# snc

lvr: 42
dfh: a
notes:
 ntes={k2a_1:" So that they are both in actual possession &mdash; otherwise the one in actual possession would have the stronger claim."
,k2a_2:" Though the other man has taken hold of it first."
,k2a_3:" B.K. 113b; [MS.M.: Rabina. V. D.S. a. l.]."
,k2a_4:" Deut. XXII, 3."
,k2a_5:" Which would show that they form alternative pleas."
,k2a_6:" This word may also mean 'an unknown authority'."
,k2a_7:" But not to a case where each one maintains that he has made the garment, for then one of them is bound to be lying. "
}

txt:
<p>
      <H2 ALIGN="Center">
	<A NAME="chapter_i">CHAPTER I</A>
      </H2>

</p><p>
	<P><B><I>MISHNAH</I></B>. TWO [PERSONS APPEARING BEFORE A COURT] HOLD A GARMENT.<a id="k2a_1"><sup>1</sup></a>&nbsp; ONE OF THEM SAYS, 'I FOUND IT', AND THE OTHER SAYS, 'I FOUND IT'; ONE OF THEM SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS, 'IT IS ALL MINE', THEN THE ONE SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND THE OTHER SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND [THE VALUE OF THE GARMENT] SHALL THEN BE DIVIDED BETWEEN THEM. IF ONE SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS, 'HALF OF IT IS MINE', HE WHO SAYS, 'IT IS ALL MINE' SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN THREE QUARTERS, AND HE WHO SAYS, 'HALF OF IT IS MINE' SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN A QUARTER. THE FORMER THEN RECEIVES THREE QUARTERS [OF THE VALUE OF THE GARMENT] AND THE LATTER RECEIVES ONE QUARTER. IF TWO RIDE ON AN ANIMAL, OR ONE RIDES AND THE OTHER LEADS IT, AND ONE OF THEM SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS, 'IT IS ALL MINE', THEN THE ONE SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND THE OTHER SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND [THE VALUE OF THE ANIMAL] SHALL THEN BE DIVIDED BETWEEN THEM. IF BOTH ADMIT [EACH OTHER'S CLAIMS] OR IF THEY HAVE WITNESSES [TO ESTABLISH THEIR CLAIMS] THEY RECEIVE THEIR SHARES WITHOUT AN OATH.
</p><p>
	<P><B><I>GEMARA</I></B>. What need is there [for the Mishnah] to [give two pleas of the litigants and] state: ONE OF THEM SAYS, 'I FOUND IT', AND THE OTHER SAYS, 'I FOUND IT', ONE OF THEM SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS, 'IT IS ALL MINE'? Surely one plea would have been sufficient! &mdash; It is only one plea: One says 'I found it and [therefore] it is all mine', and the other says 'I found it, and [therefore] it is all mine'! But why not just state 'I found it', and it will be understood that the intention is to claim the whole garment? &mdash; The term 'I FOUND IT' might have been explained as denoting 'I saw it', the mere seeing [of the garment] entitling him to claim it as his possession.<a id="k2a_2"><sup>2</sup></a>&nbsp; Therefore the plea 'IT IS ALL MINE' is added, so as to make clear that seeing alone does not constitute a claim. But how could it be thought that one who has only seen [the garment] could plead 'I found it'? Does not Rabbannai<a id="k2a_3"><sup>3</sup></a>&nbsp; say that the phrase and thou hast found it<a id="k2a_4"><sup>4</sup></a>&nbsp; means 'thou hast taken hold of it'? &mdash; It is admitted that the Scriptural use of the term 'found' implies having taken hold, but the Tanna uses popular language, in which, on seeing something, one might use the term 'found it', [the belief being prevalent] that one acquires [a lost article] by sight alone. For this reason it was necessary to add the plea 'IT IS ALL MINE' and thus to indicate that the mere seeing [of an ownerless object] constitutes no claim to possession. But even so, would it not have been sufficient to state 'IT IS ALL MINE' without the plea of 'I FOUND IT'? &mdash; Had [the Mishnah] stated only the plea 'IT IS ALL MINE' I might have said that elsewhere [in the Talmud] the term 'found' is used to mean ['seen', and the conclusion would have been drawn] that mere sight constitutes a claim to possession. For this reason the Mishnah states first 'I FOUND IT' and then 'IT IS ALL MINE' so that we may gather from the additional clause that mere sight does not constitute a claim to possession.
</p><p>
	But how could you say that the two pleas are really one? Is not each plea introduced by the words: ONE OF THEM SAYS and THE OTHER SAYS,<a id="k2a_5"><sup>5</sup></a>&nbsp; [viz.] ONE OF THEM SAYS 'I FOUND IT', AND THE OTHER SAYS 'I FOUND IT', ONE OF THEM SAYS 'IT IS ALL MINE', etc.? [To this] R. Papa. or R. Shimi b. Ashi, or, as some say, Kadi,<a id="k2a_6"><sup>6</sup></a>&nbsp; replied: The first plea applies to a case of finding, but the second plea applies to a case of buying and selling.<a id="k2a_7"><sup>7</sup></a>&nbsp; And it is necessary [to have the two cases].
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k2b_1:" The oath would then act as a deterrent, as even if he did not hesitate to put forward a wrong claim he would not be ready to commit perjury."
,k2b_2:" Apart from the loss of the money paid, there is the loss of the garment which the man who went to the trouble of buying it evidently needed for his own use."
,k2b_3:" The evidence of the seller, even if available, would not be trusted in such a case, as he is not likely to remember, after the two have left, from whom he took the money willingly (Rashi). [Tosaf. reads, he did not know, i.e., the seller does not recollect the matter; v. Kid. 73a.]"
,k2b_4:" V. Shebu. 43a. It is the case of a householder having instructed a shopkeeper to supply his employees with goods for the amount that he (the householder) owed them in wages. The shopkeeper asserts that he has supplied the goods, while the employees deny having received any. The decision of the Sages is that both the shopkeeper and the employees take an oath in confirmation of their statements, and the householder pays both parties, whereas Ben Nannus holds that both receive payment without taking an oath."
,k2b_5:" In this case each finder would be entitled to swear that half of the garment belongs to him, in the belief that he was first in picking up the whole of it. The same applies to a bought article if the seller consented to sell it to both at the same time."
,k2b_6:" v. B.K. 46a."
,k2b_7:" V. ibid."
,k2b_8:" And although each one claims the whole garment, and thus seeks to acquire the part that the other is holding, yet they are both in the same position, so that the above principle does not apply."
,k2b_9:" Which makes the above distinction (between 'certain' and 'uncertain') invalid?"
,k2b_10:" An inference from a minor to a major premise; v. <a href=\"../tglossary.html\">Glos.</a> "
}

txt:
<p>
For if the Tanna had dealt solely with the case of finding I might have said that only in such a case would the Rabbis impose an oath, because each disputant might permit himself [to claim the garment] by saying to himself, 'My neighbour loses nothing through my action [as it cost him nothing to acquire the garment]; I shall go and take hold of it and share it with him.'<a id="k2b_1"><sup>1</sup></a>&nbsp; But in the case of a bought article, where this argument does not apply,<a id="k2b_2"><sup>2</sup></a>&nbsp; it might be assumed that no oath was to be imposed. On the other hand, had the Tanna dealt solely with a case of buying and selling, it might be assumed that only in such a case would the Rabbis impose an oath, because each disputant might permit himself [to claim the garment] by saying to himself, 'My neighbour has paid the price and I am prepared to pay the price; seeing that I need it I shall take it, and let my neighbour take the trouble to go and buy another garment.' But in the case of a found article, where this argument does not apply, it might be assumed that no oath was to be imposed; therefore both cases are necessary.
</p><p>
	But how could such a situation arise in the case of a bought article? One could surely ascertain from the seller as to which of the two paid him the money? &mdash; The case is one in which the seller took money from the two purchasers, willingly from one, and unwillingly, from the other, and we do not know from whom he took it willingly and from whom unwillingly.<a id="k2b_3"><sup>3</sup></a>
</p><p>
	Shall it be said that our Mishnah is not in agreement with the view of Ben Nannus? For does not Ben Nannus<a id="k2b_4"><sup>4</sup></a>&nbsp; express surprise at the decision of the Sages to impose oaths on disputants one of whom is bound to swear falsely? &mdash; The Mishnah may well be in agreement with Ben Nannus. For in the case [where Ben Nannus objects to the oath] it is certain that if both parties take the oath one of them will commit perjury. But in our Mishnah it may well be assumed that no perjury will be committed [even if both parties swear], for it is possible that both of them picked up the garment simultaneously.<a id="k2b_5"><sup>5</sup></a>
</p><p>
	Again, shall it be said that our Mishnah is not in agreement with the view of Symmachus? For does not Symmachus, [in another case,]<a id="k2b_6"><sup>6</sup></a>&nbsp; maintain that disputed money of doubtful ownership should be divided among the disputants without an oath? But would not the same difficulty arise [if we compared the decision of our Mishnah] with that of the Rabbis<a id="k2b_7"><sup>7</sup></a>&nbsp; [who are opposed to Symmachus]? For have these Rabbis not declared that 'the claimant must bring evidence to substantiate his claim' [while in our Mishnah the disputed article is divided on oath]? &mdash; What a comparison! In the case in which the Rabbis apply the principle that 'the claimant must bring evidence' the contending parties had not taken hold of the disputed object, but here [in our Mishnah] since both disputants hold the garment<a id="k2b_8"><sup>8</sup></a>&nbsp; it is rightly divided, after both have taken the oath. But in regard to Symmachus the argument is the other way. For if he decided in the case referred to [where no party is in possession of the disputed property] that the amount should be divided among the litigants without an oath, how much more readily would he give this decision in a case like ours, where both disputants are equally in possession of the article in question; [and thus the query remains, 'Shall it be said that our Mishnah is not in agreement with Symmachus?'] It can still be maintained that the Mishnah is in agreement with Symmachus. For Symmachus expressed his view [that the property in dispute should be divided without an oath] only in a case where both litigants are uncertain as to the true facts [and it would therefore be wrong to make either of them swear] but where both parties assert their claims with certainty [as in our Mishnah] he would take a different view.
</p><p>
	But does not Rabbah the son of R. Huna maintain that Symmachus's decision applies also to a case where both parties are certain and definite in their claims?<a id="k2b_9"><sup>9</sup></a>&nbsp; &mdash; It can still be maintained that our Mishnah is in agreement with Symmachus. For Symmachus expressed the view [as quoted] only in a case where a verdict in favour of one would involve a loss to the other, but where no actual monetary loss is involved [as in our Mishnah] he would take a different view. But then again, can we not infer by means of a <i>Kal wa-homer</i><a id="k2b_10"><sup>10</sup></a>&nbsp; [that Symmachus would disagree with our Mishnah]? For if even in the case where the party entitled to the verdict loses money by being awarded only half of the disputed amount,
</P>


lvr: 42
dfh: a
notes:
 ntes={k21a_1:" Thus there is no contradiction to the previous teaching. It is only if the witnesses testify that they saw the debt being paid that the lender is not believed, and the note is valid. Otherwise we believe the lender, and the note is invalid."
,k21a_2:" Even if it is in the possession of the lender."
,k21a_3:" They are not witnesses who signed the receipt, but witnesses who testify that it was endorsed by the Court, and as the Court would not endorse the receipt unless the debt has been paid, the receipt is valid even if produced by the lender."
,k21a_4:" And it is valid, even if produced by the lender, as the witnesses testify that it has been endorsed by the Court."
,k21a_5:" I.e., witnesses to the endorsement."
,k21a_6:" Neither the lender nor the borrower produces it, but a third person, with whom the notes were deposited, and his statement is accepted."
,k21a_7:" The cancellation is written on the note of indebtedness below the signatures."
,k21a_8:" As the lender writes the notes of cancellation he must have handed the note to the third person and placed his trust in him. The third person is therefore believed."
,k21a_9:" So that the owner may claim them."
,k21a_10:" Which cannot be identified by the loser and are thus given up by him as beyond recovery. The fact of the loser resigning himself to his loss ([H]) renders the article public property and gives the finder the right to acquire it."
,k21a_11:" Where the traffic soon destroys any distinguishing mark by which the sheaves might be identified."
,k21a_12:" Which are uniform in appearance and cannot be identified."
,k21a_13:" In a raw state, and bear no mark by which they could be identified."
,k21a_14:" Long strips of wool dyed purple, a common article in the days of the Mishnah."
,k21a_15:" The person who finds these articles need not announce them because they bear no marks by which the loser could identify them, and he has a right to keep them because the owner has given up the hope of recovering them."
,k21a_16:" [Var. lec. omit, 'This is&nbsp;&hellip; R. Meir;' v. also <i>infra</i> p. 143. n. 1.]"
,k21a_17:" v. <i>infra</i> 23a."
,k21a_18:" V. <i>infra</i> 23b."
,k21a_19:" A measure. V. <a href=\"../tglossary.html\">Glos.</a>"
,k21a_20:" As the loser would have no means of identifying them."
,k21a_21:" As the owner evidently intended to come back for them and has not really lost them."
,k21a_22:" After the harvest. "
}

txt:
<p>
We ask the witnesses whether [the debt] is paid or not.<a id="k21a_1"><sup>1</sup></a>
</p><p>
	Come and hear: A note of cancellation which bears the signatures of witnesses is valid?<a id="k21a_2"><sup>2</sup></a>&nbsp; &mdash; The witnesses referred to are witnesses to the endorsement [of the note by the Court].<a id="k21a_3"><sup>3</sup></a>&nbsp; This is also conclusive, for the final clause teaches: 'But if it does not bear the signatures of witnesses it is invalid.' Now, what is the meaning of [the words], 'It does not bear the signatures of witnesses'? If I should say that [it means that] there are no signatures of witnesses on it at all &mdash; is it necessary to say that is invalid? Therefore we must assume that they are witnesses to the endorsement [of the note by the Court].
</p><p>
	The main text [states]: 'A note of cancellation which bears the signatures of witnesses must be corroborated by the signatories.'<a id="k21a_4"><sup>4</sup></a>&nbsp; But if it does not bear the signatures of witnesses<a id="k21a_5"><sup>5</sup></a>&nbsp; and is produced by a third person,<a id="k21a_6"><sup>6</sup></a>&nbsp; or if it is found below the signatures of the notes [of indebtedness],<a id="k21a_7"><sup>7</sup></a>&nbsp; it is valid.' If it is produced by a third person [it is valid] because the lender trusted the third person;<a id="k21a_8"><sup>8</sup></a>&nbsp; if it is found below the signatures of the notes [of indebtedness it is] also [valid], because if [the debt] had not been paid he [the lender] would not have invalidated the note.
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_ii">CHAPTER II</A>
      </H2>
</p><p>
	<P><B><I>MISHNAH</I></B>. SOME FINDS BELONG TO THE FINDER; OTHERS MUST BE                 ANNOUNCED.<a id="k21a_9"><sup>9</sup></a>&nbsp; THE FOLLOWING ARTICLES BELONG TO THE FINDER: IF ONE FINDS SCATTERED FRUIT, SCATTERED MONEY,<a id="k21a_10"><sup>10</sup></a>&nbsp; SMALL SHEAVES IN A PUBLIC THOROUGHFARE,<a id="k21a_11"><sup>11</sup></a>&nbsp; ROUND CAKES OF PRESSED FIGS, A BAKER'S LOAVES,<a id="k21a_12"><sup>12</sup></a>&nbsp; STRINGS OF FISHES, PIECES OF MEAT, FLEECES OF WOOL WHICH HAVE BEEN BROUGHT FROM THE COUNTRY,<a id="k21a_13"><sup>13</sup></a>&nbsp; BUNDLES OF FLAX AND STRIPES OF PURPLE,<a id="k21a_14"><sup>14</sup></a>&nbsp; COLOURED WOOL; ALL THESE BELONG TO THE FINDER.<a id="k21a_15"><sup>15</sup></a>&nbsp; THIS IS THE VIEW OF R. MEIR.<a id="k21a_16"><sup>16</sup></a>&nbsp; R. JUDAH SAYS: WHATSOEVER HAS IN IT SOMETHING UNUSUAL MUST BE ANNOUNCED,<a id="k21a_17"><sup>17</sup></a>&nbsp; AS, FOR INSTANCE, IF ONE FINDS A ROUND [OF FIGS] CONTAINING A POTSHERD, OR A LOAF CONTAINING MONEY. R. SIMEON B. ELEAZAR SAYS: NEW MERCHANDISE<a id="k21a_18"><sup>18</sup></a>&nbsp; NEED NOT BE ANNOUNCED.
</p><p>
	<P><B><I>GEMARA</I></B>. IF ONE FINDS SCATTERED FRUIT, etc. What quantity [of fruit in a given space] is meant? R. Isaac said: A <i>kab</i><a id="k21a_19"><sup>19</sup></a>&nbsp; within four cubits. But what kind of a case is meant? If [the fruit appears to have been] dropped accidentally, then even if there is more than a <i>kab</i> [it should] also [belong to the finder].<a id="k21a_20"><sup>20</sup></a>&nbsp; And if it appears to have been [deliberately] put down, then even if there is a smaller quantity it should not [belong to the finder]?<a id="k21a_21"><sup>21</sup></a>&nbsp; &mdash; R. 'Ukba b. Hama answered: We deal here with [the remains of] what has been gathered on the threshing floor:<a id="k21a_22"><sup>22</sup></a>&nbsp; [To collect] a <i>kab</i> [scattered over a space] of four cubits is troublesome, and, as people do not trouble to come back and collect it, [the owner also] abandons it, but if it is [spread over] a smaller space [the owner] does come back and collect it, and he does not abandon it. R. Jeremiah enquired: How is it [if one finds] half a <i>kab</i> [scattered over the space] of two cubits? Is the reason why a <i>kab</i> within four cubits [belongs to the finder] that it is troublesome [to collect], and therefore half a <i>kab</i> within two cubits, which is not troublesome to collect, is not abandoned [and should not belong to the finder], or is the reason [in the case of a <i>kab</i> within four cubits] that it is not worth the trouble of collecting [when spread over such a space], and therefore half a <i>kab</i> within two cubits, which is still less worth the trouble of collecting, is abandoned [and should belong to the finder]? [Again,] how is it [if one finds] two <i>kabs</i> [scattered over the space] of eight cubits? Is the reason why a <i>kab</i> within four cubits [belongs to the finder] that it is troublesome to collect, and therefore two <i>kabs</i> within eight cubits, which are still more troublesome to collect, are even more readily abandoned [and should certainly belong to the finder], or is the reason [in the case of a <i>kab</i> within four cubits] that it is not worth the trouble [of collecting], and therefore two <i>kabs</i> within eight cubits, which are worth the trouble [of collecting] are not abandoned [and should not belong to the finder]? [Again,] how is it [if one finds] a <i>kab</i> of poppy-seed [scattered over a space] of four cubits? Is the reason why a <i>kab</i> [of fruit] within four cubits [belongs to the finder] that it is not worth the trouble [of collecting], and therefore poppy-seed, which is worth the trouble [of collecting] is not abandoned [and should not belong to the finder], or is the reason [in the case of a <i>kab</i> within four cubits] that it is troublesome [to collect], and therefore poppy-seed, which is even more troublesome [to collect], is abandoned [and should belong to the finder]? [Again], how is it [if one finds] a <i>kab</i> of dates within four cubits, or a <i>kab</i> of pomegranates within four cubits? Is the reason why a <i>kab</i> [of ordinary fruit] within four cubits [belongs to the finder] that it is not worth the trouble of collecting, and therefore a <i>kab</i> of dates within four cubits, or a <i>kab</i> of pomegranates within four cubits, which also is not worth the trouble [of collecting] is abandoned [and should belong to the finder], or is the reason [in the case of a <i>kab</i> within four cubits] that it is troublesome to collect, and therefore a <i>kab</i> of dates within four cubits or a <i>kab</i> of pomegranates within four cubits, which are not troublesome [to collect], are not abandoned [and should not belong to the finder]? &mdash; The questions remain unanswered.
</p><p>
	It has been stated:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k21b_1:" Lit., 'unconscious abandonment.' I.e., if an article is found before the loser has become aware of his loss, and the circumstances are such that the loser would have abandoned the hope of recovering the article had he known that he lost it."
,k21b_2:" And the finder has no right to keep the article."
,k21b_3:" And the article belongs to the finder."
,k21b_4:" After the article came into the hands of the finder."
,k21b_5:" Before the owner has been heard to despair of it."
,k21b_6:" As the article can be identified the finder cannot legally acquire it."
,k21b_7:" <i>Infra</i> 22b."
,k21b_8:" He could not therefore consciously have given up the hope of recovering it."
,k21b_9:" The 'abandonment' is deemed to have a retrospective effect, and this entitles the finder to acquire the article."
,k21b_10:" Mnemonic consisting of Hebrew initials of the teachings that follow."
,k21b_11:" Quotation from our Mishnah."
,k21b_12:" B.K. 118b. So that he is bound to miss the money very shortly after he has lost it."
,k21b_13:" Which belong to the poor. V. Lev. XIX, 9."
,k21b_14:" <i>Pe'ah</i> VIII, 1."
,k21b_15:" Who walk slowly and examine the ground carefully while looking for the gleanings, and are not likely to miss a single ear of corn."
,k21b_16:" So that no other poor can hope to find any more gleanings."
,k21b_17:" As the local poor see the aged and feeble, or the successive groups, glean in the field, they come to the conclusion that there would be nothing more left to glean, and they 'give up hope'."
,k21b_18:" The poor who live at a distance cannot be said to give up hope consciously as they do not see the local gleaners. It must therefore be assumed that the reason why people who are not poor are allowed to appropriate the gleanings which have escaped the attention of the local poor is that the distant poor will give up hope when they will have learned how thoroughly the field has been gleaned by the local poor. This would prove that 'anticipated abandonment' is valid &mdash; in contradiction to the view of Abaye."
,k21b_19:" Thus the 'abandonment' is not 'anticipated' but real at the time when the people come and appropriate what is left of the gleanings, and there is contradiction to the view of Abaye."
,k21b_20:" I.e., beside a field on which cut figs have been spread out to dry, and it is obvious that the figs on the adjoining road belong to the same owner."
,k21b_21:" They are treated as ownerless goods which need not be tithed, for although the owner may not have known of the loss, he will abandon hope when he gets to know."
,k21b_22:" Ma'as. III, 4."
,k21b_23:" Who says that 'anticipated abandonment' is not valid."
,k21b_24:" And the owner discovers his loss as soon as it occurs and abandons it."
,k21b_25:" [And the owners in the absence of an identification mark give up the hope of recovering them (Tosaf.).]"
,k21b_26:" The owners are not deemed to have given up the hope of recovering them, as olives and carob-beans do not usually drop, and the owner is not aware of his loss. And although the owner is bound to discover his loss later, and will then 'give up hope,' it is only 'anticipated abandonment' at the time when the lost goods are found and appropriated. Thus 'anticipated abandonment' is not valid &mdash; in contradiction to the view of Raba."
,k21b_27:" I.e., it is known to whom they belong. The owner therefore feels sure that he will recover them, and there is not even 'anticipated abandonment'. There is thus no contradiction to Raba."
,k21b_28:" As olives can also be identified by their colour and shape."
,k21b_29:" This is why the owner abandons them at once and they become public property. According to another version the translation would be, 'Figs change colour when they drop, (and cannot therefore be identified).' "
}

txt:
<p>
Anticipated abandonment [of the hope of recovering a lost article]<a id="k21b_1"><sup>1</sup></a>&nbsp; is, Abaye maintains,no abandonment,<a id="k21b_2"><sup>2</sup></a>&nbsp; but Raba maintains, it is an abandonment.<a id="k21b_3"><sup>3</sup></a>&nbsp; [If the lost article is] a thing which has an identification mark, all agree that [the anticipation of its abandonment by the owner] is no abandonment, and even if in the end<a id="k21b_4"><sup>4</sup></a>&nbsp; we hear him [express regret at his loss in a way that makes it clear] that he has abandoned it, it is not [deemed to be an] abandonment, for when [the finder] took possession<a id="k21b_5"><sup>5</sup></a>&nbsp; of it he had no right to it<a id="k21b_6"><sup>6</sup></a>&nbsp; because [it is assumed that] when [the loser] becomes aware that he lost it he will not give up the hope [of recovering it] but says [to himself], 'I can recognise it by an identification mark; I shall indicate the identification mark and shall take it back.' [If the lost article is found] in the intertidal space of the seashore or on ground that is flooded by a river, then, even if it has an identification mark, the Divine Law permits [the finder to acquire it], as we shall explain further on.<a id="k21b_7"><sup>7</sup></a>&nbsp; They differ only where the article has no identification mark. Abaye says: It is no abandonment because [the loser] did not know that he lost it;<a id="k21b_8"><sup>8</sup></a>&nbsp; Raba says: It is an abandonment, because when he becomes aware that he lost it he gives up the hope [of recovering it] as he says [to himself], 'I cannot recognise it by an identification mark,' it is therefore as if he had given up hope from the moment [he lost it].<a id="k21b_9"><sup>9</sup></a>
</p><p>
	(<i>Mnemonic</i>: PMGSH MMKGTY KKS'Z.)<a id="k21b_10"><sup>10</sup></a>&nbsp; Come and hear: SCATTERED FRUIT<a id="k21b_11"><sup>11</sup></a>&nbsp; &mdash; [is not this a case where the loser] did not know that he lost it? &mdash; R. 'Ukba b. Hama has already explained that we deal here with [the remains of] what has been gathered on the threshing floor, so that [the owner] is aware of his loss.
</p><p>
	Come and hear: SCATTERED MONEY, [etc.] BELONG TO THE FINDER. Why? [Is it not a case where the loser] did not know that he lost it? &mdash; There also it is even as R. Isaac said: A man usually feels for his purse at frequent intervals.<a id="k21b_12"><sup>12</sup></a>&nbsp; So here, too, [we say,] 'A man usually feels for his purse at frequent intervals' [and soon discovers his loss].
</p><p>
	Come and hear: ROUND CAKES OF PRESSED FIGS, A BAKER'S LOAVES, [etc.] BELONG TO THE FINDER. Why? [Is it not a case where the loser] did not know that he lost it? &mdash; There also he becomes aware of his loss, because [the lost articles] are heavy.
</p><p>
	Come and hear: STRIPES OF PURPLE [etc.] &mdash; THEY BELONG TO THE FINDER. Why? [Is it not a case where the loser] did not know that he lost them? &mdash; There also [he becomes aware of his loss] because the articles are valuable, and he frequently feels for them, even as R. Isaac said.
</p><p>
	Come and hear: If one finds money in a Synagogue or in a house of study, or in any other place where many people congregate, it belongs to him, because the owner has given up the hope of recovering it. [Is not this a case where the loser] did not know that he lost it? &mdash; R. Isaac answered: people usually feel for their purse at frequent intervals.
</p><p>
	Come and hear: From what time are people allowed to appropriate the gleanings [of a reaped field]?<a id="k21b_13"><sup>13</sup></a>&nbsp; After the 'gropers' have gone through it.<a id="k21b_14"><sup>14</sup></a>&nbsp; Whereupon we asked: What is meant by the 'gropers'? and R. Johanan answered: Old people who walk leaning on a stick,<a id="k21b_15"><sup>15</sup></a>&nbsp; while Resh Lakish answered: The last in the succession of gleaners.<a id="k21b_16"><sup>16</sup></a>&nbsp; Now why should this be so? Granted that the local poor give up hope [of finding any gleanings].<a id="k21b_17"><sup>17</sup></a>&nbsp; there are poor people in other places who do not give up hope?<a id="k21b_18"><sup>18</sup></a>&nbsp; &mdash; I will say: Seeing that there are local poor, those [in other places] give up hope straight away, as they say. 'The poor of that place have already gleaned it.'<a id="k21b_19"><sup>19</sup></a>
</p><p>
	Come and hear: Cut figs [found] on the road, even if [found] beside a field [covered with] cut figs.<a id="k21b_20"><sup>20</sup></a>&nbsp; and also figs found under a fig-tree that overhangs the road, may be appropriated [by the finder] without him being guilty of robbery, and they are free from tithing,<a id="k21b_21"><sup>21</sup></a>&nbsp; but olives and carob-beans are forbidden.<a id="k21b_22"><sup>22</sup></a>&nbsp; Now, the first part [of the Mishnah] implies no contradiction to Abaye<a id="k21b_23"><sup>23</sup></a>&nbsp; because [cut figs], being valuable, are under constant observation;<a id="k21b_24"><sup>24</sup></a>&nbsp; [whole] figs also are known to drop.<a id="k21b_25"><sup>25</sup></a>&nbsp; But the last part [of the Mishnah]. which teaches that olives and carob-beans are forbidden, implies a contradiction to Raba!<a id="k21b_26"><sup>26</sup></a>&nbsp; &mdash; R. Abbahu answered: Olives are different [from other fruit] because one can recognise them by their appearance, and although olives drop [to the ground] the place of each one is known.<a id="k21b_27"><sup>27</sup></a>&nbsp; But if so, the same should apply to [whole figs in] the first part [of the Mishnah]?<a id="k21b_28"><sup>28</sup></a>&nbsp; &mdash; R. papa answered: Figs become filthy when they [drop to the ground].<a id="k21b_29"><sup>29</sup></a>
</p><p>
	Come and hear: If a thief takes from one and gives to another, or if a robber takes from one and gives to another,
</P>


lvr: 42
dfh: a
notes:
 ntes={k33a_1:" I.e., one is obliged to help to unload an animal that has fallen under its load, but not one that still stands under it."
,k33a_2:" One is not obliged to help in loading it up again. The Gemara objects further in that this is explicitly ordered in Deut. XXII, 4."
,k33a_3:" In the Mishnah <i>supra</i> 32a."
,k33a_4:" Lit., 'it is not unloaded at all'."
,k33a_5:" Deut. XXII. 4: this is interpreted as referring to reloading."
,k33a_6:" Mishnah <i>supra</i> 32a. as interpreted in the Gemara."
,k33a_7:" That it must be remunerated."
,k33a_8:" Ex. XXIII, 5."
,k33a_9:" And one is bound to go there to help."
,k33a_10:" Ibid. 4."
,k33a_11:" Lit., 'one in seven and a half.'"
,k33a_12:" A <i>mil</i> = 1000 cubits."
,k33a_13:" A Persian measure."
,k33a_14:" The passer-by, having helped to raise up the animal and replace its burden, must accompany it for a <i>parasang</i>, in case it falls again."
,k33a_15:" [MS.M. adds: 'equal (in wisdom) to his teacher.']"
,k33a_16:" Lit., 'put down his teacher's.'"
,k33a_17:" Deut. XV. 4."
,k33a_18:" V. p. 187. n. 1."
,k33a_19:" He who always takes the greatest care to safeguard his own first, so as not to become impoverished, will eventually be brought to poverty."
,k33a_20:" 'Wisdom' means the intelligent understanding of the Mishnah, the grounds of its statements, which are frequently made without giving the reasons, and ability to reconcile opposing Mishnahs (Rashi)."
,k33a_21:" Whether Bible, Mishnah or Gemara."
,k33a_22:" [G]. This is a utensil mentioned in Kel. XIII. 2, in reference to laws of ritual defilement, a soup-ladle with a spoon for removing the scum of soup on one side and a fork on the other."
,k33a_23:" Jast.: 'the duct of the arm-pit.' a sewer in the Temple, so called from its shape."
,k33a_24:" This is a Mishnah in <i>Tam</i>. 30b, treating of the clearing away of the ashes from the altar."
,k33a_25:" Though they give each other the respect due to a teacher, e.g., rising and rending the garments, nevertheless, in a question of lost property, only he who has really taught them is regarded as such."
,k33a_26:" Because he has traditions from other scholars of which his teacher is ignorant. &mdash; R. Hisda was R. Huna's disciple, and the latter regarded the question as having a personal sting."
,k33a_27:" [R. Han. renders: You need me till the age of forty; cf. A.Z. 5a: 'A man cannot probe the mind of his master up to the age of forty.']"
,k33a_28:" V. Baraitha quoted above."
,k33a_29:" This appears to agree with R. Meir, not R. Judah."
,k33a_30:" Lit., 'it is meritorious and it is not meritorious.'"
,k33a_31:" V. p. 60, n. 7. [Read with all MSS. and older prints: 'Talmud' (the discussions based on the older traditions of the Mishnah), the term 'Gemara', occurring throughout this passage in cur. edd., and denoting the complete mastery of a subject (Bacher, HUCA., 1904, 26-36), or, a summary embodying conclusions arrived at in schools (Kaplan, Redaction of the Talmud, p. 195 ff), having been substituted by the censor.] "
}

txt:
<p>
[<i>If thou seest the ass of him that hateth thee lying under its burden</i> etc.:] <i>'lying'</i> [just now], but not an animal that habitually lies down [under his burden]; 'lying,' but not standing;<a id="k33a_1"><sup>1</sup></a>&nbsp; <i>'under its burden'</i>, but not if it is unloaded;<a id="k33a_2"><sup>2</sup></a>&nbsp; <i>'under its burden'</i> &mdash; a burden under which it can stand. Now, if you say that [relieving the suffering of an animal] is Biblically [enjoined], what does it matter whether it was lying [this once only], habitually lay down, or was standing? &mdash; The authority of this is R. Jose the Galilean, who maintained that [relieving] the suffering of an animal is [enjoined merely] by Rabbinical law. Reason supports this too. For it is taught: 'under its burden' &mdash; a burden under which it can stand. Now, whom do you know to hold this view? R. Jose the Galilean:<a id="k33a_3"><sup>3</sup></a>&nbsp; this proves it. But can you assign it to R. Jose the Galilean? Does not the second clause teach: <i>'under its burden'</i> but not if it is unloaded. What is meant by 'not if it is unloaded?' Shall we say, if it is unloaded, there is no obligation at all?<a id="k33a_4"><sup>4</sup></a>&nbsp; But it is written, Thou shalt surely help to lift them up again!<a id="k33a_5"><sup>5</sup></a>&nbsp; Hence it is obvious [that it means]. If unloaded, there is no obligation [to help to load it] without payment, but for remuneration. Now, whom do you know to hold this view? The Rabbis!<a id="k33a_6"><sup>6</sup></a>&nbsp; &mdash; In truth, it is R. Jose the Galilean, yet in the matter of loading he agrees with the Rabbis.<a id="k33a_7"><sup>7</sup></a>
</p><p>
	Our Rabbis taught: If thou see [the ass of him etc.]:<a id="k33a_8"><sup>8</sup></a>&nbsp; I might think; even in the distance;<a id="k33a_9"><sup>9</sup></a>&nbsp; therefore it is taught. If thou meet [thine enemy's ox or his ass going astray, thou shalt surely bring it back to him again].<a id="k33a_10"><sup>10</sup></a>&nbsp; If, 'when thou meet', I might think that meet is literally meant; therefore it is written. 'If thou seest', Now, what 'seeing' is the equivalent of 'meeting?' The Sages estimated this as two fifteenths<a id="k33a_11"><sup>11</sup></a>&nbsp; of a <i>mil</i>,<a id="k33a_12"><sup>12</sup></a>&nbsp; which is a <i>ris</i>.<a id="k33a_13"><sup>13</sup></a>&nbsp; A Tanna taught: And he must accompany it as far as a parsang.<a id="k33a_14"><sup>14</sup></a>&nbsp; Rabbah b. Bar Hana observed: Yet he receives payment [for this].
</p><p>
	<P><B><I>MISHNAH</I></B>. IF [A MAN'S] OWN LOST ARTICLE AND HIS FATHER'S LOST ARTICLE [NEED ATTENTION], HIS OWN TAKES PRECEDENCE. HIS OWN AND HIS TEACHER'S &mdash; HIS OWN TAKES PRECEDENCE; HIS FATHER' S AND HIS TEACHER'S &mdash; HIS TEACHER'S TAKES PRECEDENCE, BECAUSE HIS FATHER BROUGHT HIM INTO THIS WORLD, WHEREAS HIS TEACHER. 'WHO INSTRUCTED HIM IN WISDOM, BRINGS HIM TO THE FUTURE WORLD. BUT IF HIS FATHER IS A SAGE,<a id="k33a_15"><sup>15</sup></a>&nbsp; HIS FATHER'S TAKES PRECEDENCE. IF HIS FATHER AND HIS TEACHER WERE [EACH] CARRYING A BURDEN, HE MUST [FIRST] ASSIST HIS TEACHER TO LAY IT DOWN,<a id="k33a_16"><sup>16</sup></a>&nbsp; AND THEN ASSIST HIS FATHER. IF HIS FATHER AND HIS TEACHER ARE IN CAPTIVITY, HE MUST [FIRST] REDEEM HIS TEACHER AND THEN HIS FATHER. BUT IF HIS FATHER IS A SAGE, HE MUST [FIRST] REDEEM HIS FATHER AND THEN HIS TEACHER.
</p><p>
	<P><B><I>GEMARA</I></B>. Whence do we know this? &mdash; Rab Judah said in Rab's name: Scripture saith, Save that there shall be no poor among you<a id="k33a_17"><sup>17</sup></a>&nbsp; yours takes precedence over all others.<a id="k33a_18"><sup>18</sup></a>&nbsp; But Rab Judah also said in Rab's name: He who [strictly] observes this, will eventually be brought to it.<a id="k33a_19"><sup>19</sup></a>
</p><p>
	IF HIS FATHER AND HIS TEACHER WERE [EACH] CARRYING A BURDEN etc. Our Rabbis taught: The teacher referred to is he who instructed him in wisdom, not he who taught him Bible and Mishnah:<a id="k33a_20"><sup>20</sup></a>&nbsp; this is R. Meir's view. R. Judah said: He from whom one has derived the greater part of his knowledge.<a id="k33a_21"><sup>21</sup></a>&nbsp; R. Jose said: Even if he enlightened his eyes in a single Mishnah only, he is his teacher. Said Raba: E.g., R. Sehora, who told me the meaning of zohama listron.<a id="k33a_22"><sup>22</sup></a>
</p><p>
	Samuel rent his garment for one of the Rabbis who taught him the meaning of 'One was thrust into the duct as far as the arm pit.<a id="k33a_23"><sup>23</sup></a>&nbsp; and another [key] opened [the door] directly.'<a id="k33a_24"><sup>24</sup></a>
</p><p>
	'Ulla said: The scholars in Babylon arise before and rend their garment for each other [in mourning]; but with respect to a [colleague's] lost article, when one has his father's [also to attend to,] he returns [a scholar's first] only in the case of his teacher put excellence.<a id="k33a_25"><sup>25</sup></a>&nbsp; R. Hisda asked R. Huna: 'What of a disciple whom his teacher needs?'<a id="k33a_26"><sup>26</sup></a>&nbsp; 'Hisda, Hisda,' he exclaimed; 'I do not need you, but you need me.' Forty years<a id="k33a_27"><sup>27</sup></a>&nbsp; they bore resentment against and did not visit each other. R. Hisda kept forty fasts because R. Huna had felt himself humiliated, whilst R. Huna kept forty fasts for having [unjustly] suspected R. Hisda.
</p><p>
	It has been stated: R. Isaac b. Joseph said in R. Johanan's name: The <i>halachah</i> is as R. Judah. R. Aha son of R. Huna said in R. Shesheth's name: The <i>halachah</i> is as R. Jose.<a id="k33a_28"><sup>28</sup></a>&nbsp; Now, did R. Johanan really say this? But R. Johanan said, The <i>halachah</i> rests with an anonymous Mishnah, and we have learnt, HIS TEACHER, WHO INSTRUCTED HIM IN WISDOM!<a id="k33a_29"><sup>29</sup></a>&nbsp; &mdash; What is meant by WISDOM? The greater part of one's knowledge.
</p><p>
	Our Rabbis taught: They who occupy themselves with the Bible [alone] are but of indifferent merit;<a id="k33a_30"><sup>30</sup></a>&nbsp; with Mishnah, are indeed meritorious, and are rewarded for it; with Gemara<a id="k33a_31"><sup>31</sup></a>&nbsp; &mdash; there can be nothing more meritorious; yet run always to the Mishnah more than to the Gemara. Now, this is self-contradictory. You say, 'with Gemara &mdash; there can be nothing more meritorious;' and then you say, 'Yet run always to the Mishnah more than to the Gemara!' &mdash; Said R. Johanan:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k33b_1:" That Gemara is higher than Mishnah."
,k33b_2:" The two are not really in opposition. The Mishnah itself needs full discussion (Gemara) before it can be intelligently understood; on the other hand, discussion cannot be profitable unless it takes the Mishnah as its basis. It would appear that when Gemara was praised, number of disciples eagerly applied themselves thereto, forgetting however that the Mishnah is the foundation; and therefore the new statement was made, which is not so much a new statement as a fuller explanation of the old. &mdash; It is noteworthy that Gemara, i.e., discussion on the Mishnah, was already rife in the days of Rabbi (i.e.. R. Judah the Prince c. first half of third century C.E.); cf. Weiss, Dor II, p. 209."
,k33b_3:" [That the study of Talmud is the more meritorious.]"
,k33b_4:" Isa. LVIII, I."
,k33b_5:" [Through inadequate application to the study of the Talmud.]"
,k33b_6:" Sins through ignorance, in the case of scholars, are accounted as intentional, since had they studied more thoroughly they would not have erred. &mdash; 'Transgression' ([H]) really means rebellion, and refers to intentional sin, whilst 'sin' ([H]) often refers to sinning through ignorance, the root idea of [H] being 'to be defective, to miss'."
,k33b_7:" V. p. 206, n. 6."
,k33b_8:" Ibid. LXVI, 5."
,k33b_9:" There was a rivalry (perhaps amounting to enmity) between those who confined themselves exclusively to the Mishnah and those who developed a Gemara &mdash; i.e., discussion &mdash; upon it; cf. Sot. 22a."
,k33b_10:" Maharsha: who 'cast you out' in that they have no desire to become partners with scholars in learning."
,k33b_11:" <i>'We'</i>, plural. i.e., all classes of Israel."
,k33b_12:" In accordance with Ex. XXI, 37."
,k33b_13:" I.e., the bailee: since he paid for the bailment, all rights thereof vest in him; hence the thief must make restitution to him."
,k33b_14:" When he receives payment for his bailment."
,k33b_15:" It should be observed that the double payment is not regarded as becoming the bailee's automatically on account of the compensation he makes. That is because the liability is incurred on account of the theft, and the animal then belonged to the bailor."
,k33b_16:" The thief can never be required to pay more than twofold."
,k33b_17:" Lit., 'which has not come into the world.' &mdash; How then can the bailor make over the twofold repayment to the bailee?"
,k33b_18:" Hence we can sell his future crop. "
}

