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Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 110a

they are sold for timber and land bought with the proceeds, whereof he [the husband] enjoys the usufruct!1  — Read: 'and they aged.'2  Alternatively: have we not explained it that, e.g., they fell to her in another field [not belonging to her]? so that the [entire] principal is destroyed.3

A certain note4  stated an unspecified number of years. Now, the creditor maintained that it meant three; whilst the debtor insisted upon two. Thereupon the creditor anticipated [the findings of the court] and enjoyed the usufruct. Now, whom do we believe? — Rab Judah said: The land stands in the presumptive possession of its owner.5  R. Kahana said: The usufruct is in the presumptive possession of him who enjoyed it.6  And [indeed], the law is in accordance with R. Kahana, who maintained that the usufruct is in the presumptive possession of those who enjoyed it. But have we not an established principle that the law is in accordance with R. Nahman [in civil law], and he [himself]7  ruled that the land is in the presumptive possession of its owner?8  — There it is in a matter that is not destined to be cleared up; here, however, it is a matter [the truth of which] may be finally revealed,9  and a Court is not to be troubled twice.10

If the creditor maintains that it [the mortgage] was for five years, whilst the debtor says that it was for three: and when he challenges him, 'Bring forth your note,' he pleads, 'The note is lost,' — Rab Judah ruled: We believe the creditor, since he could have pleaded, 'I have bought it [outright].'11  Said R. Papa to R. Ashi: R. Zebid and R. 'Awira disagree with Rab Judah's ruling. Why? — Since this document is for the purpose of collection,12  he [the creditor] must have taken great care of it, and [now] he is actually Suppressing the document, thinking, 'I will enjoy its usufruct for an additional two years.' Rabina said to R. Assi: If so, a mortgage after the fashion of Sura, which was drawn up thus: 'On the completion of this number of years, this estate shall go out [of the mortgagee's possession] without further payment:' if he suppresses the mortgage deed and pleads, 'I have bought it' — is he then believed: would then the Rabbis have enacted a measure which may lead to loss? — He replied: There the Rabbis enacted that the mortgager should pay the land-tax and repair ditches.13  But what of an estate that has no ditches and is not subject to land-tax? Then he should have made a formal protest,14  he answered. But what if he did not protest? — Then he brought the loss upon himself.

If the aris claims, 'I entered [the field] on half profits'; whilst the landlord maintains, 'I engaged him on a third profits'; who is believed? — Rab Judah said: The owner is believed; R, Nahman ruled: It all depends on local usage. Now, it was assumed that there is no dispute, the latter ruling15  refers to a place where an aris receives half; the former, where he receives a third. But R. Mari, son of Samuel's daughter,16  said to them [the scholars]: Thus did Abaye say: Even in places where the aris receives a half, there is still a dispute; Rab Judah ruling that the landlord is believed, since he could have pleaded, 'He is my hired labourer' or 'my gleaner.'17

If orphans maintain, 'We have created the improvements;' whilst the creditor contends, 'Your father created them:'18  upon whom lies the onus of proof?

Original footnotes renumbered. See Structure of the Talmud Files
  1. This proves that they rank as principal; for if as fruit, the husband might enjoy them direct.
  2. Prematurely. Even Abaye admits that in such a case it does not count as produce, since it was unexpected.
  3. If the husband uses it direct, whereas the principal of the legacy must remain the wife's. But if she inherited them in her own field or vineyard, the husband could sell them for timber and utilise the proceeds direct, since the soil is still left for the wife. The dispute of Abaye and Raba refers to a similar case, viz., where land and its trees were pledged. But if only trees, the field not belonging to the debtor, presumably Raba agrees that they rank as principal, not produce.
  4. Concerning a mortgage in the fashion of Sura, (v. p. 394) which was that the land reverted to the debtor after an agreed period without further payment.
  5. V. supra 102b, Thus, since there is a dispute about the third year, we presume that it belongs to the debtor, since he is its known owner, unless there is proof to the contrary; and therefore the creditor is forced to repay.
  6. It being a general rule that the onus of proof lies on the plaintiff, who in this case is the debtor, since the creditor has already taken it.
  7. So the text according to Rashi and Rashal.
  8. V. supra 102b.
  9. By the signatories to the note, who can attest the intended period.
  10. If the return of the usufruct is ordered, witnesses may attest that the intended period was three years, and the matter will have to come before Court a second time.
  11. For three years establish a presumption of ownership, in the absence of a deed of a sale; v. B.B. III. 1.
  12. I.e., of the debt, in the form of usufruct; without it, the debtor could have evicted the creditor at the very outset.
  13. Round about the field, for irrigation. Hence the true ownership is known.
  14. I.e., a declaration that the land was not purchased by the creditor. This of course had to be done before three years.
  15. That it depends on local usage, and since this was said in contradistinction to Rab Judah's dictum, it must mean that the aris is believed
  16. V. p. 588, n. 2.
  17. I.e., 'I have only hired him for a few days, and thus could have dismissed him with a small wage'; [H], here translated 'gleaner', was a sort of client or retainer (Jast.).
  18. A creditor of the deceased has no claim upon the increased value of an estate effected by the heirs; but v. p. 630, n. 5.

Baba Mezi'a 110b

Now, R. Hanina thought to rule: The land stands in the presumptive ownership of the orphans; therefore the creditor must adduce proof. But a certain old man observed to him, Thus did R. Johanan rule: It is for the orphans to adduce proof. Why? — Since land stands to be seized [for debt] it is as though it were already seized;1  hence the onus of proof lies upon the orphans.

