Babylonian Talmud

Rodkinson 1918 — source 14, scan section 52

ing to R. Hisda and Rabba b. R. Huna : The evidence should be by approval of this deed {i.e., the defendant claims that he was then sick, and consequently the deed is valueless; but if they bring evidence from the court that it was approved by it, he must not be trusted, as it is to be supposed that the court would not approve it if it was not aware that he was in good health). R. Huna, who required witnesses, maintains: R. Meir and the sages differ as R. Jacob and R. Nathan do. And R. Hisda and Rabba b. R. Huna maintain: They (Meir and the rabbis) difTer as to whether a deed which is admitted by the signer must be approved by the court or not. According to R. Meir, it is not necessary ; and according to the rabbis, it is. Rabha is also of the opinion that the evidence in question TRACT BABA BATHRA (LAST GATE). 347 must be witnesses. Said Abayi to him : What is your reason ? Shall we assume that because all other documents state it was done when he was on his feet and in good health, and here it is not so mentioned, it is to be assumed that he was then sick ? Why not say to the contrary, as in all documents of a sick per- son it is written : " It was done while he was sick in bed," and here it is not mentioned, it is to be assumed that he was then in good health ? (And he answered 🙂 Since it can be so said, and also the contrary, therefore we leave the money or the article in the hands of its possessor ; and it is for the plaintiff te bring evidence. The decision of this question is still in discussion, as R. Johanan and Resh Lakish also differ. According to the for- mer, witnesses are required; and according to the latter, the approval of the deed. R. Johanan objected to Resh Lakish from the following: It happened in the city of Bene Brack that one sold the estate of his father, and died; and his relatives complained that he was not of age when he died. And they came and questioned R. Aqiba whether they had a right to examine the corpse. And his answer was : First, you are not allowed to disgrace the dead; and secondly, the signs of maturity are subject to change after death. Now, according to my theory that witnesses are required, it is correct: as the buyers required evidence from the relatives, which they could not give, they asked for per- mission to examine the corpse. But according to your theory that the evidence should be by approval of the deed, let them, then, approve the documents, and hold the goods without any examination? And Resh Lakish answered: Do you think that his estates were still in the possession of his relatives, and the buyers were the plaintiffs? On the contrary, the estates were in the hands of the buyers; and the relatives were the plaintiffs. (Says the Gemara:) It seems to be so, as his rela- tives kept silence when Aqiba told them they were not allowed to examine ; and if the buyers were the plaintiffs, they would certainly claim: We gave him money — let him be disgraced and disgraced. However, this cannot be taken as a support, as it can be said that therefore R. Aqiba said to them : " And secondly, signs of maturity are subject to change," because of their claim : Let him be disgraced. 348 THE BABYLONIAN TALMUD. (It was taught:) Resh Lakish questioned R. Johanan: There is a Mishna among the Mishnayoth of Bar Kapara : If one worked up a field and consumed the products as if he were the owner of it, and then one came and claimed, " It is mine," but the occupant showed him a document, whether bill of sale or deed of gift, and the plaintiff said, " I do not recognize such a document at all," the signatures which are on the document must be approved by the court (i.e., it is sufficient that the wit- nesses should testify before the court that they recognize their signatures, but it is not necessary that they should testify that the sale or gift was made in their presence). If, however, the plaintiff claims : " I recognize this deed, but it was written only upon your request for a special purpose ; but I never sold " ; or, " I sold to you and never tocdc any money," if the plaintiff brings evidence, then it must be done accordingly; but if there is no evidence, the deed is in force. Shall we assume that it is according to R. Meir, who said : " If one recognizes his document, the approval of it is not necessary," and not in ac- cordance with the rabbis? And R. Johanan answered: Nay! I say that all agree such a document does not need any ap- proval. Said Resh Lakish again: But there is a Mishna that they do differ. And he answered : That Mishna treats that the witnesses themselves impair the deed {i.e., they testified that they signed it illegally). But can he, the giver of the docu- ment, be supposed to impair it? Rejoined Resh Lakish: But in your name it was said that you would approve the claim of the relatives who asked permission for the examination (cited above), as it seemed to you they were right. To which R. Jo- hanan rejoined : This was said by Elazar, but / never said such a thing. Said R. Zera: If R. Johanan denies what was said by Elazar his disciple, will he also deny what was said by R. Janai his master? The same said in the name of Rabbi: If one admits that he wrote this document, it must nevertheless be approved. To which R. Johanan said, answering him : Rabbi, is this not the same as our Mishna states? The sages, however, say: It is for the plaintiff to bring evidence. And there is no other evidence but the approval of the document. And therefore (adds R. Zera), it seems that our master Joseph is right when he states in the name of R. Jehudah, quoting Samuel, that the rabbis said approval is not needed to a docu- TRACT BABA BATHRA (LAST GATE). 349 ment which is admitted by the signer. And he who holds that he still needs an approval is R. Meir. Also, by the expression of R. Johanan, " All agree," is meant the rabbis, as R. Meir was only a single individual who so holds. But does not the Mishna state the reverse? And also the Boraitha, does it not state in the name of the sages that it must be approved ? Re- verse the names in the Mishna, as well as in the Boraitha. But was it not stated above that R. Johanan is the one who re- quires that the evidence mentioned in the Mishna should be witnesses? This statement is also to be reversed (i.e., R. Jo- hanan said: The evidence should be with the approval of the deed). Then the objection must be reversed also — not that R. Johanan objected to Resh Lakish, but the reverse? Nay! So said R. Johanan to Resh Lakish : According to my theory that I require the evidence should be by the approval of the deed, it is correct that the buyers took possession of the estate which was sold to them by the alleged minor. But accord-