txt:
<p>
This teaching<a id="k33b_1"><sup>1</sup></a>&nbsp; was taught in the days of Rabbi; thereupon everyone forsook the Mishnah and went to the Gemara; hence he subsequently taught them, 'Yet run always to the Mishnah more than to the Gemara.'<a id="k33b_2"><sup>2</sup></a>&nbsp; How was that inferred?<a id="k33b_3"><sup>3</sup></a>&nbsp; &mdash; Even as R. Judah son of R. Ila'i expounded: What is the meaning of, <i>Shew my people their transgression, and the house of Jacob their sins</i>?<a id="k33b_4"><sup>4</sup></a>&nbsp; '<i>Shew my people their transgression'</i> refers to scholars, whose unwitting errors<a id="k33b_5"><sup>5</sup></a>&nbsp; are accounted as intentional faults;<a id="k33b_6"><sup>6</sup></a>&nbsp; '<i>and the house of Israel their sins'</i> &mdash; to the ignorant, whose intentional sins are accounted to them as unwitting errors. And that is the meaning of what we learnt: R. Judah said: Be heedful of the [Talmud],<a id="k33b_7"><sup>7</sup></a>&nbsp; for an error in Talmud is accounted as intentional.
</p><p>
	R. Judah son of R. Ila'i taught: What is meant by the verse, <i>Hear the word of the Lord, ye that tremble at his word</i>?<a id="k33b_8"><sup>8</sup></a>&nbsp; &mdash; This refers to scholars; <i>Your brethren said</i>, to students of Scripture; that hate you &mdash; to students of the Mishnah;<a id="k33b_9"><sup>9</sup></a>&nbsp; that cast you out &mdash; to the ignorant.<a id="k33b_10"><sup>10</sup></a>&nbsp; [Yet] lest you say, their hope [of future joy] is destroyed, and their prospects frustrated, Scripture states, <i>And we shall see your joy</i>.<a id="k33b_11"><sup>11</sup></a>&nbsp; Lest you think, Israel shall be ashamed, &mdash; therefore it is stated, <i>and they shall be ashamed</i>: the idolaters shall be ashamed, whilst Israel shall rejoice.
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_iii">CHAPTER III</A>
      </H2>

</p><p>
	<P><B><I>MISHNAH</I></B>. IF A MAN ENTRUSTS AN ANIMAL OR UTENSILS TO HIS NEIGHBOUR, AND THEY ARE STOLEN OR LOST, AND HE [THE BAILEE] PAYS [FOR THEM], DECLINING TO SWEAR (SINCE IT WAS RULED THAT A GRATUITOUS BAILEE MAY SWEAR AND BE QUIT); THE THIEF, IF HE IS FOUND, MUST RENDER DOUBLE, AND IF HE HAS SLAUGHTERED OR SOLD [THE ANIMAL], HE MUST REPAY FOURFOLD OR FIVEFOLD.<a id="k33b_12"><sup>12</sup></a>&nbsp; TO WHOM MUST HE PAY IT? TO HIM WITH WHOM THE BAILMENT WAS DEPOSITED.<a id="k33b_13"><sup>13</sup></a>&nbsp; IF HE SWEARS, NOT WISHING TO PAY, THE THIEF, IF FOUND, MUST REPAY DOUBLE, AND IF HE HAS SLAUGHTERED OR SOLD [THE ANIMAL], MUST REPAY FOURFOLD OR FIVEFOLD. TO WHOM MUST HE PAY IT? TO THE BAILOR.
</p><p>
	<P><B><I>GEMARA</I></B>. Why must he state both ANIMAL and UTENSILS? &mdash; They are necessary. For if ANIMAL [alone] were stated, I might have said that only in the case of an animal does he [the bailor] make over the double repayment to him,<a id="k33b_14"><sup>14</sup></a>&nbsp; because it requires considerable attention, to be led in and out [of its stable]. But as for utensils, which do not require much attention, I might think that he does not make over the twofold repayment to him.<a id="k33b_15"><sup>15</sup></a>&nbsp; And if UTENSILS [alone] were stated, I might have argued that only in the case of utensils does he [the bailor] make over the twofold repayment to him, because their multiplication is not great.<a id="k33b_16"><sup>16</sup></a>&nbsp; But in the case of an animal, for which, if slaughtered or sold, he [the thief] must repay fourfold or fivefold, I might think that he [the bailor] does not make over the multiplied principal to him. Hence both are necessary.
</p><p>
	Rami b. Hama objected: But one cannot transfer that which is non-existent!<a id="k33b_17"><sup>17</sup></a>&nbsp; And even according to R. Meir, who maintained, One can transfer that which is non-existent, &mdash; that is only in the case of, e.g.. the fruit of a palm tree, which will naturally come [into existence].<a id="k33b_18"><sup>18</sup></a>&nbsp; But here,
</P>


lvr: 42
dfh: a
notes:
 ntes={k44a_1:" Ibid. 8."
,k44a_2:" E.V., 'all manner'."
,k44a_3:" I.e., if the trustee himself puts the deposit to use."
,k44a_4:" [He is liable for a mere verbal order (R. Han.).]"
,k44a_5:" By taking a small quantity he helped it to sour, because a full barrel does not sour as quickly as one that is not full (R. Han.)."
,k44a_6:" For there is no loss if he merely lifts it up."
,k44a_7:" When he lifts the barrel up to take a quantity, he is regarded as having already taken it and put it back, because being in a full barrel it is less likely to sour; thus he makes the whole of the rest subservient to the quantity he desired, and is using the rest in that capacity. This renders him responsible for the whole."
,k44a_8:" As explained on p. 260, n. 7."
,k44a_9:" He knows that he will give greater care to a whole purse than to one coin, and therefore here too he may be regarded as having actually taken the coin and replaced it, so that it should be better kept, in which case the whole purse is made subservient to the <i>denar</i>."
,k44a_10:" This is rightly omitted in Alfasi and Asheri, since the passage that follows does not summarize the principle upon which the foregoing is based."
,k44a_11:" V. Gen. XI, 1-10."
,k44a_12:" Lit., 'his hand is uppermost'. The general principle of this Mishnah is this: When one makes a purchase, the delivery of the money does not complete the transaction, and either party can withdraw from the bargain; on the other hand, once the goods are taken, the transaction is absolute and irrevocable, and neither party can withdraw, the purchase price being regarded henceforth as an ordinary debt caused by a loan. Now, in ancient days. when the value of coins depended on their weight and general condition, coins of one metal or denomination might themselves be purchased with other coins. Consequently, in such a transaction, it becomes necessary to determine which is to be regarded as the money and which as the goods. The Mishnah proceeds on the principle that those coins which have greater currency than others rank as money vis a vis the others, which are then regarded merely as movables. Now, silver coin had greater currency than gold coin &mdash; probably because the latter represented an unusually large sum of money in an agricultural community where money is generally scarce. Consequently, if one purchase gold <i>denarii</i> for silver <i>denarii</i>, as soon as he takes possession of the gold, the bargain is irrevocable and he is bound to render the silver coins to the vendor, i.e., the gold of the vendor gives him a legal title to the silver. On the other hand, if he first takes possession of the silver, the bargain is not concluded; hence revocable. On the same lines, copper coin rank as money vis a vis silver, so that when the former is taken, the transaction is legally closed; but not the reverse. The same principle operates in the other clauses of the Mishnah dealing with the purchase of money. In the case of barter, however, as soon as one party takes possession of the article that is bartered, the transaction is consummated, and neither party may withdraw."
,k44a_13:" I.e., R. Judah the Prince, who compiled the Mishnah. "
}

txt:
<p>
	<P><B><I>GEMARA</I></B>. How do we know it? &mdash; For our Rabbis taught: [Then the master of the house shall be brought unto the judges&nbsp;&hellip;] For all manner of trespass:<a id="k44a_1"><sup>1</sup></a>&nbsp; Beth Shammai maintain: This teaches that he is liable on account of [unlawful] intention just as for an [unlawful] act. But Beth Hillel say: He is not liable until he actually puts it to use, for it is said, [to see] whether he have put his hand unto his neighbour's goods. Said Beth Shammai to Beth Hillel: But it is already stated, For any word<a id="k44a_2"><sup>2</sup></a>&nbsp; of trespass! Whereupon Beth Hillel retorted to Beth Shammai: But it is already stated, [to see] whether he have put his hand unto his neighbour's goods! If so, what is the teaching of, for any word of trespass? For I might have thought: I know it only of himself;<a id="k44a_3"><sup>3</sup></a>&nbsp; whence do I know [that he is liable if] he instructed his servant or his agent [to use it]? From the teaching, For any word of trespass.<a id="k44a_4"><sup>4</sup></a>
</p><p>
	IF HE INCLINES THE BARREL, etc. Rabbah said: This was taught only if it is broken: if, however, it soured, he must pay for the whole of it. Why? It was his arrows that affected it.<a id="k44a_5"><sup>5</sup></a>
</p><p>
	BUT IF HE LIFTS IT, AND TAKES [A REBI'ITH] FROM IT, etc. Samuel said: 'TAKES' is not meant literally, but once he lifts it up in order to take [he is henceforth responsible] even if he does not take it. Shall we say that in Samuel's opinion [unlawful] use need not involve loss?<a id="k44a_6"><sup>6</sup></a>&nbsp; &mdash; I will tell you: That is not so, but here it is different, because he desires that the whole barrel shall be subservient to this rebi'ith.<a id="k44a_7"><sup>7</sup></a>
</p><p>
	R. Ashi propounded: What then if he lifts up a purse in order to take a <i>denar</i> therefrom? Is it wine alone that can be guarded only by means of other wine,<a id="k44a_8"><sup>8</sup></a>&nbsp; whereas a <i>zuz</i> can be guarded [by itself]; or perhaps, the care given to a purse is not the same as that of a [single] <i>denar</i>?<a id="k44a_9"><sup>9</sup></a>&nbsp; The question stands.
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_iv">CHAPTER IV</A>
      </H2>
</p><p>
	<P><B><I>MISHNAH</I></B>. GOLD ACQUIRES SILVER, BUT SILVER DOES NOT ACQUIRE GOLD; COPPER ACQUIRES SILVER, BUT SILVER DOES NOT ACQUIRE COPPER; CANCELLED COINS ACQUIRE CURRENT ONES, BUT CURRENT COINS DO NOT ACQUIRE CANCELLED COINS; UNCOINED METAL ACQUIRES COINED, BUT COINED METAL DOES NOT ACQUIRE UNCOINED METAL; MOVABLES ACQUIRE COINS, BUT COINS DO NOT ACQUIRE MOVABLES. THIS IS THE GENERAL PRINCIPLE:<a id="k44a_10"><sup>10</sup></a>&nbsp; ALL MOVABLES ACQUIRE EACH OTHER. E.G., IF [A] DREW INTO HIS POSSESSION [B'S] PRODUCE WITHOUT PAYING HIM THE MONEY, HE CANNOT RETRACT. IF HE PAID HIM THE MONEY BUT DID NOT DRAW INTO HIS POSSESSION HIS PRODUCE, HE CAN WITHDRAW. BUT THEY [SC. THE SAGES] SAID: HE WHO PUNISHED THE GENERATION OF THE FLOOD AND THE GENERATION OF THE DISPERSION,<a id="k44a_11"><sup>11</sup></a>&nbsp; HE WILL TAKE VENGEANCE OF HIM WHO DOES NOT STAND BY HIS WORD. R. SIMEON SAID: HE WHO HAS THE MONEY IN HIS HAND HAS THE ADVANTAGE.<a id="k44a_12"><sup>12</sup></a>&nbsp; 
</p><p>
	<P><B><I>GEMARA</I></B>. Rabbi<a id="k44a_13"><sup>13</sup></a>&nbsp; taught his son R. Simeon: Gold acquires silver. Said he to him: Master, in your youth you did teach us, Silver acquires gold; now, advanced in age, you reverse it and teach, Gold acquires silver. Now, how did he reason in his youth, and how did he reason in his old age? &mdash; In his youth he reasoned: Since gold is more valuable, it ranks as money; whilst silver, which is of lesser value, is regarded as produce: hence [the delivery of] produce effects a title to the money. But at a later age he reasoned: Since silver [coin]
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k44b_1:" R. Ashi thus attempts to prove that the second clause of the Mishnah is more in consonance with the first clause on Rabbi's early view, since on his subsequent opinion the whole of the second clause would be superfluous. Rashi observes that the second clause will be in the form taught to Rabbi by R. Meir his teacher, it being a Talmudic principle that an anonymous Mishnah agrees with R. Meir. Cf. however, Weiss, Dor II, ch. 22."
,k44b_2:" I.e., even if silver coin be accounted as money in respect to gold, the second clause of the Mishnah must be stated."
,k44b_3:" [H], the plural of the more familiar [H]."
,k44b_4:" Cf. p. 262, n. 3, on currency of coins of small value."
,k44b_5:" The actual place is not given."
,k44b_6:" To consult him what to do, so as not to infringe the prohibition of interest."
,k44b_7:" Notwithstanding its appreciation, he would be returning money of the same nominal value as that which he borrowed."
,k44b_8:" Lest it appreciates in the meantime; v. <i>infra</i> 75a."
,k44b_9:" V. <i>infra</i> 75a."
,k44b_10:" The Roman <i>assarius</i>."
,k44b_11:" V. <a href=\"../tglossary.html\">Glos.</a> This <i>kiddushin</i> must not be less than a <i>perutah</i> or its equivalent (Kid. 2a); hence it must be defined."
,k44b_12:" Rashi: If one sold a <i>denar</i> for more than twenty-four <i>issars</i>, the vendee was cheated, and if the overcharge amounted to a sixth (v. <i>infra</i> 49b), it is returnable. Tosaf. rejects this, because in Kid. 12a it is stated that the <i>issar</i> was variable sometimes rising in value and sometimes falling, and therefore explains: If one sold an article for 24 <i>issars</i>, when these were worth a <i>denar</i>, and subsequently, before payment was made, the <i>issar</i> depreciated to 32 to the <i>denar</i>, the buyer must pay the full <i>denar</i> or 32 <i>issars</i>."
,k44b_13:" Which, according to the Bible, is five <i>shekels</i> = 30 silver <i>denarii</i>. So that if the father gave the priest a gold <i>denar</i>, he must return him five silver <i>denarii</i>."
,k44b_14:" I.e., the gold <i>denar</i> is always theoretically reckoned at 25 silver <i>denarii</i>, and the redemption is assessed accordingly. So that even if the gold <i>denar</i> was actually worth 20 <i>denarii</i>, we do not regard the gold as having depreciated, but the silver as having appreciated; therefore, if the father gave a gold <i>denar</i>, he is still entitled to a proportionate return, which is now four <i>denarii</i>, notwithstanding that the gold <i>denar</i> is now nominally valued at 20 silver <i>denarii</i>, the exact sum required for redemption."
,k44b_15:" Of a gold <i>denar</i>, sc. when it stands at more than twenty silver <i>denarii</i>."
,k44b_16:" How then can the Tanna state that in respect of redemption the gold <i>denar</i> is always valued at 25 silver <i>denarii</i>?"
,k44b_17:" M. Sh. II, 7. A <i>sela'</i>= 4 <i>denarii</i>. The reference is to the second tithe, which had to be consumed in Jerusalem; if however, it was too burdensome to carry thither, it might be redeemed by money, which was to be expended there (Deut. XIV, 22-26). Now, if the produce had been thus exchanged for silver <i>sela's</i>, Beth Shammai rule that these silver coins may not be re-exchanged for gold <i>denarii</i> to lighten the burden still further. Beth Hillel, however, permit this, and the Talmud proceeds to discuss this difference of opinion."
,k44b_18:" Since the Bible only authorises the reverse (ibid. 25)."
,k44b_19:" I.e., Beth Shammai regard gold as produce absolutely, even without reference to any other commodity, and therefore one may not redeem other produce therewith."
,k44b_20:" I.e., that in the opinion of Beth Shammai not even real produce may be redeemed by gold <i>denarii</i>. "
}

txt:
<p>
is current, it ranks as money; whilst gold, which is not current, is accounted as produce, and so the produce effects a title to the money.
</p><p>
	R. Ashi said: Reason supports the opinion held in his youth, since it [the Mishnah] teaches: COPPER ACQUIRES SILVER. Now, should you agree that silver ranks as produce vis a vis gold, it is well: hence it states, COPPER ACQUIRES SILVER, to show that though it is accounted as produce in relation to gold, it ranks as money in respect of copper; but should you maintain that silver ranks as money in respect of gold, then [the question arises:] If in relation to gold, which is more valuable, you say that it ranks as money, is it necessary [to state so] in relation to copper, seeing that it is both more valuable and also current?<a id="k44b_1"><sup>1</sup></a>&nbsp; &mdash; It is necessary:<a id="k44b_2"><sup>2</sup></a>&nbsp; I might have thought that the [copper] coins,<a id="k44b_3"><sup>3</sup></a>&nbsp; where they do circulate, have greater currency than silver:<a id="k44b_4"><sup>4</sup></a>&nbsp; therefore we are taught that since there is a place where they have no circulation,<a id="k44b_5"><sup>5</sup></a>&nbsp; they rank as produce.
</p><p>
	Now, R. Hiyya too regards gold [coin] as money. For Rab once borrowed [gold] <i>denarii</i> from R. Hiyya's daughter. Subsequently, <i>denarii</i> having appreciated, he went before R. Hiyya.<a id="k44b_6"><sup>6</sup></a>&nbsp; 'Go and repay her current and full-weight coin,' he ordered. Now, if you agree that gold ranks as money, it is well.<a id="k44b_7"><sup>7</sup></a>&nbsp; But should you maintain that it is produce, it is the equivalent of [borrowing] a <i>se'ah</i> for a <i>se'ah</i> [to be repaid later], which is forbidden?<a id="k44b_8"><sup>8</sup></a>&nbsp;&mdash; [That does not prove it, for] Rab himself possessed [gold] <i>denarii</i> [when he incurred the debt], and that being so, it is just as though he had said to her, 'Lend me until my son comes', or 'until I find the key.'<a id="k44b_9"><sup>9</sup></a>
</p><p>
	Raba said: The following Tanna is of the opinion that gold is money. For it has been taught: The <i>perutah</i> which they [the Sages] spoke of is an eighth of an Italian <i>issar</i>.<a id="k44b_10"><sup>10</sup></a>&nbsp; What is the practical bearing thereof? In respect of a woman's <i>kiddushin</i>.<a id="k44b_11"><sup>11</sup></a>&nbsp; The <i>issar</i> is a twenty-fourth of a silver <i>denar</i>. What is the practical bearing thereof? In respect to buying and selling.<a id="k44b_12"><sup>12</sup></a>&nbsp; A silver <i>denar</i> is a twenty-fifth of a gold <i>denar</i>. What is the practical bearing thereof? In respect to the redemption of the firstborn.<a id="k44b_13"><sup>13</sup></a>&nbsp; Now, if you agree that it [gold] is accounted as money, it is well: the Tanna thus assesses [the coins] on something of fixed value.<a id="k44b_14"><sup>14</sup></a>&nbsp; But should you say that it ranks as produce; can the Tanna give an assessment on the basis of that which rises and falls in value? Sometimes the priest may have to give him change.<a id="k44b_15"><sup>15</sup></a>&nbsp; whilst at others he [the father] will have to give an additional sum to the priest!<a id="k44b_16"><sup>16</sup></a>&nbsp; Hence it is proved that it ranks as money. This proof is conclusive.
</p><p>
	We learnt elsewhere: Beth Shammai say: One must not turn [silver] <i>sela's</i> into gold <i>denarii</i>; but Beth Hillel permit it.<a id="k44b_17"><sup>17</sup></a>&nbsp; Now, R. Johanan and Resh Lakish [differ thereon]: One maintains that the dispute concerns exchanging <i>sela's</i> for <i>denarii</i>. Beth Shammai holds that silver [coin] ranks as money, whereas gold counts as produce, and money may not be redeemed by produce.<a id="k44b_18"><sup>18</sup></a>&nbsp; Whilst In the opinion of Beth Hillel, silver [coin] ranks as produce and gold as money, and produce may be redeemed by money. But all agree that [actual] produce may be redeemed by [gold] <i>denarii</i>. Why so? By analogy with silver [coin] on the view of Beth Hillel. [Thus: consider] silver according to Beth Hillel, though ranking as produce vis a vis gold, it nevertheless counts as money in respect to [real] produce. So is gold too according to Beth Shammai; though accounted as produce vis a vis silver, it ranks as money in respect to [real] produce. But the other maintains: The dispute concerns the exchanging of [real] produce for [gold] <i>denarii</i> too,<a id="k44b_19"><sup>19</sup></a>
</p><p>
	Now, on the view that the dispute concerns the exchanging of [real] produce for [gold] <i>denarii</i> too, [then] instead of stating their dispute in reference to the exchange of <i>sela's</i> for <i>denarii</i>, let them state it with reference to [actual] produce for <i>denarii</i>!-If the dispute were thus taught, I might have thought that it applies only to the exchange of produce for <i>denarii</i>; but as for exchanging sela'im for <i>denarii</i>, Beth Hillel concede to Beth Shammai that gold vis a vis silver ranks as produce and that [silver] may consequently not be redeemed [by gold]: therefore we are informed [that it is not so].
</p><p>
	It may be proved that it is R. Johanan who holds that it may not be redeemed thus.<a id="k44b_20"><sup>20</sup></a>&nbsp; For R. Johanan said:
</P>


lvr: 42
dfh: a
notes:
 ntes={k60a_1:" If one undertakes to supply the produce of a particular field, he may not intermix it with the produce of another, even of the same year. If he undertakes to supply last year's grain, he may certainly not intermix the current year's the former being more suitable for milling."
,k60a_2:" But not vice versa; having agreed to supply full-bodied wine, one must not mix it with light wine."
,k60a_3:" This is discussed in the Gemara."
,k60a_4:" Because there is no cheating then, the practice being known and taken into account."
,k60a_5:" For selling from the whole indiscriminately."
,k60a_6:" I.e., he must not represent that he bought all from the same source, which is known for providing superior merchandise."
,k60a_7:" The higher price of the new corn is not due to its superiority, but to the fact that there is no sale that year and merchants are buying ahead for the following, whereas if they store last year's grain, it may be too old when they need it. Hence when one stipulates that he wants old corn, it is evident that he requires it for immediate use, and therefore it may not be mixed with new, though this is dearer."
,k60a_8:" Since the reason given is that it improves it, leaving no room for doubt on the matter, and this is introduced by the phrase, 'in truth etc.,' it follows that this phrase indicates the absolute certainty of the law. [Adopting this principle, the Tanna of our Mishnah will permit the mixing of old produce with new, contrary to the view of the Tanna in Tosef. B.M. III, v. Rosenthal, F., Hoffmann's Festschrift, p. 34ff.]"
,k60a_9:" The mixing is then advantageous. But after each has acquired its own taste and bouquet, mixing of different wines has a deleterious effect."
,k60a_10:" Lit., 'not among the presses.'"
,k60a_11:" Since the customer tastes the wine before buying it, there is no fraud."
,k60a_12:" The Heb. [H] denotes 'to pour out slowly,' so as to leave the sediment behind."
,k60a_13:" The lees of a different day's wine have an injurious effect, but not those of the same day's. Rashi, however observes that this is not meant literally, but that wine when sold may contain its own sediment, but not that of a different wine. 'To-day's' and 'yesterday's' are merely employed a convenient expressions of different wines."
,k60a_14:" For sale there."
,k60a_15:" And this shopkeeper too will sell it as unadulterated wine."
,k60a_16:" It was generally known that Raba diluted the wine with very much water. So that a prospective customer, in tasting it beforehand, would know what proportion of wine it contained, and pay accordingly."
,k60a_17:" It would be forbidden to sell even water to a wine-merchant, lest he mix it with wine and sell the whole as pure. But that is obviously absurd. Therefore the Mishnah forbids only a sale of those commodities which lend themselves to immediate deceit."
,k60a_18:" I.e., whatever proportions are permitted by custom, but not more."
,k60a_19:" The wine may be diluted whilst it is yet in the press, but not after."
,k60a_20:" When sent by mothers to make a purchase; this is unfair competition."
,k60a_21:" To remove the refuse. Owing to the better appearance of the beans he advances the price by more than the value of the refuse removed, and therefore this Tanna forbids it as fraud."
,k60a_22:" Leaving the refuse underneath."
,k60a_23:" To give them a younger or newer appearance, and thus make them realise a higher price. 'Men' refers to slaves. "
}

txt:
<p>
HOW MUCH MORE SO NEW WITH OLD!<a id="k60a_1"><sup>1</sup></a>&nbsp; YET IN TRUTH IT WAS SAID THAT STRONG WINE MAY BE MIXED WITH MILD, BECAUSE IT IMPROVES IT.<a id="k60a_2"><sup>2</sup></a>&nbsp; A MAN MUST NOT MIX THE LEES OF WINE WITH WINE, BUT HE [THE VENDOR] MAY GIVE HIM [THE VENDEE] ITS LEES.<a id="k60a_3"><sup>3</sup></a>&nbsp; IF HIS WINE WAS DILUTED WITH WATER HE MUST NOT SELL IT IN HIS SHOP [IN SMALL QUANTITIES] UNLESS HE INFORMS HIM [THE CUSTOMER], NOR TO A MERCHANT, EVEN IF HE INFORMS HIM, BECAUSE [THE LATTER BUYS IT] ONLY IN ORDER TO CHEAT THEREWITH. WHERE IT IS THE PRACTICE TO ADULTERATE WINE WITH WATER, IT IS PERMISSIBLE.<a id="k60a_4"><sup>4</sup></a>&nbsp; A MERCHANT MAY PURCHASE [GRAIN] FROM FIVE GRANARIES AND PUT IT INTO ONE STORE-ROOM,<a id="k60a_5"><sup>5</sup></a>&nbsp; OR [WINE] FROM FIVE PRESSES AND PUT IT INTO THE SAME CASK, PROVIDING THAT IT IS NOT HIS INTENTION TO MIX THEM.<a id="k60a_6"><sup>6</sup></a>
</p><p>
	<P><B><I>GEMARA</I></B>. Our Rabbis taught: it goes without saying, when new [produce] stands at four [se'ahs per <i>sela'</i>], whilst old is priced at three, that they may not be intermixed; but even when new is at three and old at four, they may still not be mixed, because [the higher price of the new corn is due to the fact that] one wishes to store them until old.<a id="k60a_7"><sup>7</sup></a>
</p><p>
	YET IN TRUTH IT WAS SAID THAT STRONG WINE MAY BE MIXED WITH MILD, BECAUSE IT IMPROVES IT. R. Eleazar said: From this it may be concluded that wherever it is stated 'in truth it was said', that is the <i>halachah</i>.<a id="k60a_8"><sup>8</sup></a>&nbsp; Said R. Nahman: This was taught only when they [the wines] are in the Presses.<a id="k60a_9"><sup>9</sup></a>&nbsp; But nowadays [wines] are mixed [even] after they have left the presses.<a id="k60a_10"><sup>10</sup></a>&nbsp; &mdash; Said R. Papa: It is known and forgiven. R. Aha son of R. Ika said: That is in accordance with R. Aha. For it has been taught: R. Aha permits [mixing] in a commodity that is [first] tasted.<a id="k60a_11"><sup>11</sup></a>
</p><p>
	A MAN MUST NOT MIX THE LEES OF WINE WITH WINE, BUT HE [THE VENDOR] MAY GIVE HIM [THE VENDEE] ITS LEES. But you have ruled in the first clause that they may not be mixed at all? And should you reply that what is meant by, BUT HE MAY GIVE HIM ITS LEES, is that he informs him thereof; since the subsequent clause states, HE MUST NOT SELL IT IN HIS SHOP UNLESS HE INFORMS HIM [THE CUSTOMER], NOR TO A MERCHANT, EVEN IF HE INFORMS HIM, it follows that this clause means even if he does not inform him! &mdash; Said Rab Judah: It means this: A MAN MUST NOT MIX THE LEES OF yesterday's WINE with that of to-day's, nor vice versa, BUT HE [THE VENDOR] MAY GIVE HIM [THE VENDEE] ITS OWN LEES. It has been taught likewise: R. Judah said: When a man pours out<a id="k60a_12"><sup>12</sup></a>&nbsp; wine for his neighbour [selling it to him], he must not mix [the lees] of yesterday's wine with that of to-day's, nor vice versa, but may mix yesterday's with yesterday's and to-day's with to-day's.<a id="k60a_13"><sup>13</sup></a>
</p><p>
	IF HIS WINE WAS DILUTED WITH WATER HE MUST NOT SELL IT IN HIS SHOP [IN SMALL QUANTITIES] UNLESS HE INFORMS HIM, etc. Raba once brought wine from a shop. After diluting it he tasted it, and on finding that it was not good he returned it to the shop.<a id="k60a_14"><sup>14</sup></a>&nbsp; Thereupon Abaye protested: But we learnt, NOR TO A MERCHANT, EVEN IF HE INFORMS Him!<a id="k60a_15"><sup>15</sup></a>&nbsp; &mdash; He replied: My mixing is well known.<a id="k60a_16"><sup>16</sup></a>&nbsp; And should you object, He may add [wine thereto], thus strengthening it, and then sell it [as pure wine] &mdash; if so, the matter is endless!<a id="k60a_17"><sup>17</sup></a>
</p><p>
	WHERE IT IS THE PRACTICE TO ADULTERATE WINE WITH WATER, IT IS PERMISSIBLE, etc. A Tanna taught: In proportions of a half, a third or a quarter.<a id="k60a_18"><sup>18</sup></a>&nbsp; Said Rab: And this [sc. the Mishnah] was stated in the time of the presses.<a id="k60a_19"><sup>19</sup></a>
</p><p>
	<P><B><I>MISHNAH</I></B>. R. JUDAH SAID: A SHOPKEEPER MUST NOT DISTRIBUTE PARCHED CORN OR NUTS TO CHILDREN, BECAUSE HE THEREBY ACCUSTOMS THEM TO COME TO HIM;<a id="k60a_20"><sup>20</sup></a>&nbsp; THE SAGES PERMIT IT. NOR MAY HE REDUCE THE PRICE; BUT THE SAGES SAY, HE IS TO BE REMEMBERED FOR GOOD. ONE MUST NOT SIFT POUNDED BEANS:<a id="k60a_21"><sup>21</sup></a>&nbsp; THIS IS THE VIEW OF ABBA SAUL. BUT THE SAGES PERMIT IT. YET THEY ADMIT THAT HE MUST NOT PICK OUT [THE REFUSE] FROM THE TOP OF THE BIN,<a id="k60a_22"><sup>22</sup></a>&nbsp; BECAUSE ITS ONLY PURPOSE IS TO DECEIVE THE EYE. MEN, CATTLE, AND UTENSILS MAY NOT BE PAINTED.<a id="k60a_23"><sup>23</sup></a>
</p><p>
	<P><B><I>GEMARA</I></B>. What is the Rabbis' reason? &mdash; Because he [this shopkeeper] can say to him [another shopkeeper], 'I distribute nuts; you distribute plums.
</p><p>
	NOR MAY HE REDUCE THE PRICE; BUT THE SAGES SAY, HE IS TO BE REMEMBERED FOR GOOD, etc. What is the Rabbis' reason? &mdash; 
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k60b_1:" Competition is healthy, and prevents a 'hold up.'"
,k60b_2:" The purchaser sees what he buys, and therefore there is no fraud."
,k60b_3:" In a shop, where they are displayed for sale, to make them look larger."
,k60b_4:" To make it look fat."
,k60b_5:" Which bloats the animal fed on it."
,k60b_6:" For the same purpose."
,k60b_7:" To make it look more valuable."
,k60b_8:" By rubbing it with a certain substance."
,k60b_9:" To make it appear thinner and of finer texture."
,k60b_10:" Old utensils may not be painted, as the purpose is to deceive and make them look new. But new ones may be painted to improve their appearance."
,k60b_11:" Black, making him look a young man."
,k60b_12:" This is a Mishnah in Aboth I, 5. Raba, by emphasizing the 'thy', gave it the meaning &mdash; 'I had rather give my hospitality to the poor of my own people.'"
,k60b_13:" And it is not meet that you should impose menial tasks upon me. &mdash; It is noteworthy that the slave knew that he could rely upon the decency of the Jew to respect his age, though a slave, and one, moreover, who had practised deceit. This is in marked contrast to the treatment meted out to slaves amongst other people, both in ancient and in comparatively recent times."
,k60b_14:" Prov. XI, 8; the verse actually reads, 'and the wicked etc.' 'Another' was probably substituted by R. Papa intentionally: 'Raba &mdash; the righteous &mdash; was delivered from trouble, but I had the misfortune to buy you."
,k60b_15:" <I>Neshek</I>, from [H] 'to bite', denotes usury, 'bitten out', as it were, from the debtor, something received for nothing given. <I>Tarbith</I>, <i>marbith</i>, and <i>ribbith</i> from [H], 'to increase', denotes increase, profits. The question of the Mishnah is posited on Lev. XXV, 36: <i>Take thou no neshek from him, nor tarbith</i>."
,k60b_16:" <i>Se'ah</i> = six <i>kabs</i>, or 13,184.44 cu. cm. J.E. XII, 488."
,k60b_17:" [Rightly omitted in most texts.]"
,k60b_18:" <i>Kor</i> is a measure of capacity, equal to thirty se'ahs. B.B. 86b, 105a."
,k60b_19:" One may purchase 'futures' in wheat at the current price, paying for it at the time of purchase and receiving it later, even if the price advances, without infringing the prohibition of usury."
,k60b_20:" Pricing the wine too at current rates."
,k60b_21:" In his explanation of <i>marbith</i>."
,k60b_22:" Which is usury on a loan transaction."
,k60b_23:" [The illustration of <i>marbith</i> by way of purchase in the Mishnah being a Rabbinical extension of the law.]"
,k60b_24:" <i>Thou shalt not give him any money upon <i>neshek</i>, nor lend him thy victuals for <i>marbith</i>. Lev. XXV, 37."
,k60b_25:" Pers. dankh; [G], a small Persian coin, the sixth of a <i>denar</i>, in general, one-sixth."
,k60b_26:" So Rashi. Tosaf., however, points out that the current value of a sixth of a <i>denar</i> was 32 perutahs, and it is inconceivable that the <i>perutah</i> should depreciate to such an extent. Tosaf, therefore renders: a hundred <i>ma'ahs</i> (<i>ma'ah</i> = a sixth of the <i>denar</i> = a <i>danka</i>) for a sixth of a <i>maneh</i> (<i>maneh</i> = 100 common <i>shekels</i> or <i>zuz</i>); or 100 <i>issars</i> (<i>issar</i> = 8 perutahs) for a sixth of a gold <i>denar</i>."
,k60b_27:" Lit., 'if you go according to the beginning'."
,k60b_28:" Of a <i>denar</i>, or, as stated above in n. 3."
,k60b_29:" V. Lev. XXV, 37, quoted in n. 1."
,k60b_30:" Each involving the penalty of lashes."
,k60b_31:" Lev. XXV, 37."
,k60b_32:" I.e., that in lending money on interest, the prohibition of <i>neshek</i>, and in lending provisions on interest, the prohibitions of <i>ribbith</i>, are violated."
,k60b_33:" Deut. XXIII, 20. "
}

txt:
<p>
Because he eases the market.<a id="k60b_1"><sup>1</sup></a>
</p><p>
	ONE MUST NOT SIFT POUNDED BEANS: THIS IS THE VIEW OF ABBA SAUL. BUT THE SAGES PERMIT IT, etc. Who are the Sages? &mdash; R. Aha. For it has been taught: R. Aha permitted it in a commodity that may be seen.<a id="k60b_2"><sup>2</sup></a>
</p><p>
	MEN, CATTLE, AND UTENSILS MAY NOT BE PAINTED. Our Rabbis taught: An animal may not be given an appearance of stiffness, entrails may not be inflated,<a id="k60b_3"><sup>3</sup></a>&nbsp; nor may meat be soaked in water.<a id="k60b_4"><sup>4</sup></a>&nbsp; What is meant by 'one may not give an appearance of stiffness'? &mdash; Here [in Babylon] it is explained as referring to branbroth.<a id="k60b_5"><sup>5</sup></a>&nbsp; Ze'iri said in R. Kahana's name: Brushing up [an animal's hair].<a id="k60b_6"><sup>6</sup></a>&nbsp; Samuel permitted fringes to be put on a cloak.<a id="k60b_7"><sup>7</sup></a>&nbsp; Rab Judah permitted a gloss to be put on fine cloths.<a id="k60b_8"><sup>8</sup></a>&nbsp; Rabbah permitted hemp-cloths to be beaten.<a id="k60b_9"><sup>9</sup></a>&nbsp; Raba permitted arrows to be painted. R. Pappa b. Samuel allowed baskets to be painted. But did we not learn, MEN, CATTLE, AND UTENSILS MAY NOT BE PAINTED? &mdash; There is no difficulty; one refers to new, the other to old.<a id="k60b_10"><sup>10</sup></a>
</p><p>
	What is the purpose of painting men? &mdash; As in the case of a certain aged slave who went and had his head and beard dyed,<a id="k60b_11"><sup>11</sup></a>&nbsp; and came before Raba, saying to him, 'Buy me.' 'Let the poor be the children of <i>thy</i> house,'<a id="k60b_12"><sup>12</sup></a>&nbsp; he replied. So he went to R. Papa b. Samuel, who bought him. One day he said to him, 'Give me some water to drink.' Thereupon he went, washed his head and beard white again, and said to him, 'See, I am older than your father.'<a id="k60b_13"><sup>13</sup></a>&nbsp; At that he applied to himself the verse, '<i>The righteous is delivered out of trouble, and another cometh in his stead</i>.<a id="k60b_14"><sup>14</sup></a>
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_v">CHAPTER V</A>
      </H2>

