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?
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
MISHNAH. IF ONE LEASES A FIELD FOR A SEPTENNATE FOR SEVEN HUNDRED ZUZ, THE SABBATICAL YEAR IS INCLUDED. BUT IF HE LEASES IT FOR SEVEN YEARS FOR SEVEN HUNDRED ZUZ, IT IS NOT INCLUDED. A WORKER ENGAGED BY THE DAY CAN COLLECT [HIS WAGES] THE WHOLE OF THE [FOLLOWING] NIGHT; IF ENGAGED BY THE NIGHT, HE CAN COLLECT IT THE WHOLE OF THE [FOLLOWING] DAY.15 IF ENGAGED BY THE HOUR, HE CAN COLLECT IT THE WHOLE DAY AND NIGHT.16 IF ENGAGED BY THE WEEK, MONTH, YEAR, OR SEPTENNATE, IF HIS TIME EXPIRES BY DAY, HE CAN COLLECT [HIS WAGES] THE WHOLE OF THAT DAY; IF BY NIGHT, HE CAN COLLECT IT ALL NIGHT AND THE [FOLLOWING] DAY.
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;
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