Babylonian Talmud

Rodkinson 1918 — source 13, scan section 52

a minor, he should invest it in such a thing as will bear good fruit until he shall be of age, and in case of death return it to his heirs. All of them, however, if they said, while dying, " This belongs to so and so," he must act accordingly (even when the depositor was a minor) ; and if they have declared nothing, he may do in accordance with his conscience — {i.e., he shall return it to him whom he thinks to be the proper heir. The wife of Rabba b. b. Hana while dying said : These earrings belong to Martha, and to the sons of his daughter. And Rabba came to question Rabh what he should do. And he answered : If these people whom she mentioned are worthy, so that they can afford to keep bailments with her, then do as she declared ; and if not, then you may explain her declaration as you please. " From a minor, he should invest," etc. R. Hisda maintains in Holy Scrolls; and Rabha b. Huna said : A tree which bears dates. •' A father on the estate of his son" etc. Said R. Joseph : Even if they have separated themselves. Rabha, however, main- tains that in case of separation the law is different. Said R. Jeremiah of Diphti : R. Pappi has acted in accordance with Rabha's statement. Said R. Na'hman b, Itz'hak : I was told by R. Hyya of Hurmiz Ardshir that he was told by R. Aha b. Jacob, quoting R. Na'hman b. Jacob, that when they have sepa- rated themselves each of them has a right of hazakah. And so the Halakha prevails. It was taught : If one of brothers who was the business man of the house, and the bills of sale and notes were in his name, claims : " All this is my own, inherited from my mother's father," according to Rabh, the burden of proof lies upon him ; and ac- cording to Samuel, it lies upon his brothers. Said Samuel : Abba admits that in case he dies the burden of proof is thrown upon his brothers. R. Papa opposed : Should we make for orphans such a claim as their father while alive had not any right to {i.e., when this brother was alive, it was for him to bring evidence, and if he could not, the goods belong to all the brothers, and because he is dead, shall we say that the brothers have to bring evidence, and if they cannot it belongs to his orphans)? Did not Rabha levy upon a pair of shoes and a book of Hagadah from orphans without any evidence that they were things which are usually hired and borrowed? And he did so in accordance with the message of R. Huna b. Abbin, that of things which are usually borrowed and hired one is not trusted to say, " They were bought by mc." This difficulty remains. TRACT BABA BATHRA (LAST GATE). 127 Said R. Hisda : The decision of Rabh concerning the brother who manages the business of the house, holds good only when all the brothers are not separated in the household — even in the dough of bread which they take for the house. But if they are, he may claim that he has spared from his householding the amount which he has in his hand, and the brothers have nothing to do with it. The evidence mentioned in Rabh's decision — what should it be? According to Rabba, the evidence should be with witnesses that he has saved the money or it came from other sources ; and according to R. Shesheth, it is sufficient when the court has approved the bill of sale or other notes which bear his name (as it is to be supposed that the court would not ap- prove if it were not sure it belonged to him only). Said Rabha to R. Na'hman : There are Rabh and Samuel, with Rabba and R. Shesheth, who discuss this matter, and I would like to know the opinion of you, master — with whom you agree. And he answered : I am aware of the following Boraitha : One of brothers who was the business man of the house, and there were bills of sale and other notes bearing his name only, and he claims : " They are my own, inherited from my mother's father," the bur- den of evidence rests with him. And the same is the case with a woman who was managing the business in a house and there were documents bearing her name only, and she claims that they are her own property which came from her grandfather on the father's or mother's side — it is upon her to bring evidence. (Says the Gamara 🙂 It was necessary for the Boraitha to declare the same law in the case of a woman, lest one say that because it is an honor for a woman to be trusted with the management of a house, she would surely take care not to rob the orphans, and therefore she ought to be trusted without evidence, it comes to teach that it is not so. " Concerning a gift or an inheritance of brothers,'' etc. How is this to be understood ? Does not the law of hazakah apply to the persons mentioned farther on in the Mishna ? The Mishna is not complete, and should read thus : All this is said of a haza- kah to which there is a claim ; as, for instance, the seller says, " I did not sell," and the buyer says, " I have bought." But a haza- kah to which there is no claim, as, for instance, who presents a gift or an inheritance of brothers, or who takes possession of the property of a proselyte, to which the law prescribes that he needs to acquire title by doing something — if he has locked it or made any partition, etc. — it is a hazakah. R. Houshia taught : In a 128 THE BABYLONIAN TALMUD. Tosephta of Tract Kidushin, written by the school of Levi, " If he locked it," etc., in the face of the other party — it is a hazakah. Is this to be understood, only to his face, but not in his absence ? Said Rabha : He meant to say : If this was in the face of the other party, it is not necessary for the latter to tell him : " Go make a hazakah, and acquire title." But if not to his face, it is not considered a hazakah unless he distinctly said to him the words just mentioned. Questioned Rabh : How is the law con- cerning a gift, according to the Boraitha just mentioned (must the giver also tell the receiver, "Go and make a hazakah," or not) ? Said Samuel : Why was Abba doubtful ? When, concern- ing a sale for which the seller gets money, it is not a hazakah unless he tells him, " Go and make a hazakah," so much the less it must be so with a gift, for which he has received nothing. Rabh, however, maintains that he who makes a gift usually makes it with a good eye, and no explanation is needed. The Mishna states : " Any work whatever." What does this mean? As Samuel said : If he has completed the partition which was there already to the size of ten spans, or he has broken a hole in the partition through which he can go in or out, it is con- sidered a hazakah. Let us see how was the partition ! If it was placed in such a position that one could not climb over it to the estate, and after its completion by the occupant it is also the