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Babylonian Talmud: Tractate Baba Bathra
The judges of the Exile,1 however, say that all which are bent back by the yoke2 are not reserved, but all those which are not bent back by the yoke are reserved. There is really no conflict of opinion, because the former [speaks] of date trees3 and the latter [speaks] of other trees.4
R. Aha b. Huna enquired of R. Huna: [If the vendor says, I sell you the whole field] with the exception of such-and-such a carob tree or such-and-such a sycamore, how do we decide? Is it that carob alone which the purchaser fails to acquire, while he acquires all the rest, or does he fail to acquire the rest also?5 — He replied: He does not acquire them. R. Aha then raised an objection [from the following]: [If the vendor says], Except such-and-such a carob tree, except such-and-such a Sycamore, he does not obtain possession. Does this not mean that he fails to acquire possession of that carob, but he does acquire possession of the rest? — No, he replied; he fails to acquire possession of the other carobs also. The proof is this. Suppose [he was selling him a field and] said to him, 'My field is sold to you with the exception of such-and-such a field',6 would this mean that the purchaser failed to acquire ownership of that field alone, but did acquire ownership of all the other fields [belonging to the vendor]? Of course he would not acquire ownership.7 So here too he does not acquire ownership.
Some report this discussion as follows. R. Ahab. Huna inquired of R. Shesheth: [If the vendor said, 'I sell you the field] with the exception of half of such-and-such a carob tree', or 'half of such and-such a sycamore', how do we decide? Of course he does not acquire the other carobs.8 The question is, does he acquire the half left over in the carob specified,9 or does he fail to acquire even that? — He replied: He does not acquire it. R. Aha then raised an objection [from the following]: '[If the vendor says], "Except half of such-and-such a carob, half of such-and-such a sycamore", he does not acquire the remaining carobs'. Does not this mean that he only fails to acquire the remaining carobs, but he does acquire the remainder of that carob? — No, replied R. Shesheth; even the remainder of that carob he does not acquire. The proof is this. Suppose [he was selling him a field and] said to him, 'My field is sold to you with the exception of half of such-and-such a field', would he fail to acquire only that half and acquire the other half? Obviously he would not acquire it; so here too he does not acquire.
10R. Amram inquired of R. Hisda: If a man deposits something with another and receives a written acknowledgment for it, and the other subsequently asserts, 'I returned it to you', how do we decide? Do we argue that since we should accept his word if he cared to say that he had lost it through circumstances over which he had no control,11 now too we accept his word,12 or [do we accept the plea of] the other if he says, 'How comes your acknowledgment in my hand?'13 — He replied: We accept the word [of the defendant]. But the claimant can plead, 'How comes your acknowledgment in my hand?' — Said he [R. Hisda]: On your own argument, if the defendant said, 'I lost it through circumstances over which I had no control,' could the claimant plead, 'How comes your acknowledgment in my hand?'14 He [R. Amram,] replied: When all
Baba Bathra 70b
is said and done, even if he pleads that it was taken from him by violence, is he not required to take an oath?1 Here too, when I say that we accept his word, I mean that we accept it on his taking an oath.
May we say that the point at issue [between R. Hisda and R. Amram] is the same as that between the following Tannaim,2 as it has been taught: 'If a claim is made against orphans on the ground of a "purse bond",3 the judges of the Exile4 say that the claimant is entitled on taking an oath5 to recover the whole, but the judges of Eretz Yisrael6 say that he is entitled on taking an oath to recover only half.'7 Now all authorities accept the view of the Nehardeans who say that this transaction is half a loan and half a deposit.8 May we not say then that the point in which they differ is this, that the one authority [the judges of the Exile] holds that the claimant may plead effectively, 'How comes your bond to be in my hand',9 and the other holds that he cannot? — No; all concur in the view of R. Hisda [that he cannot], and here the point of difference is this, that the one [the judges of the Exile] holds that if the borrower had paid [before his death] he would have told [his children],10 while the other holds that we may presume death11 to have prevented him.
R. Huna b. Abin sent a message12 that if a man places a deposit with another and receives an acknowledgment and the latter subsequently asserts that he has returned it, his word is accepted;13 and if a claim is made against orphans on the ground of a 'purse bond', the claimant is entitled on taking an oath to recover the whole.14 Have we not here two [contradictory rulings]? — In the second case there is a special reason, that if he had paid he would have told his children. Raba said: The law is that the claimant is entitled to take an oath and recover half.15 Mar Zutra said that the law follows the decision of the judges of the Exile.16 Said Rabina to Mar Zutra: Has not Raba laid down that he is entitled to take an oath and recover [only] half?17 — He replied: In our version the reverse opinion is ascribed to the judges of the Exile.18
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