'ha, however, objected to Ula's statement : " There is a Mishna (Maaser Sheni, V., 9) : It happened that Raban Gamaliel, with the Elders, were sailing on a boat, and R. Gamaliel said : The tithe, which I am going to measure, should be delivered to Joshu, and the place where it is now is leased to him. Another tithe for the poor should be delivered to Aqiba ben Joseph ; he should take possession of it for the poor, and the place where it is now found is also leased to him." Now, were then R. Joshua and R. Aqiba standing upon R. Gamaliel's field, and, nevertheless, we see that they acquired title to it? And Ula answered him: This question fit coming from a man who never studied. When R. Abba came to Sura, he told the students of the college that so said Ula, and so I objected (and I did not get a satisfactory an- swer from Ula), said one of the students to him : " R. Gamaliel assigned to them movable property through real estate." R. Zera accepted this explanation. R. Abba did not. Said Rabha : " R. Abba is right in opposing it." Then was there not a Sudarium, through which usually title is acquired in consummating a sale? But as the grain, which was already tithe, would not be considered as R. Gamaliel's property, and he had only the benefit of choosf.ig the men whom he likes to give it, and such a benefit is not con- sidered as money, that it shall be sold by Sudarium, the same is not considered as money to acquire it through real estate. (But R. Gamaliel renounced his ownership,) and to ownerless property every one can acquire title. And for this purpose, R. Gamaliel leased his property to them, that it should belong to them for a certain time. So it is considered their property, and they acquire title to it. (Said the Gemara 🙂 In the reality it is not as Rabha said, because the gifts that belong to the priest, it is written, you shall give to him, and therefore title cannot be acquired through a Sudarium, which is only an act of buying and selling. 22 THE BABYLONIAN TALMUD. But to assign movable things as real estate, it can be called a valid gift. R. Papa, however, said : " In the above case of R. Gamaliel the title was acquired through his property, and nevertheless there is no contradiction to Ula's theory, because in this case the things of tithe which were assigned to the two persons named were not ownerless, but belonged to R. Gamaliel, and he transferred them through his property, and this suffices even if they were not standing on the property assigned to them." Said R. Shimi to R. Papa : " Let us see the case of a divorce,* where also a third per- son transfers it to her, and nevertheless, said Ula, the divorce is valid only when the woman is standing upon her property," In a case of divorce it is different, as the laws permit that it be delivered to her against her will. R. Shesheth, the son of R. Idi, opposed : " Is this not an a fortiori conclusion ? namely, a divorce which is permitted to be delivered to her against her will, nevertheless it is necessary that she should be standing upon her property ; so much the more, a gift the title of which is acquired only by the acceptor's will, it should be necessary that he should stand upon property." Therefore said R. Assi : " The theory of thetfyi?r//^rt conclusion would not be applied here, as the reason why the property gives title is because her property is considered as her hand, and cannot be less in value than her messenger, who acquires title of a gift for her, even when she did not appoint him to do so, for the reason that it is self-evident she would not refuse to accept a gift." In the case of a divorce, however, which is not for her benefit, a messenger without her consent cannot accept for her in a matter which is supposed to be against her will ; and there is a rule that a messenger cannot accept anything which is not beneficial to his principal. And the same is the case with her yard. " If we have seen them running," etc. Said R. Jeremiah in the name of R. Johanan : " The case is, when the owner was run- ning after them, and overtook them." He, however, propounded a question, what would the law be in the case of a gift, and R. Aba bar Kohana received the decision afterwards, that even if he had not overtaken them, he acquired title, because a third person transferred it to him. Rabha propounded a question : When one throws a purse of money through an open door, and (after passing through the * The law of it is explained in Tractate Gittin. TRACT BABA METZIA (MIDDLE GATE). 23 house) it came out through another opening, what is the law — has the owner of the house acquired title to it or not ? Shall we say that, although the purse did not rest in the house, it is considered as if it had rested? Rejoined R. Papa, according to others R. Ada bar Mathna or Rabbina, to Rabha : " Is it not a similar case as in our Mishna, where it is said : ' When he sees them running,' etc, where R. Jeremiah said in the name of R. Johanan that he only