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Babylonian Talmud: Tractate Baba Bathra
The Judges of the Exile,1 however, say that one can obtain hazakah. The halachah said Rab, is that of the Judges of the Exile.2 Thereupon R. Kahana and R. Assi said to him: Does our Master retract his ruling? — He replied: You may suppose I refer to such a case3 as that mentioned by R. Joseph.4
A WIFE HAS NO HAZAKAH IN THE PROPERTY OF HER HUSBAND. Surely this is self-evident; since the husband has to maintain her, [we suppose that when she occupies the field] she is merely deriving her maintenance from it? — The rule had to be stated [to cover the case] where he assigned her another field for her maintenance.5
[Since the Mishnah says only that the wife has no hazakah], we infer that if she brings proof6 [that the field has been sold to her] the sale is valid. But cannot the husband plead against this that he merely desired to see if she had any money?7 May we then not learn from this [Mishnah] that if a man sells a field to his wife, she becomes the legal owner and we do not say that he merely desired to see if she had any money? — No; we infer [rather] thus: but if she brings a proof it is effective in the case of a deed of gift [though not of a deed of sale].8
R. Nahman said to R. Huna: A pity your honour was not with us last night at the boundary,9 when we drew up an exceptionally fine rule.10 Said the other: What was this exceptionally fine rule which you drew up? He replied: If a man sells a field to his wife, she becomes the legal owner, and we do not say that he merely desired to see if she had money. Said R. Huna: This is obvious. Take away the money, and she still becomes legal owner by means of the deed.11 For have we not learnt: [Ownership in] landed property is acquired by means of money payment, deed, or hazakah?12 But, said R. Nahman, has not the following rider been attached to this [Mishnah]: Samuel said that this13 was meant to apply only to a deed of gift, but if the deed is one of sale, legal ownership is not acquired until the money payment has been made? And, [rejoined R. Huna] did not R. Hamnuna refute this [by quoting the following]: 'How is property acquired by a deed? Suppose he [the seller] writes on a [piece of] parchment or on a potsherd,14 which in themselves may be worth nothing, My field is hereby sold to you, my field hereby becomes your property, it is effectively sold or given!15 — But did not R. Hamnuna counter his own objection16 by adding: This holds good only where a man sells his field because it is practically worthless?17 R. Ashi said: He [the seller referred to above]18 really meant to transfer his field to the other as a gift, and the reason why he made the transfer in the form of a sale was in order to make the recipient's title more secure.19
An objection20 was raised [from the following]: If a man borrows money from his slave and then emancipates him, or from his wife and then divorces her, they have no claim against him [for the money so lent].21 What is the reason for this? Is it not because we say that his object [in borrowing] was only to see if they had any money? These cases are different,22 because [we presume that] a man would not readily place himself in the position of 'a borrower who is a servant to the lender.'23 R. Huna b. Abin sent [the following message:24 'If a man sells a field to his wife, she becomes the legal owner,
Baba Bathra 51b
but he still remains entitled to the produce. R. Abba, R. Abbahu, and all the chief authorities of that generation,1 however, said that [in selling] his real intention was to make her a gift of it,2 and he only made out a deed of sale to her in order to make her title more secure.
An objection was raised [against this on the ground of the following]:3 'If a man borrows money from his slave and then emancipates him, or from his wife and then divorces her, they have no claim against him. What is the reason? Is it not because we say that he merely wished to see if they had any money?' — These cases are different, because we presume that a man would not readily place himself in the position of 'a borrower who is a servant to the lender.'
Rab said: If a man sells a field to his wife, She becomes the legal owner, but he is still entitled to the produce. If he makes her a gift of a field, she becomes the legal owner and he is no longer entitled to the produce.4 R. Eleazar, however, said that in either case the wife becomes the legal owner and the husband is not entitled to the produce. In a case which actually occurred, R. Hisda followed the ruling of R. Eleazar. Rabban 'Ukba and Rabban Nehemiah,5 the sons of the daughters of Rab, said to R. Hisda: Do you mean then, Sir, to abandon the greater authorities and follow the lesser?6 He replied: I also am following a great authority, for when Rabin came7 he said in the name of R. Johanan: In either case, the wife becomes the legal owner, and the husband is not entitled to the produce.
Raba said: The law is that if a man sells a field to his wife she does not become the legal owner and the husband is entitled to the produce, but if he gives it to her she becomes the legal owner and the husband is not entitled to the produce. [Do not the] two [halves of Raba's first statement contradict each other]?8 — There is no contradiction. The one [half] refers to the case where the wife had money hidden away,9 the other to the case where she had no money hidden away,10 since Rab Judah has laid down: [If the wife buys with] money hidden away, she does not acquire, if with money not hidden away, she does acquire.
Our Rabbis taught: Pledges should not be taken either from women or from slaves or from children.11 If one has taken a pledge from a woman, he should return it to her;12 if she dies, to her husband. If one has taken a pledge from a slave, he should return it to the slave, or, if he dies, to his master.
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