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Babylonian Talmud: Tractate Baba Mezi'a
— They are really one, for there is one reason [for both views]. As it is because R. Eleazar says that the difference of opinion [in our Mishnah] concerns a case where the debtor does not admit [his indebtedness] that he interprets it thus.1 The view of Samuel is refuted in two points. The one point [is the same] as [that which applies to] R. Eleazar, for he [also] interprets our Mishnah as referring to a case where the debtor does not admit [his indebtedness]. And the other point is that Samuel says:2 If one finds a deed of transfer3 in the street one should return it to the owners, and we are not afraid that [the debt] may have been already paid.4 The refutation is that here [in the Baraitha] we are taught that even if both parties admit [the genuineness of the documents] one should not return them either to the one or to the other, which shows that we are afraid that [the debt] may have been paid, and it follows with even greater certainty that in a case where5 the borrower does not admit [the genuineness of the document] we are afraid that [the debt] may have been paid.6
Samuel said: What is the reason of the Rabbis [who maintain that a document which contains no clause mortgaging the debtor's property entitles the creditor to exact payment even from encumbered property]? They are of opinion that [the omission of the clause] mortgaging [the debtor's property] is due to an error of the scribe.7
Said Raba b. Ithi to R. Idi b. Abin: And has Samuel really said thus? Has not Samuel said: '[As regards] improvement [of the field], [the claim to] the best property, and mortgaging [the debtor's property] it is necessary for the scribe to consult [the seller of the field]'?8 Shall we say that he who stated the one view [of Samuel] did not state the other?9 — There is no contradiction [between the two views]. The first view [was stated] in connection with a note of indebtedness, [in which case it is assumed] that no man will advance money without adequate security.10 The second view [was stated] in connection with buying and selling, [in which case it is assumed] that a man may buy land for a day,11 as, for instance, Abbuha b. Ihi did, who bought a garret from his sister [and] a creditor came and took it away from him. He appeared before Mar Samuel [who] said to him: 'Did she write you a guarantee?' He answered, 'No.' [Whereupon Samuel] said to him: 'If so, go in peace.'12 So he said to him: 'Is it not you, Sir, who said that [the omission of a clause] mortgaging [the debtor's property] is due to an error of the scribe?'13 He [Samuel] answered him: 'This applies only to notes of indebtedness, but it does not apply to documents [drawn up in connection with] buying and selling, for a man may buy land for a day.'
Abaye said:14 If Reuben sold a field to Simeon with a guarantee,15 and Reuben's creditor came and took it away from him, the law is that Reuben may go and sue him [the creditor],16 and he [the creditor] cannot say to him [Reuben]: 'I have nothing to do with you,'17 for he [Reuben] may say to him [the creditor]: 'What you take away from him [Simeon] comes back on me.'18 Some say that even [if the field has been sold] without a guarantee the law is the same, for he [Reuben] may say to him [the creditor]: 'I do not wish Simeon to have a grudge against me.'19
Abaye also said: If Reuben sold a field to Simeon without a guarantee, and claimants appeared [contesting Reuben's title to sell the land], he [Simeon]
Baba Mezi'a 14b
may retract as long as he has not taken possession of it,1 but if he has taken possession of it he cannot retract,2 for he [Reuben] may say to him [Simeon]: 'You bought a bag sealed with knots, and you got it.'3 When is he deemed to have 'taken possession'? When he has set his foot upon the landmarks.4 But some say that even [when the field is sold] with a guarantee [the buyer may not retract]5 for he [the seller] may say to him [the buyer]: 'Show me your document [legalising the seizure of the field and entitling you to demand your money back] and I shall pay you.'6
It was stated: If one sells a field to his neighbour and it turns out not to be his own,7 — Rab says: He [the buyer] is entitled to [the return of the money [which he paid for the field] and to [compensation from the seller for the] improvement [which he made in the field].8 But Samuel says: He is entitled to the money [he paid] but not to [compensation for the] improvement.
