Babylonian Talmud

Rodkinson 1918 — source 14, scan section 62

say: The following is the order of claims before the court? The lender comes to the court to complain that the borrower does not pay his debt; then the court summons him, and if he does not appear it puts him under the ban, and a replevin is given to the lender, that he may levy on the estates of the borrower or of those who bought same from him at a later date than that of the promissory note. And when the creditor finds such estates in some other city, the court of that city tears the replevin and substitutes a document that he may collect such TRACT BABA BATHRA (LAST GATE). 375 and such an amount from such and such estate, after the ap- praisement shall be made for the court. And after this is done, the court furnishes him with a memorandum of the appraise- ment and tears the previous document. Hence a replevin in which it is not mentioned that the promissory note of the bor- rower was " torn by us " must not be taken into consideration by any court; and a document which was given for appraise- ment in which it is not mentioned that the replevin of such and such a court was " torn by us " is also not to be taken into con- sideration. The same is the case with the memorandum of ap- praisement with which the court furnishes him, if it is not men- tioned that the document giving the right to make an appraise- ment of the estate for the debt of so and so was " torn by us." Hence the alleged bargain between B and C could not occur? The statement of R. Safras that two deeds must not be written is because it might happen that one should claim the field not for debt, but because he inherited it from his parents, and it was stolen by the possessors of it. In such a case the above- mentioned bargain may be made.* Said R. Aha of Diphthi to Rabhina : According to the sup- posed bargain mentioned above, that B asked C that he should not hasten to take possession, to what purpose such a bargain ? If he possesses two deeds, he may take away from D and E at one time? And he answered: By such an act he would in- vite investigation by his opponents, and they would find out the bargain. One Mishna states : Concerning deeds, they may write an- other one, without mentioning the responsibility of the seller for the estate, in case it should be taken away. Why? Let the court write a correct deed and deliver it to the buyer, at the same time furnishing the seller with a document that the first deed was lost, and if such should be found, that it was of no value, as another deed was supplied to the buyer. The rabbis said before R. Papa, according to others before R. Ashi : Because this is not stated, we may infer that the court must not furnish the seller with such a receipt. And he answered : In other cases, receipts may be written. In this case, however, it is not because of the bargain mentioned above, but as the receipt * The commentators give illustrations of how such a bargain might be made, so involved and far-fetched that we spare the reader their infliction. 376 THE BABYLONIAN TALMUD. which makes the first deed valueless is in the possession of A, and not in the hands of the buyers; and it might be that D and E, who had bought from A, would not be aware of such a document, and would not be in a position to protest against the estates being taken away from them by the creditors of A. But, finally, D and E would transfer their claims to A; and then he would show them the document, and the estates would certainly be returned to them? Yea! But meanwhile the creditors would consume the products, and it would be a difficulty for D or E to collect the value from them, as there is a rule: On consumed stolen property it is very hard to collect. It may also happen that D and E bought their estate without any re- sponsibility on A's part; hence one may take it away without any claim from these parties. But if such a case is to be feared, why should they furnish such receipts in cases of loans, as the same may happen with promissory notes — that the goods should be taken away while the receipt is in the hand of the borrower? There it is different. If the claim comes with a promissory note which had nothing to do with this estate, the possessors of the estate would investigate the matter, whether the borrower had paid him the money due, and would not re- turn the estate without consulting the seller, who is the debtor on that promissory note : which is not the case if the document was for real estate, as in such cases usually estates are claimed, and not money. The master said : " It may be written without mentioning the responsibility," etc. How, then, should it be written? Thus said R. Na'hman : This deed is not for collection, neither from encumbered nor from unencumbered estates, but only to testify that the estate belongs to so and so, who is the buyer of it. Said Raphram: From this, where it must be written that such a document is not in force for collection, it may be in- ferred that in such a one where nothing is written there is au- thority to collect with it even from encumbered estates; as it is to be supposed that it is an error of the scribe, who had for- gotten to insert the responsibility of the seller. R. Ashi, how- ever, maintains: A document in which nothing is mentioned does not collect from encumbered estates. And the above Boraitha, which states, " not to mention the responsibility," etc., is not as R. Na'hman explained it, but is to be taken liter- TRACT BABA BATHRA (LAST GATE). 377 ally — that nothing is to be mentioned — and then he is HOt re- sponsible. There was a woman who gave money to one that he might buy estates for her. He bought them for her, without respon- sibility in case there should be claims. And she came to com- plain before R. Na'hman, who said : The woman is right, as she sent to you to the end that she should have benefit, but not that she should suffer damage. You, therefore, have to buy from the woman without responsibility, and thereafter to sell to her with your responsibility. It is said above by R. Simeon b. Gamaliel : If one has pre- sented a gift . . . the gift is considered returned. What is his reason? Said R. Assi: Because it is to be considered as if one were to say: I give you this for a present so long as you keep this document. Rabba opposed: If so, how is it if this document was torn or lost — must one also return the gift? Therefore, said he, the point of the difference between R. Sim- eon and the rabbis is thus: According to R. Simeon, title is given to documents and to all their contents by transferring; and therefore when the donee returned it to the donor, the lat- ter acquired title to it and to its contents. But according to the rabbis, title is not given by transferring; hence when the