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Babylonian Talmud: Tractate Baba Bathra
But [if the explanation of R. Shesheth is correct],1 why should the rule not be stated in reference to the robber himself?2 — Because It was necessary to state the second clause [viz.]: 'if he sells him a cow or a garment.' For in this case the selling is essential, in order that there may be both giving up [on the part of the original owner] and change of ownership,3 but if the robber does not sell the article, since in this case the original owner may still recover it, he may not give evidence.4 Hence in the first clause also the 'selling' is inserted. But [is this rule sound in regard] even to the second clause? Granted that the original owner abandons his claim to the article itself, he has not abandoned his claim to the money, has he?5 — The rule requires to be stated to cover the case where the robber has died, as we have learnt: If a man robs [someone of food] and gives it to his children to eat or bequeaths it to them, they are not under obligation to repay it. But [if this explanation is correct], why should not the rule be stated in reference to the heir [of the thief]?6 It is true, there is a reason [why it should not] if we accept the opinion that the ownership of an heir [of a thief] is not on the same footing as the ownership of a purchaser [from a thief],7 but on the view that the ownership of the heir is on the same footing as the ownership of the purchaser, what are we to say? And Abaye finds yet another difficulty [in the explanation of R. Shesheth, viz. that the expressions] 'because he is responsible for it,' 'because he is not responsible for it' [are on this theory improperly used,8 and] the Baraitha should say, 'because it may be recovered by him', 'because it cannot be recovered by him'? — We must therefore [understand the above rulings] in the light of the dictum enunciated by Rabin b. Samuel in the name of Samuel, viz. If a man sells a field to another [even] without [accepting] responsibility, he cannot give evidence as to the latter's title, because he can keep it safe for his own creditor.9 This applies only to a house or a field, but in the case of a cow or a garment, not only is there no question
Baba Bathra 44b
that [if he sells them without] having declared them security [to a creditor], the creditor has no lien on them1 (the reason being that they are movables, and movables cannot be mortgaged to a creditor; and even if the debtor gives a written promise to pay 'from the coat on his back', that is only binding so long as they are actually there but not if they are not there), but even if he did declare them to be security, the creditor still has no lien on them.2 The reason is to be found in the dictum of Raba, for Raba said: If a man declares his slave security for a debt, and then sells him, the creditor can seize him [in satisfaction of the debt], but if he declares his ox or his ass security for the debt and then sells it, the creditor cannot seize it [in payment of the debt],3 the reason being that the former [the hypothecating of a slave] becomes generally known, but the latter [that of an ox or an ass] does not become generally known.4 But is there not a possibility5 that he [the seller] mortgaged to him [the creditor] movables along with landed property,6 and Raba has laid down that if a man mortgages to another movables along with landed property, the latter acquires a lien over the land and acquires one over the movables also7 (providing — R. Hisda adds — he inserts in the bond the words,'this bond is no mere asmakta8 or draft form')? — We assume here that the seller sold [the cow or the garment] immediately after himself acquiring it.9 But is there not still a possibility that this is a case where [the seller has given his creditor a bond on movables which] he will hereafter acquire,10 and may we not learn from this fact11 that if [a man gives his creditor a bond on movables which] he is hereafter to acquire, and then acquires them and sells them or acquires them and bequeaths them, the creditor has no lien on them?12 — This,13 however, was only meant to apply to the case where the witnesses say, We know that this man never owned any land.14
But has not R. Papa said: Although the Rabbis have laid down that if a man sells his field to another without a guarantee15 and his creditor comes and seizes it, the purchaser cannot recover [the price of the field] from him, yet if it is found that the field did not belong to him, he can recover?16 — In this case we suppose that the purchaser recognises the ass [he bought] as being the foal of an ass belonging to the seller.17 R. Zebid, however, says that even if it is found that the field did not belong to the seller, the purchaser cannot recover from him, because he can say to him, That was precisely why I sold to you without a guarantee.
[To revert to] the above text, 'Rabin b. Samuel said in the name of Samuel: If a man sells a field to another without [accepting] responsibility, he cannot give evidence as to the latter's title, because he can keep it safe for his own creditor'.18 How can this be?
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