R. Huna was asked: If he [the seller] expressly stated [that he would compensate the buyer for the] improvement [if the field were taken away], what is the law then? Is Samuel's reason [for withholding compensation] that [the seller] did not expressly state [that he would compensate the buyer for the] improvement? [Then it would not apply to this case, for] here [the seller] did state expressly [that he would compensate the buyer]. Or is Samuel's reason that, in view of the fact that he [the seller] really had no land [to sell, the money received by the buyer as compensation for the improvement] would appear like usury?9 R. Huna answered: Yes and No, for he was hesitant.10
It was taught: R. Nahman said in the name of Samuel: He [the buyer] is entitled to [have returned to him] the money [paid for the field], but not to [compensation for] improvement, even if he [the seller] stated expressly that [he would compensate the buyer for the] improvement, the reason being that, in view of the fact that he [the seller] really had no land to sell, he [the buyer] would be taking profit for his money.9 Raba then asked R. Nahman [from the following Mishnah]: We may not collect from encumbered property for the purposes of usufruct, the improvement of land, the alimentation of wife and daughters, out of consideration for the public good.11 [This would show that] it is only from encumbered property that we do not collect, but we do collect from unencumbered property, and it is stated [that this law applies] to the improvement of land. Now may it not be assumed that it refers to [land] bought from one who acquired it wrongfully?12 — No, [it refers to land seized by] a creditor.13 But note the first part: 'We may not collect [etc.] for the purpose of usufruct.' Now if it refers [to land seized by] a creditor, is the creditor entitled to the produce [of the land]? Has not Samuel said: 'A creditor collects [his debt from] an improved field,'14 and does it not mean that [he] only [collects it from] an improved field but not from the produce [of the field]? It is therefore obvious that it refers to one who acquired [a field] wrongfully and to the one who has been deprived of it,15 and seeing that the first part deals with one who acquired a field wrongfully and one who has been deprived of it, the second part [surely] also deals with such a case!16 — How does it follow? This [first part] deals with one case,17 and this [second part] deals with another case.18 But are we not taught differently [in a Baraitha relating to the above Mishnah]: How [does it happen that payment is exacted for] improvement of the land? If one has taken away a field by violence from a neighbour, and he has had to give it up again [in consequence of legal action], then the one that is entitled to compensation may collect the original value [of the field] from encumbered property, and the value of the improvement [may be collected] from unencumbered property.19 Now, how is this to be understood? If we say that [it is to be understood] as stated,20 what right has the person who acquired the field wrongfully to claim compensation from anybody? It must therefore be [understood as referring to a case] where a person wrongfully took away a field from a neighbour and sold it to another person, and [this other person] has improved it!21 — [R. Nahman] answered him: Had you not to remove the difficulty [in the Baraitha] by explaining [that it refers to an unlawfully acquired field]? You may as well remove the difficulty [by saying that it refers to a field seized] by a creditor [after it has been improved by the buyer].
Come and hear: How [does it happen that payment is exacted as compensation for] the use of the produce [of the field]? If one has wrongfully taken away a field from a neighbour, and he has had to give it up again [in consequence of legal action], then the one that is entitled to compensation may collect the capital [value of the field itself] from encumbered property, and the value of the produce [may be collected] from unencumbered property. Now, how is this to be understood? If we say that it is to be understood as stated,22 what right has the person who has acquired [the field] wrongfully to claim compensation from anybody? It must therefore be [understood as referring to a case] where one wrongfully took away a field from a neighbour and sold it to another person, and [this other person] has enhanced its value [by producing fruit]!23 — Raba answered: We deal here with a case where one wrongfully took away from a neighbour a field full of fruit and ate the fruit, and then dug in it pits, ditches and hollows. When the robbed [neighbour] comes to demand the capital [value of the field itself] he may exact payment from encumbered property, but when he comes to demand [the value of] the fruit he may exact payment from unencumbered property [only]. Rabbah son of R. Huna said: [It refers to a case] where
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