Babylonian Talmud

Rodkinson 1918 — source 13, scan section 45

works on his partner's estate, it is to be considered as if he had done this with the permission of his partner. Is this not to be understood to mean that a partner has no right of hazakah ? This presents no difficulty. One of Samuel's decisions speaks of when the partner has consumed the products of the whole estate which belongs to both, and the other decision treats of when he took possession of a half share, claiming that they had divided their estates long before and that he had made a hazakah on the part he now holds. To which his partner objects, saying: Our stipu- lation was such that you should keep it three years, and then I should keep it three years. In explaining this, two parties differ. One maintains that Samuel's decision that a partner has a right of hazakah is in case he has consumed all the products of the estate belonging to both. For a partner usually consumes the products of half of the estate, taking them from one half one year and from the other half the following, in order to equalize matters. And as we see that one has taken possession of the entire estate for three years in suc- cession, it is to be supposed that he bought the same. And the other decision of Samuel speaks of when they do as is customary, consuming the products of the same half three years in succes- sion : no hazakah applies, because his partner may claim that such was the stipulation, as stated above. And the other maintains to the contrary. If he consumes the whole, there is no hazakah, because it may be that that was their arrangement ; namely, that one should use the products the TRACT BABA BATHRA (LAST GATE). 109 first three years and his partner the three years succeeding. But if one utilizes exactly half for three years in succession, it may be said that he bought it, and therefore hazakah applies. Rabhina, however, says that both of Samuel's decisions may apply to the case that one has consumed the whole estate ; but the decision that he has a hazakah speaks of a f^eld which contains the pre- scribed quantity for division. Consequently, if one consumes the whole field (without any protest from his partner), it is to be sup- posed that he bought it. And the decision that there is no hazakah speaks of a field which has not the prescribed quantity. And it is to be supposed that their arrangement was that each should use it for three years, as said above. " The text says : " Samuel holds that when one works on his partner's estate," etc. What did Samuel mean to teach, that in partnership the law of hazakah does not apply ? Let him then say so plainly. Said R. Na'hman in the name of Rabba b. Abuhu : He means to say that when one takes his partner's field, which is fit for sowing only, and plants trees in it, he is not liable for damages, as it is considered to be done with his part- ner's permission, and, moreover, his partner can claim half of any profits which may accrue after the expense of planting has been deducted. Farther on Samuel says : " They may bear witness for each other," etc. Why ? Are they not interested in each other's affairs? He means to say, in case one of them gave a deed to the other, saying he had nothing further to do with the field. But even then, what is it ? Have we not learned in the following Boraitha : If one says to his partner : " I have no claim on this field," " I have nothing to do with it," or, " I keep my hands off it," he says nothing {i.e., unless he distinctly says, " It is yours, and I shall have nothing further to do with it," it is not to be considered, because it may be that he said it in a manner indicat- ing that he wished he would have nothing to do with it, etc.) ? It means that this was done with the ceremony of a sudarium (and then certainly he has nothing to do with it). But, after all, he is still interested in this case, for if the plaintiff should win the case, and the estate were taken away from the defendant, it might be appraised insufficient to cover the debt made while he was still a partner, and then it would devolve upon him. And he may also be interested in seeing that this estate shall remain with his partner, as it may happen afterwards that some one should claim that his partner had borrowed some money while they were still partners, and when his partner should have no estate, the no THE BABYLONIAN TALxMUD. debt be turned over to him ? This means that when he transferred his property to him he at the same time in writing took upon himself the responsibihty. The responsibihty of what ? If the responsibility of this estate, in case it were taken away by some one, should devolve on him, then he is certainly interested in this case ; and if it means he takes the responsibility of claims which may be upon the estate for his own debts, then he has nothing to do with any other claims : he is disinterested in so far as he has nothing to do with the estate itself — only the making good of his own debts. But has he a right to cut himself off from all other liabilities ? Have we not learned in a Boraitha that if Holy Scrolls were stolen from a city the thieves must not be tried by the judges of that city, and also no witnesses from that city should be brought as evidence ? Now, if one should have a right to say : " I have cut myself off from this estate entirely," it would be possible, in the above case, for two judges to say, " We have relinquished our shares in the Holy Scrolls," and witnesses the same way, and then the judges could decide the case and the evidence of the witnesses be used. With Holy Scrolls it is different, as they are made for read- ing, and one cannot help hearing them. Come and hear ! If one say : Give a manna to the poor of that city — if there is a trial about this, the case- must not come before the judges of that city, and no evidence of witnesses of the same city should be admitted. Now, how can you maintain, because the poor of the city take the charity, that the judges of the city should not be eligible to decide the case? You must say, then, that the judges must not be of the poor who take charity, nor witnesses who have benefit therefrom. And why let the judges or the witnesses relinquish their share in this charity and be used ? The Boraitha speaks also when the manna in question was given for Holy Scrolls, and the expression " poor " is because concerning the Holy Scrolls all are considered poor ; and if you wish, it may be said, the ex- pression " poor " is to be taken literally, and it speaks of the poor whom the judges or witnesses are obliged to assist. And there- fore the trial could not come before them, because they are in- terested in it {i.e., if the poor should win the case, their share of