Babylonian Talmud

Rodkinson 1918 — source 13, scan section 44

The same happened to R. Kahana, and his neighbor came to complain before R. Jehudah, bringing two witnesses. One testi- fied that R. Kahana had occupied two rows of his neighbor's estate, and the other testified three. And R. Jehudah decided he should pay him for two of the three rows. Said R. Kahana to him : Is not your decision in accordance with R. Simeon b. Elazar, who said elsewhere that the school of Hillel agrees that io6 THE BABYLONIAN TALMUD. the smaller amount is included in the larger one {i.e., as there is no contradiction to the two rows, it is considered as two witnesses for two rows which must be paid for)? But I can bring you a letter from Palestine that the Halakha does not prevail with R. Simeon b. Elazar. And he answered : If you will bring me this letter, we shall see. It happened in the city of Kashta that one had lived in an attic four years, and then the owner of the house came to ask him what he was doing in the house. To which he answered : I bought it from so and so, who bought it from you. And the case came before R. Hyya, who said to the defendant : If you will bring witnesses that the man from whom you bought it lived in this attic even one day, I will leave the attic in your posses- sion, but not otherwise. Said Rabh : I used to sit then before my uncle, and I said to him : Can it not happen that one should sell out his property in the night-time, and leave it immediately ? And I understood from my uncle's appearance that if the de- fendant should claim : " I was present when my seller bought it from you," he would trust him, because, if he wished to tell a lie, he could claim : I bought it from you directly. Said Rabha : It seems to me that R. Hyya was correct in his decision, as our Mishna states that if the defendant claimed inheritance, no other explanation is needed, which means an explanation is not needed, but nevertheless evidence that he inherited it is needed. (Said the Gemara 🙂 This support does not hold good, as it may be said that the expression, " no explanation is needed," means also no evidence. Furthermore, the claim " bought " should have more chance than an heir ; for if it were not known to him that the seller had a right to sell it, he would not throw away his money. The schoolmen propounded a question : If the seller was seen on this property, not as a tenant, but as the owner, to measure it, would this be sufficient, according to R. Hyya? Said Abayi : "Aye." Rabha, however, maintains that it may happen that one shall measure his property without any intention of selling. If there were three buyers to one estate (/>., A sold it to B, who occupied it a year, and thereafter sold it to C, who also after a year's occupancy sold it to D, with a bill of sale : then came A and claimed that the estate was his — he never sold it — and B does not possess any bill of sale, shall we say that, as between B, C, and D three years of hazakah have elapsed, and as A has not protested, D is entitled to it ? or, as each of them has not occu- TRACT BABA BATHRA (LAST GATE). 107 pied it the years of hazakah, A's claim is to be considered), the years of occupancy count. Said Rabh : This is only when both C and D possessed their deeds, but not otherwise. Shall we assume that Rabh holds that only a deed is consid- ered to be known by the people, but not witnesses ; and the reason why he said elsewhere that he who sells his field in the presence of witnesses, and thereafter it was taken away from the buyer, the buyer has a right to collect his money from encum- bered estates, is because the people who bought their estates afterwards from the seller had to investigate whether he had not sold his estates previously with security, but not because wit- nesses are considered known to the people ? But how could Rabh say so ? Is there not a Mishna farther on which states that if by witnesses only, he may collect from unencumbered estates only ? And lest one say Rabh is a Tana who has a right to differ with a Mishna, did not Rabh and Samuel both declare that a loan which was made orally is not collectible either from heirs or from buyers ? You contradict a case of a loan with a case of selling. They are entirely different, as he who makes a loan does it privately, as he would not like people should know he needed money, and the value of his estate would decrease. But he who sells an estate does it publicly, as he is searching for a buyer who will give him a better price. The rabbis taught : If the father has consumed one year and his son two, or vice versa, or each of them one year, and the buyer from them one year, it is considered a hazakah. Shall we assume that it is a hazakah because a sale is considered known to the people, and therefore the owner ought to protest ? Does not the following contradict : If one has occupied or consumed in the face of the father one year, and in the face of his son two, or vice versa, or in the face of each one year, and in the face of the buyer who bought it from the son one year, it is considered a hazakah for the occupant ? Now, if you would bear in mind that selling and buying are considered known to the people, why is the selling itself not considered the greatest protest? Said R. Papa : This may not contradict, as the cited Boraitha may treat of one who sold the field among his other fields. (And so the sale of this particular field was probably not known to the people, and therefore it cannot be considered a protest.) MISHNA IV. : The law of hazakah does not apply to the following : specialists, farmers, partners, gardeners, and guardians. There is also no hazakah to a husband on the estate of his wife. io8 THE BABYLONIAN TALMUD. and vice versa; and no hazakah to a father on the estate of his son, and vice versa. All this is said concerning hazakah, but con- cerning a gift or an inheritance of brothers, or one who takes possession of the estate of an heirless proselyte, if he has done any work whatever {e.g., if he has locked it, or made any parti- tion, or torn down the old one), it is considered a hazakah. GEMARA : Both the father of Samuel and Levi taught : There is no hazakah to a partner, and so much the less to a speciahst. Samuel, however, taught : There is no hazakah to a specialist, but to a partner there is. And Samuel is in accordance with his theory elsewhere, that concerning partners the law of hazakah applies. They also may be witnesses for each other, and they are also considered bailees for hire to each other. R. Abba raised the following contradiction to R. Jehudah : " At the cave of R. Zakkai." How can you say that Samuel holds that hazakah applies to partners ? Did not he say that when one