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Babylonian Talmud: Tractate Baba Bathra
In what [manner is] proof [produced]?1 — R, Huna said: Proof [is produced] by witnesses.2 R. Hisda and Rabbah, son of R. Huna, said: Proof3 [is produced] by the attestation of the deed.4 R. Huna said, 'Proof [is produced] by witnesses' [for he holds that] they5 differ on [the same] principles6 [as those] of R. Jacob and R. Nathan;7 (Mnemonic: MeNIaH)8 R. Meir [is of the same opinion] as R. Nathan9 and the Rabbis10 [are of the same opinion] as R. Jacob.11 R. Hisda and Rabbah, son of R. Huna, said, 'Proof [is produced] by the attestation of the deed,' [because] they differ [on the question whether, in the case] where a person admitted that he wrote a deed, [independent] attestation12 is required;13 for R. Meir is of the opinion [that] where one admitted that he wrote a deed,14 no [independent] attestation is required15 and the Rabbis16 are of the opinion [that], where one admitted that he wrote a deed, [independent] attestation [also] is required.17
But [did] they18 [not], however, once dispute on this [question]?19 For it was taught [in a Baraitha]: They20 are not believed [so far as] to invalidate it;21 these are the words of R. Meir.22 But the Sages say: They are believed!23 — [Both are] required. Because if [their] dispute] had been stated [in connection with] that [alone],24 [it might have been assumed that] in that [case only] did the Rabbis say [that attestation of the witnesses was necessary] because the witnesses are all-powerful and they themselves impair [the validity of] the document,25 but here,26 where all [the force of the document] does not depend on him,27 it might have been assumed [that he is] not [believed].28 And if [their dispute] had been stated in [connection with] this [alone], [it might have been assumed that] in this [case only] did R. Meir say [that the donor is not believed], but in that [case] it might have been assumed [that] he agrees with the Rabbis. [Hence both were] required.
Rabbah likewise stated [that the] proof29 is by witnesses. Abaye said unto him: What is the reason?30 If it be said31 'Because in all [deeds]32 it is entered,33 "As he was [able] to walk about34 in the street", and in this [deed] no such entry is made,35 [therefore] it is to be concluded [that when the gift was made] he was a dying man', [it may be retorted], 'On the contrary! Since in all [deeds]36 it is entered,33 "As he was lying sick in his bed,", and [in] this [deed] no such entry is made,35 [therefore] it is to be concluded [that when he made the gift] he was in good health!' — As one inference is just as reasonable as the other,37 [replied Rabbah,] the money38 is to remain in the possession of its [original] owner.39
And [the following are] in the [same] dispute.40 For R. Johanan said: Proof [must be produced] by witnesses; and R. Simeon b. Lakish said: Proof [consists] in the attestation of the deed. R. Johanan pointed out [the following] objection against R. Simeon b. Lakish: It once happened at Bene-Berak that a person sold his father's estate, and died. The members of the family, thereupon,41 protested [that] he was a minor at the time of [his] death.42 They43 came [to] R. Akiba and asked whether the body might be examined.44 He replied to them: You are not permitted to dishonour him; and, furthermore, [the] signs [of maturity] usually undergo a change after death.45
Baba Bathra 154b
[Now]. according to my interpretation1 [of our Mishnah that] evidence [is produced] by [the testimony of] witnesses, one can well understand why, when he2 asked the buyers [to] bring witnesses and they [could] not obtain [them]. they came to ask him whether the body might [not] be examined. But according to your interpretation3 that evidence [consists] in the attestation of the deed, why should they [wish] to examine [the body]? Let them procure the attestation of their deeds and [thus] gain possession of the property!4 — Do you think, [replied R. Lakish], that the property was in the possession of the members of the family and that the buyers came to protest? [This was not the case.] The property was in the possession of the buyers, and the members of the family came and protested.5 Logical reasoning also [supports] this [view]. Since when he6 said to them, 'You are not permitted to dishonour him', they remained silent. If it is granted [that] the members of the family protested, one can well understand why they remained silent;7 if, however, it be assumed [that] the buyers protested, why [it may be asked] did they remain silent? They should have replied to him, 'We paid him money; let him be dishonoured!'8 — If [only] because of this9 [there would be] no argument. [for R. Akiba may] have said to them10 thus: In the first place,11 [a post mortem must not be held] because you are not permitted to dishonour him; and, furthermore, in case you might say. 'He took [our] money. let him be dishonoured', the signs [of maturity] usually undergo a change after death.
R. Simeon b. Lakish enquired of R. Johanan: With reference12 to what has been taught in the Mishnah of Bar Kappara13 [that], 'If a person was enjoying14 [the usufruct of] a field on the strength15 of the current belief that it [was] his, and someone lodged16 a protest against him claiming.17 "It is mine"; and the first18 produced his deed, stating,17 "You sold it to me" or "You gave it to me as a gift", if [the latter] said, "I never saw this deed",19 the deed is to be attested by those who signed it;20 if, [however], he said, "It was a deed of trust21 or a deed [given on] trust22 [for something] which I sold you but [for which] you did not pay me the price", then if witnesses23 are available, one must be guided by24 witnesses, but if [they are] not [available] one is to be guided by23 the deed.'25 Are we to assume [asked Resh Lakish, that] this26 is [in accordance with the opinion of] R. Meir, who stated that where one admits that he wrote the deed, attestation is not required, but not [in accordance with the view of] the Rabbis?27 — He [R. Johanan] replied to him: No; because I maintain [that] all28 agree29 [that where] one admitted that he wrote a deed no attestation is required. But, surely, [Resh Lakish rejoined,] they30 are actually in dispute [on this question]; as it was taught, 'They are not believed [so far as] to invalidate it; these are the words of R. Meir. But the Sages say: They are believed'!31 — He replied to him: [Should] he, because32 witnesses are all-powerful and [may] impair [the validity of] a deed,33 [have the same power as if] all depended on him!34 But, Resh Lakish asked him again, in your [own] name it was reported that, 'the members of the family have justly protested'!35 — He replied to him, 'This [was] said [by] Eleazar;36 I have never said such a thing.'
R. Zeira said: If R. Johanan could contradict his disciple R. Eleazar,37 would he contradict his master R. Jannai? For R. Jannai said in the name of Rabbi: [Though] one admits that he wrote a deed, attestation is [nevertheless] required. And R. Johanan said to him: 'Is not this, Master, [the law enunciated in] our Mishnah [where it is stated] AND THE SAGES SAY: HE WHO CLAIMS FROM THE OTHER HAS TO PRODUCE THE PROOF, [and] proof [can be produced] only through the attestation of the deed?'38 Acceptable, however, are the words of our master Joseph. For our Master Joseph, in the name of Rab Judah in the name of Samuel, said: 'This39 is the view of the Sages. but R. Meir said: [Though] one admits the writing of a deed, attestation is [nevertheless] required;40 and [as to the expression] 'all agree',41 [the words] of the Rabbis in relation to [those of] R. Meir [may be described as] the words of all. But, surely, we learnt the reverse: AND THE SAGES SAY: HE WHO CLAIMS FROM THE OTHER HAS TO PRODUCE THE PROOF?42 — Reverse [the order].43 But, surely. it was taught. 'They are not believed [so far as] to invalidate it; these are the words of R. Meir. And the Sages say: They are believed'?44 — Reverse [the order]. But, surely, R. Johanan said: Proof [must be produced] by witnesses?45 — Reverse [the order].46 Is it [then] to be assumed [that] the objection also is to be reversed?47 — No;
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