'Once a statement has been made it cannot be withdrawn',1 it is not the nature of a scholar to take particular note [of a woman's face].2
A certain receipt3 on which the signature of R. Jeremiah b. Abba appeared [was produced, but the woman] said to him, 'It was not I'.4 'I am sure',5 he insisted,6 'it was you'. Said Abaye: Although a scholar is not in the habit of taking note [of a woman's appearance], when [however] he does take notice he is relied upon.7
Abaye said: A scholar who desires8 to betroth a woman should take with him a layman9 [so that another woman] might [not] be substituted for her [who would be taken away] from him.10
AND THE HUSBAND PAYS THE FEE etc. What is the reason? — Because Scripture says: And he shall write … and give.11 And why is this not done12 at the present time? — The Rabbis have imposed it13 upon the woman to order that he might not cause her [undue] delay.14
A BOND MAY BE WRITTEN FOR A BORROWER THOUGH THE LENDER IS NOT PRESENT etc. [Is not this] obvious?15 — [This15 would] not [have been] required [except] in [the case of a loan for] merchandise on shares.16
A DEED [OF SALE] MAYBE WRITTEN FOR THE SELLER IN THE ABSENCE OF THE BUYER etc. [Is not this] obvious?17 — [This would] not [have been] required [except in the case] where one sells his field on account of its inferiority.18
DEEDS OF BETROTHAL AND MARRIAGE ARE NOT WRITTEN etc. [Is this not] obvious?19 — [This would] not [have been] required [except for the fact] that even a scholar [has to pay the fee] though it is a satisfaction to his father-in-law to bring him into his family.20
A CONTRACT OF TENANCY ON SHARES OR ON A FIXED RENTAL IS NOT WRITTEN etc. [Is not this] obvious? — [It would] not [have been] required [except for the case] where [the land is to lie] fallow.21
DEEDS OF ARBITRATION … ARE NOT WRITTEN EXCEPT WITH THE APPROVAL OF BOTH PARTIES etc. What [is meant by] shetare berurin?22 — Here23 it was explained [as] 'records of the pleas'.24 R. Jeremiah b. Abba explained: One25 [of the litigants] chooses one and the other chooses another.26
RABBAN SIMEON B. GAMALIEL SAID: TWO [DEEDS] MAY BE WRITTEN FOR THE TWO PARTIES, ONE FOR EACH. May it be suggested [that] they are in dispute on [the principle of] exercising force against a Sodomite character;27 for [one] Master28 is of the opinion [that] force is exercised29 and the [other] Master30 is of the opinion that force is not exercised!31 — No; both32 [agree that] force is exercised, but the reason of Rabban Simeon b. Gamaliel here33 is this: Because [one can] say to the other,34 'I do not like your rights to be at the side of my rights, for you appear to me as a lurking lion'.35
MISHNAH. [IN THE CASE] WHERE [A PERSON] PAID A PART OF HIS DEBT AND THE BOND WAS DEPOSITED WITH A THIRD PARTY TO WHOM [THE BORROWER SAID]. 'IF I WILL NOT PAY YOU [THE BALANCE] BETWEEN NOW AND36 A CERTAIN DATE, GIVE HIM37 HIS BOND', [AND] THE DATE ARRIVED AND HE DID NOT PAY, R. JOSE SAID: HE38 SHALL GIVE [IT];39 R. JUDAH SAID, HE SHALL NOT GIVE [IT].
GEMARA. Wherein40 [lies] the difference between them? — R. Jose holds [that] asmakta41 conveys possession.42 and R. Judah holds [that] an asmakta does not convey possession.43 R. Nahman in the name of Rabbah b. Abbuha in the name of Rab said: The halachah is according to R. Jose. When [such cases]44 came before R Ammi, he said: 'Since R. Johanan has taught us again and again45 [that] the halachah is according to R. Jose, what can I do?' The halachah, however, is not according to R. Jose.
MISHNAH. IF A MAN'S BOND OF INDEBTEDNESS WAS EFFACED, HE MUST SECURE46 WITNESSES,47 AND APPEAR BEFORE A COURT OF LAW WHERE HE IS SUPPLIED WITH [THE FOLLOWING] ATTESTATION: 'THE BOND OF X SON OF Y WAS FADED ON SUCH AND SUCH A DATE,
Original footnotes renumbered.
- Lit., 'since he said, he cannot say again'. Ket. 18b, Sanh. 44b, Mak. 3a.
- Hence R. Jeremiah's first statement may be assumed to have been made under a misapprehension, while his second statement, made after due consideration, is accepted.
- For a kethubah.