</p><p>
	<P><B><I>MISHNAH</I></B>. WHAT IS <I>NESHEK</I> AND WHAT IS <I>TARBITH</I>?<a id="k60b_15"><sup>15</sup></a>&nbsp; WHAT IS <I>NESHEK</I>? ONE WHO LENDS A <I>SELA'</I> [FOUR <I>DENARII</I>] FOR FIVE <I>DENARII</I>, OR TWO SE'AHS<a id="k60b_16"><sup>16</sup></a>&nbsp; OF WHEAT FOR THREE; THAT IS FORBIDDEN,<a id="k60b_17"><sup>17</sup></a>&nbsp; BECAUSE HE [THEREBY] 'BITES' [THE DEBTOR]. AND WHAT IS <I>TARBITH</I>? THE TAKING OF INTEREST ON PRODUCE, E. G., IF A MAN PURCHASED WHEAT AT A GOLD <I>DENAR</I> [TWENTY-FIVE SILVER <I>DENARII</I>] PER <I>KOR</I>,<a id="k60b_18"><sup>18</sup></a>&nbsp; WHICH WAS THE CURRENT PRICE,<a id="k60b_19"><sup>19</sup></a>&nbsp; AND [SUBSEQUENTLY] WHEAT APPRECIATED TO THIRTY <I>DENARII</I> PER <I>KOR</I>. THEN [THE PURCHASER] SAID TO HIM, 'GIVE ME MY WHEAT, AS I WISH TO SELL IT AND BUY WINE WITH THE PROCEEDS;' TO WHICH [THE VENDOR] REPLIED, 'LET THE WHEAT BE CHARGED TO ME AS A DEBT OF THIRTY <I>DENARII</I> [PER <I>KOR</I>]. AND YOU HAVE A CLAIM OF WINE UPON ME FOR ITS VALUE;'<a id="k60b_20"><sup>20</sup></a>&nbsp; BUT HE ACTUALLY HAS NO WINE [AT THE TIME].
</p><p>
	<P><B><I>GEMARA</I></B>. Now, since he [the Tanna] disregards<a id="k60b_21"><sup>21</sup></a>&nbsp; the Biblical [meaning of] interest<a id="k60b_22"><sup>22</sup></a>&nbsp; and defines its Rabbinical [connotation]<a id="k60b_23"><sup>23</sup></a>&nbsp; it follows that Biblically speaking <i>neshek</i> and <i>tarbith</i> are Synonymous: whereas [in fact] there are Scriptural expressions, <i>neshek</i> of money, and <i>ribbith</i> of food!<a id="k60b_24"><sup>24</sup></a>&nbsp; &mdash; Do you think then that there can be <i>neshek</i> [loss to the debtor] without <i>tarbith</i> [profits to the creditor], or <i>tarbith</i> without <i>neshek</i>? How might there be <i>neshek</i> without <i>tarbith</i>? If he lent him a hundred [perutahs] for one hundred and twenty [perutahs], at first [when the loan is made] a <i>danka</i><a id="k60b_25"><sup>25</sup></a>&nbsp; being valued at a hundred [perutahs], and subsequently [when the loan was repaid] at a hundred and twenty,<a id="k60b_26"><sup>26</sup></a>&nbsp; there is <i>neshek</i>, for he 'bites' him [the debtor] by taking from him something which he [the creditor] did not give; yet there is no <i>tarbith</i> [to the creditor], for there is no profit, since he lent him a <i>danka</i> and received back a <i>danka</i>! But, after all, if the original rate is the determining factor,<a id="k60b_27"><sup>27</sup></a>&nbsp; there is both <i>neshek</i> and <i>tarbith</i>; if the subsequent rate, there is neither <i>neshek</i> nor <i>tarbith</i>? Furthermore, how is <i>tarbith</i> [profit to the creditor] conceivable without <i>neshek</i> [loss to the debtor]? If he lent him a hundred [perutahs] for a hundred, the hundred being worth a <i>danka</i> at first, and now a fifth:<a id="k60b_28"><sup>28</sup></a>&nbsp; if you regard the first rate, there is neither <i>neshek</i> nor <i>tarbith</i>; if the final rate, there is both <i>neshek</i> and <i>tarbith</i>! &mdash; But, said Raba, you can find neither <i>neshek</i> without <i>tarbith</i> nor <i>tarbith</i> without <i>neshek</i>, and the only purpose of Scripture in stating them separately<a id="k60b_29"><sup>29</sup></a>&nbsp; is [to teach] that one transgresses two prohibitions [by taking interest].<a id="k60b_30"><sup>30</sup></a>
</p><p>
	Our Rabbis taught: [<i>Thou shalt not give him thy money upon <i>neshek</i> [usury], nor lend him thy victuals for <i>marbith</i> [interest]</i>;<a id="k60b_31"><sup>31</sup></a>&nbsp; [from this] I only know that the prohibition of <i>neshek</i> applies to money, and that of <i>ribbith</i> to provisions:<a id="k60b_32"><sup>32</sup></a>&nbsp; whence do we know that [the prohibition] <i>neshek</i> applies to provisions [too]? From the verse, [Thou shalt not lend upon usury to thy brother <i>neshek</i> of money], <i>neshek</i> of victuals.<a id="k60b_33"><sup>33</sup></a>&nbsp; Whence do we know that the prohibition of <i>ribbith</i> applies to money? From the verse, <i>neshek</i> of money:
</P>


lvr: 42
dfh: a
notes:
 ntes={k75a_1:" Viz., its value when borrowing."
,k75a_2:" To return money; why then repay wheat if its value falls?"
,k75a_3:" Lest it become dearer."
,k75a_4:" I.e., he has it, but it is temporarily inaccessible. Since the prohibition of lending a <i>se'ah</i> for a <i>se'ah</i> is only Rabbinical, it was not enacted when the borrower actually possesses the grain."
,k75a_5:" The reference is to 'LEND ME UNTIL MY SON COMES etc.'"
,k75a_6:" For in point of fact, the <i>se'ah</i> that he has does not pass into the lender's possession, and he could, if he wished, dispose of it and then purchase a <i>se'ah</i> for repayment, even at a higher price. Thus, having borrowed one <i>se'ah</i>, he is at liberty to dispose of the first and remain in debt for what he borrowed: this <i>se'ah</i> (the borrowed one) then serves as a standby for another, and the second for a third, and so on."
,k75a_7:" Hence, if the price of wine or oil advances, there is usury."
,k75a_8:" Lit., 'many drops'."
,k75a_9:" Sc., R. Nahman in Samuel's name."
,k75a_10:" I.e., members of a company at one table, each of whom has his own provisions, and when one borrows from another, are particular to weigh, measure, or count, that the exact quantity may be returned."
,k75a_11:" On a Festival one may borrow from his neighbour, but not by weight, measure or number. Likewise, he may not use the terms 'lend' and 'repay', for these belong to monetary transactions. Now Rab Judah observes, when members of a company are particular with each other, they are likely to be led into the transgression of these prohibitions."
,k75a_12:" When members of a company are not particular with each other, and one borrows and returns the same amount after it has advanced, there is no usury, since neither cares whether the exact amount is returned or not. But if they are particular, every change in value is scrupulously noted, and therefore, if it advances, there is usury. This does not refer particularly to Festivals. Since Rab Judah maintains that Hillel's ruling applies only to members who are particular with each other, it follows that neighbours, in respect of whom Hillel stated his view, are always so regarded. (Tosaf.)"
,k75a_13:" This refers only to a trifling matter, such as might be given in any case. (Tosaf.) [They are not as petty and niggardly in their relations to one another as those whose only common bond of interest is the dining table; v. Rappaport, J.H., Das Darlehen, p. 135.]"
,k75a_14:" I.e., it is not usury."
,k75a_15:" Lit., 'to let them know the taste of usury'; i.e., that they should know the bitterness and cankering cares of having to return more than is borrowed."
,k75a_16:" In teaching his children the dark side of interest, he himself will be impressed with its happy side-for the lender-and engage in it."
,k75a_17:" Though by the time he comes to reciprocate labour costs may have advanced."
,k75a_18:" One may be more difficult than the other, and so there may be an appearance of usury. "
}

txt:
<p>
'Lend me a <i>kor</i> of wheat,' and stipulate a monetary return:<a id="k75a_1"><sup>1</sup></a>&nbsp; if it depreciates, he returns wheat; if it advances, he repays its value [as at the time of borrowing]. But did he not stipulate?<a id="k75a_2"><sup>2</sup></a>&nbsp; &mdash; R. Shesheth answered: It is thus meant: if no stipulation is made, and it depreciates, he takes wheat; if it advances, he repays its [original] value.
</p><p>
	<P><B><I>MISHNAH</I></B>. A MAN MAY NOT SAY TO HIS NEIGHBOUR, 'LEND ME A <I>KOR</I> OF WHEAT AND I WILL REPAY YOU AT HARVEST TIME;'<a id="k75a_3"><sup>3</sup></a>&nbsp; BUT HE MAY SAY, 'LEND ME UNTIL MY SON COMES, OR UNTIL I FIND THE KEY.'<a id="k75a_4"><sup>4</sup></a>&nbsp; HILLEL, HOWEVER, FORBADE [EVEN THIS.] AND THUS HILLEL USED TO SAY: A WOMAN MUST NOT LEND A LOAF TO HER NEIGHBOUR WITHOUT FIRST VALUING IT, LEST WHEAT ADVANCES AND THUS THEY [THE LENDER AND BORROWER] COME TO [TRANSGRESS THE PROHIBITION OF] USURY.
</p><p>
	<P><B><I>GEMARA</I></B>. R. Huna said: If he possesses a <i>se'ah</i>, he may borrow a <i>se'ah</i>; two se'ahs, he may borrow two se'ahs.<a id="k75a_5"><sup>5</sup></a>&nbsp; R. Isaac said: Even if he has only a <i>se'ah</i>, he may borrow many <i>kors</i> against it.<a id="k75a_6"><sup>6</sup></a>
</p><p>
	R. Hiyya taught the following, which is in support of R. Isaac: [One may not borrow wine or oil for the same quantity to be returned, because] he has not a drop of wine or oil.<a id="k75a_7"><sup>7</sup></a>&nbsp; Surely then, if he has, he may borrow a large quantity against it.<a id="k75a_8"><sup>8</sup></a>
</p><p>
	HILLEL, HOWEVER, FORBADE [EVEN THIS]. R. Nahman said in Samuel's name: The <i>halachah</i> agrees with Hillel's ruling. The law is nevertheless not in accordance with him.<a id="k75a_9"><sup>9</sup></a>
</p><p>
	AND THUS HILLEL USED TO SAY, A WOMAN MUST NOT LEND, etc. Rab Judah said in Samuel's name: This is Hillel's view, but the Sages maintain, One may borrow and repay unconditionally.
</p><p>
	Rab Judah also said in Samuel's name: The members of a company who are particular with each other<a id="k75a_10"><sup>10</sup></a>&nbsp; transgress [the prohibition of] measure, weight, number, borrowing and repaying on the Festival,<a id="k75a_11"><sup>11</sup></a>&nbsp; and, according to Hillel, usury too.<a id="k75a_12"><sup>12</sup></a>
</p><p>
	Rab Judah also said in Samuel's name: Scholars may borrow from each other on interest. Why? Fully knowing that usury is forbidden, they merely present gifts to each other.<a id="k75a_13"><sup>13</sup></a>&nbsp; Samuel said to Abbuha b. Ihi: Lend me a hundred peppercorns for a hundred and twenty. And this is well.<a id="k75a_14"><sup>14</sup></a>
</p><p>
	Ran Judah said in Rab's name: One may lend to his sons and household on interest, in order to give them experience thereof.<a id="k75a_15"><sup>15</sup></a>&nbsp; This, nevertheless, is incorrect, because he will come to cling thereto.<a id="k75a_16"><sup>16</sup></a>
</p><p>
	<P><B><I>MISHNAH</I></B>. A MAN MAY SAY TO HIS NEIGHBOUR, 'HELP ME TO WEED, AND I WILL HELP YOU; ASSIST ME TO HOE, AND I WILL ASSIST YOU.'<a id="k75a_17"><sup>17</sup></a>&nbsp; BUT HE MAY NOT SUGGEST, 'DO YOU WEED WITH ME, AND I WILL HOE WITH YOU; DO YOU HOE WITH ME, AND I WILL WEED WITH YOU.'<a id="k75a_18"><sup>18</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k75b_1:" Lit., 'one.'"
,k75b_2:" I.e., there is no fear that one day may be longer than another or more difficult for working, so that the value of labour on one is greater than on the other."
,k75b_3:" In different seasons the work is of unequal difficulty."
,k75b_4:" The mere giving of information which he would otherwise not have given, is interest. But the text in J. a.l. is, 'Know that if so-and-so has come, etc.' On this reading, it is the lender who speaks thus to the borrower, and to make the sense complete, Maim. Yad, Loweh, 13, adds, 'and when he comes, shew him hospitality.' Now, though the borrower would probably have done this in any case, his doing it at the lender's behest becomes interest, and is forbidden. The passage then must be translated: R. Simeon said, There is a form of interest arising through (the creditor's) words (orders). (V.J.D. CLX, 12 [H] a.l. &#167; 5 and [H] a.l. &#167; 21.)"
,k75b_5:" Lev. XXV, 37."
,k75b_6:" Ibid. 36."
,k75b_7:" Ex. XXII, 24."
,k75b_8:" Ibid."
,k75b_9:" Lev. XIX, 14. The borrower, by offering interest and appealing to the creditor's avarice, places a stumbling block before him."
,k75b_10:" The injunctions enumerated in the Mishnah."
,k75b_11:" Deut. XXIII, 20. For this translation v. p. 363, n. 4."
,k75b_12:" Ibid. 21. Alfasi and the Asheri Omit this, and Maim.'s text likewise appears to have omitted it."
,k75b_13:" I.e., take no part in a transaction which imposes usury."
,k75b_14:" V. <i>supra</i> 71a: He who lends on interest, his wealth dissolves&nbsp;&hellip; and he sinks into poverty, never to rise again."
,k75b_15:" A euphemism for folly."
,k75b_16:" Lit., 'written it'."
,k75b_17:" From Palestine to Babylon."
,k75b_18:" I.e., do not emphasize that he is in your debt: and so put him to shame."
,k75b_19:" Lit., 'judged him with two verdicts.'"
,k75b_20:" Ps. LXVI, 12; v. Ber. 6b."
,k75b_21:" Lev. XIX, 14."
,k75b_22:" Ps. XXXI, 19; when the creditor demands repayment, and the debtor denies the loan, he is reviled for preferring unjust claims."
,k75b_23:" I.e., vent their grievances at law."
,k75b_24:" V. p. 367, n. 2; the Gentile may learn of this, and demand its return."
,k75b_25:" But have no legal redress. In the view of the Rabbis, even for resentment there must be some justifiable cause; otherwise it is morally wrong."
,k75b_26:" The Karlsruhe MS. and Tosaf. read [H], ([H] to roll, drag; cf. [H] a waggoner). Our editions read [H], which, according to Jast., is a dialect form of [H]. Tosaf. suggests that [H] (a potter) may be used in the Mishnah, because potters generally have waggons (for conveying their wares)."
,k75b_27:" It was a custom to have professional mourners and pipers, who played sad music at funerals. The numbers varied according to wealth and social position, but even the poorest had at least one professional mourner and two pipers."
,k75b_28:" If postponed. The bringing of pipers for a funeral or marriage is included in this category, because they are required for a particular time, and without them the ceremony suffers (Tosaf.)."
,k75b_29:" Lit., 'withdrew' in the middle of their work."
,k75b_30:" I.e., at a higher wage. and claim the difference from the first."
,k75b_31:" This is discussed in the Gemara. "
}

txt:
<p>
ALL THE DAYS OF THE DRY SEASON ARE EQUAL,<a id="k75b_1"><sup>1</sup></a>&nbsp; AND LIKEWISE OF THE RAINY SEASON.<a id="k75b_2"><sup>2</sup></a>&nbsp; [BUT] ONE MAY NOT SAY, 'PLOUGH WITH ME IN THE DRY SEASON, AND I WILL PLOUGH WITH YOU IN THE RAINY SEASON'.<a id="k75b_3"><sup>3</sup></a>&nbsp; RABBAN GAMALIEL SAID: THERE IS [A FORM OF] PREPAID INTEREST AND ONE OF POSTPAID INTEREST. E. G., IF ONE MADE UP HIS MIND TO BORROW FROM HIS NEIGHBOUR AND SENT HIM [A GIFT], SAYING, 'IT IS IN ORDER THAT YOU SHOULD LEND ME' &mdash; THAT IS INTEREST IN ADVANCE. IF HE BORROWED FROM HIM, REPAID HIS MONEY, AND THEN SENT HIM [A GIFT], SAYING, 'IT IS ON ACCOUNT OF YOUR MONEY WHICH, [AS FAR AS YOU WERE CONCERNED], LAY IDLE WITH ME' &mdash; THAT IS POSTPAID INTEREST. R. SIMEON SAID: THERE IS A FORM OF VERBAL INTEREST. [THUS:] HE [THE BORROWER] MAY NOT SAY TO HIM [THE LENDER], 'KNOW THAT SO-AND-SO HAS COME FROM SUCH AND SUCH A PLACE.'<a id="k75b_4"><sup>4</sup></a>
</p><p>
	THE FOLLOWING TRANSGRESS NEGATIVE INJUNCTIONS: THE LENDER, THE BORROWER, THE SURETY, AND THE WITNESSES; THE SAGES ADD, THE NOTARY TOO. THEY VIOLATE: THOU SHALT NOT GIVE [HIM THY MONEY UPON USURY],<a id="k75b_5"><sup>5</sup></a>&nbsp; TAKE THOU [NO USURY] OF HIM,<a id="k75b_6"><sup>6</sup></a>&nbsp; THOU SHALT NOT BE TO HIM AS AN USURER,<a id="k75b_7"><sup>7</sup></a>&nbsp; NEITHER SHALL YE LAY UPON HIM USURY,<a id="k75b_8"><sup>8</sup></a>&nbsp; AND THOU SHALT NOT PUT A STUMBLING BLOCK BEFORE THE BLIND, BUT SHALT FEAR THY GOD: I AM THE LORD.<a id="k75b_9"><sup>9</sup></a>
</p><p>
	<P><B><I>GEMARA</I></B>. It has been taught: R. Simeon b. Yohai said: Whence do we know that if a man is his neighbour's creditor for a <i>maneh</i>, the latter must not extend a greeting to him, if that is not his usual practice? From the verse, Usury of any word which may be usury, [teaching] that even speech is forbidden.
</p><p>
	THE FOLLOWING TRANSGRESS. Abaye said: The lender infringes all;<a id="k75b_10"><sup>10</sup></a>&nbsp; the borrower: <i>Thou shalt not cause thy brother to take usury,<a id="k75b_11"><sup>11</sup></a>&nbsp; but unto thy brother thou shalt offer no usury,<a id="k75b_12"><sup>12</sup></a>&nbsp; and thou shalt not put a stumbling block before the blind. The Surety and the witness: only, neither shall ye lay upon him usury</i>.<a id="k75b_13"><sup>13</sup></a>
</p><p>
	It has been taught: R. Simeon said: Those who lend on interest lose more than they gain.<a id="k75b_14"><sup>14</sup></a>&nbsp; Moreover, they impute wisdom<a id="k75b_15"><sup>15</sup></a>&nbsp; to Moses, our Teacher, and to his Torah, and say, 'Had Moses our Teacher known that there is profit in this thing [sc. usury], he would not have prohibited it.'<a id="k75b_16"><sup>16</sup></a>
</p><p>
	When R. Dimi came,<a id="k75b_17"><sup>17</sup></a>&nbsp; he said: Whence do we know that if one is his neighbour's creditor for a <i>maneh</i> and knows that he has nought [for repayment], he may not even pass in front of him? From the verse, Thou shalt not be to him as an usurer.<a id="k75b_18"><sup>18</sup></a>&nbsp; R. Ammi and R. Assi say: It is as though he subjected him to a twofold trial,<a id="k75b_19"><sup>19</sup></a>&nbsp; for it is written, <i>Thou hast caused man to ride over our heads; we went through fire and through water</i>.<a id="k75b_20"><sup>20</sup></a>
</p><p>
	Rab Judah said in Rab's name: He who has money and lends it without witnesses infringes, and thou shalt not put a stumbling block before the blind.<a id="k75b_21"><sup>21</sup></a>&nbsp; Resh Lakish said: He brings a curse upon himself, as it is written, <i>Let the lying lips be put to silence; which speak grievous things proudly and contemptuously against the righteous</i>.<a id="k75b_22"><sup>22</sup></a>
</p><p>
	The Rabbis observed to R. Ashi: Rabina fulfils all the Rabbinical requirements. He [R. Ashi] sent word to him [Rabina] on the eve of the Sabbath: 'Please, let me have [a loan of] ten <i>zuz</i>, as I just have the opportunity of buying a small parcel of land.' He replied, 'Bring witnesses and we will draw up a bond.' 'Even for me too!' he sent back. 'You in particular,' he retorted, 'being immersed in your studies, you may forget, and so bring a curse upon me.
</p><p>
	Our Rabbis taught: Three cry out<a id="k75b_23"><sup>23</sup></a>&nbsp; and are not answered. Viz., he who has money and lends it without witnesses; he who acquires a master for himself; and a henpecked husband. 'He who acquires a master for himself;' what does this mean? &mdash; Some say: He who attributes his wealth to a Gentile;<a id="k75b_24"><sup>24</sup></a>&nbsp; others: He who transfers his property to his children in his lifetime; others: He who is badly-off in one town and does not go [to seek his fortune] elsewhere.
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_vi">CHAPTER VI</A>
      </H2>

</p><p>
	<P><B><I>MISHNAH</I></B>. IF A MAN ENGAGES ARTISANS AND THEY DECEIVE EACH OTHER, THEY CAN ONLY CHERISH RESENTMENT AGAINST EACH OTHER.<a id="k75b_25"><sup>25</sup></a>&nbsp; IF HE HIRES AN ASS-DRIVER OR A WAGGONER<a id="k75b_26"><sup>26</sup></a>&nbsp; TO BRING LITTER-CARRIERS AND PIPERS FOR A BRIDE OR FOR THE DEAD,<a id="k75b_27"><sup>27</sup></a>&nbsp; OR LABOURERS TO REMOVE HIS FLAX FROM THE WATER OF STEEPING, OR ANYTHING WHICH WOULD BE IRRETRIEVABLY LOST,<a id="k75b_28"><sup>28</sup></a>&nbsp; AND THEY [THE WORKERS] BREAK THEIR ENGAGEMENT;<a id="k75b_29"><sup>29</sup></a>&nbsp; IF IT IS A PLACE WHERE NO OTHERS ARE AVAILABLE AT THE SAME WAGE, HE MAY HIRE [WORKERS] AGAINST THEM<a id="k75b_30"><sup>30</sup></a>&nbsp; OR DECEIVE THEM.<a id="k75b_31"><sup>31</sup></a>&nbsp; IF HE ENGAGES ARTISANS AND THEY RETRACT [AFTER DOING SOME WORK]. THEY ARE AT A DISADVANTAGE;
</P>


lvr: 42
dfh: a
notes:
 ntes={k83a_1:" I.e., if it was an unfrequented place."
,k83a_2:" Ex. XXII, 9f."
,k83a_3:" But an oath is insufficient."
,k83a_4:" [MS.M. omits 'for his neighbour'.]"
,k83a_5:" R. Hiyya does not answer the foregoing difficulties, but reverts to the alleged contradiction in R. Meir's views, and harmonises them. Thus: Both Baraithas have the same author, and, as appears from the second, stumbling is certainly accounted as negligence. Nevertheless, R. Meir holds that in this case the Rabbis freed him from liability, as a measure necessary for the common good. Hence he need only take an oath."
,k83a_6:" He cannot swear that he was guiltless of negligence, since on the present hypothesis stumbling itself is negligence."
,k83a_7:" This passage and the following have already been given above. There it was all R. Eliezer's explanation of the Baraitha and the Mishnah; here it is R. Hiyya's. But on R. Hiyya's version, the sentence just given does not bear quite the same interpretation as before (q.v.) Thus: R. Judah disagrees with R. Meir, and holds that stumbling is not negligence but midway between negligence and an accident, and thus analogous to theft and loss, for which an unpaid bailee is not responsible, whereas a paid bailee is. Therefore the paid bailee must make good the damage, whilst the unpaid bailee swears that he was not otherwise negligent and is thereby freed from liability. Hence, there is no particular Rabbinical measure in this case, but each is dealt with in accordance with his own law."
,k83a_8:" Ibid."
,k83a_9:" V. B.B. (Sonc. ed.) p. 60, n. 4."
,k83a_10:" E.g., a moulding, or perhaps a balcony or a bay window projecting from the wall (Jast. s.v. [H] and [H])."
,k83a_11:" Some texts add 'That there was no culpable negligence'."
,k83a_12:" That in a frequented locality an oath is not accepted."
,k83a_13:" I.e., where you bought them, where you stored them, when they turned sour etc."
,k83a_14:" Near Mahoza."
,k83a_15:" Consequently, one person would carry it."
,k83a_16:" Lit., 'it is near to accident and near to negligence.'"
,k83a_17:" Rashi explains that it was a pole made for a two-man burden. Therefore, when one carries it alone, it is culpable negligence, for which he bears full responsibility."
,k83a_18:" [So according to Alfasi; cur. edd.: 'b. Bar Hanan,' MS.M.: 'b. Bar Hanah.' v. next note.]"
,k83a_19:" [Other texts: 'Raba', according to which preference is to be given to reading: Rabbah. b. R. Hanan, v. D.S.]"
,k83a_20:" Prov. II, 20."
,k83a_21:" Ibid. Actually they were responsible, but Rab told him that in such a case one should not insist on the letter of the law."
,k83a_22:" Lit., 'in his time'. "
}

txt:
<p>
And even on sloping ground, it is reasonable [that the bailee swears] where no evidence is possible;<a id="k83a_1"><sup>1</sup></a>&nbsp; but where evidence is possible, let him adduce evidence and [only] then be free from liability! For it has been taught: Issi b. Judah said: [If a man deliver unto his neighbour an ass&nbsp;&hellip; to keep; and it die, or be hurt, or driven away,] no man seeing it: Then shall an oath of the Lord be between them both;<a id="k83a_2"><sup>2</sup></a>&nbsp; hence it follows, if there be a spectator, he must bring evidence and then be free.<a id="k83a_3"><sup>3</sup></a>
</p><p>
	But R. Hiyya b. Abba said in R. Johanan's name: This oath is a Rabbinical institution. For should you not rule thus, no man would move a barrel for his neighbour<a id="k83a_4"><sup>4</sup></a>&nbsp; from one place to another.<a id="k83a_5"><sup>5</sup></a>&nbsp; What does he swear?<a id="k83a_6"><sup>6</sup></a>&nbsp; &mdash; Raba said: 'I swear that I broke it unintentionally.' And R. Judah comes to teach that an unpaid bailee must swear, whilst a paid bailee must make it good, each in accordance with his own peculiar law.<a id="k83a_7"><sup>7</sup></a>&nbsp; Whereupon R. Eliezer observes: Verily, I have a tradition in accordance With R. Meir; nevertheless, I am astonished that both should swear. As for an unpaid bailee, it is well: he swears that he was guilty of no negligence. But why should a paid bailee swear? Even if not negligent, he is still bound to pay! And even with respect to an unpaid bailee, it [sc. the ruling] is correct [if the accident happened] on sloping ground; but if not on sloping ground, can he possibly swear that he was not negligent! And even on sloping ground, it is reasonable [that the bailee swears] where no evidence is possible; but where it is, let him adduce evidence and [only] then be freed from liability! For it has been taught: Issi b. Judah said: [<i>If a man deliver unto his neighbour an ass&nbsp;&hellip; to keep: and it die, or be hurt, or driven away,] no man seeing it: Then shall an oath of the Lord be between them both</i>;<a id="k83a_8"><sup>8</sup></a>&nbsp; hence it follows, if there be a spectator, he must bring evidence and then be free.
</p><p>
	A man was once moving a barrel of wine in the manor of Mahuza,<a id="k83a_9"><sup>9</sup></a>&nbsp; and broke it on a projection<a id="k83a_10"><sup>10</sup></a>&nbsp; of Mahuza: so he came before Raba. Said he to him: The manor of Mahuza is a frequented place: go and bring evidence;<a id="k83a_11"><sup>11</sup></a>&nbsp; then you are free from liability. Thereupon R. Joseph, his son, said to him: In accordance with whom [is your verdict]? With Issi?<a id="k83a_12"><sup>12</sup></a>&nbsp; &mdash; Yes, said he, in accordance with Issi; and we agree with him.
</p><p>
	A man instructed his neighbour. 'Go and buy me four hundred barrels of wine.' So he went and bought [them] for him; subsequently, however, he came before him and said, 'I bought you the four hundred barrels of wine, but they turned sour.' So he came before Raba. 'When four hundred barrels of wine turn sour,' said he to him, 'the facts should be widely known.<a id="k83a_13"><sup>13</sup></a>&nbsp; Go and bring proof that originally, when bought, the wine was sound, then will you be free from liability.' R. Joseph. his son, observed to him: In accordance with whom [is your verdict]? With Issi? &mdash; Yes, said he, in accordance with Issi; and we agree with him.
</p><p>
	R. Hiyya b. Joseph instituted a measure in Sikara.<a id="k83a_14"><sup>14</sup></a>&nbsp; Viz., those who carry burdens on a yoke, and they break, must pay half. Why? Because it [the burden] is too much for one, yet too little for two:<a id="k83a_15"><sup>15</sup></a>&nbsp; therefore it lies midway between accident and negligence.<a id="k83a_16"><sup>16</sup></a>&nbsp; Those who carry on a pole must pay all.<a id="k83a_17"><sup>17</sup></a>
</p><p>
	Some porters [negligently] broke a barrel of wine belonging to Rabbah son of R. Huna.<a id="k83a_18"><sup>18</sup></a>&nbsp; Thereupon he seized their garments; so they went and complained to Rab.<a id="k83a_19"><sup>19</sup></a>&nbsp; 'Return them their garments,' he ordered. 'Is that the law?' he enquired. 'Even so,' he rejoined: <i>'That thou mayest walk in the way of good men.</i>'<a id="k83a_20"><sup>20</sup></a>&nbsp; Their garments having been returned, they observed. 'We are poor men, have worked all day, and are in need: are we to get nothing?' 'Go and pay them,' he ordered. 'Is that the law?' he asked. 'Even so,' was his reply: '<i>and keep the path of the righteous.</i>'<a id="k83a_21"><sup>21</sup></a>
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_vii">CHAPTER VII</A>
      </H2>