Abaye said: We have learnt likewise: If it is doubtful which came first, he must cut it down without compensation.2  This proves, since it stands to be cut down,3  we say to him, 'Bring proof [that the tree was here first] and then receive [compensation];' so here too, since the note4  is for the purpose of collection,5  it is as though already collected, and therefore the orphans must prove [their contention]. [Subsequently] the orphans brought proof that they had effected the improvements. Now, R. Hanina thought to rule that when their claims are being satisfied,6  it is done with land.7  But that is incorrect: their claims are satisfied with money. This follows from R. Nahman's dictum. For R. Nahman said in Samuel's name: In three cases the improvements are assessed and payment made in money, viz., [In the settlement of the debt of] the first born to the ordinary son; of the creditor or of the widow8  who collected her kethubah to orphans; and of the creditors to the vendees.9  Rabina objected before R. Ashi: Shall we say that in Samuel's opinion the creditor must return the improvement to the vendees?10  Has then the vendee any title to the improvement: Surely Samuel said: A creditor collects the improvements! And should you reply, There is no difficulty, the one refers to an improvement touching the carriers; the other to an improvement not touching the carriers.11  Surely cases arose daily where Samuel ordered distraint even of the improvement touching the carriers! — There is no difficulty: in one case, the value of the land and its improvement is claimed; in the other, the value of the land and its improvement is not claimed. But where the value of the land and its improvement is not claimed, [you say that] he must pay the vendee money [for his improvements] and can dismiss him. Now, that agrees well with the view that [even] if the vendee has money, he cannot pay off the creditor. But on the view that he can,12  let him say to him, 'Had I money, I would have paid you off from the whole estate; now that I have no money, give me a griwa of land in any field, to the value of my improvements'? — The circumstances here are that he [the original debtor] had created it [the field] an hypothec,13  declaring to him, 'Your payment shall come Only out of this.'14


GEMARA. Our Rabbis taught: Whence do we know that a worker hired by day collects [his wages] all night? From the verse, the wages of him that is hired shall not abide with thee all night until the morning.17  And whence do we know that a worker hired by the night collects it the whole of the [following] day? Because it is written, At his day shalt thou give him his hire.18  But let us say the reverse?19  — Wages are payable only at the end [of the engagement].20

Our Rabbis taught: From the implication of, The wages of him that is hired shall not abide with thee all night, do I not know that it means, until the morning? Why then is it written, until the morning? To teach that he [the employer] violates [the injunction] only until the first morning. But thereafter? — Said Rab: He transgresses, Thou shalt not delay [payment]. R, Joseph said: What verse [shews this]?21  — Say not unto thy neighbour, Go, and come again, and to-morrow I will give; when thou hast it by thee.22

Our Rabbis taught: If one instructs his neighbour, 'Go out and engage for me workers,' neither transgresses the injunction, Thou shalt not keep [the wages] all night. The former, because he did not engage them;

Original footnotes renumbered. See Structure of the Talmud Files
  1. And is in the theoretical possession of the creditor.
  2. V. B.B. 24b. A space of fifty cubits around a city had to be left entirely free for the beauty of the town, If one had a tree within fifty cubits, which he had planted after the town-boundaries had been fixed there, he must remove it without compensation. If it had originally been planted outside fifty cubits, but then, owing to the town's extension, it came within the prohibited area, he receives compensation, but is still bound to cut it down. If, however, it is unknown which was there first, there is no compensation.
  3. In any case.
  4. [Read with some texts 'the land.']
  5. The creditor can seize the land for his debt, including the improvements, save that, if effected by the heirs, he must pay for them.
  6. For the return of the increased value. The literal rendering of the text is, 'Where we dismiss them' — by satisfying their claims.
  7. They are given a portion of the land equal to the increase in value of the whole.
  8. Lit., 'wife.'
  9. (i) A firstborn receives a double share of the estate left by the deceased (Deut. XXI, 17), but not of the improvements effected after death. Now, if the division was not made immediately but some time after death, and both the firstborn and the ordinary son had effected improvements upon the whole estate in the interval: when the firstborn subsequently takes his double share, it contains part of the joint improvements to which he is not entitled. An assessment is therefore made, and he must pay the ordinary sum for it, not by allotting him an additional piece of ground, but in money. Similarly (ii) when a widow or a creditor seizes the estate in satisfaction of their claim, which was improved by the heirs after the deceased's death, to which improvements they are not entitled. (iii) If a debtor sells land after contracting a written debt, the creditor can seize the land from the vendee, if the unsold estate is insufficient; but he must compensate the vendee for his improvements. This too is done with money, not land, but v. text on iii.
  10. [So according to MS.M.; text incur. edd. is somewhat defective.]
  11. Jast.: an improvement touching the carriers, i.e., an increase in the value of the crop, opp. to an increase in the value of the land; v. supra p. 89, n. 4.
  12. Just as the original debtor.
  13. V. supra p. 90 n. 5.
  14. In that case all agree that the vendee cannot retain a portion of the land against his improvements.
  15. In the sense that if he is paid any time during that day or night, his employer does not violate the injunctions against delaying payment. Lev. XIX, 13 and Deut. XXIV, 15.
  16. V. infra Gemara.
  17. Lev. XIX, 13; hence, if paid before morning, it is well.
  18. Deut. ibid.
  19. That the night worker must be paid during the night for which he is engaged, the first verse quoted being so interpreted: similarly the day worker.
  20. Deduced from a verse supra 65a, q.v.
  21. Actually there is no such injunction.
  22. prov. III, 28.