- But another woman whose name happened to be the same as hers.
- Lit., 'indeed'.
- Lit., 'said to her'.
- Lit., 'he took note'. Hence R. Jeremiah's statement is to be accepted.
- Lit., 'goes'.
- Heb. Am-ha-arez, v. Glos.
- Since he does not observe and recognise women.
- Deut. XXIV, 3.
- Lit., 'that we do not do so', that the husband is made to pay the fee
- The payment of the fee.
- By refusing, or delaying the payment of the scribe's fee, as the scribe would hardly part with the deed before his fee had been paid, the husband is able to postpone also the paying of the kethubah which does not become due until after the divorce had taken place. (Cf. R. Gersh., a.l.). Furthermore, the husband, in order to avoid payment, might desert her altogether and she would thus remain separated from him and prevented from ever marrying again. (Rashb.).
- That the borrower, in whose interest the loan is made, must pay the fee of the scribe.
- [H] a loan for trading purposes the profits of which are shared by the borrower and lender, (v. supra 70b). Though the latter also benefits from the profits, the fee, as in the case of any ordinary loan, must be paid by the borrower.
- That the buyer is to pay the scribe's fee.
- Though the seller may be more anxious to sell than the other to buy, the latter, as is the case with an ordinary buyer, must pay for the preparation of the deed.
- That the bridegroom is to pay the fee.
- It is a source of deep satisfaction for one to be able to secure a scholar for a son-in-law. This, however, is no reason why the bridegroom, though a scholar, should not pay the fees that are paid by other bridegrooms.
- Though the tenant would for a year or two, while the land is to lie fallow, derive no benefit from the purchase, he has nevertheless, like an ordinary buyer, to pay the fee
- V., supra p. 729. n. 8.
- In Babylon.
- Of the litigants. Those were recorded by the court scribes, and the decision of the judges was based on the pleas thus recorded.
- Lit., 'this'.
- Lit., 'One'. An agreement was then signed in which the names of the litigants and the respective arbitrators they have chosen were duly entered.
- V. supra p. 62, n. 3.
- The first Tanna.
- Hence if one of the litigants demands a separate copy of the document for himself for which he offers to pay, and expects the other to pay for another copy, he, acting in the 'character of Sodom', is forced by the court to content himself with one common document towards the cost of which both parties contribute in equal shares.
- R. Simeon b. Gamaliel.
- Consequently he maintains that a separate copy of the document may be prepared for each of the litigants if one of them so desires it. Now, since the principle of exercising force against a 'Sodomite character' has been disputed elsewhere, why should it be re-argued here again?
- Lit., 'that all the world'.
- Against the use of force in this case.
- Lit., 'to him'.
- Since a common document might lead to new arguments and quarrels. R. Simeon b. Gamaliel's view is that, in such a case, it is better to allow separate copies for each of the litigants if one of them had expressed a desire to have a copy of his own.
- Lit., 'from here and until'.
- The creditor.
- The trustee.
- To the creditor, who can consequently claim the payment of the full debt.
- On what principle.
- [H] (lit.. 'reliance'), an undertaking to pay or to forfeit something without receiving for it sufficient consideration, which is dependent on the non-fulfilment of a certain condition given by a person in the hope (reliance) that he would be able to fulfil the condition and would not in consequence have to carry out the undertaking.
- Though the undertaking to pay the full debt was given in the hope and expectation that it would never have to be carried out, it is nevertheless legally binding, since the condition on which it was dependent was not in fact fulfilled.
- It is obvious that the borrower never intended to pay the full debt after he had already paid an instalment. His undertaking to pay the full debt if the balance were not paid by a certain date must have been in the nature of an expression of good faith, in his desire to show that it was his earnest hope and intention to pay the balance before that date arrived.
- Relating to the laws of asmakta.
- Lit., 'a first, and second time'.
- Lit., 'causes to stand concerning it'.
- Who remember the contents of the bond.
Baba Bathra 168b
AND A AND B [WERE SIGNED ON IT AS] ITS WITNESSES.
GEMARA. Our Rabbis taught: What is the form of its1 attestation? — 'We, X, Y and Z, being in a session of three, A son of B produced before us a faded bond on such and such a date, and C and D [were signed as] Its witnesses'. And if the attestation contains [the following]. 'We have dealt with the evidence of the witnesses and their evidence was found to agree', [the creditor] collects [his debt]2 and is not required to produce [any additional] proof; but if not,3 he is required to produce proof.4 [A bond] intentionally torn is invalid; if torn accidentally, it is valid. [In case] it was effaced or obliterated, if the tracing5 [of the letters] is distinguishable it is valid. How is one to understand 'intentionally torn' and how, 'torn accidentally'? Rab Judah said: 'Intentionally torn' [means] a tear made by a court of law; 'torn accidentally', a tear which [was] not made by a court of law. How is 'a tear made by a court of law' to be understood? — Rab Judah said: [If it was made at] the place of the witnesses, the place of the date and the place of the amount.6 Abaye said: [If it runs] lengthwise and crosswise.
