Babylonian Talmud

Rodkinson 1918 — source 13, scan section 66

it for himself; but if it was a bad one, which yields no fruit at all, or only a little, and in this field were better ones, so much the more does he reserve them for himself. If he said: " I sell you this field, except the trees," if there were many kinds of trees they are certainly not included ; but even if it contained only date trees or vines, they are excluded also. If, however, there were trees and vines, the trees only are excluded ; and if there were date trees and vines, the date trees are excluded but not the vines. Rabh said : A date tree is considered a reservation only when he must ascend with a rope for gathering the fruit; but if not so high, it is not considered a reservation. The judges of the Exile (Samuel and Kama), however, maintain: If it does not hinder the yoke of oxen which are ploughing around it, it is not considered a reservation ; but if it does hinder, it is. However, they do not differ, as Rabh speaks of a date tree and they treat of other trees. R. A'ha b. Huna questioned R. Shesheth: How is it if the seller says : Accept the half of such and such a carob ? It is certain to me that he does not acquire title to other carobs; but I doubt whether he acquires title to the half of the carob in ques- tion ? And the answer was : He does not. He objected to him from the following Boraitha: If he said, " Accept the half of such and such a carob," title is not acquired to the other carobs, by which is to be understood that he does not to the other carobs, but he does to the half in question ? And he answered: Nay! Even to the half left to the buyer, title is not given, this case being similar to one in which it was said, " I sell you this field, except the half of such and such a one." Were we to assume that the buyer acquires title to all his fields except the half in question, although he said plainly, " I sell you this field," it must be said he does not acquire title to any except to that which he had shown him; and that his remark, "except the half field," etc., was but redundance. The same is the case here. If he said, " I sell you this field, except the half tree," the last word is to be considered redundance. R. Amram questioned R. Hisda: If one has deposited some- thing with his neighbor, and taken from him a receipt (approved by witnesses), and thereafter the depositary claims that he has returned the bailment, how is the law ? May it be said that, i64 THE BABYLONIAN TALMUD. because if he were to claim that the baihnent was taken away from him by force, he would be trusted, the same should be the case with the claim, " I have returned," or the depositor has a right to say: If it were so, how comes thy receipt in my hands ? And he answered: He is to be trusted when he takes an oath, the same being the case when the depositary claims " it was taken away from me by force " — he must take an oath. Shall we assume that R. Amram and R. Hisda differ on the same point as the Tanaim of the following Boraitha differ: If one holds a document which witnesses to an amount of money given by him to his deceased partner for a half profit, and claims that the amount was not returned to him, while the orphans say that they are not certain whether the amount was returned ? The judges of the Exile said: The plaintiff has to take an oath, and collects the whole amount. The judges of Palestine, how- ever, maintain that he collects only the half with this oath. And all of them agree with the sages of Nahardea, that of the money which is given for the purpose of a half profit half of the amount is considered a loan and the other half a deposit. (See Middle Gate, p. 277.) Now is it not to be supposed that the point of their differing is that one party holds that the claim of the plaintiff, "The document in my hand gives evidence that the amount was not returned," is to be listened to, and the other party (who says that with the oath he collects the half only) maintains that such is not considered evidence? Nay! All agree with R. Hisda, and the point of their differing is, that one party holds if the deceased had returned, he would have notified his heirs, and the other holds it may be that death pre- vented him from doing so. R. Huna b. Abi sent the following message: A depositary who claims that he had returned the bailment, although his receipt is still in the hands of the depositor, is to be trusted (with an oath), and with a document of a half profit in the hands of the plaintiff suing the orphans, he may swear and collect the whole amount. Do these two statements contradict each other (as in the case of a depositary the document is in the hand of the plaintiff, and the defetidant is trusted with an oath, and in the case of a half profit the plamtiffxs trusted with an oath) ? The latter case is different, because, if the deceased had made return, he would have notified his heirs. Said Rabha : The Halakha prevails concerning orphans, that he takes only the half with an oath. Mar Zutra, however, said : The Halakha TRACT BABA BATHRA (LAST GATE). 165 prevails with the judges of the Exile. And to the objection of Rabhina, that Rabha had long ago decided that he takes only the half with an oath, he answered : We have learned the reverse ; i.e., that the judges of the Exile hold that he takes the half only with an oath, and the Palestinians, that he collects the whole amount. Hence my decision is the same as Rabha's. MISHNA IX. : In selling a field, if it contains a well, cistern, or pigeon-house, no matter whether they are still in use or dam- aged, they are not included in the sale. However, the seller must buy a way from the buyer for passing to them. So is the decree of R. Aqiba. The sages, however, say that it is not necessary. R. Aqiba, however, admits that if the bill of sale states, " except the above things," he need not buy a way. If the seller sold the above separately to another — according to R. Aqiba it is not necessary for the buyer of them to buy a pas- sage, and according to the sages it is. This is all said concern- ing a sale; but if the owner of the field has made a gift of it, title is given to the field with all its contents. The same is the case when brothers divide their inheritance, and the field falls in a share of one of them : he acquires title to all its contents. If one made a hazakah on the estate of a childless proselyte, the hazakah applies to all the above-mentioned things, if they were to be found on it. If one consecrate his field, all that is to be found in it is sanctified. R. Simeon, however, said: The above-mentioned things are not included in the sanctification; but if there was an inoculated carob or a trunk of a sycamore, it