</p><p>
	<P><B><I>MISHNAH</I></B>. ONE WHO ENGAGES LABOURERS AND DEMANDS THAT THEY COMMENCE EARLY OR WORK LATE &mdash; WHERE LOCAL USAGE IS NOT TO COMMENCE EARLY OR WORK LATE HE MAY NOT COMPEL THEM. WHERE IT IS THE PRACTICE TO SUPPLY FOOD [TO ONE'S LABOURERS], HE MUST SUPPLY THEM THEREWITH; TO PROVIDE A RELISH, HE MUST PROVIDE IT. EVERYTHING DEPENDS ON LOCAL CUSTOM. IT ONCE HAPPENED THAT R. JOHANAN B. MATHIA SAID TO HIS SON, 'GO OUT AND ENGAGE LABOURERS.' HE WENT AND AGREED TO SUPPLY THEM WITH FOOD. BUT ON HIS RETURNING TO HIS FATHER, THE LATTER SAID, MY SON, SHOULD YOU EVEN PREPARE FOR THEM A BANQUET LIKE SOLOMON'S WHEN IN HIS GLORY,<a id="k83a_22"><sup>22</sup></a>&nbsp; YOU CANNOT FULFIL YOUR UNDERTAKING, FOR THEY ARE CHILDREN OF ABRAHAM, ISAAC AND JACOB. BUT, BEFORE THEY START WORK, GO OUT AND TELL THEM, ''[I ENGAGE YOU] ON CONDITION THAT YOU HAVE NO CLAIM UPON ME OTHER THAN BREAD AND PULSE.'' R. SIMEON B. GAMALIEL SAID: IT WAS UNNECESSARY [TO STIPULATE THUS]; EVERYTHING DEPENDS ON LOCAL CUSTOM.
</p><p>
	<P><B><I>GEMARA</I></B>. Is it not obvious? &mdash; It is necessary [to teach it] only when he [the employer] pays them a higher wage [than usual]: I might think that he can plead, 'I pay you a higher wage in order that you may start earlier and work for me until nightfall;' we are therefore taught that they can reply, 'The higher remuneration is [only] for better work [but not longer hours].'
</p><p>
	Resh Lakish said:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k83b_1:" The working day on the field extended from sunrise until the stars appear. The labourer returns home in his own time, i.e., after the stars appear, but goes to work in the time of the employer, starting from home at sunrise. [Tosaf. reverses the explanation.]"
,k83b_2:" Ps. CIV, 22f. This is interpreted: Man goeth forth when the sun ariseth &mdash; hence in his employer's time &mdash; and is bound to his labour until the evening &mdash; returning home in his own time."
,k83b_3:" I.e., a town made up of inhabitants from various other places, and so lacking uniformity in this matter."
,k83b_4:" In that case local custom is overridden."
,k83b_5:" Ibid. 20."
,k83b_6:" In the Hereafter."
,k83b_7:" [H], the word used in the text, often means not 'work', but its reward: Cf. Lev. XIX, 13: <i>The wages</i> ([H]) <i>of him that is hired</i> etc."
,k83b_8:" I.e., until his death."
,k83b_9:" [(a) Freebooters (latrones) who overran Judea during the war between the Emperor Severus and his rival Pescennius Niger (193-4 C.E.) (Graetz, <i>Geschichte der Juden</i>, IV, p. 207); or (b) ordinary robbers (Krauss. <I>MGWJ</I>, 1894. p. 151).]"
,k83b_10:" Ps. CIV, 20."
,k83b_11:" Ps. X, 9."
,k83b_12:" 10 a.m., the usual breakfast hour."
,k83b_13:" Without using a hammer, so that he did not attract attention."
,k83b_14:" Let him who gave the advice carry it out."
,k83b_15:" Degenerate son of a righteous father."
,k83b_16:" Prov. XXI, 23."
,k83b_17:" Lit., 'his inwards'."
,k83b_18:" Seen to be just. He was doubtful whether the man had really merited hanging. But now he saw that he was, for the seduction of a betrothed maiden is punished by stoning, and all who are stoned are hung."
,k83b_19:" An operating theatre(?)"
,k83b_20:" The summer months, corresponding to about June and July."
,k83b_21:" This was taken as a sign that he had acted rightly and would be proof against decay."
,k83b_22:" Rashi: unless flesh adheres to it."
,k83b_23:" Which are a fleshy substance."
,k83b_24:" Ps. XVI, 9."
,k83b_25:" Viz., that he became an informer to the State. "
}

txt:
<p>
A labourer's entry [to town] is in his own time, and his going forth [to the fields] is in his employer's;<a id="k83b_1"><sup>1</sup></a>&nbsp; as it is written, The sun ariseth, they [sc. the animals] gather themselves together, and lay them down in their dens. Man goeth forth unto his work and to his labour until the evening.<a id="k83b_2"><sup>2</sup></a>&nbsp; But let us see what is the usage? &mdash; This refers to a new town. Then let us see whence they come? &mdash; It refers to a conglomeration.<a id="k83b_3"><sup>3</sup></a>&nbsp; Alternatively. it means that he said to them, 'You are engaged to me as labourers [whose conditions of work are set forth] in the Bible.'<a id="k83b_4"><sup>4</sup></a>
</p><p>
	R. Zera lectured &mdash; others say. R. Joseph learnt: What is meant by, <i>Thou makest darkness, and it is night: wherein all the beasts of the forest do creep forth</i>?<a id="k83b_5"><sup>5</sup></a>&nbsp; <i>Thou makest darkness, and it is night</i> &mdash; this refers to this world, which is comparable to night; <i>wherein all the beasts of the forest do creep forth</i> &mdash; to the wicked therein, who are like the beasts of the forest. <i>The sun ariseth</i> &mdash; for the righteous;<a id="k83b_6"><sup>6</sup></a>&nbsp;<i> the wicked are gathered in</i> &mdash; for Gehenna; <i>and lay them down in their habitations</i> &mdash; not a single righteous man lacks a habitation as befits his honour. <i>Man goeth forth unto his work </i>&mdash; i.e., the righteous go forth to receive their reward;<a id="k83b_7"><sup>7</sup></a>&nbsp; <i>and to his labour until the evening</i> &mdash; as one who has worked fully until the very evening.<a id="k83b_8"><sup>8</sup></a>
</p><p>
	R. Eleazar, son of R. Simeon, once met an officer of the [Roman] Government who had been sent to arrest thieves,<a id="k83b_9"><sup>9</sup></a>&nbsp; 'How can you detect them?' he said. 'Are they not compared to wild beasts, of whom it is written, <i>Therein [in the darkness] all the beasts of the forest creep forth</i>?'<a id="k83b_10"><sup>10</sup></a>&nbsp; (Others say, he referred him to the verse, <i>He lieth in wait secretly as a lion in his den</i>.)<a id="k83b_11"><sup>11</sup></a>&nbsp; 'Maybe,' [he continued,] 'you take the innocent and allow the guilty to escape?' The officer answered, 'What shall I do? It is the King's command.' Said the Rabbi, 'Let me tell you what to do. Go into a tavern at the fourth hour of the day.<a id="k83b_12"><sup>12</sup></a>&nbsp; If you see a man dozing with a cup of wine in his hand, ask what he is. If he is a learned man, [you may assume that] he has risen early to pursue his studies; if he is a day labourer he must have been up early to do his work; if his work is of the kind that is done at night, he might have been rolling thin metal.<a id="k83b_13"><sup>13</sup></a>&nbsp; If he is none of these, he is a thief; arrest him.' The report [of this conversation] was brought to the Court, and the order was given: 'Let the reader of the letter become the messenger.'<a id="k83b_14"><sup>14</sup></a>&nbsp; R. Eleazar, son of R. Simeon, was accordingly sent for, and he proceeded to arrest the thieves. Thereupon R. Joshua, son of Karhah, sent word to him, 'Vinegar, son of wine!<a id="k83b_15"><sup>15</sup></a>&nbsp; How long will you deliver up the people of our God for slaughter!' Back came the reply: 'I weed out thorns from the vineyard.' Whereupon R. Joshua retorted: 'Let the owner of the vineyard himself [God] come and weed out the thorns.'
</p><p>
	One day a fuller met him, and dubbed him: 'Vinegar, son of wine.' Said the Rabbi to himself, 'Since he is so insolent, he is certainly a culprit.' So he gave the order to his attendant: 'Arrest him! Arrest him!' When his anger cooled, he went after him in order to secure his release, but did not succeed. Thereupon he applied to him, [the fuller] the verse: Whoso keepeth his mouth and his tongue, keepeth his soul from troubles.<a id="k83b_16"><sup>16</sup></a>&nbsp; Then they hanged him, and he [R. Eleazar son of R. Simeon] stood under the gallows and wept. Said they [his disciples] to him: 'Master, do not grieve; for he and his son seduced a betrothed maiden on the Day of Atonement.' [On hearing this,] he laid his hand upon his heart<a id="k83b_17"><sup>17</sup></a>&nbsp; and exclaimed: 'Rejoice, my heart! If matters on which thou [sc. the heart] art doubtful are thus,<a id="k83b_18"><sup>18</sup></a>&nbsp; how much more so those on which thou art certain! I am well assured that neither worms nor decay will have power over thee.' Yet in spite of this, his conscience disquieted him. Thereupon he was given a sleeping draught, taken into a marble chamber,<a id="k83b_19"><sup>19</sup></a>&nbsp; and had his abdomen opened, and basketsful of fat removed from him and placed in the sun during Tammuz and Ab,<a id="k83b_20"><sup>20</sup></a>&nbsp; and yet it did not putrefy.<a id="k83b_21"><sup>21</sup></a>&nbsp; But no fat putrefies!<a id="k83b_22"><sup>22</sup></a>&nbsp; &mdash; [True,] no fat putrefies; nevertheless, if it contains red streaks,<a id="k83b_23"><sup>23</sup></a>&nbsp; it does. But here, though it contained red streaks, it did not. Thereupon he applied to himself the verse, <i>My flesh too shall dwell in safety</i>.<a id="k83b_24"><sup>24</sup></a>
</p><p>
	A similar thing<a id="k83b_25"><sup>25</sup></a>&nbsp; befell R. Ishmael son of R. Jose.
</P>


lvr: 42
dfh: a
notes:
 ntes={k94a_1:" To provoke robbers and challenge them to attack is the equivalent of going into danger."
,k94a_2:" In case he pleads that it was stolen or lost."
,k94a_3:" If they plead an unavoidable accident."
,k94a_4:" For loss or theft."
,k94a_5:" E.g., if A arranges that B shall perform a certain action on a certain condition, but states the action before the condition, the stipulation is invalid. The law of stipulation is based on that made by Moses in respect to the request of the Gaddites and Reubenites, q.v.; And Moses said unto them, If ye will do this thing, if ye will go armed before the Lord (Num. XXXII, 20-22). Just as the condition was mentioned there first, so must it be in all cases (Rashi). [Maim. Yad, Ishshuth VI, 2, explains simply, 'If the condition was made after the action had already taken place.']"
,k94a_6:" The degrees of liability of the different bailees are stated explicitly, and also partly deduced from Scripture."
,k94a_7:" Lit., 'in a monetary matter'."
,k94a_8:" Hence she has no claims of sustenance and raiment, but is entitled to conjugal rights."
,k94a_9:" [A village in Galilee, v. Klein, S., NB, p. 28.]"
,k94a_10:" Before the bailment came into his hand, he explicitly stated the extent of liability he was prepared to accept; hence, when he receives his charge, his responsibility is already limited. But one cannot be only partly married; therefore, notwithstanding his stipulation, he must hear the full liability involved in marriage."
,k94a_11:" Surely one cannot assume additional responsibilities, over and above the normal, by mere words!"
,k94a_12:" I.e., performed one of the acts whereby possession is effected. These acts were also valid to legalise a liability which one wished to assume."
,k94a_13:" I.e., it is assumed that he meant the act to be invalid."
,k94a_14:" I.e., to distress and make her think that he is not divorcing her."
,k94a_15:" That the <i>halachah</i> is so."
,k94a_16:" Since it is taught anonymously."
,k94a_17:" I.e., the owner lending his personal service."
,k94a_18:" Ex. XXII, 14. "
}

txt:
<p>
we have this number of men, this number of dogs, so many sharp-shooters are assigned to us;' and he came and robbed him of them? &mdash; He replied: Then he has led them to the place of wild beasts and robbers.<a id="k94a_1"><sup>1</sup></a>
</p><p>
	<P><B><I>MISHNAH</I></B>. A GRATUITOUS BAILEE MAY STIPULATE TO BE FREE FROM AN OATH;<a id="k94a_2"><sup>2</sup></a>&nbsp; A BORROWER, FROM PAYMENT; A PAID BAILEE AND A HIRER, FROM AN OATH<a id="k94a_3"><sup>3</sup></a>&nbsp; OR PAYMENT.<a id="k94a_4"><sup>4</sup></a>&nbsp; A STIPULATION CONTRARY TO A SCRIPTURAL ENACTMENT IS NULL; ALSO, EVERY STIPULATION WHICH IS PRECEDED BY THE ACTION<a id="k94a_5"><sup>5</sup></a>&nbsp; IS NULL; AND WHATEVER CAN BE FULFILLED EVENTUALLY, AND IT IS STIPULATED AT THE OUTSET, THE STIPULATION IS VALID.
</p><p>
	<P><B><I>GEMARA</I></B>. But why so? Is it not a stipulation contrary to Scriptural law, which is null?<a id="k94a_6"><sup>6</sup></a>&nbsp; This agrees with R. Judah, who maintained: In civil matters<a id="k94a_7"><sup>7</sup></a>&nbsp; the stipulation is valid. For it has been taught: If one says to a woman, 'Behold, thou art betrothed unto me on condition that thou hast upon me no claims of sustenance, raiment and conjugal rights', she is betrothed, but the condition is null; this is R. Meir's view. R. Judah said: In respect of money matters, his condition is valid.<a id="k94a_8"><sup>8</sup></a>
</p><p>
	But can you assign it to R. Judah? Then consider the second clause: A STIPULATION CONTRARY TO A SCRIPTURAL ENACTMENT is NULL: does not this agree with R. Meir? &mdash; That is no difficulty; in truth, it is R. Judah's view, but this second clause does not refer to civil matters. Then consider the latter clause: EVERY STIPULATION WHICH IS PRECEDED BY AN ACTION IS NULL. Now, whom do you know to hold this view? R. Meir. For it has been taught: Abba Halafta, of Kefar Hananiah,<a id="k94a_9"><sup>9</sup></a>&nbsp; said on R. Meir's authority: If the condition [is stated] before the act, it is valid; if the reverse, it is not! &mdash; But it is all in accordance with R. Meir: yet here it is different, because at the very outset he accepted no liability.<a id="k94a_10"><sup>10</sup></a>
</p><p>
	It has been taught: And a paid bailee may stipulate to be [liable] as a borrower: How: with [mere] words?<a id="k94a_11"><sup>11</sup></a>&nbsp; &mdash; Said Samuel: If he acquires it from his hand.<a id="k94a_12"><sup>12</sup></a>&nbsp; R. Johanan said: You may even say that he does not acquire it from his hand; yet in return for the benefit he receives in that he achieves thereby a reputation for being trustworthy, he renders himself fully responsible.
</p><p>
	AND WHATEVER CAN BE FULFILLED EVENTUALLY etc. R. Tabla said in Rab's name: This is the view of R. Judah b. Tema. But the Sages say: Even if it is impossible to fulfil it eventually, and one stipulates it at the beginning, the stipulation is valid. For it has been taught: [If one says,] Here is thy divorce, on condition that thou ascendest to Heaven or descendest to the deep, on condition that thou swallowest a hundred cubit cane or crossest the great sea on foot; if the condition is fulfilled, the divorce is valid, but not otherwise.<a id="k94a_13"><sup>13</sup></a>&nbsp; R. Judah b. Tema said: In such a case it is a [valid] divorce. R. Judah b. Tema stated a general rule: That which can never be fulfilled, and he [the husband] stipulates it at the beginning, it is only to repel her,<a id="k94a_14"><sup>14</sup></a>&nbsp; and is valid.
</p><p>
	R. Nahman said in Rab's name: The <i>halachah</i> is as R. Judah b. Tema. R. Nahman b. Isaac said: Our Mishnah too proves it,<a id="k94a_15"><sup>15</sup></a>&nbsp; for it states: WHATEVER CAN BE FULFILLED EVENTUALLY, AND IT IS STIPULATED AT THE OUTSET, THE STIPULATION IS VALID. Hence, if it is impossible of fulfilment, the stipulation is null. This proves it.<a id="k94a_16"><sup>16</sup></a>
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_viii">CHAPTER VIII</A>
      </H2>

</p><p>
	<P><B><I>MISHNAH</I></B>. IF A MAN BORROWS A COW AND BORROWS OR HIRES ITS OWNER WITH IT,<a id="k94a_17"><sup>17</sup></a>&nbsp; OR IF HE FIRST HIRES THE OWNER AND THEN BORROWS THE COW, AND IT DIES, HE IS NOT RESPONSIBLE, FOR IT IS WRITTEN, BUT IF THE OWNER THEREOF BE WITH IT, HE SHALL NOT MAKE IT GOOD.<a id="k94a_18"><sup>18</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k94b_1:" Or 'with him' (the bailee)."
,k94b_2:" Ibid. 13."
,k94b_3:" I.e., they are both borrowed simultaneously."
,k94b_4:" When the owner says. 'I lend you my personal services and my cow', he himself is immediately at the service of the borrower, whereas the cow does not pass into his possession, to bear responsibility for it, until he actually performs <i>meshikah</i> (v. <a href=\"../tglossary.html\">Glos.</a>)."
,k94b_5:" Since it is already in his possession, whilst <i>meshikah</i> is only an expedient for bringing it into his possession."
,k94b_6:" V. <i>supra</i> Mishnah 93a for notes."
,k94b_7:" The reference is to Ex. XXII, 6-8; 9-12; and 13f. The first states that the bailee is exempt from responsibility in the case of theft: the second, only in the case of the animal dying etc., but not for theft. The third explicitly deals with borrowing."
,k94b_8:" Ibid. 13."
,k94b_9:" V. Ibid. 7, 8. This is interpreted in B.K. 63b as referring to the payment due by the bailee for a false plea of theft."
,k94b_10:" Though undoubtedly his liabilities are the greatest of all bailees."
,k94b_11:" The borrower living on a common, and since Scripture does not specify the locality of the borrower, even such is meant."
,k94b_12:" Which involves extra cost."
,k94b_13:" And still the argument holds good."
,k94b_14:" Requiring neither food nor a special watch."
,k94b_15:" Ibid. 11."
,k94b_16:" The emphasis of 'indeed' is expressed, as usual, by the double form of the verb, [H], the infinitive followed by the imperfect."
,k94b_17:" This is deduced from the emphatic form."
,k94b_18:" For this emphasis is a normal idiom, and on the latter view, its purpose is not to extend the law."
,k94b_19:" Palestine."
,k94b_20:" He who maintains that we do not say that the Torah employs human phraseology, and interprets emphatic forms to include loss; but surely this follows from an <i>a fortiori</i> reasoning!"
,k94b_21:" Since it is explicitly mentioned in v. 9."
,k94b_22:" V. B.K. 43b."
,k94b_23:" Lev. XX, 9."
,k94b_24:" At the beginning of the sentence that curseth is in immediate proximity to his father: at the end, cursing is mentioned nearest to his mother, shewing that each is separate. "
}

txt:
<p>
BUT IF HE FIRST BORROWS THE COW, AND ONLY SUBSEQUENTLY BORROWS OR HIRES ITS OWNER, AND IT DIES, HE IS LIABLE, AS IT IS WRITTEN, THE OWNER THEREOF NOT BEING WITH IT,<a id="k94b_1"><sup>1</sup></a>&nbsp; HE SHALL SURELY MAKE IT GOOD.<a id="k94b_2"><sup>2</sup></a>
</p><p>
	<P><B><I>GEMARA</I></B>. Since the second clause states, AND THEN BORROWS THE COW, it follows that when the first clause reads, WITH IT, it is literally meant.<a id="k94b_3"><sup>3</sup></a>&nbsp; But is it possible that it shall be literally WITH IT; the cow is acquired only by <i>meshikah</i>, whereas its owner is acquired by his promise?<a id="k94b_4"><sup>4</sup></a>&nbsp; &mdash; I can answer either that the cow was standing in the borrower's courtyard, so that <i>meshikah</i> is not wanting;<a id="k94b_5"><sup>5</sup></a>&nbsp; or alternatively, that he [the borrower] said to him, 'You yourself are not lent [to me] until I perform <i>meshikah</i> on your cow.'
</p><p>
	We have learnt elsewhere: There are four bailees: a gratuitous bailee, a borrower, a paid bailee, and a hirer. A gratuitous bailee swears for everything. A borrower pays for everything. A paid bailee or a hirer swears concerning an animal that was injured, captured, or that perished; but pays for loss or theft.<a id="k94b_6"><sup>6</sup></a>&nbsp; Whence do we know these things? &mdash; For our Rabbis taught: The first section refers to a gratuitous bailee, the second to a paid one, and the third to a borrower.<a id="k94b_7"><sup>7</sup></a>&nbsp; Now, as for the third referring to a borrower, it is well, for it is explicit: And if a man borrow aught of his neighbour, and it be hurt, or die, the owner thereof being not with it, he shall surely make it good.<a id="k94b_8"><sup>8</sup></a>&nbsp; But as for the first treating of an unpaid bailee and the second of a paid one, perhaps it is the reverse? &mdash; It is reasonable [to assume] that the second refers to a paid bailee, since he is responsible for theft and loss. On the contrary, [is it not more logical that] the first refers to a paid bailee, since he is liable to restitution of twice the principal in a [false] plea of theft?<a id="k94b_9"><sup>9</sup></a>&nbsp; &mdash; Even so [to pay] the principal without the option of an oath is a heavier liability than to pay double after a [false] oath, the proof being that the borrower, though all the benefit is his, yet pays only the principal.<a id="k94b_10"><sup>10</sup></a>&nbsp; But is it so, that in the case of a borrower all the benefit is his? But does it [sc. the animal borrowed] not require food? &mdash; [It is all his,] when it [the animal] is standing on a common.<a id="k94b_11"><sup>11</sup></a>&nbsp; But it needs [special] guarding!<a id="k94b_12"><sup>12</sup></a>&nbsp; &mdash; Where there is a town watch. Alternatively, do not say, all the benefit is his, but, most of the benefit is his.<a id="k94b_13"><sup>13</sup></a>&nbsp; Or again, [refer it] to the borrowing of utensils.<a id="k94b_14"><sup>14</sup></a>
</p><p>
	'A paid bailee or a hirer swears concerning an animal that was injured, captured, or perished; but pays for loss or theft.' Now, as for theft, it is well, for it is written, And if it indeed be stolen from him, he shall make restitution unto the owner thereof;<a id="k94b_15"><sup>15</sup></a>&nbsp; but whence do we know it of loss? &mdash; For it has been taught: <i>'And if it indeed be stolen'</i>;<a id="k94b_16"><sup>16</sup></a>&nbsp; from this I know only theft: whence do I know loss? From the expression, <i>'And if it indeed be stolen'</i>, implying no matter how [it disappears].<a id="k94b_17"><sup>17</sup></a>&nbsp; Now, that agrees with the view that we do not say that the Torah employs human phraseology; but on the view that we do say that the Torah employs human phraseology, what can you say?<a id="k94b_18"><sup>18</sup></a>&nbsp; &mdash; In the West<a id="k94b_19"><sup>19</sup></a>&nbsp; they said, It follows <i>a fortiori</i>: if he must pay for theft, which is near to accident, then surely he is liable for loss, which is more akin to negligence. And the other?<a id="k94b_20"><sup>20</sup></a>&nbsp; &mdash; That which is derived by an <i>a fortiori</i> argument, Scripture [often] takes the trouble to write.
</p><p>
	'And a borrower pays for everything.' Now, as for the animal that is injured, or perishes, it is well, for it is written, 'And if a man borrow aught of his neighbour, and it be hurt or die'; but whence do we know that a borrower is responsible for capture? And should you say, Let us derive it from the case of injury and death: [it may be rejoined,] as for these, [he is responsible] because they are accidents which may be foreseen; but can you say that capture [is the same], Seeing that it is an unforseeable accident? &mdash; But [deduce it thus:] Injury and death are stated [as cause of liability] in the case of a borrower, and they are likewise enumerated in the case of a paid bailee: just as there, capture falls within the same category,<a id="k94b_21"><sup>21</sup></a>&nbsp; so here too, capture is included. But this may be refuted: as for a paid bailee, [it is mentioned] as a cause of exemption; but can you say the same of a borrower, [for whom you would include it] as a cause of liability? &mdash; But [it may be derived] in accordance with R. Nathan's teaching. For it has been taught: R. Nathan said: ['And if a man borrow aught of his neighbour, and it be hurt,] or [die]': 'or' extends the law to capture.<a id="k94b_22"><sup>22</sup></a>&nbsp; But is not this 'or' needed as a disjunctive? For I might think that he is responsible only if it is injured and also dies; therefore Scripture states otherwise. Now, on R. Jonathan's view, it is well; but on R. Joshia's, what can you say? For it has been taught: For any man that curseth his father and his mother [shall surely be put to death]:<a id="k94b_23"><sup>23</sup></a>&nbsp; from this I know only [that he is punished for cursing] his father and his mother; whence do I know [the same] if he cursed his father without his mother, or his mother without his father? From the passage, his father and his mother he hath cursed; his blood shall be upon him: implying a man that cursed his father; a man that cursed his mother:<a id="k94b_24"><sup>24</sup></a>&nbsp; this is R. Joshia's opinion. R. Jonathan said: The [beginning of the] verse implies either the two together or each separately,
</P>


lvr: 42
dfh: a
notes:
 ntes={k103a_1:" Shebu. 45b; <i>infra</i> 111a. If there is a dispute between him and the employer on the last day, the latter alleging that he has already paid him, the former swears that he was not paid, and receives his wages. Though it is a general rule that the defendant swears to be free from payment (v. p. 572, n. 6), the Rabbis made an exception in this case, because an employer, busy with his workers, may very easily imagine that he has paid one instead of another."
,k103a_2:" As is usually the case, though it is the day on which the term expires."
,k103a_3:" On the same principle as R. Nahman's dictum on 102b, q.v."
,k103a_4:" Surely not: yet the cases are analogous."
,k103a_5:" V, B.B. III, 1. But not to shew how long the tenancy had lasted. [According to this interpretation, which follows Rashi, it is assumed that the deed, although in the possession of the tenant, served to give the matter publicity and thus preclude the possibility of the tenant claiming ownership on the strength of undisturbed occupation over a number of years. Tosaf., however, in the name of R. Han., preserves a preferable reading to the effect that the deed was drafted by the tenant in favour of the owner and recorded that he had hired the house for ten years from a certain date at so much per year. After five years the tenant says to the landowner, 'You hold already rent for five years,' whereas the landowner maintains, 'I hold rent for three years only;' in that case the tenant is believed on oath, because the tenant can say to the landowner, 'The reason I wrote you a deed was that I should not claim ownership through unbroken possession.']"
,k103a_6:" I.e., if the lender states, 'I lend it to you in its good state,' it means as long as it is fit for its purpose, and so, even if he returns it, he can take it again whenever he needs it."
,k103a_7:" He was begotten by a Gentile, who turned proselyte by the time of his birth; and is therefore called by his maternal grandfather, not by his own father."
,k103a_8:" I.e., had performed an act effecting possession, or, as in this case, a right to the use of an article."
,k103a_9:" If the article is broken or damaged and unfit for its purpose, he must return the remains, since it was not a gift but only a loan (Rashi). [Wilna Gaon: He may not repair it and retain it for further use.]"
,k103a_10:" And we do not say that he may have only two."
,k103a_11:" The borrower cannot rebuild and claim that it is lent to him as long as he needs it, since he specified, 'This well,' and it is no longer the same when rebuilt."
,k103a_12:" And retain it until he has irrigated all his fields."
,k103a_13:" V. note 3."
,k103a_14:" Lit., 'set up'."
,k103a_15:" It is obvious."
,k103a_16:" From Palestine to Babylon."
,k103a_17:" I.e., the locality. "
}

txt:
<p>
A hired labourer [engaged for a period], on the expiration of his term swears and is paid.<a id="k103a_1"><sup>1</sup></a>&nbsp; Thus, it is only the employee whom the Rabbis subjected to an oath, because the employer is occupied with his labourers. But here, the tenant is believed on oath.<a id="k103a_2"><sup>2</sup></a>
</p><p>
	Raba said in R. Nahman's name: If one leased a house to his neighbour for ten years, and wrote a deed to that effect [but without dating it,] and then alleged, 'You have held it for five years,' he is believed.<a id="k103a_3"><sup>3</sup></a>&nbsp; Said R. Aha of Difti to Rabina: If so, if A lent B one hundred <i>zuz</i> against a bond, and then B said, 'I have repaid you half,' is he also believed?<a id="k103a_4"><sup>4</sup></a>&nbsp; &mdash; He replied: What comparison is there? In that case, the purpose of the bond is to ensure repayment. Had he really repaid him, he should have written the fact on it, or obtained a receipt. But here he can say, 'The reason I wrote you a deed was that you should not claim ownership through unbroken possession.'<a id="k103a_5"><sup>5</sup></a>
</p><p>
	R. Nahman said: One can borrow [an article] 'in its good state' for ever.<a id="k103a_6"><sup>6</sup></a>&nbsp; Said R. Mari the son of Samuel's daughter:<a id="k103a_7"><sup>7</sup></a>&nbsp; Providing, however, that he formally acquired it from him.<a id="k103a_8"><sup>8</sup></a>&nbsp; R. Mari son of R. Ashi observed: He must return him the handle.<a id="k103a_9"><sup>9</sup></a>
</p><p>
	Raba said: If one asks his neighbour, 'Lend me a hoe for hoeing <i>this</i> garden,' he may hoe [only] that garden; 'for hoeing a garden,' he may hoe any garden; 'for hoeing gardens', he may hoe all his gardens<a id="k103a_10"><sup>10</sup></a>&nbsp; and return him the handle.
</p><p>
	R. Papa said: If one says to his neighbour, 'Lend me this well [for irrigation],' and it falls in, he cannot rebuild it.<a id="k103a_11"><sup>11</sup></a>&nbsp; '[Lend me] a well,' and it falls in, he can rebuild it,<a id="k103a_12"><sup>12</sup></a>&nbsp; [But if he Says: 'Lend me] the place for a well,' he can go on sinking shafts in his land until he chances upon [a water supply]. It is also necessary that he shall have formally acquired it from him.<a id="k103a_13"><sup>13</sup></a>
</p><p>
	<P><B><I>MISHNAH</I></B>. IF ONE RENTS A HOUSE TO HIS NEIGHBOUR, AND IT FALLS IN [WITHIN THE PERIOD OF LEASE], HE MUST PROVIDE<a id="k103a_14"><sup>14</sup></a>&nbsp; HIM WITH ANOTHER. IF IT WAS A SMALL ONE, HE CANNOT FURNISH HIM WITH A LARGE ONE, OR VICE VERSA. NOR CAN HE OFFER HIM TWO INSTEAD OF ONE, OR ONE INSTEAD OF TWO. HE MAY NEITHER DIMINISH NOR INCREASE THE NUMBER OF WINDOWS, EXCEPTING BY COMMON AGREEMENT.
</p><p>
	<P><B><I>GEMARA</I></B>. What are the circumstances? If he stipulated, 'This house', then if it falls, he is quit [of any further obligation]. Whilst if he said, 'A house,' without specifying which, why cannot he provide two instead of one, or a large house instead of a small? &mdash; Said Resh Lakish: It means that he had said to him, 'The house which I let to you is of this length.' If so, why teach it?<a id="k103a_15"><sup>15</sup></a>&nbsp; &mdash; But when Rabin came,<a id="k103a_16"><sup>16</sup></a>&nbsp; he said in the name of Resh Lakish: It means that he said, 'I let you a house like this one.' But still [the difficulty remains,] Why state it? &mdash; It is necessary to teach it only if it [the house shewn as a model] stood on the river bank. I might think, what is meant by 'like this'? One situated on the river bank.<a id="k103a_17"><sup>17</sup></a>&nbsp; Therefore we are taught [otherwise].
</p><p>

      <H2 ALIGN="Center">
	<A NAME="chapter_ix">CHAPTER IX</A>
      </H2>

</p><p>
	<P><B><I>MISHNAH</I></B>. IF ONE LEASES A FIELD FROM HIS NEIGHBOUR,<a id="k103a_18"><sup>1</sup></a>&nbsp; WHERE IT IS THE USAGE TO CUT [THE CROPS], HE MUST CUT; TO UPROOT [THEM], HE MUST UPROOT [THEM]; TO PLOUGH AFTER IT,<a id="k103a_19"><sup>2</sup></a>&nbsp; HE MUST PLOUGH AFTER IT. IT IS ALL DETERMINED BY LOCAL CUSTOM. AND JUST AS THEY DIVIDE THE GRAIN.<a id="k103a_20"><sup>3</sup></a>&nbsp; SO THEY ALSO SHARE IN THE STRAW AND STUBBLE. AND JUST AS THEY DIVIDE THE WINE, SO DO THEY SHARE
</P><hr noshade size="1" width="100%"><P></P>
<li><a name="103a_18"></a> Paying either an agreed percentage of the crops or a fixed measure of the grain in rent.
<li><a name="103a_19"></a> After reaping and weeding, to turn its soil, so that weeds should not grow again.
<li><a name="103a_20"></a> When the rent is a percentage of the produce. </ol>


lvr: 42
dfh: a
notes:
 ntes={k116a_1:" I.e., this is certainly required as an additional injunction against seizing any article employed in the preparation of food."
,k116a_2:" For once it is recognised as a separate injunction, there is no reason for excluding the millstones from its scope, notwithstanding that they are already mentioned; hence in respect of the millstones we have an additional prohibition."
,k116a_3:" I.e., the prohibition of half-roast meat holds good only on the evening of the fifteenth, when one is bidden to eat the roast of the passover sacrifice, but not on the day of the fourteenth, before the obligation commences."
,k116a_4:" Barber's shears were so made that each half could be used separately. 'The yoke of oxen' is translated by Rashi: (i) a pair of oxen for ploughing together with their yoke; (ii) the yoke alone, which he conjectures to have been jointed. Tosaf. on 113a s.v. [H], on the grounds that only objects directly used in the preparation of food are forbidden, translates (with a slightly different reading): a pair of vegetable scissors for trimming vegetables, and a pair of oxen that stamped out the corn. According to both interpretations, the scissors and the oxen (or their yoke) were divisible, and therefore rank as two distinct objects, thus involving a double penalty for the infringement of, <i>'for he taketh a man's life to pledge.'</i>"
,k116a_5:" It is not altogether clear how these Baraithas support Rab Judah, nor whether they support him singly or only in conjunction with each other. Rashi maintains that the proof is adduced from the combination of the two. The mere fact that he is flagellated twice only, not three times, does not support him, since there is no verse to imply three in this case even on R. Huna's view, which is limited to the nether and upper millstones. The proof, however, lies in the fact that the verse, 'no man shall take, etc.' is extended to all articles and quoted to shew double flagellation, whilst no reference is made to threefold punishment. Tosaf. maintains that the proof does follow from the first Baraitha alone (so that the second teaching is introduced by 'Another Baraitha, etc.' not, 'And another Baraitha etc.')."
,k116a_6:" Bring proof that he is in your debt."
,k116a_7:" Even without witnesses or an I.O.U.; since he could have pleaded in the first place that he had bought the pledge, he is now believed, up to the value of the pledge."
,k116a_8:" Since he could have pleaded that he had bought them from their first owner."
,k116a_9:" Hence the Possession of the butcher's knife did not prove ownership; therefore Abaye held that the debt itself had to be proved."
,k116a_10:" From Palestine to Babylon."
,k116a_11:" V. B.B. 36a."
,k116a_12:" V. B.B. (Sonc. ed.) p. 215. n. 1,"
,k116a_13:" Their first owners, who were known, pleaded that they had lent these objects to the deceased, and Raba accepted their plea. But if a counter-plea of 'I bought them' is valid in such cases, it should have been advanced on their behalf, it being a general rule that the court itself assumes what the deceased might legally have pleaded, when the orphans themselves are ignorant of the true facts. "
}

txt:
<p>
is [an] additional [injunction],<a id="k116a_1"><sup>1</sup></a>&nbsp; and that being so, relate it to the nether and upper millstones [too].<a id="k116a_2"><sup>2</sup></a>&nbsp; But here, 'save roast with fire' is not [an] additional [prohibition], for it is needed for what has been taught: When one is subject to [the command], Arise and eat 'roast', one is [also] subject to, 'Eat not of it raw;' when he is not subject to the former, he is not subject to the latter.<a id="k116a_3"><sup>3</sup></a>
</p><p>
	It has been taught in accordance with Rab Judah: If one takes in pledge a pair of barber's shears or a yoke of oxen, he incurs a double penalty.<a id="k116a_4"><sup>4</sup></a>&nbsp; But if he takes in pledge each part separately, he incurs only one penalty. And another [Baraitha] taught [likewise:] If one took a pair of barber's shears or a yoke of oxen in pledge. I might think that he incurs only one penalty, therefore Scripture teaches, No man shall take the nether or the user millstone to pledge; just as the nether and the upper millstones are distinguished in that they are two objects which [together] perform one operation, and a penalty is incurred for each separately, so all things which are two objects used [together] for one operation, a penalty is incurred for each separately.<a id="k116a_5"><sup>5</sup></a>
</p><p>
	A certain man took a butcher's knife in pledge. On his coming before Abaye, he ordered him: Go and return it, because it is a utensil used in the preparation of food, and then come to stand at judgment for it [the debt].<a id="k116a_6"><sup>6</sup></a>&nbsp; Raba said: He need not stand at judgment for it, but can claim [the debt] up to its [sc. the pledge's] value.<a id="k116a_7"><sup>7</sup></a>&nbsp; Now, does not Abaye accept that logic? Wherein does it differ from the case of the goats which ate some husked barley, whereupon their owner came, seized them, and preferred a large claim [for damages]; and Samuel's father ruled that he can claim up to their value?<a id="k116a_8"><sup>8</sup></a>&nbsp; &mdash; In that case, It was not an object that is generally lent or hired, whereas in this case it is.<a id="k116a_9"><sup>9</sup></a>&nbsp; For R. Huna b. Abin sent word:<a id="k116a_10"><sup>10</sup></a>&nbsp; With respect to objects that are generally lent or hired, if a man claims, 'I have purchased them,' he is not believed.<a id="k116a_11"><sup>11</sup></a>&nbsp; Now, does then Raba disagree with this reasoning? But Raba himself ordered orphans to surrender scissors for woollen cloth and a book of aggada,<a id="k116a_12"><sup>12</sup></a>&nbsp; which are objects that are generally loaned or hired!<a id="k116a_13"><sup>13</sup></a>&nbsp; &mdash; [No.] These too, since they depreciate in value, people are particular not to loan.
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k116b_1:" E.g., legatees who had thus divided their legacy."
,k116b_2:" I.e., proportionally to the respective heights of each, they must divide the whole beams, bricks, etc., and likewise the broken ones."
,k116b_3:" E.g., if the lower part of the house received a shock like that of a battering ram, it may be assumed that the broken stones are of that portion. If, on the other hand, the shock was evenly distributed, as that of a hurricane, it is most probable that the broken stones are of the upper storey, since they had a greater distance to fall."
,k116b_4:" V. n. 5."
,k116b_5:" For if it fell through pressure, it will be on its site, whereas if a shock overthrew it, the materials will be strewn at a distance."
,k116b_6:" Since the house belongs to both, even if they have separate courtyards, neither objects to the other making use of his. Possession in such a case does not prove ownership."
,k116b_7:" V. <i>supra</i> 97b and 98a for notes. So here too, A claims that he recognises a certain quantity of materials, and B admits part of it and pleads ignorance with respect to the rest."
,k116b_8:" I.e., A taking a certain quantity of unbroken materials, B receives an equal (or proportionate) quantity of broken ones, and they share in the rest."
,k116b_9:" I.e., the whole materials which he recognises as his own may be superior to the other whole ones."
,k116b_10:" Explained in the Gemara."
,k116b_11:" The cement or plaster above the ceiling."
,k116b_12:" Lit., 'how much?'"
,k116b_13:" In that case he cannot take possession of the ground floor."
,k116b_14:" I.e., when only four handbreadths are broken through, he lacks the space required for one utensil, and so he can only claim that in the lower dwelling; this is referred to as living partly below and partly above."
,k116b_15:" It is the tenant's misfortune, and he has no claim."
,k116b_16:" The vine thus losing its support. "
}

txt:
<p>
      <H2 ALIGN="Center">
	<A NAME="chapter_x">CHAPTER X</A>
      </H2>

