Babylonian Talmud

Rodkinson 1918 — source 13, scan section 50

protest, he who signed his name on the bill of sale did well, for according to his theory a sale under duress is valid. But why TRACT BABA BATHRA (LAST GATE). 121 should the protest annul the bill of sale, when the same witnesses who signed the protest signed the bill of sale also ? Did not R. Na'hman say : Witnesses who testify that they signed their names to a note whose amount was not yet paid, but which was prepared by the borrower in case he should find some one who would make him the loan, are not to be trusted ? And the same is the case if some one has sold a bill of sale, and the witnesses whose signatures were on the same testified that the one who made the bill of sale made also a protest previously " before us, that he was compelled to make this bill of sale, and we have acknowledged the truth of his protest." Why, then, said R. Huna that if not for the protest the sale would be valid? Let him say it is valid, notwithstanding this protest, in accordance with R. Na'hman's decision just stated? R. Na'hman's statement was when the protest was oral, as such cannot harm a written document. In our case, however, the protest was a written one, and therefore it annuls the bill of sale. Mar b. R. Ashi, however, maintains that if witnesses testify, " We signed our names before the money was given " (as explained above), they are not to be trusted ; but if they testify that this bill of sale was previously " protested before us and acknowledged by us," they may be trusted. Why so? Because in the first case, after the witnesses signed their names to the fact that so and so had borrowed money from so and so, they could not sign an- other document that the borrower had not received the money as yet, as it would contradict their first statement, and it would seem that they had made themselves liars ; and, therefore, if they testify so, they are not to be trusted, as there is a rule that one cannot make himself wicked ; i.e., if one comes before the court, and says, " I am a liar," or " wicked," for the purpose that another shall have benefit from this confession, he is not to be trusted. But in the other case, however, both documents may be written by the very same men ; i.e., if they see a man in trouble, they may listen to his protest, write it down, and sign it, and thereafter also sign the bill of sale to which he was compelled. And there- fore, even if the protest was not written by them, they may be trusted if they testify that they have heard the protest and acknowledged to the truth of it. ''No hazakah to a husband^' etc. Is this not self-evident? As he has a right to use the fruit of her estate, how can it be considered a hazakah ? It speaks of even when he gave her a document that he has no interest in her estate. But even then, 122 THE BABYLONIAN TALMUD. what is it ? Have we not learned in a Boraitha above (p. 109), that if one says : " I have nothing to do with this field," " I have no claim to it," and, " I keep my hands off it," he says nothing? Said the disciples of R. Yanai : Our Mishna treats of when he gave her such a document when she was still betrothed. And this is in accordance with R. Kahana, who says of an estate which one expected to take possession of ir^ the future, he has a right to make a stipulation that he should not inherit it. And it is also in accordance with Rabha, who said : If one declares : " I do not care to have the privilege of the evnactment by the sages in a thing similar to the above," he may be listened to. What does this mean ? That which R. Huna said in the name of Rabh : A woman has a right to say to her husband : " I do not wish to be supported by you and also would not wish to do any work for you." Now the Mishna states that the consuming of fruit does not make a hazakah ; but if he brings evidence that she sold her estate to him, it would be a hazakah. Why ? Let her claim that she had done so only to please her husband. Have we not learned in a Mishna : If one bought an estate from another whose properties were encumbered by the marriage contract of his wife, and afterwards he also took a deed from his wife, the sale is in- valid ? Is it not because she may say : I did so only with the intention of pleasing my husband, but not with the intention of selling it ? Was it not taught in addition to this Mishna that Rabha b. R. Huna explained it that the Mishna treats of certain three fields — namely, one, of one he had set apart in the marriage contract before marriage ; and another, of one of which he had made a hypothec in the marriage contract after marriage ; and the third, of one which she brought him as a gift from her father, which was appraised at a certain amount of money, for which the husband became responsible in the marriage contract ? What does he mean to exclude ? Shall we assume to exclude all other estates which were also encumbered to her? Then, certainly, it would create so much the more animosity between her husband and herself, because he would say : You did not want to sign this because you arc expecting my death or to be divorced. Hence the claim that " I have done so to please my husband " would be right. And shall we say that he means to exclude the usage of fruit ? Did not Amemar say that if the husband and his wife have sold the usage of fruit from her estate, it is not to be considered (because of the same claim, " I have done it only to TRACT BABA BATHRA (LAST GATE). 123 please my husband ") ? He means to exclude the use of fruit ; and Amemar's statement was only in case he had sold out and died, that she might, after his death, make use of that claim, or in case of her death, he had a right to make use of such a claim, according to the enactment of the rabbis. And it is as R. Jose b. Hanina said (First Gate, p. 197). But when they are both alive and have sold out, and even when the husband only has sold out, the sale is valid. And if you wish, it can be said that Amemar's statement is based upon R. EHezer's elsewhere, that an article which does not bear the name of its owner — as, for in- stance, the fruit of the wife's estate, which cannot be said to belong to her or to belong to him — cannot be sold by either of them. And Rabha said that R. Eliezer based his statement on [Ex. xxi. 21], "for he is his money," which means the money which belongs to him alone. " On his wife's estate." But did not Rabh say that a married woman must protest (in case one has occupied her estate). Who is the one who has occupied her estate ? Shall we assume any one ? Did not Rabh say : " There is no occupancy in the estates of a married woman " ? We must therefore say, he means even