Certain Arabs who came to Pumbeditha were seizing by force the lands of the inhabitants.7 The owners8 came to Abaye [and] said to him: 'Will the Master examine our deeds and write for us duplicates9 so that, in case one is forcibly taken away. we shall [still] hold one in our possession'?10 He said to them: 'What can I do for you. when R. Safra said: Two deeds [may] not be written in respect of the same field [since a person] might [thereby] seize and seize again'.11 [As] they were troubling him,12 be said to his scribe, 'Go [and] write for them the text13 [of the deeds] on an erasure and [let] the14 witnesses [sign] on [clean] paper, [and thus produce duplicate deeds], which [are] invalid.15 Said R. Aha b. Manyumi to Abaye;16 Might it not happen that the [original] tracing17 would be distinguishable, and [concerning such a case, surely,] it was taught: [A deed that] was effaced or obliterated, if its tracing is distinguishable. [is] valid!18 — He replied to him: Did I say a proper deed [shall be written]?19 What I said was mere [letters of the] alphabet.20
Our Rabbis taught: Should [a creditor] come and say, 'I lost my bond of indebtedness',21 the bond [may not] be rewritten for him although witnesses stated, 'We wrote, signed and delivered [such a deed] to him'.22 This, [however], applies only to the case23 of bonds of indebtedness24 but [in the case of] deeds of purchase and sale [a deed], with the omission25 of [the clause] pledging [property may] be [re]written.
Original footnotes renumbered.
- A Faded bond. Cf. our Mishnah.
- from the property which the borrower may possess or from that which he sold after the date of the original deed.
- If the formula, 'we have dealt with the evidence of the witness etc.. Is not entered.
- As to the contents of the bond such as date, sum, etc.
- Lit., 'its tracing'.
- [H] The 'specific element' of a deed (opp. [H] 'formal element'). viz., date and amount. (Cf. supra p. 699. n. 9.) So called because by virtue of it the creditor may seize ([H]) even the sold lands of the creditor (R. Gersh.). [Krauss, op. cit. III, 352. Connects it with [H] 'exposed', 'blank', hence the blank part of the deed which has to be filled in.]
- [During the long drawn out Roman-Persian war (338-363), Shapur II invited certain warring Arab tribes to help him in this struggle against the Romans. V. Funk, S., Die Juden in Babylonian, II. 41.]
- Lit., 'their owners', of the seized lands, who were compelled by the Arabs to hand over also their deeds.
- Lit., another deed on it'.
- And use it as proof of ownership if they should succeed in recovering their lands from the Arabs. [V. Obermeyer. op. cit. 235.]
- Infra 169a. A buyer who purchased a field the sale of which has been secured by the seller's landed property might, if a creditor of the seller should ever seize that field for his debt, secure double compensation from the lands of subsequent buyers by the production in turn of one of the two deeds.
- Persisting in their demand.
- Lit., 'it'.
- Lit., 'its'.
- They, not knowing that the duplicates were of no legal value, would cease troubling the Master, while no loss to subsequent buyers, (v. supra n. 1) could possibly be involved (v. supra 164a).
- R. Aha understood Abaye to have instructed his scribe (a) to copy the deeds on clean paper; (b) to erase the text, and (c), to copy the deeds again on these erasures.
- The first copy. v. previous note (a).
- Of what avail, then, was Abaye's device seeing that they could erase the second text whilst preserving the tracing of the first text?
- A copy of the original. v. n. 6 (a).
- These were (a) to be written; (b) erased; and on the erasure thus produced, a duplicate of the deed was to be written. Should, in such a case, the original letters re-appear they would signify nothing and the deed would remain invalid.
- And there are no witnesses to testify that the deed was really lost.
- Because this evidence merely proves that the creditor is entitled to the rights of one such bond. It does not prove, however, that he lost his bond. Hence no second one in lieu of the first may be written for him, since he might make use of the two and thus reimburse himself twice.
- Lit., 'in what (case) are the words said'.
- Because the creditor might thereby collect his debt twice. Even if no security on the borrower's lands were to be entered, it could still be collected from his 'free' property.
- As will be explained, infra 169b.