</p><p>
	<P><B><I>MISHNAH</I></B>. IF A HOUSE [I.E.. THE GROUND FLOOR] AND AN UPPER STOREY, BELONGING TO TWO,<a id="k116b_1"><sup>1</sup></a>&nbsp; COLLAPSED, BOTH MUST SHARE [PROPORTIONATELY] IN THE TIMBER, STONES, AND EARTH.<a id="k116b_2"><sup>2</sup></a>&nbsp; WE ALSO SEE WHICH STONES [I.E., BRICKS] ARE MORE LIKELY TO HAVE BEEN BROKEN.<a id="k116b_3"><sup>3</sup></a>&nbsp; IF ONE [OF THEM] RECOGNISED SOME OF HIS STONES, HE CAN TAKE THEM, BUT THEY ARE COUNTED IN [HIS SHARE].
</p><p>
	<P><B><I>GEMARA</I></B>. Since it is stated, WE SEE [etc.], it follows that it is possible to gauge whether it fell through pressure or a shock. If so, in the first clause, why do they divide? Let us see: if it fell through a shock, then [the timber etc. of] the upper storey was broken; if through pressure, the lower portion was damaged!<a id="k116b_4"><sup>4</sup></a>&nbsp; &mdash; It is meant that it collapsed at night. Then let us examine it in the morning!<a id="k116b_5"><sup>5</sup></a>&nbsp; &mdash; It [the debris] had been cleared away. Then let us see who had cleared it away, and ask them! &mdash; Public [workers] had cleared it away, and departed. Then let us see in whose possession they are [now] situated, so that the other becomes the claimant, upon whom the onus of proof will lie! &mdash; They [the materials] are now in a courtyard belonging to both, or in the street. Alternatively, partners in such matters are not particular with each other.<a id="k116b_6"><sup>6</sup></a>
</p><p>
	IF ONE RECOGNISED etc. Now, what does the other plead. If he agrees, then it is obvious. If not, why should this one take them? Hence it must mean that he replied. 'I do not know.' Shall we say that this refutes R. Nahman? For it has been stated: [If A says to B.] 'You owe me a <i>maneh</i>,' and B pleads. 'I do not know': R. Huna and Rab Judah rule that he must pay; R. Nahman and R. Johanan say: He is not liable! &mdash; It is as R. Nahman answered [elsewhere]: E.g., there is a dispute between them involving an oath; so here too, there is a dispute between them involving an oath. What is meant by a dispute involving an oath? &mdash; As Raba's dictum. For Raba said: [If A says to B,] 'You owe me a <i>maneh</i>,' to which he replies. 'I [certainly] owe you fifty <i>zuz</i>, but as for the rest, I do not know,' since he cannot swear, he must pay [all].<a id="k116b_7"><sup>7</sup></a>
</p><p>
	BUT THEY ARE COUNTED IN HIS SHARE. Raba thought this meant in his share of broken materials,<a id="k116b_8"><sup>8</sup></a>&nbsp; thus proving that since he says. 'I do not know,' his position is considerably worsened. Said Abaye to him: On the contrary, the position of the other should be much worse; for since he knows only of these, but of no more, he should be entitled to no more, and the other should receive all the rest! &mdash; But, said Abaye, it means in his share of whole materials. if so, what does it [his knowledge] profit him? &mdash; In respect of extra wide bricks, or well &mdash; kneaded clay.<a id="k116b_9"><sup>9</sup></a>
</p><p>
	<P><B><I>MISHNAH</I></B>. [IN THE CASE OF] A HOUSE AND AN UPPER STOREY, IF THE UPPER STOREY WAS BROKEN THROUGH, AND THE LANDLORD REFUSES TO MEND IT, THE INHABITANT OF THE UPPER STOREY CAN DESCEND AND DWELL BELOW, UNTIL HE REPAIRS THE TOP. R. JOSE SAID: THE LOWER ONE MUST PROVIDE THE TIKRAH<a id="k116b_10"><sup>10</sup></a>&nbsp; AND THE UPPER ONE THE PLASTERING.<a id="k116b_11"><sup>11</sup></a>
</p><p>
	<P><B><I>GEMARA</I></B>. 'BROKEN THROUGH:' over what area?<a id="k116b_12"><sup>12</sup></a>&nbsp; &mdash; Rab said: The greater part; Samuel said: Four [handbreadths]. 'Rab said: The greater part.' but not only four [handbreadths],<a id="k116b_13"><sup>13</sup></a>&nbsp; because one can dwell partly below and partly above.<a id="k116b_14"><sup>14</sup></a>&nbsp; 'Samuel said: Four [handbreadths]:' one cannot dwell partly below and partly above. How is it meant? If he [the landlord] had said to him, '[I rent you] this storey, it is gone.<a id="k116b_15"><sup>15</sup></a>&nbsp; But if he simply stated, 'A storey,' then let him rent him another! &mdash; Raba said: It arises only if he stated, 'This garret, which I rent you, as long as it stands, go up thither; and when it comes down [through the weather], descend you too [to the ground floor].' If so, why state it? &mdash; But, said R. Ashi, it means that he said to him, 'This storey which is upon this house, I rent to you;' thus he pledged the house for the storey. And this is in accordance with what Rabin son of R. Adda related in R. Isaac's name: It once happened that a man said to his neighbour. 'I sell you a hanging vine which is over this peach tree,' and the peach tree was later uprooted.<a id="k116b_16"><sup>16</sup></a>&nbsp; When the matter came before R. Hiyya, he said to him: You are bound to put up a peach tree for him, as long as the vine is in existence.
</p><p>
	R. Abba b. Memel propounded:
</P>


lvr: 42
dfh: a
notes:
 ntes={k3a_1:" Cf. Shebu. 41a."
,k3a_2:" In the case where two persons have deposited money with a third person, one a hundred and the other two hundred <i>zuz</i>, and each depositor claims to have deposited the larger amount, v. 37a."
,k3a_3:" Elijah the prophet, the herald of the Messianic era who is to make the truth known. The phrase is a technical term meaning 'indefinitely'."
,k3a_4:" The disputed hundred."
,k3a_5:" As they may have picked it up simultaneously."
,k3a_6:" V. n. 1 <i>supra</i>."
,k3a_7:" As they both claim to have deposited the 200 <i>zuz</i>, and it is only right to make the fraudulent person suffer."
,k3a_8:" Therefore R. Jose would agree that the garment should be divided in accordance with the decision of the Mishnah."
,k3a_9:" And since the forfeiture of the garment would serve no purpose, R. Jose would agree with our Mishnah."
,k3a_10:" Where even the person that has no right to the garment would incur a real loss by its forfeiture (because, as explained above, he too had paid for it) and the fear of the loss would induce him to admit the truth (that the seller had taken the money from him unwillingly)."
,k3a_11:" Viz., that in the other case one claimant is certainly fraudulent, while in our case both may be honest."
,k3a_12:" V. p. 4, n. 1."
,k3a_13:" Either the shopkeeper or the employees."
,k3a_14:" It would thus be wrong to make either party forfeit the amount claimed. As the shopkeeper and the employees have had no direct dealings with each other, and have entered into no mutual obligations, they may regard each other as entirely untrustworthy and refuse to believe each other even on oath."
,k3a_15:" I.e., on loan."
,k3a_16:" He swears that he does not owe the other fifty <i>zuz</i>. The evidence of the witness places the defendant in the same position as his own admission of part of the claim would have done. Shebu. 39b."
,k3a_17:" If therefore the defendant's partial admission necessitates his taking an oath on the rest, the evidence of the witnesses regarding the partial debt should at least have a similar effect."
,k3a_18:" v. <a href=\"../tglossary.html\">Glos.</a>"
,k3a_19:" Lit., 'The All- Merciful One', i.e. God, whose word Scripture reveals."
,k3a_20:" B.K. 107a."
,k3a_21:" While in the case of one who restores a lost article to its owner he is believed without an oath, even if the owner maintains that only part of the loss has been returned to him by the finder. "
}

txt:
<p>
and where it could be maintained that the whole amount is due solely to that party Symmachus abides by the principle that 'Disputed money of doubtful ownership should be divided without an oath', how much more readily would he abide by that principle in a case where [as in our Mishnah] it can be said that the disputed object belongs to both [and that therefore it should be divided between them without an oath]? It can still be maintained that our Mishnah is in agreement with Symmachus. For the oath imposed upon disputants in our Mishnah is only rabbinical [not Biblical].<a id="k3a_1"><sup>1</sup></a>&nbsp; This is expressly maintained by R. Johanan. For R. Johanan says: This oath is an institution of the Sages, intended to prevent anyone from going out and seizing a neighbour's garment, declaring it to be his own.
</p><p>
	Shall it be assumed that our Mishnah is not in agreement with R. Jose? For does not R. Jose say:<a id="k3a_2"><sup>2</sup></a>&nbsp; If so, what loss does the fraudulent claimant incur? Therefore let the whole amount be retained [by the Court] until 'the coming of Elijah'?<a id="k3a_3"><sup>3</sup></a>&nbsp; But [as a counter-question] would not the same difficulty arise in regard to the Rabbis [who are opposed to R. Jose]? For seeing that these Rabbis maintain that the balance<a id="k3a_4"><sup>4</sup></a>&nbsp; should be retained [by the Court] until 'the coming of Elijah'. would they not accordingly give the same decision concerning the disputed garment [in our case], which is like the disputed balance [in the other case]? &mdash; What a comparison! In the other case, where it is certain that the disputed balance belongs to one of the claimants only, those Rabbis rightly decided that the amount in question should be retained till 'the coming of Elijah'; whereas here [in our Mishnah], where it can be assumed that the garment belongs to both,<a id="k3a_5"><sup>5</sup></a>&nbsp; the [same] Rabbis would agree that it should be divided among the two claimants when they have taken the oath. But in regard to R. Jose the argument is the other way. If R. Jose decided in his case, where each claimant is undoubtedly entitled to one hundred [<i>zuz</i>],<a id="k3a_6"><sup>6</sup></a>&nbsp; that the money should be retained till 'the coming of Elijah', how much more readily would he decide so in our case [where it can be assumed that only one of the disputants is entitled to have the garment]? &mdash; The Mishnah can still be in agreement with R. Jose. For in his case one of the disputants is bound to be a fraud,<a id="k3a_7"><sup>7</sup></a>&nbsp; whilst in our case no one can say for sure that one of the disputants is a fraud,<a id="k3a_8"><sup>8</sup></a>&nbsp; as it is possible that both picked up the garment simultaneously. If you wish it, I could argue thus: In his case, R. Jose penalised the fraudulent claimant [in making him forfeit his hundred] so that he may confess the truth, but in our case [where the dispute is about a found article] what real loss would the fraudulent incur [on the garment being forfeited] that could induce him to confess the truth?<a id="k3a_9"><sup>9</sup></a>&nbsp; [But the question arises:] Assuming this argument is right with regard to a found article, how can it apply to a bought article?<a id="k3a_10"><sup>10</sup></a>&nbsp; The first answer is hence the best.<a id="k3a_11"><sup>11</sup></a>
</p><p>
	[Now the question arises:] According to the views of either the Sages or R. Jose [who agree that the fraudulent person should not be allowed to benefit by his fraud] how is it that in the case of the shopkeeper and his credit-book<a id="k3a_12"><sup>12</sup></a>&nbsp; the decision is that both take the oath and receive payment [from the householder] and we do not say that the money should be taken from the householder and retained [by the Court] until 'the coming of Elijah', since it is certain that one of the parties<a id="k3a_13"><sup>13</sup></a>&nbsp; is guilty of fraud? &mdash; In this case there is a special reason for the decision given. The shopkeeper can say to the householder: 'I carried out your instructions &mdash; what have I to do with your employee? Even if the employee swears &mdash; I do not believe his oath. You trusted him, in that you did not tell me to give him the goods in the presence of witnesses.' The employee, on the other hand, can say [to the householder]: 'I have done the work for you &mdash; what have I to do with the shopkeeper? Even if he swears &mdash; I do not believe him.'<a id="k3a_14"><sup>14</sup></a>&nbsp; Therefore they both swear and receive payment from the householder.
</p><p>
	R. Hiyya taught: [If one says to another,] 'You have in your possession<a id="k3a_15"><sup>15</sup></a>&nbsp; a hundred <i>zuz</i> belonging to me', and the other replies, 'I have nothing belonging to you', while witnesses testify that the defendant has fifty <i>zuz</i> belonging to the plaintiff; the defendant pays the plaintiff fifty <i>zuz</i>, and takes an oath regarding the remainder,<a id="k3a_16"><sup>16</sup></a>&nbsp; for the admission of a defendant ought not to be more effective than the evidence of witnesses,<a id="k3a_17"><sup>17</sup></a>&nbsp; a rule which could be proved by a <i>Kal wa-homer</i>.<a id="k3a_18"><sup>18</sup></a>&nbsp; And our Tanna teaches this: WHEN TWO HOLD A GARMENT AND ONE OF THEM SAYS 'I FOUND IT' ETC.&nbsp;&hellip; [BOTH HAVE TO SWEAR]. Now this is just the same [as the case where there are witnesses], for when we see a person holding a garment we presume that it is his, and we are in the position of witnesses who can testify that each claimant is entitled to the half he is holding. And yet each claimant has to swear.
</p><p>
	Now why is it necessary to prove by means of a <i>Kal wa-homer</i> that the admission of a defendant ought not to be more effective [in imposing an oath on the defendant] than the testimony of witnesses? &mdash; [It is necessary for this reason:] In the case of a [partial] admission [of a claim] you might say that the Divine Law<a id="k3a_19"><sup>19</sup></a>&nbsp; has imposed an oath upon him for the reason indicated by Rabbah.<a id="k3a_20"><sup>20</sup></a>&nbsp; For Rabbah said: The reason the Torah has declared that he who admits part of his opponent's claim must take an oath<a id="k3a_21"><sup>21</sup></a>&nbsp; is the presumption that nobody would take up such an impertinent attitude towards his creditor [as to give a complete denial to his claim]. The defendant [in this case] would have liked to give a complete denial, but he has not done so because he has not been able to take up such an impertinent attitude.
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k3b_1:" His honesty, therefore, need not be doubted, and one need not suspect that he would swear falsely if given an oath."
,k3b_2:" As the defendant denies the whole claim, and if he is dishonest he may also be ready to commit perjury."
,k3b_3:" I.e., his own confession."
,k3b_4:" The admission of an offence for which a fine is imposed renders the offender free from such a penalty by virtue of his confession. V. B. K. 75a."
,k3b_5:" V. Lev. V, 9."
,k3b_6:" If he contradicts the evidence. For it appears from Lev. IV, 28, that it is only his own admission of the wrong he has committed unawares that necessitates the bringing of an offering by him, but not the information given by witnesses. If this is so, then how does it follow that witnesses make it necessary for him to take an oath?"
,k3b_7:" Ker. 11b. Cf. Jeb. 87b."
,k3b_8:" Anonymous opinion representing the majority of Rabbis."
,k3b_9:" As an offering is brought only if the offence has been committed unawares, and had the offender no regard for the truth, he could have escaped the penalty of an offering by declaring that he had offended deliberately. It must therefore be assumed that in denying the witnesses' statement completely he told the truth. [In the case of a deliberate offence, the penalty is <i>Kareth</i>, extermination by the hand of God. Cf. Lev. VII, 25, and v. <a href=\"../tglossary.html\">Glos.</a>]"
,k3b_10:" Lev. V, 20-26."
,k3b_11:" The guilt-offering accompanies the return of the misappropriated goods and the payment of a 'fifth', i.e., a fifth part of the value of the goods."
,k3b_12:" V. Mak. ch. I, and v. <a href=\"../tglossary.html\">Glos.</a> <i>Zomem</i>."
,k3b_13:" In confirmation of his denial of the witness's statement. V. Shebu. 40a. "
}

txt:
<p>
On the other hand, it may be assumed that the defendant would have been ready to admit the whole claim,<a id="k3b_1"><sup>1</sup></a>&nbsp; and that he has not done so because of a desire to put the claimant off for a time, thinking: 'When I shall have money, I shall pay him.' Therefore the Divine Law imposes an oath upon him, so that he may admit the whole claim. But as regards the testimony of witnesses, where this argument does not apply,<a id="k3b_2"><sup>2</sup></a>&nbsp; I should have thought that no oath ought to be imposed. Therefore it is necessary to prove by a <i>Kal wa-homer</i> that in this case also an oath is to be imposed. And what is the <i>Kal wa-homer</i>? &mdash; [It is as follows:] If [the words of] his own mouth,<a id="k3b_3"><sup>3</sup></a>&nbsp; which do not oblige him to pay money, make it necessary for him to take an oath, how much more ought the evidence of witnesses, which obliges him to pay money, make it necessary for him to take an oath? But is it right to say that [the words of] his own mouth do not oblige him to pay money &mdash; in view of [the established principle] that the admission of a defendant is equal to the testimony of a hundred witnesses? &mdash; What is meant by the payment of money is the payment of a fine.<a id="k3b_4"><sup>4</sup></a>&nbsp; [And the <i>Kal wa-homer</i> is as follows:] If [the words of] his own mouth, which do not oblige him to pay a fine, make it necessary for him to take an oath, how much more ought the evidence of witnesses, which obliges him to pay a fine, make it necessary for him to take an oath? [But then it could be argued:] Does not a person's own mouth carry more weight [than the evidence of witnesses] in that it can oblige him to bring an offering,<a id="k3b_5"><sup>5</sup></a>&nbsp; while the evidence of witnesses does not oblige him to bring an offering?<a id="k3b_6"><sup>6</sup></a>&nbsp; &mdash; This objection is not valid: R. Hiyya is of the same opinion as R. Meir, who says that witnesses do make it necessary for the offender to bring an offering, [and he infers it] by means of a <i>Kal wa-homer</i>. For we learnt:<a id="k3b_7"><sup>7</sup></a>&nbsp; When two persons say to a third person: 'You have eaten forbidden fat [unawares]', but he says: 'I have not eaten any'. R. Meir maintains that he is obliged to bring an offering, but the Sages<a id="k3b_8"><sup>8</sup></a>&nbsp; declare him free. R. Meir argues: If two [witnesses] can bring upon an offender such a severe penalty as death, should they not be able to bring upon him the light penalty of an offering? To this the Sages oppose the argument: Had he desired [to prevaricate] he could have said, 'I did it deliberately', and he would have been free [from bringing an offering].<a id="k3b_9"><sup>9</sup></a>
</p><p>
	But [the argument continues]: Does not a person's own mouth carry more weight [than witnesses] in that it can oblige him [in a case of confession after denial on oath] to bring a guilt-offering?<a id="k3b_10"><sup>10</sup></a>&nbsp; But [it is immediately objected]: A guilt-offering is also an offering [and this argument has already been dealt with]! &mdash; Then [put it this way]: Does not a person's own mouth [in a case of confession after a denial on oath] carry more weight than witnesses, in that it can oblige him to pay a 'fifth'?<a id="k3b_11"><sup>11</sup></a>&nbsp; &mdash; This objection is not valid: R. Hiyya is of the same opinion as R. Meir, who says that just as witnesses oblige the offender to bring an offering &mdash; because of the <i>Kal wa-homer</i> inference &mdash; they also oblige him on the same ground to bring a 'fifth'. But [it can still be objected]: Does not a person's own mouth [in the case of the admission of a debt] carry more weight [than the evidence of witnesses] in that it cannot be refuted by a denial or an alibi proof<a id="k3b_12"><sup>12</sup></a>&nbsp; on the part of witnesses, while the evidence of witnesses can be refuted by a denial or an alibi proof on the part of other witnesses? &mdash; [The <i>Kal wa-homer</i> must] therefore be derived from 'one witness': If one witness, whose evidence does not oblige a defendant to pay money, obliges him to take an oath,<a id="k3b_13"><sup>13</sup></a>&nbsp; how much more should several witnesses, whose evidence does oblige a defendant to pay money, oblige him to take an oath. But [it can be objected]: The oath that is imposed by the evidence of one witness refers only to the part of the debt to which the witness testifies [and which the defendant denies],
</P>


lvr: 42
dfh: a
notes:
 ntes={k4a_1:" Therefore the inference from one witness to several witnesses does not hold good. As long as it can be shown that there is one aspect from which the case that it treated as the 'minor' for the purpose of the <i>Kal wa-homer</i> can be regarded as a 'major' the inference may be objected to as illogical."
,k4a_2:" V. Kid. 27b. As the evidence of one witness causes an oath to be imposed upon the defendant, a second oath is also imposed upon this defendant if another claim not included in the evidence is raised against him in regard to which, if it stood alone, no oath would have been imposed."
,k4a_3:" The oath imposed by one witness refers to the amount to which the witness testifies and which the defendant denies. It is thus the direct result of the evidence of that witness, and it is weighty enough to cause the 'attached oath' regarding another claim."
,k4a_4:" The sum regarding which the witnesses give evidence has to be paid by the defendant, and thus there is no oath to carry with it another oath."
,k4a_5:" The case of partial admission where the oath is taken though there is no oath to carry it."
,k4a_6:" As above, the <i>Kal wa-homer</i> will be inferred from the case of admission, viz., if the words of his own mouth, which do not oblige him to pay money (a fine), make it necessary for him to take an oath, how much more ought the evidence of witnesses, which obliges him to pay money, make it necessary for him to take an oath."
,k4a_7:" I.e. the case of a partial admission, where the oath is likewise taken regarding the remainder of the amount claimed."
,k4a_8:" One witness cannot stamp the defendant as a liar, as it is just the word of one against that of another. But two or more witnesses are necessarily believed, and the defendant is presumed to have lied. Even if the witnesses refute only part of his statement he is not trusted any more, and should not be allowed to swear regarding the rest."
,k4a_9:" And is refuted by witnesses before swearing. whether he denies the whole loan or only part of it."
,k4a_10:" The reason for the distinction between a loan and a deposit is explained <i>infra</i> 5b."
,k4a_11:" One witness may cause a fine to be imposed upon a defendant, but if the witness is refuted by other witnesses proving an alibi he is not liable to pay the fine."
,k4a_12:" For even though one witness, on being refuted by an alibi, is not liable to suffer the penalty that he intended to impose upon the defendant, he is disbelieved as a result of the refutation, and his evidence is nullified, just as in the case of two witnesses who are refuted by an alibi."
,k4a_13:" Which would show that the oath is not imposed because of a 'partial admission', but is merely an institution of the Rabbis, as indicated above, and is therefore quite different from the oath imposed by R. Hiyya."
,k4a_14:" Helak, [H] i.e., 'I have not spent them, and they are yours, wherever they may be' (Rashi)."
,k4a_15:" And we do not say that the virtual delivery of the amount admitted is tantamount to actual payment, so that the denial of the remainder would mean a denial of a whole separate claim, in which case no oath could be imposed."
,k4a_16:" Which imposes an oath, although, as stated above, the position of the litigants is similar."
,k4a_17:" Not a Biblical oath resulting from 'partial admission'. "
}

txt:
<p>
while the oath that you would impose by the evidence of several witnesses refers to the remainder of the debt [not included in the evidence], which is denied by the defendant.<a id="k4a_1"><sup>1</sup></a>&nbsp; [In consequence of this refutation] R. Papa says: The inference is really drawn from an 'attached oath'<a id="k4a_2"><sup>2</sup></a>&nbsp; [caused by the evidence of] one witness. But [to this also it could be objected]: Is not the 'attached oath' of one witness more weighty, in that [in this case] one oath carries with it another oath,<a id="k4a_3"><sup>3</sup></a>&nbsp; while several witnesses only oblige the defendant to pay money?<a id="k4a_4"><sup>4</sup></a>&nbsp; &mdash; The case of 'his own mouth' will prove it.<a id="k4a_5"><sup>5</sup></a>&nbsp; But [it is again objected]: is not 'his own mouth' more weighty in that it cannot be refuted by a denial [on the part of witnesses]? &mdash; The case of 'one witness' will prove it, in that he can be refuted [by other witnesses] and yet he obliges the defendant to take an oath. But [it is objected once more]: [The oath imposed by] one witness refers only to the part of the debt to which the witness testifies [and which the defendant denies], while [the oath that is imposed by] several witnesses refers to the remainder of the debt &mdash; [not included in the evidence and] denied by the defendant? &mdash; Again the case of 'his own mouth' will prove it.<a id="k4a_6"><sup>6</sup></a>&nbsp; But [it is again objected]: Is not 'his own mouth' [in a case of admission] more effective in that it cannot be refuted by a denial [on the part of witnesses]? &mdash; The case of one witness will prove it, in that he can be refuted by the denial [of other witnesses] and yet he obliges the defendant to take an oath. But [it is objected once more]: [The oath that is imposed by] several witnesses refers to the remainder of the debt denied by the defendant [and not included in the evidence]? &mdash; Again, the case of 'his own mouth' will prove it.<a id="k4a_7"><sup>7</sup></a>&nbsp; And the [former] argument resumes its force. [It is true that] the aspect of one case is not like the aspect of the other case; but both cases have the common characteristic that they arise through claim and denial, and therefore the defendant has to swear. So I adduce that also in the case of 'witnesses,' arising as it does through claim and denial, the defendant has to swear. But [it is again argued]: Have not the other analogous cases the common characteristic that the defendant is not presumed to be a liar, while in the case of 'witnesses' he is presumed to be a liar?<a id="k4a_8"><sup>8</sup></a>&nbsp; [The objection, however, is at once raised:] Is the defendant really presumed to be a liar when contradicted by witnesses? Has not R. Idi b. Abin said that R. Hisda said: He who denies a loan<a id="k4a_9"><sup>9</sup></a>&nbsp; can still be accepted as a witness, but he who denies a deposit cannot be accepted as a witness?<a id="k4a_10"><sup>10</sup></a>&nbsp; Therefore argue this way: Have not the other cases the common characteristic that they are not subject to the law of retaliation in case of an alibi,<a id="k4a_11"><sup>11</sup></a>&nbsp; while [several] witnesses are subject to the law of retaliation in case of an alibi? &mdash; This presents no difficulty: R. Hiyya attaches no importance to the argument from the law of retaliation in case of an alibi.<a id="k4a_12"><sup>12</sup></a>
</p><p>
	There is, however, another difficulty: How could it be said that our Tanna teaches the same [as R. Hiyya] &mdash; are the two cases at all alike? There [viz., in the case of R. Hiyya] the creditor has witnesses [for half the amount claimed], but the debtor has no witnesses [regarding the other half] that he does not owe him it. For if the debtor had witnesses that he did not owe him anything [of the other half claimed], R. Hiyya would not require the debtor to swear [regarding the other half]. But here [in our Mishnah] we are witnesses for the one party as much as for the other [in regard to the right of either to one half of the garment], and yet both have to swear.<a id="k4a_13"><sup>13</sup></a>
</p><p>
	It must therefore be assumed that the statement 'And our Tanna teaches the same' refers to another decision of R. Hiyya. For R. Hiyya says: [If one says to another,] 'You have in your possession a hundred <i>zuz</i> belonging to me,' and the other says, 'I have only got fifty' and [here they are],<a id="k4a_14"><sup>14</sup></a>&nbsp; he has to swear [concerning the disputed amount].<a id="k4a_15"><sup>15</sup></a>&nbsp; For what reason? Because [the offer implied in the words] 'Here they are' is like a 'partial admission' [which necessitates an oath]. And our Tanna teaches the same: TWO HOLD A GARMENT, etc., and although here each one holds [the garment], and we are witnesses that the part that each one holds is like the part of the debt which the defendant [in the other case] is ready to deliver, yet it says that he must swear! R. Shesheth, however, says that [the offer implied in the words] 'Here they are' relieves the debtor of the oath &mdash; For what reason? Because the declaration 'Here they are' made by the debtor enables us to regard those [fifty] <i>zuz</i>, which he has admitted to be owing, as if they were already in the hands of the creditor, while the remaining fifty [<i>zuz</i>] the debtor does not admit to be owing, and therefore there is no 'partial admission' [that necessitates an oath].
</p><p>
	But according to R. Shesheth there is a difficulty about our Mishnah?<a id="k4a_16"><sup>16</sup></a>&nbsp; &mdash; R. Shesheth may reply: [The oath in] our Mishnah is an institution of the Rabbis.<a id="k4a_17"><sup>17</sup></a>&nbsp; And his opponent? [He will say:] Yes, it is an institution of the Rabbis: but if you maintain that according to Biblical Law the offer of 'Here they are' carries with it an oath, then it is right that the Rabbis imposed an oath upon the litigants [in our Mishnah], for they follow herein the principle underlying the Biblical Law. But if you say that the offer of 'Here they are' exempts, according to Biblical Law, [the debtor who made it] from taking an oath, then how can the Rabbis [of our Mishnah] impose an oath which is unlike any Biblical oath?
</p><p>
	An objection is now raised:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k4b_1:" A <i>sela'</i> equalled in value our crown."
,k4b_2:" A <i>denar</i> =one fourth of a <i>sela'</i>."
,k4b_3:" For <i>sela's</i> would really mean two (the minimum number to which the plural could be applied) and if the debtor says 'three' he admits more than there is evidence for. The third <i>sela'</i> is therefore like a restored loss, in connection with which no oath can be imposed (cf. Git., 48b)."
,k4b_4:" [Since the note has the effect of a mortgage on the debtor's landed property, the admission places virtually that land at the disposal of the creditor.]"
,k4b_5:" For in the case of the debtor saying 'two', R. Akiba would not have differed, and there would have been no occasion for this comparison with the restoration of a lost object."
,k4b_6:" If 'two' involves an oath, then it was wrong to give 'partial admission' as a reason for the oath, since in such a case there would be no admission apart from what is proved by the written document. On the other hand, it should have been emphasised that 'three' also involved an oath, in spite of the fact that the admission of the third <i>sela'</i> is like the restoration of a lost object to its owner."
,k4b_7:" The witnesses who signed the document support the statement of the debtor, as the document says only 'sela's, which must be taken to mean two."
,k4b_8:" Seeing that 'two' is corroborated by the written document, no oath can be imposed, either in a case of denial or in one of admission, because the document puts the debtor's landed property under a bond, and, as explained in Shebu. 42b, no oath is administered in connection with mortgaged property. But when the debtor says 'three', the dispute about the remainder as well as the admission of the third <i>sela'</i> concern something that is not mentioned in the document, and which does not therefore affect the debtor's landed property."
,k4b_9:" When the debtor could not be said to have restored a loss, as his admission did not go beyond the sum proved by the document."
,k4b_10:" Who teaches that the offer 'Here they are' is like a 'partial admission' and therefore requires an oath. Then why should 'two' not require an oath?"
,k4b_11:" In the case of <i>sela's</i> etc."
,k4b_12:" This is why he is free, not because of the similarity to 'Here they are'."
,k4b_13:" In regard to both vessels and land. V. Shebu. 38a."
,k4b_14:" Viz., that the vessels which the debtor admitted to be rightly claimed are placed before the creditor with the offer 'Here they are'."
,k4b_15:" This would contradict the view of R. Shesheth, who says that 'Here they are' does not necessitate an oath."
,k4b_16:" Kid. 26a."
,k4b_17:" Movable belongings, which cannot be mortgaged."
,k4b_18:" Immovable property, which can be mortgaged."
,k4b_19:" When claims arise simultaneously in regard to both kinds of chattels, and an oath is due regarding the movable ones, it is extended also to the immovable ones. V. Kid. 26a."
,k4b_20:" From Shebu. 38b."
,k4b_21:" In Kid. 26a."
,k4b_22:" As the law is stated there regarding the acquisition of movable chattels in conjunction with immovable ones by means of money, document, or actual possession, reference is also made to the extension of the oath from movable chattels to immovable ones. "
}

txt:
<p>
[When a plaintiff produces a promissory note for] <i>sela's</i><a id="k4b_1"><sup>1</sup></a>&nbsp; or <i>denarii</i><a id="k4b_2"><sup>2</sup></a>&nbsp; [without any figures], the creditor says, it is for five [<i>sela's</i> or <i>denarii</i>], and the debtor says, it is for three, R. Simeon b. Eleazar says: Seeing that [the debtor] has admitted part of the claim, he must take an oath [for the rest]. R. Akiba says: He is only like a restorer of lost [property],<a id="k4b_3"><sup>3</sup></a>&nbsp; and he is free [from taking an oath]. In any case we are told that R. Simeon b. Eleazar says, 'Seeing that he has admitted part of the claim, he must take an oath'. Now the reason is presumably that [the debtor] said 'three', but [if he had said] 'two' he would have been free [from the oath], and seeing that the admission of 'two', for which the note is sufficient evidence, is like [the offer] 'Here they are',<a id="k4b_4"><sup>4</sup></a>&nbsp; it follows that 'Here they are' does not involve an oath? &mdash; No; I could quite well maintain that when he says 'two' he also has to take an oath, and the reason why 'three' is stated is to express disagreement with R. Akiba, who maintains that the debtor [who says 'three'] is like a restorer of lost [property] and free [from taking an oath]. We are thus informed that he is like one who admits part of the claim, and that he has to take an oath.<a id="k4b_5"><sup>5</sup></a>&nbsp; But if this is so, [and 'two' also involves an oath,] should not R. Simeon b. Eleazar, who says, 'Seeing that he has admitted part of the claim he must take an oath,' have said instead: He also must swear?<a id="k4b_6"><sup>6</sup></a>&nbsp; &mdash; Therefore it must be assumed that 'two' is free, and 'Here they are' involves an oath, but our present case is different, because the written document supports him,<a id="k4b_7"><sup>7</sup></a>&nbsp; or because the written document has the effect of pledging the debtor's landed property [to the creditor,] and no oath is taken in a dispute connected with mortgaged land.<a id="k4b_8"><sup>8</sup></a>
</p><p>
	Some construe the objection from the <i>latter</i> clause: 'R. Akiba says, he is only like the restorer of lost [property], and he is free [from taking an oath].' Now the reason is presumably that he said 'three', but [if he had said] 'two'<a id="k4b_9"><sup>9</sup></a>&nbsp; he would have had to swear; and seeing that the admission [of 'two'], for which the note is sufficient evidence, is like [the offer] 'Here they are', it follows that 'Here they are necessitates an oath? &mdash; No; I could quite well maintain that when he says 'two' he is also free [from taking an oath], and the reason why 'three' is stated is to express disagreement with R. Simeon b. Eleazar, who says that [the debtor] is like one who admits part of the claim, and he has to take an oath: We are thus informed that he is like the restorer of lost [property], and he is free [from taking an oath].
</p><p>
	And, indeed, this stands to reason, for if we were to assume that 'two' necessitates an oath, how could R. Akiba dispense with the oath in the case of 'three': this [debtor] could surely employ a ruse, In that he might think: If I say 'two' I shall have to swear; I will say 'three', so that I shall be like a restorer of a loss, and I shall be free. Therefore we must conclude that [if he says] 'two' he is also free. But does not a difficulty arise as regards R. Hiyya?<a id="k4b_10"><sup>10</sup></a>&nbsp; &mdash; There<a id="k4b_11"><sup>11</sup></a>&nbsp; it is different, for the written document supports him,<a id="k4b_12"><sup>12</sup></a>&nbsp; or because the written document has the effect of pledging the debtor's landed property, and no oath is taken in a dispute connected with mortgaged land.
</p><p>
	Mar Zutra, the son of R. Nahman, then asked: [We learnt:] If one claims vessels and land, and the claim in regard to the vessels is admitted, but the claim in regard to the land is disputed, or the claim in regard to the land is admitted, but the claim in regard to the vessels is disputed, the debtor is free [from taking an oath in regard to the disputed claim]. If he admits part of the claim in regard to the land, he is free [from taking an oath]; if he admits part of the claim in regard to the vessels he is obliged [to take an oath].<a id="k4b_13"><sup>13</sup></a>&nbsp; Now the reason why [he is free when the claim concerns both land and vessels] is [presumably] that an oath does not apply to land, but where the claim concerns two sets of vessels, in the same way as the claim regarding the land and the vessels,<a id="k4b_14"><sup>14</sup></a>&nbsp; he is obliged to [take an oath]: how is this to be understood? Is it not that the debtor said to the creditor, 'Here they are'? So it follows that 'Here they are' necessitates an oath!<a id="k4b_15"><sup>15</sup></a>&nbsp; &mdash; No; I can quite well maintain that [when] two sets of vessels [are claimed] he is also free [from taking an oath], but the reason why 'vessels and land' are mentioned is to let us know that when [the debtor] admits part of the claim in regard to the vessels he is obliged [to take an oath] even as regards the land. What new information does he proffer us? The law of extension of obligation? We have learnt this already:<a id="k4b_16"><sup>16</sup></a>&nbsp; Chattels which do not offer security<a id="k4b_17"><sup>17</sup></a>&nbsp; are attached to chattels which offer security,<a id="k4b_18"><sup>18</sup></a>&nbsp; in regard to the imposition of an oath [upon the debtor]!<a id="k4b_19"><sup>19</sup></a>&nbsp; &mdash; [The Mishnah quoted] here<a id="k4b_20"><sup>20</sup></a>&nbsp; is the principal place [for this law]; there<a id="k4b_21"><sup>21</sup></a>&nbsp; it is only mentioned incidentally.<a id="k4b_22"><sup>22</sup></a>
</P>


lvr: 42
dfh: a
notes:
 ntes={k5a_1:" V. Shebu. 42b; <i>infra</i> 57b."
,k5a_2:" As land cannot be removed it is always at the disposal of the creditor."
,k5a_3:" The admission as regards the vessels is not the equivalent of 'Here they are', and the conclusion drawn from the Scriptural verse is necessary to let us know that such a 'partial admission' cannot impose an oath on the disputed landed property, though forming part of the one claim."
,k5a_4:" V. B.K 107a; <i>infra</i> 98a."
,k5a_5:" The 'partial admission' can only refer to the animal which the bailee admits to have in his possession, and which he is ready to return to the owner. This is like saying, 'Here it is,' and yet the bailee has to swear.!"
,k5a_6:" Ex. XXII, 8. The term 'It is this' is construed as implying a partial admission. V. Shebu. 39b; B. K. 107a."
,k5a_7:" V. <i>infra</i> 41b."
,k5a_8:" This is a direct contradiction to the ruling of R. Hiyya, according to which the evidence of witnesses regarding part of a disputed claim causes an oath to be imposed on the defendant, as inferred by means of a <i>Kal wa-homer</i> from 'partial admission'. V. <i>supra</i> 3a-4a."
,k5a_9:" How can he apply the text to exclude the case where witnesses give evidence?"
,k5a_10:" [H] one particle of which is superfluous."
,k5a_11:" R. Hiyya."
,k5a_12:" The father of R. Apotoriki."
,k5a_13:" V. <i>infra</i> 100b; B. K. 35b; Shebu. 38b and 40a; cf. Keth. 108b."
,k5a_14:" If the claim is for wheat, and the admission is for barley, it is not considered a 'partial admission' and does not involve an oath."
,k5a_15:" For when the denial is partly contradicted by witnesses R. Hiyya imposes an oath."
,k5a_16:" Who is likely to commit perjury, hence cannot be given an oath. R. Hiyya's law refers to a debt, or pledge, which the defendant denies, not because he has misappropriated it, or used it for himself, but because he does not find it convenient to repay or replace it just then, and intends to do so later. He therefore cannot be regarded as a robber."
,k5a_17:" And receive payment. v. Shebu. 44b."
,k5a_18:" Shebu. 38b."
,k5a_19:" Although no oath is to be imposed on the defendant who denies the whole claim, a Rabbinical oath is put on him in order to induce him to admit the truth, as it is assumed that no one will sue a person without cause. "
}

txt:
<p>
	Now according to him who says that 'Here they are' does not require an oath, why is it necessary to derive from a Scriptural verse the exemption of land from the law of oath,<a id="k5a_1"><sup>1</sup></a>&nbsp; since all land [available to the creditor is as if the debtor said,] 'Here they are'?<a id="k5a_2"><sup>2</sup></a>&nbsp; &mdash; He can answer you: The derivation from the Scriptural verse is necessary where [the debtor] has dug pits, ditches and caves [thereby destroying the value of the land], or where one claims vessels and land, and the claim in regard to the vessels is admitted, while the claim in regard to the land is disputed.<a id="k5a_3"><sup>3</sup></a>
</p><p>
	Come and hear: Rami b. Hama teaches: Four kinds of bailees require to put forward a partial denial and a partial admission [in order to be liable to an oath]: the gratuitous bailee, the borrower, the paid bailee, and the hirer.<a id="k5a_4"><sup>4</sup></a>&nbsp; How is it to be understood? Is it not that the bailee says to the claimant, 'Here it is'?<a id="k5a_5"><sup>5</sup></a>&nbsp; &mdash; No. [It refers to a case where] the owner says to the bailee, 'I handed you over three cows, and they have all died through your negligence', while the bailee says to the owner, 'One I never received; one died through an accident, and one has died through my negligence, for which I am willing to pay you', so that it is not like [an offer to return the animal by saying.] 'Here it is.'
</p><p>
	Come and hear what the father of R. Apotoriki taught, as a refutation of the first [law of] R. Hiyya: [If one says to another,] 'You have a hundred [<i>zuz</i>] in your possession belonging to me', and the other says, 'I have nothing belonging to you,' and witnesses testify that the defendant owes the plaintiff fifty [<i>zuz</i>] &mdash; I might think that the defendant ought to swear regarding the rest; therefore the Scriptural text tells us, for any manner of lost thing, whereof he saith that it is this,<a id="k5a_6"><sup>6</sup></a>&nbsp; [indicating thereby that] you impose [an oath] on him<a id="k5a_7"><sup>7</sup></a>&nbsp; in consequence of his own admission, but you do not impose [an oath] on him in consequence of the evidence of witnesses!<a id="k5a_8"><sup>8</sup></a>&nbsp; &mdash; Do you wish to refute R. Hiyya by  citing a Baraitha [that contradicts his view]? R. Hiyya is a Tanna, and he may disagree with it. But [the Baraitha] quotes a Scriptural text? &mdash; That [text] refers to one who admits part of the claim. And the father of R. Apotoriki?<a id="k5a_9"><sup>9</sup></a>&nbsp; &mdash; He will answer you: [The text] says, it, and it also says, this<a id="k5a_10"><sup>10</sup></a>&nbsp; &mdash; one term is [meant to apply] to him who admits part of the claim, and the other [is meant to indicate] that in the case of witnesses giving evidence [regarding part of the disputed claim] the defendant is free from taking an oath]. And the other?<a id="k5a_11"><sup>11</sup></a>&nbsp; &mdash; He applies one term to him who admits part of the claim, and the other [he utilises for the purpose of proving] that the admission [of part of the claim involves an oath only if the admission] refers to the same kind of object as is claimed [by the plaintiff]. And the other?<a id="k5a_12"><sup>12</sup></a>&nbsp; &mdash; He does not share the view that the admission has to refer to the same kind of object, for he is of the opinion of Rabban Gamaliel, as we have learned:<a id="k5a_13"><sup>13</sup></a>&nbsp; If the plaintiff claims wheat, and the defendant admits barley, the defendant is free [from taking an oath], but Rabban Gamaliel obliges [the defendant to take an oath].<a id="k5a_14"><sup>14</sup></a>
</p><p>
	There was a shepherd to whom people entrusted cattle every day in the presence of witnesses. One day they handed it over to him without witnesses. Subsequently he gave a complete denial [of the receipt of the cattle]. But witnesses came and testified that he had eaten two of the cattle. Said R. Zera: If the first [law of] R. Hiyya is valid, [the shepherd] ought to swear regarding the remainder.<a id="k5a_15"><sup>15</sup></a>&nbsp; Abaye, however, answered him: If [the law were] valid, would [the shepherd be allowed to] swear? Is he not a robber?<a id="k5a_16"><sup>16</sup></a>&nbsp; &mdash; [R. Zera] replied: I mean, his opponent should swear.<a id="k5a_17"><sup>17</sup></a>&nbsp; But even if R. Hiyya's law is rejected, should we not impose an oath [upon the claimant] because of the view of R. Nahman, as we have learned:<a id="k5a_18"><sup>18</sup></a>&nbsp; [If one says to another,] 'You have in your possession a hundred [<i>zuz</i>] belonging to me,' and the other says, 'I have nothing belonging to you,' he is free [from taking an oath]; but R. Nahman adds: We make him take 'an oath of inducement'?<a id="k5a_19"><sup>19</sup></a>&nbsp; &mdash; R. Nahman's rule is [only a Rabbinical] provision, [made irrespective of the law],
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k5b_1:" The Rabbinical provision that when the defendant is likely to commit perjury the plaintiff swears and receives payment, cannot be added to the provision which imposes a Rabbinical 'oath of inducement' (where no Biblical oath is due). The 'oath of inducement' can only be given in cases where in ordinary circumstances a Biblical oath would be imposed."
,k5b_2:" Because usually a shepherd allows his flock to graze on other people's fields, and thus commits robbery, and why need Abaye seek to disqualify him on the ground that he is actually proved to be a robber?"
,k5b_3:" Lev. XIX. 14. This, taken figuratively, implies that it is wrong to put temptation in the way of one who is likely to succumb to it."
,k5b_4:" Therefore a hired shepherd, who does not profit by trespassing, will not commit the sin, and he need not generally be regarded as a robber."
,k5b_5:" The implication is that the terms of the oath are ambiguous. By swearing that his share in it is lot 'less than half', the claimant might mean that it is not even a third or a fourth (which is 'less than half'), and the negative way of putting it would justify such an interpretation. He could therefore take this oath even if he knew that he had no share in the garment at all, while he would be swearing falsely if he really had a share in the garment that is less than half, however small that share might be."
,k5b_6:" The statement is not negative, but positive, and the claimant swears that his share is at least half."
,k5b_7:" And thus corroborate his claim; and, although one of the claimants would then be bound to swear falsely, the oath could still be given, according to the majority of the Rabbis, who differ from Ben Nannus (Tosaf.; cf. <i>supra</i> 2b)."
,k5b_8:" It would appear inconsistent on the part of the Court, and to its discredit, to let a claimant swear that he owns the whole garment when he can be awarded only half of it."
,k5b_9:" His plea that the whole garment is his would be contradicted by his oath that only half of it belonged to him."
,k5b_10:" For the oath in the Mishnah also refers to half the garment."
,k5b_11:" V. <i>supra</i> 3a."
,k5b_12:" What purpose, then, is the oath instituted by the Rabbis to serve? If he is ready to rob his neighbour, he will also be ready to commit perjury."
,k5b_13:" Perjury is regarded as a greater crime than robbery."
,k5b_14:" V. <i>supra</i> 3a."
,k5b_15:" Viz. that he is not suspected of attempted robbery, but of a desire to postpone payment."
,k5b_16:" Cf. B.K. 105b; Shebu. 40b; <i>supra</i> 4a."
,k5b_17:" And is refuted by witnesses (before swearing), so that he is proved a liar (but has not committed perjury)."
,k5b_18:" It is obviously assumed that he lied because he wished to postpone payment, and not because he wanted to rob the claimant of what was due to him."
,k5b_19:" For it could not be said that he only intended to put the claimant off, as a deposit must not be spent, and must be produced intact when claimed, while borrowed money can be spent, and returned when due. If the deposit has been lost, he has only to put this forward as a plea and he is free. His denial therefore renders him unfit as a witness (in accordance with the implication of Ex. XXIII. 1)."
,k5b_20:" Cf. <i>supra</i> 5a."
,k5b_21:" I.e. the bailee."
,k5b_22:" In regard to the animal which he denies having received, and which must be regarded in the same light as a deposit &mdash; so that it cannot be said that he merely wishes to delay the return."
,k5b_23:" How could he be given an oath in regard to that animal, if it should have been his intention to rob the owner by the denial?"
,k5b_24:" Whose animal he has lost."
,k5b_25:" This refers to a bailee who offers to pay compensation for a lost bailment, rather than swear that it has been lost. As it is possible that he wishes to appropriate the article by paying for it, R. Huna says that he must swear that he has not got it. (V. <i>infra</i> 34b)."
,k5b_26:" Ex. XX, 14. "
}

txt:
<p>
and we do not add one provision to another provision.<a id="k5b_1"><sup>1</sup></a>&nbsp; But why not consider the fact simply that he is a shepherd, and Rab Judah says that a shepherd [generally speaking] is unfit [to take an oath]?<a id="k5b_2"><sup>2</sup></a>&nbsp; &mdash; This presents no difficulty: That case [referred to by Rab Judah,] is one of [a shepherd who feeds] his own flock [and is therefore tempted to let them trespass], but this case [regarding which Abaye asks his question,] is one of [a hired shepherd who keeps] other people's flocks [and has no occasion to trespass]. For if this were not so, how could we entrust cattle to any shepherd? Is it not written, Thou shalt not put a stumbling block before the blind?<a id="k5b_3"><sup>3</sup></a>&nbsp; But the presumption is that a man will not commit a sin unless he stands to profit by it himself.<a id="k5b_4"><sup>4</sup></a>
</p><p>
	HE SHALL THEN SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, etc. Does he swear regarding the part which is his, or regarding the part which is not his?<a id="k5b_5"><sup>5</sup></a>&nbsp; &mdash; R. Huna answers: He has to say, 'I swear that I have a share in it, and that it is not less than half.'<a id="k5b_6"><sup>6</sup></a>&nbsp; But let him say, 'I swear that it is all mine!'<a id="k5b_7"><sup>7</sup></a>&nbsp; &mdash; Do we give him all of it?<a id="k5b_8"><sup>8</sup></a>&nbsp; Then let him say, 'I swear that half of it is mine!'-He would impair his own words.<a id="k5b_9"><sup>9</sup></a>&nbsp; But does he not now also impair his own words?<a id="k5b_10"><sup>10</sup></a>&nbsp; &mdash; [No!] He says, 'It is all mine,' [and he adheres to his claim]. But [he adds]. 'According to you, [who do not accept my contention,] I swear that I have a share in it, and that it is not less than half.' But [it is again asked]: Since each one stands [before the Court] holding [the garment], what need is there for this oath? R. Johanan answered: This oath is an institution of the Sages, intended to prevent people from going out and seizing their fellow's garment, declaring it to be their own.<a id="k5b_11"><sup>11</sup></a>&nbsp; But should we not say that, since he is suspected of fraud in money matters, he ought also to be suspected of swearing falsely?<a id="k5b_12"><sup>12</sup></a>&nbsp; &mdash; We do not say that one who is suspected of fraud in money matters must also be suspected of swearing falsely.<a id="k5b_13"><sup>13</sup></a>&nbsp; For if you do not concede this, how could the Divine Law lay it down that one who admits part of a claim shall swear [regarding the rest]? We ought to say that, since he is suspected of fraud in money matters, he must also be suspected of swearing falsely? &mdash; There he just tries to put the claimant off for a time, according to the view of Rabbah.<a id="k5b_14"><sup>14</sup></a>&nbsp; You may infer this<a id="k5b_15"><sup>15</sup></a>&nbsp; from what R. Idi b. Abin says in the name of R. Hisda:<a id="k5b_16"><sup>16</sup></a>&nbsp; He who denies a loan<a id="k5b_17"><sup>17</sup></a>&nbsp; can still be accepted as a witness,<a id="k5b_18"><sup>18</sup></a>&nbsp; but he who denies a deposit cannot be accepted as a witness.<a id="k5b_19"><sup>19</sup></a>&nbsp; But there is [the law] which Rami b. Hama taught: Four kinds of bailees require to put forward a partial denial and a partial admission [in order to be liable to an oath]: the gratuitous bailee, the borrower, the paid bailee, and the hirer.<a id="k5b_20"><sup>20</sup></a>&nbsp; Why do we not say that, since he<a id="k5b_21"><sup>21</sup></a>&nbsp; is suspected of fraud in money matters,<a id="k5b_22"><sup>22</sup></a>&nbsp; he must also be suspected of swearing falsely?<a id="k5b_23"><sup>23</sup></a>&nbsp; &mdash; There also he merely tries to put off the claimant,<a id="k5b_24"><sup>24</sup></a>&nbsp; for he thinks: 'I shall find the thief and have him arrested,' or, 'I shall find [the animal] in the field and bring it to him.' But if this is so, why is one who denies a deposit unfit to be a witness? Let us say that he is only putting off the claimant, thinking to himself, 'I shall put him off until I may look for it and find it'? &mdash; We say that he who denies a deposit is unfit to be a witness only [if it is a case] where witnesses come and testify against him, saying that at that time the deposit was in the house, and that he knew it, or [if it is a case] where he is holding it in his hand.
</p><p>
	But in the case in which R. Huna says, 'We make him swear that [the article] is not in his possession,'<a id="k5b_25"><sup>25</sup></a>&nbsp; why do we not say that since he is suspected of fraud in money matters he must also be suspected of swearing falsely? &mdash; There also he may permit himself [to keep the article] by saying [to himself], 'I am willing to pay him for it.' Then R. Aha of Difti said to Rabina: Would he not even so transgress the commandment, Thou shalt not covet?<a id="k5b_26"><sup>26</sup></a>&nbsp; &mdash; 'Thou shalt not covet' is understood by people to apply only to that for which one is not prepared to pay.
</P>


lvr: 42
dfh: a
notes:
 ntes={k6a_1:" When he denies the whole claim; v. <i>supra</i> 5a."
,k6a_2:" In the case of the shopkeeper and his creditbook. V. <i>supra</i> 2a, Shebu. 47b."
,k6a_3:" The gratuitous bailee, who pleads that the animal has been lost."
,k6a_4:" Since it is assumed that he may appropriate the plaintiff's article by putting forward a wrong plea, which amounts to fraud."
,k6a_5:" According to Abaye the reason for the oath imposed by the Rabbis is not that given by R. Johanan (v. <i>supra</i> 3a), but that a litigant may deem himself entitled to an article found by his opponent, on the ground that the latter had borrowed money from him a long time ago and had forgotten about it. Such a litigant would not hesitate to plead that he had found the garment, or that it was all his, in the hope that at least half the value of the garment would be awarded to him. Hence the need for an oath."
,k6a_6:" If it is assumed that he is claiming the garment in payment of an old debt due to him, why should he have to swear?"
,k6a_7:" I.e., in the presence of the Court."
,k6a_8:" Tosef. B.M. 1; v. <i>supra</i> 2b."
,k6a_9:" That one of the litigants was in possession of the garment when both appeared in Court."
,k6a_10:" That the other litigant must bring evidence to substantiate his claim."
,k6a_11:" In Court, in the circumstances as described, which furnishes a solution to the problem propounded."
,k6a_12:" 'And this is why he let me have the garment.'"
,k6a_13:" 'And now he refuses to pay.'"
,k6a_14:" 'As you pleaded that the garment was yours, and that he was trying to rob you of it.'"
,k6a_15:" V. <i>supra</i> 2b; B.K. 46a."
,k6a_16:" And would thus let each litigant who holds the garment have a half without an oath."
,k6a_17:" That the claimant is entitled to nothing, even if he is ready to swear."
,k6a_18:" It constitutes no claim, and therefore the garment is not 'disputed money'."
,k6a_19:" I.e., the garment."
,k6a_20:" If R. Zera's question is to be answered in the sense that the litigant who has seized the garment must give up half the garment to the other claimant."
,k6a_21:" Without seizing it."
,k6a_22:" For the act of dedication cannot be more effective than the act of seizing it."
,k6a_23:" V. A.Z. 63a; cf. B.B. 133b."
,k6a_24:" Lev. XXVII, 14. "
}

txt:
<p>
But then, in the case in which R. Nahman said, We make him take 'an oath of inducement',<a id="k6a_1"><sup>1</sup></a>&nbsp; &mdash; why do we not say that since he is suspected of fraud in money matters he must also be suspected of swearing falsely? Moreover, there is the case where R. Hiyya taught: Both of them swear, and receive payment from the employer,<a id="k6a_2"><sup>2</sup></a>&nbsp; &mdash; why do we not say that since he is suspected of fraud in money matters he must also be suspected of swearing falsely? And furthermore, there is the case where R. Shesheth said: We make him<a id="k6a_3"><sup>3</sup></a>&nbsp; take three oaths: 'I swear that I did not cause the loss wilfully; I swear that I did not use [the animal] for myself; I swear that it is not in my possession', &mdash; why do we not say that since he is suspected of fraud in money matters<a id="k6a_4"><sup>4</sup></a>&nbsp; he must also be suspected of swearing falsely? Therefore [we must conclude] that we do not say, 'Since he is suspected of fraud in money matters he must also be suspected of swearing falsely.'
</p><p>
	Abaye says: We apprehend that he may be claiming the repayment of an old loan.<a id="k6a_5"><sup>5</sup></a>&nbsp; But if so, let him take it without an oath?<a id="k6a_6"><sup>6</sup></a>&nbsp; &mdash; Therefore say that we apprehend that he may be claiming the payment of a doubtful claim of an old loan. But do we not say that if he appropriates money on the strength of a doubtful claim he will also swear falsely in regard to a doubtful claim? &mdash; R. Shesheth, the son of R. Idi, said [in reply]: People will desist from taking an oath in regard to a doubtful claim, while they will not desist from appropriating money their right to which is doubtful. For what reason? &mdash; Money can be given back [later]; an oath cannot be taken back.
</p><p>
	R. Zera asked: If one of the litigants seized [the garment] in our presence,<a id="k6a_7"><sup>7</sup></a>&nbsp; what is the law? But [it is immediately objected]: How could such a situation arise? If [the other litigant] remained silent, he really admitted [his opponent's claim]; and if he protested, what more could he do? &mdash; [R. Zera has in mind] a case where [the aggrieved litigant] was silent at first but protested later, and the question is: Do we say that since he was silent at first he really admitted [his opponent's claim], or [do we] perhaps [say] that, as he protests now, it has become apparent that the reason why he was silent at first is that he thought [it unnecessary to protest, because] the Rabbis [of the Court] saw [what happened]? &mdash; R. Nahman answered: Come and hear [a Baraitha]: The ruling [of our Mishnah] refers only to a case where both [litigants] hold [the garment], but if the garment is produced [in Court] by one of them only, then [we apply the principle that], 'the claimant must bring evidence to substantiate his claim.'<a id="k6a_8"><sup>8</sup></a>&nbsp; Now, [let us consider:] how could the case [of one litigant producing the garment] arise? If we say that it was just as stated,<a id="k6a_9"><sup>9</sup></a>&nbsp; then it is self-evident.<a id="k6a_10"><sup>10</sup></a>&nbsp; It must therefore be that one of them seized [the garment] in our presence?<a id="k6a_11"><sup>11</sup></a>&nbsp; &mdash; No. Here we deal with a case where both of them came before us holding [the garment], and we said to them, 'Go and divide it.' They went out, and when they came back one of them was holding it. One said, 'He really admitted [my claim],'<a id="k6a_12"><sup>12</sup></a>&nbsp; and the other said, 'I let him have it on condition that he pays me for it.'<a id="k6a_13"><sup>13</sup></a>&nbsp; Now we say to him: 'Hitherto you implied that he was a robber,<a id="k6a_14"><sup>14</sup></a>&nbsp; and now you dispose of the garment to him without witnesses!' If you prefer, I could also say that [the Baraitha deals with a case where], as stated, one of them was holding it, and the other was just hanging on to it. In such a case [it is necessary to inform us that] even Symmachus, who maintains<a id="k6a_15"><sup>15</sup></a>&nbsp; that disputed money of doubtful ownership should be divided among the disputants without an oath,<a id="k6a_16"><sup>16</sup></a>&nbsp; would agree,<a id="k6a_17"><sup>17</sup></a>&nbsp; for mere hanging on [to a disputed article] counts for nothing.<a id="k6a_18"><sup>18</sup></a>
</p><p>
	If you deem it right to say that in the case of one [litigant] seizing it<a id="k6a_19"><sup>19</sup></a>&nbsp; in our presence, we take it away from him,<a id="k6a_20"><sup>20</sup></a>&nbsp; [it is clear that] if he dedicates it [to the Temple]<a id="k6a_21"><sup>21</sup></a>&nbsp; the dedication does not take effect.<a id="k6a_22"><sup>22</sup></a>&nbsp; But if you will say that in the case of one [litigant] seizing it in our presence we do not take it away from him, what would be the law if he dedicated it without seizing it? Seeing that a Master says [elsewhere],<a id="k6a_23"><sup>23</sup></a>&nbsp; 'Dedication to the Most High by word of mouth is like delivery in a secular transaction', [do we say that the dedication of the garment] is like seizing it, or [do we say], 'After all, he has not seized it,' and it is written: And if a man shall sanctify his house to be holy, etc.,<a id="k6a_24"><sup>24</sup></a>&nbsp; [from which we might conclude that] just as his house is in his possession so must everything [that he may wish to dedicate] be in his possession &mdash; which would exclude this case [of the garment which he has not seized and] is not in his possession? &mdash; Come and hear [the following]: There was
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k6b_1:" On dedication to Temple after the Destruction, v. A.Z. 13a."
,k6b_2:" [S. of Sura, v. n. 3.]"
,k6b_3:" [Rabbah, whose seat was at Pumbeditha in the North, had to pass Sura on his journey to the South.]"
,k6b_4:" Toh. IV, 12."
,k6b_5:" I.e., first-born whose primogeniture is in doubt because, in the case of an animal, it is not known whether its mother has borne before, or, in the case of a human mother who had previously miscarried, it is doubtful whether it was a real miscarriage or not. According to Biblical law the first-born belong to the priest. (Num. XVIII, 15-16.)"
,k6b_6:" E.g., an ass, the first-born of which has to be redeemed with a lamb. (Ex. XIII, 13.)"
,k6b_7:" If the Israelite is still in possession of the first-born, the priest is regarded as the claimant, who has to bring evidence to clear up the doubt. But if the priest has acquired possession, and the Israelite, though silent at first, protests later, denying the primogeniture, then it is for the Israelite, as the claimant, to prove his claim."
,k6b_8:" Because of the prevailing doubt as to whether the young animal is 'holy' or not (cf. Deut. XV, 19)."
,k6b_9:" Which is obviously meant to apply to either claimant, either the Israelite or the priest."
,k6b_10:" The animal is thus regarded as 'holy' even when the Israelite is in possession, which would show that the sanctification by the litigant without seizing it takes effect, if we say that the seizing of the disputed articles entitles him to keep it."
,k6b_11:" The sanctity of the firstling is independent of any action on the part of the priest, as it is sacred from birth, in accordance with the Biblical Law. It cannot therefore be compared with the sanctity of an object that has been consecrated by a human being."
,k6b_12:" The principal place where this law is taught is a Mishnah, Bek. 9a; cf. also ibid. 11a."
,k6b_13:" Viz., that if a priest has seized a doubtful firstling he has to return it."
,k6b_14:" The sheep that is used to redeem the doubtful firstling of an ass may be kept by the Israelite. He is under no obligation to give it to the priest, for the latter is in the position of a claimant who has to prove his claim, i.e. if the priest claims the sheep from the Israelite, he has to prove that the doubtful firstling is a real firstling. Such sheep, however, are liable to be tithed, if there are ten of them. (V. <i>infra</i> p. 28.) It follows that, in the same way, if in the Israelite's possession, they go into the stall with other sheep to be tithed, and if one of them comes out tenth it is offered as the tithe."
,k6b_15:" If the priest has any kind of claim on the sheep, the Israelite should not be entitled to utilise this animal as the tithe."
,k6b_16:" If the redeemed ass is not a real firstling, then the lamb belongs entirely to the Israelite, and if there are nine other sheep belonging to him he is obliged to tithe them, and there is nothing wrong in his action."
,k6b_17:" Therefore he has not relieved himself in any way, and in either case, not with anything belonging to the priest."
,k6b_18:" I.e., the Baraitha quoted by R. Hananiah does support the view of Rabbah that the priest has no right to a doubtful firstling or its substitute."
,k6b_19:" I.e., the argument used by Abaye, that in any case the tithing could be proceeded with, is invalid, for doubtful cases are exempt from tithing, even when it could be said that in any case the owner could do no wrong, as the following Mishnah proves."
,k6b_20:" Bek. 58b. If during the process of tithing, while the sheep were being led one by one out of the stall, so that the tenth one might be marked and offered to the priest, one of the counted sheep jumped back into the stall and disappeared among the uncounted sheep, and it cannot be recognised, the whole flock is exempt from tithing. The sheep that left the stall on being counted are exempt because they have already been numbered, and there are sufficient sheep left in the stall to make up the required number of ten. The sheep that remained behind in the stall are also exempt because each one of them may be the one that jumped back after being counted. V. Bek. 59b."
,k6b_21:" I.e. that the sheep are liable to be tithed on the assumption that the owner will either have acted according to the law or have done nothing wrong."
,k6b_22:" I.e. if the tenth sheep that is taken when those left behind in the stall are numbered is not the one that jumped back after being counted."
,k6b_23:" As that sheep will be subject to tithe."
,k6b_24:" As long as there are sufficient sheep left in the stall to make up the ten, when added to those already counted, the counted sheep are free from tithing. V. Bek., <i>loc. cit</i>. "
}

txt:
<p>
a bath-house, about which two people had a dispute. One said, 'It is mine', and the other said 'It is mine'; then one of them rose up and dedicated it [to the Temple],<a id="k6b_1"><sup>1</sup></a>&nbsp; [in consequence of which] R. Hananiah and R. Oshaia and the rest of the Rabbis kept away from it. R. Oshaia then said to Rabbah: When you go to Kafri<a id="k6b_2"><sup>2</sup></a>&nbsp; to see R. Hisda ask him [for his opinion on this matter]. When [Rabbah] came to Sura [on his way to Kafri]<a id="k6b_3"><sup>3</sup></a>&nbsp; R. Hamnuna said to him: This is [made clear in] a Mishnah:<a id="k6b_4"><sup>4</sup></a>&nbsp; [As regards] doubtful first-born,<a id="k6b_5"><sup>5</sup></a>&nbsp; whether a human first-born or an animal first-born, [and, as regards the latter,] whether of clean or unclean<a id="k6b_6"><sup>6</sup></a>&nbsp; animals, [the principle holds good that] the claimant must bring evidence [to substantiate his claim].<a id="k6b_7"><sup>7</sup></a>&nbsp; And in regard to this a Baraitha teaches: [Such animals] must not be shorn nor worked.<a id="k6b_8"><sup>8</sup></a>&nbsp; Now, it is obviously assumed here that if a priest seizes the firstling we do not take it away from him, for it is laid down that [we must apply the principle that] the claimant must bring evidence [to substantiate his claim];<a id="k6b_9"><sup>9</sup></a>&nbsp; and [thus] if the priest has not seized it, [the Baraitha teaches] that it must not be shorn or worked.<a id="k6b_10"><sup>10</sup></a>&nbsp; But Rabbah answered him: You speak of the sanctity of a firstling &mdash; [this proves nothing]. I could well maintain that even if the priest has seized it we take it away from him, and still it would be forbidden to shear or to work [this animal], because the sanctity that comes of itself is different.<a id="k6b_11"><sup>11</sup></a>
</p><p>
	R. Hananiah said to Rabbah: There is [a Baraitha]<a id="k6b_12"><sup>12</sup></a>&nbsp; taught supporting your view:<a id="k6b_13"><sup>13</sup></a>&nbsp; The [sheep with which the] doubtful [firstlings of asses have been redeemed] enter the stall to be tithed.<a id="k6b_14"><sup>14</sup></a>&nbsp; Now, if the view were held that when the priest has seized [a doubtful firstling] we do not take it away from him, why [does the Baraitha teach that sheep with which doubtful firstlings of asses have been redeemed] enter the stall [to be tithed]? Would not the result be that this [Israelite, who owns the stall] would relieve himself of his liability [involved in the tithe] with the property of the priest, [who has a claim on it]?<a id="k6b_15"><sup>15</sup></a>&nbsp; &mdash; Abaye answered him: There is really nothing in that [Baraitha] to support the Master [Rabbah], For it deals with a case where [the Israelite] has only nine sheep, and this [makes the tenth], so that in any case [the Israelite is justified]: if he is obliged [to tithe the sheep] he has tithed them rightly,<a id="k6b_16"><sup>16</sup></a>&nbsp; but if he is not obliged [to tithe them because the tenth sheep is not really his], then [he has had no advantage, as he only owned nine sheep, and] nine are not subject to tithe.<a id="k6b_17"><sup>17</sup></a>
</p><p>
	Later Abaye said: My objection is really groundless.<a id="k6b_18"><sup>18</sup></a>&nbsp; For in [a case where the liability of an animal to be tithed is in] doubt, tithing does not take place,<a id="k6b_19"><sup>19</sup></a>&nbsp; as we have learnt: If one of the sheep which were being counted [for the purpose of tithing] jumped back into the stall, the whole flock is free [from tithing].<a id="k6b_20"><sup>20</sup></a>&nbsp; Now, if the view were held that doubtful cases are subject to tithe,<a id="k6b_21"><sup>21</sup></a>&nbsp; [the owner] ought to tithe [the remaining sheep] in any case: if he is obliged [to tithe them]<a id="k6b_22"><sup>22</sup></a>&nbsp; he will have tithed them rightly,<a id="k6b_23"><sup>23</sup></a>&nbsp; but if he is not obliged to tithe them, those already counted will be free because they were properly numbered,<a id="k6b_24"><sup>24</sup></a>&nbsp; for Raba said: Proper numbering frees [the sheep from being tithed].
</P>


lvr: 42
dfh: a
notes:
 ntes={k7a_1:" Seeing that the animal that jumped back after being counted cannot be numbered again, and it cannot be identified, there is a doubt regarding each tenth whether it is really the tenth, as, if the disqualified animal is among the previous nine, the tenth is really the ninth."
,k7a_2:" In the Baraitha which R. Hananiah quoted in support of Rabbah."
,k7a_3:" Accordingly, had the priest a right to a doubtful firstling it could not be admitted to the stall for tithing."
,k7a_4:" Lev. XXVII, 32."
,k7a_5:" A firstling is in itself 'holy', even if it is a doubtful firstling. It cannot therefore be used as tithe."
,k7a_6:" For the purpose of redeeming the asses, so that he may use them for work."
,k7a_7:" They are not 'holy', and as the priest has no absolute right to them (on account of the doubt as to the primogeniture of the asses) the Israelite may retain possession of them."
,k7a_8:" If the claimant cannot prove his title to the property by legal evidence, he has no right to dedicate it."
,k7a_9:" For the same reason the dedication of the bath-house would be invalid. This conclusion is based on the assumption that neither of the claimants of the bath-house could produce evidence in support of his claim."
,k7a_10:" Which would prove that in order to be able to dedicate property one has not only to own it legally but also to be in actual possession of it."
,k7a_11:" The question of being in possession does not arise in the case of a bath-house, which is immovable property, and as regards legal ownership &mdash; it is vested in the claimant who dedicated it, if he can produce evidence to substantiate his claim."
,k7a_12:" [This was a recognised or legal manner of confirming a transaction, known as <i>Kinyan</I> <i>Sudar</i>, [H], (cp. lat. <i>sudarium</i>) and derived from Ruth IV, 7:&nbsp;&hellip; <i>to confirm all things a man plucked off his shoe and gave it to his neighbour</i>. Any article can be used in the same way as the shoe if it measures three by three fingers.]"
,k7a_13:" [The seller establishes his claim to the part of the kerchief which he holds, and thus proclaims himself the owner of the entire kerchief. By this symbolic action the seller confirms the sale of any article which is to become the property of the buyer. See, however, <i>infra</i> 47a.]"
,k7a_14:" In the hand of the wife who is to be divorced."
,k7a_15:" In the hand of the husband who is divorcing her."
,k7a_16:" According to this view the bill of divorcement is not regarded as having been given to the wife as long as the husband holds one end of the cord attached to the bill. In the same way we ought to say that when the seller holds one end of the kerchief he does not transfer the purchase to the buyer."
,k7a_17:" In the case of a husband divorcing his wife the ceremony is to indicate the separation of the couple, the severance of the marriage tie. The cord in the hand of the husband, if it is strong enough to pull the bill of divorcement out of the hand of the wife, contradicts this idea."
,k7a_18:" In the case of a seller grasping the kerchief with his hand, the significance of the act lies in the giving of the kerchief by the one to the other."
,k7a_19:" I.e., even if the garment is embroidered with gold it has to be divided equally."
,k7a_20:" Lengthwise."
,k7a_21:" Widthwise, so that each may get half of the gold."
,k7a_22:" V. B.B. 170a."
,k7a_23:" 'And on being paid you returned the bill to me and I lost it.' This is the version given by Rashi in accordance with the wording of our text. Other texts have, 'It is mine' as the plea of the borrower (i.e. [H] instead of [H]) which is much simpler."
,k7a_24:" And when the validity of the document has been thus endorsed, the creditor is entitled to demand payment."
,k7a_25:" And the creditor could demand the return of the document and enforce payment."
,k7a_26:" I.e., if the document has been produced in Court and the witnesses have verified their signatures, the judges certifying the endorsement."
,k7a_27:" If the document is properly endorsed, and therefore quite valid, the litigants are in the same position as those who found the garment and were holding on to it. They therefore divide the amount of the debt recorded in the bill."
,k7a_28:" I.e., the document is without any value."
,k7a_29:" By admitting its genuineness."
,k7a_30:" Since the unendorsed document becomes valid only as a result of the admission of its genuineness by the borrower, he is to be believed when he says that he has paid the debt."
,k7a_31:" Even if the bill is not endorsed, the borrower cannot, when the document is produced by the lender, plead that he has paid the debt. The validity of the document does not, to that extent, depend on the plea of the borrower. Hence it is right that they should divide the amount. "
}

txt:
<p>
You must therefore conclude that [the decision of the Mishnah is prompted by another consideration, viz..] that the Divine Law states 'the tenth', [which means] the certain [tenth] but not the doubtful tenth,<a id="k7a_1"><sup>1</sup></a>&nbsp; the same consideration applies here;<a id="k7a_2"><sup>2</sup></a>&nbsp; the Divine Law states the certain tenth, but not the doubtful tenth.<a id="k7a_3"><sup>3</sup></a>
</p><p>
	R. Aha of Difti said to Rabina: What kind of doubtful cases [does the above Baraitha refer to]? If it refers to doubtful firstlings, the Divine Law says, [The tenth] shall be holy,<a id="k7a_4"><sup>4</sup></a>&nbsp; excluding the animal which is already holy.<a id="k7a_5"><sup>5</sup></a>&nbsp; &mdash; It must therefore refer to [the lamb which has been used for] the redemption of the doubtful firstling of an ass, and in accordance with [the view of] R. Nahman, for R. Nahman said in the name of Rabbah b. Abbuha: If an Israelite has ten doubtful firstlings of asses in his house, he sets apart ten lambs as substitutes for them,<a id="k7a_6"><sup>6</sup></a>&nbsp; and he tithes these [lambs], and they belong to him.<a id="k7a_7"><sup>7</sup></a>
</p><p>
	What was [the ultimate decision concerning] the bath-house? &mdash; Come and hear what R. Hiyya b. Abin said: A similar case came before R. Hisda, and R. Hisda brought it before R. Huna, and he gave his decision on the ground of what R. Nahman said: Property that cannot be reclaimed by legal proceedings [cannot be dedicated to the Temple.<a id="k7a_8"><sup>8</sup></a>&nbsp; and] if it has been dedicated, the dedication is invalid.<a id="k7a_9"><sup>9</sup></a>&nbsp; But [it is asked], would the dedication be valid if the property could be reclaimed by legal proceedings, even though [the rightful owner] has not obtained possession of it? Does not R. Johanan say [that] property which has been acquired by robbery, and which the rightful owners have not given up as lost, cannot be dedicated either by the robbers or by the owners: the former [cannot do it] because it is not theirs, and the latter because it is not in their possession?<a id="k7a_10"><sup>10</sup></a>&nbsp; &mdash; You evidently think that the case under discussion is of a bath that is movable. [No.] The discussion concerns a bath-house which is immovable property, and therefore, where it can be reclaimed by legal proceedings, it is [regarded as being] in the possession of [the claimant].<a id="k7a_11"><sup>11</sup></a>
</p><p>
	R. Tahlifa, the Palestinian, recited in the presence of R. Abbahu: Two [people] cling to a garment; [the decision is that] one takes as much of it as his grasp reaches, and the other takes as much of it as his grasp reaches, and the rest is divided equally between them. R. Abbahu pointed [heavenward and said:] But with an oath! But, [if so] our Mishnah, which teaches that [the value of the garment] shall be divided between [the two litigants], and which does not teach that each takes as much of it as his grasp reaches &mdash; to what particular case does it refer? &mdash; R. Papa said: [It refers to a case] where [both litigants] hold the fringes [of either end of the garment]. Said R. Mesharsheya: Hence we deduce: [If a seller] grasps the kerchief<a id="k7a_12"><sup>12</sup></a>&nbsp; by a piece measuring three by three fingers, [he has rendered the sale valid, as] we apply to it [the Scriptural term]: '<i>And he gave it to his neighbour'</i>. [The part that he holds] is considered as if cut off, and by this means [the buyer] acquires [the article sold to him].<a id="k7a_13"><sup>13</sup></a>&nbsp; And why is [this case] different from that of R. Hisda? For R. Hisda says: When the bill of divorcement is in her hand,<a id="k7a_14"><sup>14</sup></a>&nbsp; and the cord [to which it is tied] is in his hand,<a id="k7a_15"><sup>15</sup></a>&nbsp; then if he is able to snatch [the bill of divorcement out of her hand by means of the cord] and to pull it to himself, she is not divorced,<a id="k7a_16"><sup>16</sup></a>&nbsp; but if not she is divorced! &mdash; There separation is necessary, and there is none,<a id="k7a_17"><sup>17</sup></a>&nbsp; but here it is the act of giving that is necessary, and this has taken place.<a id="k7a_18"><sup>18</sup></a>
</p><p>
	Rabbah said: If the garment was embroidered with gold, it is divided [between the two litigants].<a id="k7a_19"><sup>19</sup></a>&nbsp; But is not this self-understood? &mdash; It is necessary [to state this] when the gold is in the centre [of the cloth]. But is not this also self-understood? &mdash; It is necessary [to state this] when [the gold] is nearer to one side. You might assume that one could say to the other. 'Divide it this way;'<a id="k7a_20"><sup>20</sup></a>&nbsp; therefore we are informed that the other may say to him, 'What makes you think of dividing it this way? Divide it the other way.'<a id="k7a_21"><sup>21</sup></a>
</p><p>
	Our Rabbis taught:<a id="k7a_22"><sup>22</sup></a>&nbsp; Two [people] cling to a bill, the lender saying, 'It is mine; I dropped it and found it again,' and the borrower saying, '[True.] it was yours, but I paid you;'<a id="k7a_23"><sup>23</sup></a>&nbsp; [the validity of] the bill has to be established by its signatories [verifying their signatures]<a id="k7a_24"><sup>24</sup></a>&nbsp; &mdash; this is the view of Rabbi. Rabban Simeon b. Gamaliel says: They shall divide [the amount], If it [the bill] fell into the hand of a judge, it must never be produced again. R. Jose says: It retains its validity.<a id="k7a_25"><sup>25</sup></a>
</p><p>
	The Master said above: '[The validity of] the bill has to be established by its signatories'. Does he mean that the creditor may demand payment of the whole amount, and does he disapprove of the Mishnah, TWO HOLD A GARMENT etc.? &mdash; Raba replied in the name of R. Nahman: If the document has been endorsed [in Court].<a id="k7a_26"><sup>26</sup></a>&nbsp; all are agreed that [the litigants] divide [the amount between them].<a id="k7a_27"><sup>27</sup></a>&nbsp; The difference of opinion only arises in the case of an unendorsed [document]. Rabbi is of the opinion that even when one [i.e., a debtor] acknowledges the writing of a bill, it still requires endorsement [at Court], and if it is endorsed, [the amount] is divided, but if it is not endorsed [the amount] is not divided. For what reason? It is merely a potsherd.<a id="k7a_28"><sup>28</sup></a>&nbsp; Who renders the document valid? [Only] the borrower.<a id="k7a_29"><sup>29</sup></a>&nbsp; But he says, 'It is paid!'<a id="k7a_30"><sup>30</sup></a>&nbsp; Rabban Simeon b. Gamaliel, however, is of the opinion that when one acknowledges the writing of a bill, it does not require endorsement [at Court], and therefore even if it is not endorsed, [the litigants] divide the amount.<a id="k7a_31"><sup>31</sup></a>
</p><p>
	'If it [the bill] fell into the hands of a judge, it must never be produced again.'
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k7b_1:" Why should the law be different when the bill falls into the hands of a judge than when it falls into the hands of any other person?"
,k7b_2:" The endorsement of the Court before which the witnesses verified their signatures, and which established the validity of the document."
,k7b_3:" It must not be given either to the creditor or to the debtor, unless the ownership of the document is cleared up by evidence."
,k7b_4:" I.e. if the debtor pleads that the debt has been paid, we take this plea into consideration."
,k7b_5:" '<i>Kethubah</i>', v. Keth. 10b and <a href=\"../tglossary.html\">Glos.</a>"
,k7b_6:" For a man does not ordinarily pay his wife her <i>Kethubah</i> while she is still with him."
,k7b_7:" This shows that according to R. Jose we do apprehend that payment may have been made."
,k7b_8:" And it must be returned to the claimant who can prove his claim."
,k7b_9:" The view of the majority of the Rabbis in the case of the lost <i>Kethubah</i>, which the husband claims to have paid, and which the Rabbis say must not be returned either to the husband or to the wife, contradicts their view with reference to the lost bill which has been legally endorsed, as according to the new ('reversed') rendering of the Baraitha the Rabbis (i.e., the Sages) say that 'it retains its validity' and must be returned to the claimant."
,k7b_10:" The original version being correct."
,k7b_11:" In order to save his wife the trouble of litigation after his death the husband gave her money or valuables while he was still with her to be appropriated by her when the <i>Kethubah</i> becomes due."
,k7b_12:" The revised version is really the correct one, and there is no contradiction between the views of the majority of the sages. For their decision in the case of the lost <i>Kethubah</i>, the validity of which the husband contests, and which the Rabbis say must not be returned, is due to the apprehension that the husband may have given the wife a duplicate after the loss of the original document. The meaning of the words 'when the husband does not admit' would thus be that the husband pleads that the lost document should not be returned to her because he had given her another document, and she could, when she becomes a widow, produce both documents in succession to claim payment from his heirs. But so far as actual payment by the husband is concerned, the Rabbis would ignore such a plea, because when a bill is paid it is usually taken back and torn up."
,k7b_13:" The original one and a duplicate, as explained in the previous note."
,k7b_14:" I.e. the decision of R. Simeon b. Gamaliel that the two litigants who cling to a bill shall divide it between them."
,k7b_15:" The [H], [G], 'form', the general part, which may be written out in advance and does not contain the names of the contracting parties or the particulars of date, place, sum involved, etc."
,k7b_16:" The [H], (probably = [G]), the characteristic or essential part of a document, giving the names of the contracting parties, date, place, sum involved, etc."
,k7b_17:" So here also each claimant should receive the part which he holds, irrespective of its value or importance."
,k7b_18:" There is really no difference between the views of R. Johanan and R. Eleazar, as the words of R. Johanan are only intended to make clear that if the operative part happens to be in the middle of the document the litigants receive half each."
,k7b_19:" As it is in full accord with the view of R. Eleazar, and it would be self-understood."
,k7b_20:" R. Johanan deems it necessary to emphasise that 'they always divide equally' so as to include a case where the operative part is nearer to the grasp of one of the claimants, though not actually held by him."
,k7b_21:" A familiar expression used in connection with a document which has no value and can only be used as paper."
,k7b_22:" The absence of a date makes it impossible for a Court to say whether the debt recorded in the document was contracted before or after the mortgage was taken on the property. As the date is given in the operative part only, it enhances the value of that part."
,k7b_23:" The decision of R. Simeon b. Gamaliel; v. <i>supra</i> p. 32. "
}

txt:
<p>
Why is it different [if the bill fell] into the hands of a judge?<a id="k7b_1"><sup>1</sup></a>&nbsp; &mdash; Raba says: The meaning [of the clause] is this: If a third person finds a bill which has already been in the hands of a judge, that is, when it bears a legal endorsement,<a id="k7b_2"><sup>2</sup></a>&nbsp; it must never be produced again.<a id="k7b_3"><sup>3</sup></a>&nbsp; And [thus we learn that a found bill] must not be returned [to the claimant] not only when it bears no legal endorsement, so that it can be assumed that it was written for the purpose of securing a loan but the loan did not take place, but even when it bears a legal endorsement, as when it has been verified [in Court], because we apprehend that payment may have been made.<a id="k7b_4"><sup>4</sup></a>&nbsp; But R. Jose says: It retains its validity &mdash; and we do not apprehend that payment may have been made.
</p><p>
	But does not R. Jose really apprehend that payment may have been made? Has it not been taught [in a Baraitha]: In the case of a marriage-contract<a id="k7b_5"><sup>5</sup></a>&nbsp; found in the street, if the husband admits [that he has not paid her the amount specified in the contract] it shall be returned to the wife, but if the husband does not admit it, it must not be returned either to him or to her; R. Jose says that if the wife is still with the husband it shall be returned to her,<a id="k7b_6"><sup>6</sup></a>&nbsp; but if she has become a widow or has been divorced, it must not be returned either to him or to her?<a id="k7b_7"><sup>7</sup></a>&nbsp; &mdash; Reverse [the Baraitha and read it this way]: If [a bill] fell into the hands of a judge, it must never be produced again; this is the view of R. Jose. And the Sages say that it retains its validity.<a id="k7b_8"><sup>8</sup></a>&nbsp; But if so, the two opinions of the Rabbis contradict each other!<a id="k7b_9"><sup>9</sup></a>&nbsp; &mdash; [The Baraitha which deals with] the [lost] marriage-contract [conveys] in its entirety [the view of] R. Jose, but a clause is omitted, and [the Baraitha] should read thus: If the husband does not admit [that he has not paid the wife the amount specified in the contract] it must not be returned either to him or to her. This, however, only applies to [the case of] a widow or a divorced woman, but [in the case of a wife] who is still with her husband it shall be returned to the wife; this is the view of R. Jose; for R. Jose says: If the wife is still with the husband, it shall be returned to her; but if she has become a widow or has been divorced, it must not be returned either to him or to her. R. Papa says: There is really no need to reverse [the Baraitha];<a id="k7b_10"><sup>10</sup></a>&nbsp; R. Jose only states the case in accordance with the views of the Rabbis [and he says to them:] According to me we do not apprehend that payment may have been made even in the case of a widow or a divorced woman, but according to you &mdash; admit at least that when the wife is still with the husband [the marriage-contract] should be returned to her, as she is not entitled to receive payment [as long as she is his wife]. But the Rabbis answered him: Say, he handed her over bundles [of valuables] as security [and she has retained them]!<a id="k7b_11"><sup>11</sup></a>&nbsp; Rabina says: By all means reverse the first [Baraitha],<a id="k7b_12"><sup>12</sup></a>&nbsp; and the reason why the Rabbis decide here [that if the husband does not admit liability, the marriage-contract must not be returned either to him or to her] is that we apprehend [lest the wife had] two marriage-contracts.<a id="k7b_13"><sup>13</sup></a>&nbsp; And as to R. Jose &mdash; he does not apprehend [lest the wife had] two marriage-contracts.
</p><p>
	R. Eleazar says: The division<a id="k7b_14"><sup>14</sup></a>&nbsp; [takes place] when both [claimants] cling either to the form<a id="k7b_15"><sup>15</sup></a>&nbsp; [of the bill] or to the operative part<a id="k7b_16"><sup>16</sup></a>&nbsp; [thereof], but if one [claimant] clings to the form, and the other clings to the operative part, one takes the form and the other takes the operative part. And R. Johanan says: They always divide equally. [What!] Even if one clings to the form and the other to the operative part? Was it not taught: Each one takes as much as his hand grasps?<a id="k7b_17"><sup>17</sup></a>&nbsp; &mdash; [Yes.] But it is necessary [to have R. Johanan's decision] in a case where the operative part is contained in the middle [of the document].<a id="k7b_18"><sup>18</sup></a>&nbsp; But if so, what need is there to state it?<a id="k7b_19"><sup>19</sup></a>&nbsp; &mdash; It is necessary [to state it that it may be applied to a case] where [the operative part] is nearer to one [of the claimants].<a id="k7b_20"><sup>20</sup></a>&nbsp; You might assume that one could say to the other, 'Divide it this way', therefore we are informed that the other may say to him: 'What makes you think of dividing it this way? Divide it the other way.' R. Aha of Difti said to Rabina: According to R. Eleazar, who says. 'One takes the form [of the bill] and the other takes the operative part.' &mdash; of what use are [the parts] to either of them? Does one need them to use as a stopper for one's bottle?<a id="k7b_21"><sup>21</sup></a>&nbsp; &mdash; He [Rabina] answered him: [It is] the estimated value thereof [that has to be considered]. We estimate how much a dated document is worth as compared with one undated: with a dated document a debt may be collected from mortgaged property, but with the other [document] no debt can be collected from mortgaged property<a id="k7b_22"><sup>22</sup></a>&nbsp; &mdash; and one gives the other the difference [in the value of the two documents].
</p><p>
	Also [the decision previously given in the words], 'They shall divide,' as quoted,<a id="k7b_23"><sup>23</sup></a>&nbsp; refers to the value [of the bill]. For if you do not assume this, [how explain:] 'TWO HOLD A GARMENT' [etc.]? Would you say that here also they divide [the garment] in halves? They would surely render it useless! &mdash; This presents no difficulty,
</P>


lvr: 42
dfh: a
notes:
 ntes={k8a_1:" <i>Supra</i> 7a."
,k8a_2:" Although a gold-embroidered garment when reduced in size by division could not be worn by ordinary children, it would still retain its value, as it could be worn by children of the aristocracy, to whom the wearing of a gold-embroidered garment would be nothing unusual."
,k8a_3:" The decision that if two people have picked up an ownerless object they are entitled to keep it, each one taking half of its value and enabling his partner to claim the other half, must rest on the assumption that one may acquire an object for someone else by lifting up, i.e., by the same means as one acquires it for himself."
,k8a_4:" From the point of view of each claimant the other person's half would have to be regarded as if it were still lying on the ground. But such an acquisition does not constitute legal possession because the law demands that we must acquire possession of the whole article in order to obtain title thereto. Consequently if a third person came and snatched the garment, neither of the two could dispute his right to claim at least half. V. <i>infra</i> p. 39 for further elucidation of the argument."
,k8a_5:" And it is assumed that in our Mishnah each person, when picking up the garment, intended that the other person should have half of it, and in this way the two acquired the garment."
,k8a_6:" V. <i>infra</i> 10a."
,k8a_7:" Although one cannot acquire a found object entirely for his neighbour, one can acquire part of it for a neighbour if one acquires part of it for himself."
,k8a_8:" From the penalty of making double restitution, as the responsibility for the wrong done rests upon the one that does it, not upon the instigator."
,k8a_9:" V. B. K. 78b."
,k8a_10:" Heb. <i>Miggo</i>, [H]; v. <a href=\"../tglossary.html\">Glos.</a> 'Since he acquires it for himself he may also acquire it for his neighbour' is the argument used in the previous paragraph."
,k8a_11:" A deaf-mute is not a responsible person, and, like a minor and an imbecile, he cannot acquire property, but 'for practical reasons' the Rabbis laid it down that to deprive them of anything they possess is robbery (cf. Git. 59b). Applying the <i>Miggo</i> argument to the deaf-mute, Raba holds that 'Since he acquires it (according to rabbinic ruling) for himself, he also acquires it for his neighbour'."
,k8a_12:" The end which the normal person has picked up for himself and for the deaf-mute has been rightly acquired, so far as the deaf-mute is concerned, for the latter benefits by the right of the rational person to acquire the garment and by his own right, conceded to him by the Rabbis, to claim his own possessions 'for practical reasons'. But the normal person suffers from the disability of the deaf-mute, in so far as the right conceded to the deaf-mute to own property extends only to his own person, and does not include the right to acquire property for someone else. Therefore the end which the deaf-mute has picked up, when considered in relation to the normal person, must be regarded as if it had not been picked up at all. Thus the question arises: How does the normal person acquire the garment?"
,k8a_13:" The <i>Miggo</i> argument employed by Raba would therefore apply to the deaf-mute himself."
,k8a_14:" It would be impossible to argue that since the normal person acquires it for himself he also acquires it for the deaf-mute, as the normal person does not acquire it at all."
,k8a_15:" The <i>Miggo</i> argument would thus be derived from another case, not hitherto considered."
,k8a_16:" For the reason explained in note 2."
,k8a_17:" The claim of the two deaf-mutes is granted only because of a provision of the Rabbis 'for practical reasons' but is not based on law."
,k8a_18:" It would not be proper to make a concession to the deaf-mute which could exceed the right of a normal person."
,k8a_19:" From which clause of our Mishnah does Rami b. Hama derive the conclusion that if one lifts up a found object for his neighbour, the neighbour acquires it."
,k8a_20:" [A paraphrase of 'I FOUND IT'.] Each of the two claimants maintains that he lifted up the whole garment for himself and thus acquired it all, so that none of them can be said to have lifted up part of the garment for his neighbour and acquired it for him. The two claimants share the garment between them, not because one acquired it for the other, but because they both hold the garment and no third person can claim any part of it."
,k8a_21:" The additional plea, which seems to be a mere repetition of what is conveyed by the first plea of 'I FOUND IT', is really intended to indicate that in a case where both claimants lifted up the garment with the intention of acquiring it for each other, they do acquire it, and this is why the garment is divided between them. The two clauses therefore differ from each other in that, in the second clause, it is assumed that both claimants really picked up the garment, and thus one acquired it for the other, while in the final clause the garment is divided between the two claimants because we do not know who tells the truth, and the oath is given for the reason stated in a previous discussion (2b-3a)."
,k8a_22:" As he could have pleaded 'It is all mine' and he would have been entitled to half the garment."
,k8a_23:" I.e. 'Half of it is mine'."
,k8a_24:" That one may take possession of an animal by riding on it."
,k8a_25:" If the two claimants admit having bought the garment simultaneously, it stands to reason that they should be awarded equal shares without having to swear."
,k8a_26:" And it is necessary to state the law, in order to let us know that both have acquired the garment, and no one has a right to snatch it away from them, on the principle that 'if one lifts up a found object for his neighbour, the neighbour acquires it.'"
,k8a_27:" Since he does not admit the above-mentioned principle, how does he explain the last clause of our Mishnah?"
,k8a_28:" Although Raba denies that one may acquire an ownerless object for a neighbour by lifting it up for him, he admits that when one lifts up an object for himself and his neighbour, the neighbour also acquires it, as explained above, and the last clause of our Mishnah is needed in order to establish this law. "
}

txt:
<p>
as it would [still] be suitable for children. But what of the case of Raba, who said that [even] if the garment was embroidered with gold it should be divided?<a id="k8a_1"><sup>1</sup></a>&nbsp; Could they here also divide [the garment] in halves? They would surely render it useless! &mdash; This presents no difficulty [either], as it would still be suitable for royal children.<a id="k8a_2"><sup>2</sup></a>&nbsp; But [there is] the clause in our Mishnah: IF TWO RIDE ON AN ANIMAL [etc.]. Would you say that here also they divide [the animal] in halves? They would surely render it useless! Although it may be granted that in the case of a clean animal [its carcase] may be [cut up and] used for food &mdash; what if it is an unclean animal? They would surely render it useless [by slaying it and cutting it up]? It must therefore be said that it is the <i>value</i> [of the animal] that is divided. So here also: it is the <i>value</i> [of the bill that is divided].
</p><p>
	Rami b. Hama said: This [decision of our Mishnah] enables [us] to conclude that when one picks up a found object for his neighbour, the neighbour acquires it.<a id="k8a_3"><sup>3</sup></a>&nbsp; For if you were to say that the neighbour does not acquire it, this [garment] ought to be regarded as if one half of it were [still] lying on the ground, and [also] as if the other [half] were [still] lying on the ground, so that neither the one [claimant] nor the other should acquire it.<a id="k8a_4"><sup>4</sup></a>&nbsp; It must therefore follow that when one picks up a found object for his neighbour, the neighbour acquires it.<a id="k8a_5"><sup>5</sup></a>&nbsp; Said Raba: I could still maintain that when one picks up a found object for his neighbour, the neighbour does not acquire it.<a id="k8a_6"><sup>6</sup></a>&nbsp; But here [in our Mishnah] the reason [why he does acquire it] is that we say, 'Since he takes possession for himself he may also take possession for his neighbour.'<a id="k8a_7"><sup>7</sup></a>&nbsp; You may learn it from [the law] that if one said to a messenger, Go and steal something for me', and he [went and] stole it, he is free,<a id="k8a_8"><sup>8</sup></a>&nbsp; but if partners stole [for each other]<a id="k8a_9"><sup>9</sup></a>&nbsp; they are guilty. For what reason? Is it not because we say, 'Since he takes possession for himself, he may also take possession for his neighbour'? This proves it!
</p><p>
	Said Raba: Now that it has been proved that we base our decisions on the <i>Since</i> argument.<a id="k8a_10"><sup>10</sup></a>&nbsp; [it must be assumed that] when a deaf-mute<a id="k8a_11"><sup>11</sup></a>&nbsp; and a normal person have picked up a found object, the normal person acquires it by reason of the fact that the deaf-mute has acquired it. [But it is at once objected:] We may grant that the deaf-mute acquires it because a rational person has lifted it up for him,<a id="k8a_12"><sup>12</sup></a>&nbsp; but how does the normal person acquire it? &mdash; I must therefore say: The deaf-mute acquires it; the normal person does not acquire it.<a id="k8a_13"><sup>13</sup></a>&nbsp; And how does the <i>Since</i> [argument] come in here?<a id="k8a_14"><sup>14</sup></a>&nbsp; &mdash; <i>Since</i> two other deaf-mute persons would acquire [a found object by lifting it up], this [deaf-mute] also acquires it.<a id="k8a_15"><sup>15</sup></a>&nbsp; But how is this? Even if you say that when one lifts up a found object for his neighbour the neighbour acquires it, this is [true] only when one lifts it up on behalf of his neighbour. But [in this case] that [normal person] lifted it up on his own behalf; now, if he himself does not acquire it,<a id="k8a_16"><sup>16</sup></a>&nbsp; how can he enable others to acquire it? &mdash; But say: Seeing that the normal person does not acquire it, the deaf-mute does not acquire it [either]. And if you will argue: In what way does this case differ from that of the two other deaf-mute persons [previously referred to, I will answer you:] <i>There</i> our Rabbis made this provision<a id="k8a_17"><sup>17</sup></a>&nbsp; in order that [the deaf-mutes] may not have to quarrel [with persons who may be ready to snatch the object from them], but here [the deaf-mute] will say [to himself]: 'The normal person does not acquire it, how should I acquire it?'<a id="k8a_18"><sup>18</sup></a>
</p><p>
	R. Aha, the son of R. Adda, said to R. Ashi: Whence does Rami b. Hama derive his conclusion?<a id="k8a_19"><sup>19</sup></a>&nbsp; If we say [that he derives it] from the first clause [of our Mishnah]. TWO HOLD A GARMENT etc., [the objection would arise that] <i>there</i> one pleads [to the effect]. 'It is all mine, and<i> I</i> lifted up the<i> whole</i> of it,' and the other pleads [to the same effect], 'It is all mine and<i> I</i> lifted up the<i> whole</i> of it!'<a id="k8a_20"><sup>20</sup></a>&nbsp; &mdash; Therefore [we must say that he derives it] from the clause which reads: ONE OF THEM SAYS IT IS ALL MINE,' AND THE OTHER SAYS, 'IT IS ALL MINE': what need is there again for this? It must therefore be that we are to learn from the additional clause that if one lifts up a found object for his neighbour, the neighbour acquires It &mdash; 21 But did we not come to the conclusion that the first clause deals with a case of finding, and that the subsequent clause deals with a case of buying and selling? &mdash; We must therefore say that [he derives it] from the second part [of the Mishnah]: IF ONE SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS 'HALF OF IT IS MINE': what need is there again for this? It must therefore be that we are to learn from the additional clause that if one lifts up a found object for his neighbour, the neighbour acquires it. And how do you know that this clause deals with a case of finding? Maybe it deals with a case of buying and selling? And if you will say: If it deals with a case of buying and selling what need is there [for the case] to be stated? [I will answer:] There is a need. For I might have formed the opinion that the one who says, HALF OF IT IS MINE should be considered as the restorer of a lost object,<a id="k8a_22"><sup>22</sup></a>&nbsp; and should be free [from taking an oath]. We are thus informed that [he has to swear, as] he may be employing a ruse, in that he might think: If I say 'It is all mine,' I shall have to swear; I will say thus,<a id="k8a_23"><sup>23</sup></a>&nbsp; so that I shall be like a restorer of a lost object, and I shall be free [from taking an oath]. Therefore [we must say that he derives it] from this clause: IF TWO RIDE ON AN ANIMAL etc.: what need is there again for this? It must therefore be that we are to learn from the additional clause that if one lifts up a found object for his neighbour, the neighbour acquires it. But perhaps [this clause] is to let us know that a rider also acquires [found property]?<a id="k8a_24"><sup>24</sup></a>&nbsp; Therefore [we must say that he derives it] from the last clause: IF BOTH ADMIT [EACH OTHER'S CLAIMS], OR IF THEY HAVE WITNESSES [TO ESTABLISH THEIR CLAIMS], THEY RECEIVE THEIR SHARES WITHOUT AN OATH. To which case does it refer? If it refers to [a case of] buying and selling &mdash; is it necessary to state it?<a id="k8a_25"><sup>25</sup></a>&nbsp; It must therefore refer to [a case of] finding.<a id="k8a_26"><sup>26</sup></a>&nbsp; and this proves that if one lifts up a found object for his neighbour, the neighbour acquires it. And Raba?<a id="k8a_27"><sup>27</sup></a>&nbsp; &mdash; He will explain [the decision in the last clause of our Mishnah] by the principle [adopted by him]: <i>Since</i> he takes possession of it for himself, he may take possession of it also for his neighbour.<a id="k8a_28"><sup>28</sup></a>
</p><p>
	IF TWO RIDE [etc.]. R. Joseph said: Rab Judah told me,
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k8b_1:" Rab Judah remembered that Mar Samuel had stated the two cases, and had given his decision regarding each case, but he did not remember what Samuel's decision was in each case."
,k8b_2:" The question is at once asked how such a doubt could have arisen in R. Joseph's mind."
,k8b_3:" If Samuel gave his decisions regarding two separate cases, in one of which a man claimed to have acquired an animal by riding on it, and in the other a man claimed to have acquired an animal by leading (or pulling) it, and in each case another person came along and pulled the animal away in order to acquire it for himself, the expression of doubt by Rab Judah as to which of the two cases either decision was meant to apply to, would accordingly have implied that he was not certain whether leading (or pulling) an animal is a legitimate way of acquiring it."
,k8b_4:" Rab Judah could not have been in doubt on this point, as all are agreed that leading (or pulling) an animal is the legitimate way of acquiring it. Cf. Kid. 22b."
,k8b_5:" Riding on an animal may just mean sitting on it without making it move, in which case it may not be a legitimate way of taking possession of it. Cf. Kid. ibid."
,k8b_6:" And both claim the animal."
,k8b_7:" And although pulling is the recognised way of taking possession of an animal, this may only be so when there is no one riding on it."
,k8b_8:" And causing the animal to move is the correct method of acquiring it."
,k8b_9:" Rab Judah thought that it would be possible to reconstruct Samuel's decision from the view expressed by Samuel in the following passage."
,k8b_10:" And thus transgresses the Biblical prohibition of Deut. XXII, 9-11."
,k8b_11:" Really 39 lashes &mdash; the penalty inflicted upon one who deliberately transgresses a Biblical prohibition. Cf. Deut. XXV, 3, and Mak. 13 and 22."
,k8b_12:" As he is not guilty of any action in regard to the driving of the animals, v. Kil. VIII, 3."
,k8b_13:" As the decision of the majority of the Sages must be accepted, Samuel ascribes the decision which he favours, viz., that sitting in the waggon is of no consequence, to the anonymous Sages, not to R. Meir. Riding an animal (without moving it) would be the same as sitting in the waggon attached to the animal (without driving it)."
,k8b_14:" R. Joseph spoke as if he himself had advanced the argument that removed the doubt regarding Samuel's decision."
,k8b_15:" I.e., in the case of a found animal. It is only by pulling the animal and causing it to move (even if it only moves one fore-leg and one hind-leg) that the finder can take possession of the animal. It is different with a bought animal. Cf. Kid., 22b and 25b."
,k8b_16:" Of the argument advanced by R. Joseph, of Abaye's reply, and of R. Joseph's rejoinder. According to this version R. Joseph did not speak in the name of Rab Judah when he said, 'Let us look into the matter,' etc., but gave his own view, which Abaye challenged."
,k8b_17:" The property of a proselyte who dies without jewish issue is regarded in Jewish law as ownerless, which anyone may acquire."
,k8b_18:" Who is of the opinion that even a person that sits in a waggon drawn by an ox and an ass has committed an offence, and who would thus regard 'sitting' as a legitimate way of acquiring an animal. The Mishnah would thus express the view of our Tanna only, and, as a minority decision, it would not be accepted."
,k8b_19:" Who attach no importance to 'sitting' but who nevertheless attach importance to 'riding', and they let us know in the Mishnah that 'riding' is a legitimate way of acquiring an animal."
,k8b_20:" Then how could Rab Judah derive a decision regarding the validity of 'riding' from the decision regarding 'sitting'?"
,k8b_21:" He spurs it on with his feet and makes it move, so that apart from 'riding' there is the recognised method of acquiring an animal by making it move."
,k8b_22:" Then why does the Mishnah say: 'or one rides, and the other leads it'? As this distinction would have no significance, why not say 'or if both lead it'?"
,k8b_23:" Although 'riding' is a form of 'leading' it was necessary to say 'or one rides, and the other leads it' and thus to indicate that the two actions are equally good, as otherwise one might regard 'riding' as more important and award the animal to him who claims to have acquired it by riding on it. "
}

txt:
<p>
'I heard two [laws] from Mar Samuel: If one rides [on an animal] and another leads [it], one of them acquires [the animal], and the other does not acquire it,<a id="k8b_1"><sup>1</sup></a>&nbsp; but I do not know [to] which of the two [either decision was meant to apply].' But how is this to be understood?<a id="k8b_2"><sup>2</sup></a>&nbsp; If it refers to [two cases, in one of which there was] a man riding [on an animal] by himself and [in the other] there was a man leading [an animal] by himself<a id="k8b_3"><sup>3</sup></a>&nbsp; &mdash; is there anyone who would say that he who leads an animal by himself does not acquire it?<a id="k8b_4"><sup>4</sup></a>&nbsp; If, therefore, it is to be said that one does not acquire [the animal], it can only be said of the one that rides on it!<a id="k8b_5"><sup>5</sup></a>&nbsp; &mdash; Thus [it must be assumed that] the doubt [expressed] by Rab Judah concerns a case where  one rides on an animal, and simultaneously someone else leads it.<a id="k8b_6"><sup>6</sup></a>&nbsp; The question then is: Is the rider to be given prefer &mdash; ence because he holds it,<a id="k8b_7"><sup>7</sup></a>&nbsp; or is perhaps the leader to be given preference because it moves through his action?<a id="k8b_8"><sup>8</sup></a>&nbsp; R. Joseph [then] said: Rab Judah said to me, Let us look [into the matter] ourselves.<a id="k8b_9"><sup>9</sup></a>&nbsp; For we learnt: He who leads [a team composed of an ox an and ass]<a id="k8b_10"><sup>10</sup></a>&nbsp; receives forty lashes,<a id="k8b_11"><sup>11</sup></a>&nbsp; and [likewise] he who sits in the waggon [drawn by such a team] receives forty lashes. R. Meir declares him who sits in the waggon free.<a id="k8b_12"><sup>12</sup></a>&nbsp; And since Samuel reverses [the Mishnah] and reads: 'And the Sages declare him who sits in the waggon free'<a id="k8b_13"><sup>13</sup></a>&nbsp; it follows that [according to Samuel] he who rides [on an animal] by himself does not acquire it, and this would apply with even greater force to one who rides on an animal while someone else leads it!
</p><p>
	Said Abaye to R. Joseph: Have you not told us many times [the argument headed by the words]: 'Let us look [into the matter],' and yet you never told us it in the name of Rab Judah?<a id="k8b_14"><sup>14</sup></a>&nbsp; [R. Joseph] answered him: Truly, [it is Rab Judah's argument]: I even remember saying to him, 'How can you, Sir, derive the decision regarding [the case of] One who rides [on an animal] from [the case of] one who sits [in the waggon], seeing that he who sits [in the waggon] does not hold the reins, while he who rides [on the animal] does hold the reins?' And he answered me: 'Both Rab and Samuel agree that one does not acquire [an animal] by holding the reins.'<a id="k8b_15"><sup>15</sup></a>
</p><p>
	Some give another version:<a id="k8b_16"><sup>16</sup></a>&nbsp; Abaye said to R. Joseph: How do you, Sir, derive the law regarding one who rides [on an animal] from that concerning one who sits [in a waggon pulled by an animal], [seeing that] he who sits [in the waggon] does not hold the reins, [while] he who rides does hold the reins? &mdash; [R. Joseph] answered him: Thus Idi learned: One does not acquire [an animal] by holding its reins. It has also been reported: R. Helbo said in the name of R. Huna: One [who buys an animal] may acquire it by taking over the reins from the neighbour [who sells it], but one who finds [an animal] and [one who seizes an animal which was] the property of a proselyte [who died without heirs]<a id="k8b_17"><sup>17</sup></a>&nbsp; does not acquire it [in this way]. What is the derivation of the term 'Mosirah' [used for reins]? &mdash; Raba said: Idi explained it to me: [It is derived from 'masar', to hand over, and it indicates] the handing over of the reins by one person to another. [Such action] rightly [enables a person who buys an animal] from his neighbour to acquire it, as the neighbour transfers to him in this way [the possession of the animal]. But in the case of a found [animal] and [in that of an animal that was] the property of a proselyte [who died without heirs] &mdash; who transferred it to him that he should have a right to acquire it?
</p><p>
	An objection was raised: IF TWO RIDE ON AN ANIMAL etc. &mdash; whose opinion is that? If I should say that it is R. Meir's,<a id="k8b_18"><sup>18</sup></a>&nbsp; [the question presents itself:] If the 'sitter' acquires it, need I be told that the 'rider' acquires it? It must therefore be [said that it is the opinion of the majority of] the Rabbis<a id="k8b_19"><sup>19</sup></a>&nbsp; &mdash; which would prove that the 'rider' acquires it?<a id="k8b_20"><sup>20</sup></a>&nbsp; &mdash; Here we deal with one who drives [the animal] with his feet.<a id="k8b_21"><sup>21</sup></a>&nbsp; But if so, then it is the same as 'leading'.<a id="k8b_22"><sup>22</sup></a>&nbsp; There are two ways of 'leading':<a id="k8b_23"><sup>23</sup></a>&nbsp; you might say that the 'rider' has a preference, because he drives it and holds it [at the same time], therefore we are informed [that leading is the same as riding].
</p><p>
	Come and hear: If two persons were pulling a camel or leading an ass, or if one was pulling and one was leading,
</P>


lvr: 42
dfh: a
notes:
 ntes={k9a_1:" [Camels are usually tugged at the halter; asses are driven from behind.]"
,k9a_2:" I.e., that leading is valid even in the case of a camel, and that pulling is valid also in the case of an ass."
,k9a_3:" If there is no distinction between the mode of acquiring a camel and that of acquiring an ass, there is no need to state the two cases separately."
,k9a_4:" Therefore the Tanna could not adopt the phrasing first suggested, and he had to say: 'If two persons were pulling a camel or leading an ass, or if one was pulling and one was leading,' viz., the animal which can be acquired by either method, &mdash; but this would not apply to the other animal, which could only be acquired by one of the methods."
,k9a_5:" Some of the Rabbis thought that an ass could not be acquired by pulling (while a camel could be acquired either by pulling or by leading), and others thought that a camel could not be acquired by leading (while an ass could be acquired either by leading or by pulling)."
,k9a_6:" This was at first understood to mean that both the camel and the ass could be acquired by either method."
,k9a_7:" I.e., pulling in the case of an ass, and leading, in the case of a camel."
,k9a_8:" According to R. Judah pulling is applicable to a camel only, and leading is applicable to an ass only, while according to the first Tanna one of the animals can be acquired by either method."
,k9a_9:" But does not lead or drive the animal."
,k9a_10:" If the rider has acquired the ass legitimately, the reins should also go to him, as they are attached to the ass and are intended to serve as an ornament for the animal."
,k9a_11:" Seeing that the other end is attached to the ass and has not been lifted up by the person to whom the reins are awarded, and seeing also that an ownerless object can be acquired only by one who removes the whole of it, how can the person that holds the reins attached to the ass be said to have acquired them?"
,k9a_12:" For the part that he holds in his hand has been entirely lifted by him."
,k9a_13:" And if a third person were to come and appropriate it, it would be his."
,k9a_14:" Viz., one acquires the ass, and the other the reins, including the halter."
,k9a_15:" The person that holds the other end of the reins could, by violent pulling, remove also the end that is attached to the head of the ass, as owing to the elevated position of the ass's head it would be easy to pull off the halter with the reins by one sharp tug."
,k9a_16:" If a distinction were to be made between cases on the ground that the position of the other end, or the other half, of the found object might facilitate its removal by the person that holds the first end or first half, then if a garment is found one half of which rests on a pillar, or on some other elevation that would facilitate the removal of the whole garment by one strong pull on the part of the person that has seized the low-lying end, the law of our Mishnah which divides the garment between the two claimants should not apply, and the first claimant (who seized the low-lying end of the garment) should receive the whole garment. But the law recognises no such distinction. Hence R. Abbahu is mistaken in the view he advances"
,k9a_17:" The word used in describing R. Abbahu's error occurs in several places in the Talmud. It is regarded as a courteous substitute for other terms which might be used in refuting wrong decisions, but which would appear derogatory to the dignity of the Rabbis who committed the error. The term is associated with the word [H], meaning something external, which does not fit in, and which is therefore rejected. In other places, however, (such as Pes. 11a; B.B. 145a) the rendering is [H], an invention, an unfounded assertion."
,k9a_18:" This would at least prove that riding is a legitimate method of acquiring an animal, even though riding in a city is excluded (for the reason given below)."
,k9a_19:" V. <i>supra</i> p. 44, n. 3."
,k9a_20:" V. ibid. n. 5."
,k9a_21:" It is regarded as unbecoming to ride in the streets of a town."
,k9a_22:" As it is improper to pick it up and carry it away on a Sabbath."
,k9a_23:" Even if the action is improper, it has legal validity."
,k9a_24:" I.e., the seller to the buyer."
,k9a_25:" And as long as the buyer takes possession of the animal in a manner which is not unusual, he acquires it legally. "
}

txt:
<p>
they acquired it by this method. R. Judah says: One never acquires a camel except by pulling it, and [one never acquires] an ass [except by] leading it.<a id="k9a_1"><sup>1</sup></a>&nbsp; In any case it is taught [here]: 'or if one was pulling, and the other was leading,' [from which we may infer that] pulling and leading are [legitimate methods of acquiring an animal], but not riding? &mdash; The same law applies also to riding, but the reason why 'pulling' and 'leading' is given here is [that it was desired] to exclude the view of R. Judah, who says, 'one never acquires a camel except by pulling it, and [one never acquires] an ass [except by] leading it.' We are thus informed that even if [the methods are] reversed they [the animals] are also legitimately acquired.<a id="k9a_2"><sup>2</sup></a>&nbsp; But if so,<a id="k9a_3"><sup>3</sup></a>&nbsp; let [the Tanna] combine them and teach: 'If two persons were pulling and leading either a camel or an ass'? &mdash; There is one side which [prevents the combination, as one of the two actions mentioned] is invalid [in the case of one of the animals]:<a id="k9a_4"><sup>4</sup></a>&nbsp; some say, it is [the act of] pulling [in the case of] an ass, and others say, it is [the act of] leading [in the case of] a camel.<a id="k9a_5"><sup>5</sup></a>&nbsp; There are some who construe the objection [to the validity of riding as a means of acquiring an animal] from the conclusion [of the quoted passage]: 'They acquire it by this method.'<a id="k9a_6"><sup>6</sup></a>&nbsp; What are [the words] 'by this method' intended to exclude? [Are they] not [intended] to exclude riding? &mdash; No. [They are intended] to exclude the reversed [methods].<a id="k9a_7"><sup>7</sup></a>&nbsp; But if so, this view is identical with that of R. Judah? &mdash; There is a difference between them [in so far as according to the first Tanna] there is only one side which is invalid:<a id="k9a_8"><sup>8</sup></a>&nbsp; some say, it is [the act of] pulling [in the case of] an ass, and others say, it is [the act of] leading [in the case of] a camel.
</p><p>
	Come and hear: If one rides on an ass, and another holds the reins,<a id="k9a_9"><sup>9</sup></a>&nbsp; one acquires the ass, and the other acquires the reins. This proves that one acquires [an animal] by means of riding? &mdash; Here also [it is understood that the rider] drives it with his feet. But if so let the rider also acquire the reins?<a id="k9a_10"><sup>10</sup></a>&nbsp; &mdash; Say: one acquires the ass and half of the reins, and the other acquires half of the reins. But [it is argued] the rider rightly acquires [his part] seeing that a rational person lifted up for him [the other end of the reins from the ground], but he who holds the reins &mdash; how does he acquire [his part]?<a id="k9a_11"><sup>11</sup></a>&nbsp; &mdash; Say: One acquires the ass and [nearly] all of the reins, and the other acquires what he holds in his hand.<a id="k9a_12"><sup>12</sup></a>&nbsp; But how is this? Even if you say that if a man lifts up a found object for his neighbour the neighbour acquires it,it could only apply to [a case] where he lifted it up on behalf of his neighbour, but this one lifted up [one end of the reins] on his own behalf: if he himself does not acquire it [by this action], how is he to enable others to acquire it? &mdash; Said R. Ashi: The one acquires the ass with the halter, and the other acquires what he holds in his hand, but the rest [of the reins] neither of them acquires.<a id="k9a_13"><sup>13</sup></a>&nbsp; R. Abbahu said: In reality we may leave it as taught [at first].<a id="k9a_14"><sup>14</sup></a>&nbsp; [and] the reason is that he [who holds the reins] can pull them violently and bring [the other end also] to himself.<a id="k9a_15"><sup>15</sup></a>&nbsp; But R. Abbahu's view is a mistake: for if you do not say so, [how would you decide in a case where] one half of the garment lies on the ground and the other half [rests] upon a pillar, and one person comes and lifts up the half from the ground, while another person comes and lifts up the half from the pillar &mdash; will you maintain here also that the first one acquires it but the last one does not acquire it, for the reason that [the first one] can pull it violently and bring [the other half also] to himself?<a id="k9a_16"><sup>16</sup></a>&nbsp; [We must] therefore [say that] the view of R. Abbahu is a mistake.<a id="k9a_17"><sup>17</sup></a>
</p><p>
	Come and hear: R. Eliezer says: One who rides [on a found animal] in the country, or one who leads [a found animal] in the city, acquires it!<a id="k9a_18"><sup>18</sup></a>&nbsp; &mdash; Here also the rider drives [the animal] with his feet.<a id="k9a_19"><sup>19</sup></a>&nbsp; But if so, it is the same as 'leading'? &mdash; There are two ways of 'leading'.<a id="k9a_20"><sup>20</sup></a>&nbsp; But if so, why does not he who rides [on an animal] in the city acquire it? &mdash; R. Kahana said: It is because people are not in the habit of riding in a city.<a id="k9a_21"><sup>21</sup></a>&nbsp; R. Ashi then said to R. Kahana: According to this, he who picks Up a purse on a Sabbath should not acquire it either, seeing that people are not in the habit of picking up a purse on a Sabbath?<a id="k9a_22"><sup>22</sup></a>&nbsp; But in fact he does acquire [the purse] because [we say:] What he has done is done;<a id="k9a_23"><sup>23</sup></a>&nbsp; so here also [we ought to say]: What he has done is done, and he acquires [the animal by riding on it in the city]! &mdash; It must therefore be that we deal here with [a case of] buying and selling, where he says to him:<a id="k9a_24"><sup>24</sup></a>&nbsp; 'Acquire it in the way people usually acquire [a bought article]',<a id="k9a_25"><sup>25</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k9b_1:" Where it is usual to ride on a bought animal, instead of leading it, in view of the possibility of passers-by intervening between the animal and the person that leads it."
,k9b_2:" For it is usual for an important person to ride on an animal even in a side-street where there are no people about, as leading an animal by the reins is undignified."
,k9b_3:" A woman is, as a rule, not strong enough to prevent the animal from breaking loose. She does not, therefore, usually lead it."
,k9b_4:" A person that has no dignity will ride on an animal in any circumstances, whether it is regarded as proper for him to do so or not, but the ordinary person, whose standing is neither too high nor too low, will not, as a rule, ride on an animal in town in a quiet street. In such circumstances, riding would not be a legitimate way of acquiring the animal if the buyer has been told to acquire it 'in the usual manner'."
,k9b_5:" The speaker has sold the vessels to the other, but he has not sold him the animal."
,k9b_6:" I.e., the words 'so that you may acquire', spoken by the seller, do not convey the direct authorisation which the buyer must receive before he can really acquire the vessels."
,k9b_7:" Raba assumes that R. Eleazar asks his question regarding the vessels placed on the animal because he has in mind a case where the animal itself has not been sold, and he concludes from this that, where the animal has been sold with the vessels, R. Eleazar would be sure that the buyer would acquire the vessels simultaneously with the animal, as he pulls it along, because the animal would then be regarded in the same light as his courtyard, which enables the owner to acquire whatever is placed in it. Raba then objects that the moving animal, like anything else on the move, does not convey to the owner possession of the articles placed upon it."
,k9b_8:" The original law regarding the utilisation of a person's premises for the purpose of acquiring the objects placed within them only applies to fixed premises; cf. Git. 77a."
,k9b_9:" I.e., after it has been pulled along by the buyer, and has thus been acquired by him, the animal comes to a standstill, and it may then be regarded as a 'fixed courtyard'."
,k9b_10:" As the animal is then unable to move, it is rightly regarded as a 'fixed courtyard'."
,k9b_11:" I.e., according to your view that a 'moving courtyard' does not enable its owner to acquire the objects placed therin,"
,k9b_12:" The basket which women used to carry on their heads, and which served the purpose of a work-basket."
,k9b_13:" The Mishnah in Git, 77a makes it clear that in such circumstances the wife is divorced."
,k9b_14:" The basket is therefore like a 'fixed courtyard'."
,k9b_15:" For as soon as he handed over the found object to that person it became the latter's property, no matter whether the former first acquired it for himself or not, and his subsequent declaration is of no avail."
,k9b_16:" <i>Pe'ah</i>. IV, 9; Cf. Git. 113."
,k9b_17:" V. Lev. XIX, 9."
,k9b_18:" The gleaner of the corner of the field, who according to R. Eliezer may confer possession of the gleanings upon a poor individual, would have to be a stranger, not the owner of the field. For the owner, even if he is poor himself, has no right to the gleanings of the corners of his field (cf. Hul., 131a), and he could not therefore acquire it for others. As the argument 'Since (<i>Miggo</i>) he can take possession of it for himself he may also confer possession of it upon someone else' could not in this case be used, R. Eliezer would also say that the other poor person is not entitled to the gleanings to the exclusion of anyone else."
,k9b_19:" I.e., if he had, in the stated circumstances, desired to acquire the gleanings, he could have legally made them his own."
,k9b_20:" Only one <i>miggo</i> can be applied to a case, but not two miggos. In this case we would first have to say: <i>miggo</i> (since) a poor man can acquire the gleanings for himself he can also acquire them for a poor neighbour; and then we would have to say: <i>miggo</i> (since) if he wished to renounce his property he could acquire the status of a poor man, he may be given such status even if he is rich."
,k9b_21:" The one <i>miggo</i> would be accepted by all."
,k9b_22:" Just as every poor person has a right to glean the corners of a field, so every person who finds an object has a right to pick it up and acquire it."
,k9b_23:" And the Rabbis who differ from R. Eliezer would hold the view that although we may say, in the case of two persons picking up together a found object that each one acquires it for the other at the same time as he acquires it for himself (v. <i>supra</i> p. 37), yet in this case they would say that one poor man cannot acquire the gleanings for the other poor man. For in the case of the found object the argument is: 'Since (<i>Miggo</i>) he takes possession of it for himself, he may also take possession of it for his neighbour.' But in the case of the gleanings the argument would have to be: 'Since (<i>Miggo</i>), if he had wished, he could have taken possession of it for himself, he may also take possession of it for his neighbour' &mdash; and such an argument the Rabbis would not adopt. It would only be a potential <i>miggo</i>, which the Rabbis would not regard as valid. "
}

txt:
<p>
so that if [the buyer rides on the animal in] the open street<a id="k9b_1"><sup>1</sup></a>&nbsp; he acquires it, or if he is an important personage he acquires it,<a id="k9b_2"><sup>2</sup></a>&nbsp; or if [the buyer] is a woman she acquires it,<a id="k9b_3"><sup>3</sup></a>&nbsp; or if [the buyer] is a mean person<a id="k9b_4"><sup>4</sup></a>&nbsp; he acquires it.
</p><p>
	R. Eleazar inquired: If one says to another, 'Pull this animal along so that you may acquire the vessels that are [placed] upon it,'<a id="k9b_5"><sup>5</sup></a>&nbsp; what is the law? [But, it is at once objected, by saying], 'so that you may acquire;' does he really tell him, 'Acquire'?<a id="k9b_6"><sup>6</sup></a>&nbsp; [The question must] therefore [be put this way]: [If one says to another,] 'Pull this animal along and acquire the vessels that are [placed] upon it,' what is [the law]? Does the pulling of the animal enable him to acquire the vessels or not? &mdash; Said Raba: [Even] if he says to him, 'Acquire the animal and the vessels [at the same time],' does he then acquire the vessels?<a id="k9b_7"><sup>7</sup></a>&nbsp; Is not the animal like a moving courtyard? And a moving courtyard does not enable [its owner] to acquire [the objects placed in it]!<a id="k9b_8"><sup>8</sup></a>&nbsp; And if you should say [that he acquires them] when it stands still,<a id="k9b_9"><sup>9</sup></a>&nbsp; [then it would be objected:] Is it not [the law] that whatever does not acquire while in motion, does not acquire even while standing still or at rest? [It must be admitted, however, that] the [above] law obtains when [the animal] is tied.<a id="k9b_10"><sup>10</sup></a>
</p><p>
	R. Papa and R. Huna said to Raba: According to this,<a id="k9b_11"><sup>11</sup></a>&nbsp; if one sails on a boat, and fish jump and fall into the boat, [do we] then also [say] that [the boat] is [like] a 'moving courtyard' and it does not enable [its owner] to acquire [the objects placed in it]? &mdash; He [Raba] answered them: The boat is really at rest, only the water moves it along.
</p><p>
	Rabina said to R. Ashi: According to this, if a married woman walks in a public street, and the husband throws a bill of divorcement into her lap or into her basket,<a id="k9b_12"><sup>12</sup></a>&nbsp; [do we] then also [say] that she is not divorced?<a id="k9b_13"><sup>13</sup></a>&nbsp; &mdash; He answered him: The basket is really at rest, and she walks underneath.<a id="k9b_14"><sup>14</sup></a>
</p><p>
	<P><B><I>MISHNAH</I></B>. IF A MAN, RIDING ON AN ANIMAL, SEES A LOST ARTICLE AND SAYS TO HIS NEIGHBOUR: 'GIVE IT TO ME'; THE LATTER] TAKES IT UP AND SAYS: 'I ACQUIRED IT [FOR MYSELF].' &mdash; [THEN] IT IS HIS. [BUT] IF AFTER GIVING IT TO HIM, THAT PERSON SAYS: 'I ACQUIRED IT FIRST', THERE IS NOTHING IN WHAT HE SAYS.<a id="k9b_15"><sup>15</sup></a>
</p><p>
	<P><B><I>GEMARA</I></B>. We have learned elsewhere:<a id="k9b_16"><sup>16</sup></a>&nbsp; If one gleaned the corner of a field<a id="k9b_17"><sup>17</sup></a>&nbsp; and said, 'This is for that poor person.' R. Eliezer says: he conferred possession [of the gleaning] on that person.<a id="k9b_18"><sup>18</sup></a>&nbsp; But the Sages say: He must give it to the first poor person that comes along. 'Ulla said in the name of R. Joshua b. Levi: The difference of opinion [between R. Eliezer and the Sages] concerns [a case where] a rich person [gleaned] for a poor person. R. Eliezer is of the opinion [that] [i] since, if he had wished, he could have declared his possessions public property, so that he would have become a poor man [himself] and would have been entitled [to the gleanings of the corner], he is entitled [to them] even now, and [ii] since he might thus take possession [of them] for himself,<a id="k9b_19"><sup>19</sup></a>&nbsp; he could also confer possession [of them] upon his neighbour. But [the Sages] are of the opinion [that] we can use the Since argument once but not twice.<a id="k9b_20"><sup>20</sup></a>&nbsp; But [in a case where] a poor person [gleaned] for [another] poor person all are of the opinion that he could confer possession [of the gleanings] upon that person, for since he could take possession [of them] for himself he could also confer possession [of them] upon his neighbour.<a id="k9b_21"><sup>21</sup></a>
</p><p>
	R. Nahman said to 'Ulla: And why not say, Master, that the difference of opinion [between R. Eliezer and the Rabbis] concerns [even a case where] a poor person [gleaned] for a poor person. &mdash; seeing that in regard to a found object all are [in the same legal position as the] poor are in regard [to the corner of the field]?<a id="k9b_22"><sup>22</sup></a>&nbsp; And we learned: IF ONE, RIDING ON AN ANIMAL, SEES A LOST ARTICLE AND SAYS TO HIS NEIGHBOUR: 'GIVE IT TO ME'; THE LATTER TAKES IT UP AND SAYS: 'I ACQUIRED IT [FOR MYSELF].' &mdash; [THEN] IT IS HIS. Now, it is all correct if you say that the difference of opinion [between R. Eliezer and the Rabbis] concerns [even a case where] a poor person [gleaned] for a poor person.<a id="k9b_23"><sup>23</sup></a>&nbsp; [for]
</P>


lvr: 42
dfh: a
notes:
 ntes={k10a_1:" [Who disregard the potential <i>miggo</i> and do not admit the argument. 'Since the person who picked up the article for the rider could, if he had wished, have picked it up for himself, he may also confer possession of it upon his neighbour.' The latter therefore can rightly retain the article if he wishes to do so. At this stage the Gemara presumes that he had originally picked up the article for the rider, but that he subsequently refused to hand it over to him.]"
,k10a_2:" For it would appear from our Mishnah that one cannot ordinarily acquire an object for someone else, and the only way in which one can confer upon the other the right of possession is by handing the object over to him."
,k10a_3:" The reason why the rider cannot claim the found object unless it has been handed over to him is that the other person claims to have picked it up straight away for himself. But if the other person had picked it up for the rider it would have belonged to the latter straight away, for we say that since, if he had wished, he could have taken possession of it for himself, he may also take possession of it for his neighbour."
,k10a_4:" When he claims the article after handing it over, he must surely mean that he acquired it first for himself. There would be no sense in his claim that he acquired it for himself after he disposed of it to the rider."
,k10a_5:" I.e., that the person who picked it up maintained that he took possession of it for himself right at the beginning. And the last clause teaches us that even if he claims to have picked it up for himself straightaway, his plea is not accepted, for by handing over the article to the rider he made it clear that he originally meant to acquire it for that person."
,k10a_6:" R. Nahman &mdash; what is his view regarding the use of the word FIRST in the second clause?"
,k10a_7:" The use of the word FIRST in the second clause makes it clear that it was intentionally excluded from the first clause. [For there, even if he did not say 'first', but picked it up for the rider, the rider would still have no claim to it until it had been delivered to him.]"
,k10a_8:" Cf. Bezah, 39b."
,k10a_9:" The person who lifts up a found object for someone else does not benefit himself, and he deprives other people of the chance of finding and acquiring the object. He is therefore like a person who comes and seizes a debtor's property for the benefit of a creditor, thus depriving other creditors of the chance of recovering their debt."
,k10a_10:" As the creditor in whose behalf he seized the property had not authorised this man to act on his (the creditor's) behalf his intervention is illegal and constitutes an infringement of the rights of the other creditors (Rashi). [According to Tosaf, the same law would apply even where he had been authorized by the creditor. V. Keth. 84b; Git., 113.]"
,k10a_11:" V. <i>infra</i> 12b; 118a,"
,k10a_12:" As the work which the labourer is to do for the employer is specified it cannot include anything else, not even finding and acquiring an ownerless object. If the labourer has spent any time in finding and acquiring the object, the employer may deduct payment for the time lost, but he cannot claim the object."
,k10a_13:" Since the work is not specified it includes anything that the labourer may do during the time of his employment, so that the object that he finds and acquires during that time belongs to the employer. This would show that when one lifts up a found object for his neighbour the neighbour acquires it &mdash; in contradiction to R. Nahman and R. Hisda."
,k10a_14:" The employer's right to the object found by his employee has nothing to do with the question whether one may acquire an object for a neighbour, as in the case of the employer the reason why he is entitled to the object found by his employee is that during the time of the employment the employee belongs to the employer, and anything that the former acquires during that time belongs to the latter."
,k10a_15:" The fact that the labourer may terminate the employment any time he likes does not imply that he does not belong to the employer while the engagement lasts and that he can acquire a found object for himself during that time. There is another reason for the right conceded to the employee to terminate his engagement whenever he likes."
,k10a_16:" Lev, XXV, 55."
,k10a_17:" The freedom of the individual ought not to be jeopardised by an engagement which is to bind the employee to work for the employer against his own inclination, as if he were the employer's chattel, Cf. B.K. 116b."
,k10a_18:" In that it says that the person who picked up the object and said, 'I took possession of it,' acquired it for himself, even though he acted for the rider who told him to give it to him."
,k10a_19:" Had the rider said: 'Acquire it for me by picking it up on my behalf' the object would have belonged to the rider. By saying: 'Give it to me,' the rider made it clear that the found object was to become his only when it was handed over to him. The other person is therefore entitled to keep the object."
,k10a_20:" The three 'Babas' ('Gates': Baba Kamma, Baba Mezi'a, and Baba Bathra), formed originally one tractate, which was called 'Nezikin'."
,k10a_21:" Ch. IV, Mishnah 3."
,k10a_22:" In order to acquire it by this act."
,k10a_23:" V. Deut. XXIV, 19."
,k10a_24:" He preferred to acquire the gleanings by the act of falling upon them, believing that this would be legally more effective than the claims of the four cubits sanctioned by the Rabbis, And as he did not intend to exercise the right afforded him as regards the four cubits, the right lapsed, and there was nothing in his action of throwing himself upon the gleanings to entitle him to claim their possession. "
}

txt:
<p>
our Mishnah would then be in accord with the Rabbis.<a id="k10a_1"><sup>1</sup></a>&nbsp; But if you say that the difference of opinion concerns [a case where] a rich person [gleaned] for a poor person, but that all agree [in the case] of a poor person [gleaning] for a poor person that one transfers possession upon the other, with whose view is our Mishnah in accord? It agrees neither [with the view of the Rabbis nor with [that of] R. Eliezer!<a id="k10a_2"><sup>2</sup></a>&nbsp; &mdash; He ['Ulla] answered him: Our Mishnah speaks of [a case] where [the person who picked up the article] said: [I took possession of it] <i>first</i>.<a id="k10a_3"><sup>3</sup></a>&nbsp; This also stands to reason! Since the second clause teaches: IF AFTER GIVING IT TO HIM, THAT PERSON SAYS: 'I ACQUIRED IT FIRST,' THERE IS NOTHING IN WHAT HE SAYS, what need is there to state FIRST in this second clause? Surely even if he did not say FIRST [it would be assumed that] he meant 'FIRST'?<a id="k10a_4"><sup>4</sup></a>&nbsp; It must therefore be concluded that it was intended to let us know that in the first clause also he stated <i>'first'</i>.<a id="k10a_5"><sup>5</sup></a>&nbsp; And the other?<a id="k10a_6"><sup>6</sup></a>&nbsp; The wording of the second clause is intended to throw light on the first: In the second case he said 'FIRST' but in the first case he did not say <i>'first'</i>.<a id="k10a_7"><sup>7</sup></a>
</p><p>
	Both R. Nahman and R. Hisda Say: If a man lifts up a found object for his neighbour, the neighbour does not acquire it.<a id="k10a_8"><sup>8</sup></a>&nbsp; For what reason? Because it is like one who seizes [a debtor's property] on behalf of a creditor, thereby causing loss to [the debtor's] other [creditors],<a id="k10a_9"><sup>9</sup></a>&nbsp; and one who seizes [a debtor's property] in behalf of a creditor, causing loss thereby to [the debtor's] other [creditors], does not acquire [the property].<a id="k10a_10"><sup>10</sup></a>&nbsp; Raba asked R. Nahman: [A Baraitha teaches:]<a id="k10a_11"><sup>11</sup></a>&nbsp; A labourer's find belongs to himself. This decision only applies to a case where the employer said to the labourer: 'Weed for me to-day', [or] 'Hoe for me to-day.'<a id="k10a_12"><sup>12</sup></a>&nbsp; But if he said to him: 'Do work for me to-day.' the labourer's find belongs to the employer!<a id="k10a_13"><sup>13</sup></a>&nbsp; &mdash; He [R. Nahman] answered him: A labourer is different, as his hand is like the hand of his employer.<a id="k10a_14"><sup>14</sup></a>&nbsp; But does not Rab say: 'The labourer may retract even in the middle of the day? &mdash; He [R. Nahman] answered him [again]: Yes, but as long as he does not retract [and he continues in the employment] he is like the hand of the employer. When he does retract [he can withdraw from the employment] for another reason,<a id="k10a_15"><sup>15</sup></a>&nbsp; for it is written: <i>For unto me the children of Israel are servants; they are My servants</i><a id="k10a_16"><sup>16</sup></a>&nbsp; &mdash; but not servants to servants.<a id="k10a_17"><sup>17</sup></a>
</p><p>
	R. Hiyya b. Abba said in the name of R. Johanan: If one lifts up a found object for his neighbour, the neighbour acquires it. And if you will say: Our Mishnah [differs]!<a id="k10a_18"><sup>18</sup></a>&nbsp; &mdash; [it is because our Mishnah deals with a case] in which he said, 'Give me it,' and did not say, 'Acquire it for me.'<a id="k10a_19"><sup>19</sup></a>
</p><p>
	<P><B><I>MISHNAH</I></B>. IF ONE SEES AN OWNERLESS OBJECT AND FALLS UPON IT, AND ANOTHER PERSON COMES AND SEIZES IT, HE WHO HAS SEIZED IT IS ENTITLED TO ITS POSSESSION.
</p><p>
	<P><B><I>GEMARA</I></B>. Resh Lakish said in the name of Abba Kohen Bardala: A man's four cubits acquire [property] for him everywhere. For what reason? &mdash; The Rabbis instituted [this law] in order that people might not be led to quarrelling.
</p><p>
	Abaye said: R. Hiyya b. Joseph raised an objection from [the tractate of] <i>Pe'ah</i>. Raba said: R. Jacob b. Idi raised an objection from the [tractate of] Nezikin.<a id="k10a_20"><sup>20</sup></a>&nbsp; Abaye said: R. Hiyya b. Joseph raised an objection from [the tractate of] <i>Pe'ah</i>:<a id="k10a_21"><sup>21</sup></a>&nbsp; If he [a poor man] takes part [of the gleanings] of the corner [of a field] and throws it over the rest [of the gleanings],<a id="k10a_22"><sup>22</sup></a>&nbsp; he cannot claim anything. If he falls Upon it, [or if] he spreads his garment upon it, he may be removed from it. And the same [law applies] to a forgotten sheaf.<a id="k10a_23"><sup>23</sup></a>&nbsp; Now if you say that a man's four cubits acquire [property] for him everywhere, let the four cubits [of the poor man] acquire for him [the gleanings on which he fell]! &mdash; Here we deal with a case where the man did not say. 'I wish to acquire it.' But if the Rabbis instituted [this law], what does it matter if he did not say, ['I wish to acquire it']? &mdash; Since he fell [upon it], he made it clear that he wished to acquire it by falling [upon it]<a id="k10a_24"><sup>24</sup></a>&nbsp; but did not wish to acquire it by means of [his four cubits].
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k10b_1:" Such as a high road, a public thoroughfare, or a lane, a side-street and an alley adjoining an open space &mdash; places that are open to everybody."
,k10b_2:" Where, having regard to the limited space, it is impossible to assign to each person four cubits."
,k10b_3:" For the purpose of acquiring an object situate on that ground."
,k10b_4:" But not side-streets and alleys."
,k10b_5:" Cf. Keth. 39a."
,k10b_6:" Lit. 'Court'."
,k10b_7:" Therefore, if she is married, the husband cannot divorce her by throwing the bill of divorcement into her court or into the space constituting her four cubits in a public place, although in the case of a wife who has attained her majority (cf. Keth. 39a) this would be a valid way of effecting her divorce (cf. Git. 78a)."
,k10b_8:" R. Johanan."
,k10b_9:" Used in Deut, XXIV, 1: <i>that he writeth her a bill of divorcement, and giveth it in her hand.</i> cf. Git. 77b. That the term 'hand' means also 'possession' may be gathered from Num, XXI, 26."
,k10b_10:" Resh Lakish."
,k10b_11:" Not because it is like her 'hand' and thus 'acts' automatically, but because the ground stands to her in the relation of a messenger to the sender, or of an agent to the originator of a deed, for which a free will or a sense of legal responsibility is required. A minor cannot therefore be represented by such an agent. The right of an adult person, whether man or woman, to act through a messenger, or agent, as regards marriage and divorce, is derived from Deut, XXIV, 1. v. Kid. 41a."
,k10b_12:" Only a 'man' and a 'woman' can appoint agents to act for them, but not a minor. Cf. Kid. 42a."
,k10b_13:" Ex, XXII, 3."
,k10b_14:" I.e., that one is guilty of theft if an animal walks into an enclosed space belonging to him, and he locks it in."
,k10b_15:" The emphatic term [H] is taken to indicate: 'wherever it may be found'."
,k10b_16:" Cf. <i>infra</i> 56b; B.K. 65a; Git, 77a."
,k10b_17:" That the responsibility for the act rest upon the principal originator, who instructed the agent, and not upon the agent who carried out the instruction. The sinful act in this case is the act of stealing the animal."
,k10b_18:" V. Kid. 42b."
,k10b_19:" I.e., if one commits an illegal act on the instruction of someone else the guilt rests upon the performer of the act, and not upon the one who gave the instruction, as each person is bound to obey the law given by the Supreme Master, and one has no right to carry out the instruction of another person if it is contrary to the divine Law."
,k10b_20:" At least so far as the penalties involved are concerned, as they are unable to pay. Cf. B.K. 87a."
,k10b_21:" The married woman cannot pay because she cannot dispose of her property without her husband's consent, and the slave because everything he has belongs to his master,"
,k10b_22:" For an injury they caused in their previous state, while they were unable to pay (B.K. 87a)."
,k10b_23:" What practical difference is there in the views expressed by Rabina and R. Sama?"
,k10b_24:" A priest may not take to wife a divorced woman. (Lev. XXI, 7.) Betrothal marks the two parties concerned husband and wife."
,k10b_25:" A woman is not subject to the prohibition of rounding the corners of the head (Lev. XIX, 27) as she is not subject to the prohibition contained in the second half of the same Biblical verse, neither shalt thou mar the corners of thy beard. Cf. Kid. 35b; Naz. 57b."
,k10b_26:" A minor is mentioned for the reason that an adult will not allow anyone to round the corners of his head, as the Biblical prohibition applies to 'rounding' as well as to 'being rounded'."
,k10b_27:" Deut. XXIV, 3."
,k10b_28:" The term [H] <i>'and he shall give'</i> is taken as having no exclusive reference to the following word [H] ('in her hand'). Had the emphasis been restricted to 'in her hand' the term used would have been [H] (Rashi). The inference therefore is that any place belonging to her, i.e. her 'ground', is as good as her 'hand', and not because the place is her 'agent', for the fact that the woman can appoint an agent in connection with either marriage or divorce is already indicated in this verse by the word [H] 'he shall send her' (cf. Kid., 41a), and need not be indicated again by [H]. Git. 77a."
,k10b_29:" R. Johanan. "
}

txt:
<p>
R. Papa said: The Rabbis instituted [the law of the] four cubits only in a public place.<a id="k10b_1"><sup>1</sup></a>&nbsp; but the Rabbis did not institute [such a law] in a private person's field.<a id="k10b_2"><sup>2</sup></a>&nbsp; And although the Divine Law gave [the poor person] a right therein, it gave him the right to walk in it and glean its corners, but the Divine Law did not give him the right to regard it as his ground.<a id="k10b_3"><sup>3</sup></a>&nbsp; Raba said: R. Jacob b. Idi raised an objection from [the tractate of] Nezikin: IF ONE SEES AN OWNERLESS OBJECT AND FALLS UPON IT, AND ANOTHER PERSON COMES AND SEIZES IT, HE WHO SEIZED IT IS ENTITLED TO ITS POSSESSION &mdash; now if you will say [that] the four cubits of a person acquire for him [an ownerless object] everywhere, let his four cubits acquire it for him [in this case also]? &mdash; Here we deal [with a case] where he did not say, 'I wish to acquire it.' But if the Rabbis instituted [the right of the four cubits], what does it matter if he did not say it? &mdash; As he fell [upon the object] he made it clear that he wished to acquire it by falling [on it] but did not wish to acquire it by means of the four cubits. R. Shesheth said: The Rabbis instituted [the law of the four cubits] in regard to a side-street, which is not crowded, [but] in regard to a high road, which may be crowded, the Rabbis did not institute [this law]. But does it not say 'everywhere'? &mdash; [The term] 'everywhere' is to include the [ground on both] sides of the high road.<a id="k10b_4"><sup>4</sup></a>
</p><p>
	Resh Lakish said further in the name of Abba Kohen Bardala: A girl who is [still] a minor<a id="k10b_5"><sup>5</sup></a>&nbsp; has neither the right [to acquire, an object by means] of her 'ground'<a id="k10b_6"><sup>6</sup></a>&nbsp; nor the right [to acquire an object by means] of her 'four cubits'.<a id="k10b_7"><sup>7</sup></a>&nbsp; But R. Johanan said in the name of R. Jannai: She has the right, both in regard to her ground and in regard to her four cubits. Wherein do they differ? &mdash; One<a id="k10b_8"><sup>8</sup></a>&nbsp; is of the opinion that [the scriptural term] 'ground'<a id="k10b_9"><sup>9</sup></a>&nbsp; is included in her 'hand'; just as her 'hand' acts for her, so her 'ground' also acts for her. But the other<a id="k10b_10"><sup>10</sup></a>&nbsp; is of the opinion that 'ground' [acts] In the capacity of 'agent';<a id="k10b_11"><sup>11</sup></a>&nbsp; and as she has not the power [while she is a minor] to appoint an agent to act for her<a id="k10b_12"><sup>12</sup></a>&nbsp; neither can her 'ground' act for her. But is there anyone who says that 'ground' is regarded as 'agent'? Was it not taught: [<i>If the theft be found at all</i>] in his hand [<i>alive</i>];<a id="k10b_13"><sup>13</sup></a>&nbsp; &mdash; [from this] I would gather [that the law applies] only [when it is found in] <i>'his</i> hand': how do we know that the same law applies [when the theft is found on] his roof, in his court-yard and in his enclosure?<a id="k10b_14"><sup>14</sup></a>&nbsp; Because we are told: [<i>If the theft</i>] <i>'be found at all'</i>,<a id="k10b_15"><sup>15</sup></a>&nbsp; [which means]: 'wherever [it may be found].'<a id="k10b_16"><sup>16</sup></a>&nbsp; Now if your view is that 'ground' [acts] because it is regarded as agent, then we must conclude [that there] is an agent for a sinful act,<a id="k10b_17"><sup>17</sup></a>&nbsp; whereas it is held by us<a id="k10b_18"><sup>18</sup></a>&nbsp; that there is no agent for a sinful act?<a id="k10b_19"><sup>19</sup></a>&nbsp; &mdash; Rabina answered: We say 'there is no agent for a sinful act' only when the agent is subject to the law prohibiting the act, but in regard to [a thief's] 'ground', which cannot be said to be subject to the law prohibiting the act [of stealing] the responsibility [does not lie with the agent, but it] lies with the originator [of the deed]. But if so &mdash; what if one says to a woman or a slave: 'Go and steal for me,' seeing that they are not subject to the law prohibiting the act [of stealing].<a id="k10b_20"><sup>20</sup></a>&nbsp; does the responsibility in this case also lie with the originator [of the deed]? &mdash; I will tell you: A woman and a slave are subject to the law prohibiting [theft], only they are temporarily unable to pay,<a id="k10b_21"><sup>21</sup></a>&nbsp; as we learnt: When the woman has been divorced and the slave set free, they are obliged to pay.<a id="k10b_22"><sup>22</sup></a>&nbsp; R. Sama said: When do we say, 'there is no agent for a sinful act'? &mdash; [Only in a case] where [the agent is at liberty to choose: to] do it if he wishes, and not do it if he does not wish. But in regard to a 'ground' [where. e.g., a stolen animal is found], seeing that it has no will but must receive [what is deposited therein, the responsibility lies with the originator [e.g., of the theft]. Wherein do they differ?<a id="k10b_23"><sup>23</sup></a>&nbsp; &mdash; They differ [in the case where] a priest says to an Israelite: 'Go and betroth for me a divorced woman'<a id="k10b_24"><sup>24</sup></a>&nbsp; or [where] a man says to a woman:<a id="k10b_25"><sup>25</sup></a>&nbsp; 'Cut around the corners of the hair of a minor:'<a id="k10b_26"><sup>26</sup></a>&nbsp; according to the version which says that whenever [the agent has the choice to] do it if he wishes, and not to do it if he does not wish, the responsibility does not lie with the originator; here also he has the choice to do if he wishes and not to do it if he does not wish, [and therefore] the responsibility does not lie with the originator. But according to the version which says that whenever the agent is not subject to the law prohibiting the act, the responsibility lies with the originator, in these [cases] also, seeing that [the agents] are not subject to the laws prohibiting the acts, the responsibility lies with the originators. But is there anyone who says that 'ground' is not included in [the term] 'hand'? Has it not been taught: [<i>And he shall give it</i>] <i>in her hand</i><a id="k10b_27"><sup>27</sup></a>&nbsp; &mdash; from this I would learn only that 'her hand' acts for her. How do we know [that] her roof, her courtyard and her enclosed space [also act for her]? Because the Scriptural verse emphasises, '<i>And he shall give'</i>, [which implies that he may give it to her] anywhere.?<a id="k10b_28"><sup>28</sup></a>&nbsp; With regard to a divorce there is no difference of opinion [and all agree] that 'ground' is included in her 'hand'. The difference of opinion exists only as regards a found object: One<a id="k10b_29"><sup>29</sup></a>&nbsp; is of the opinion that
</P>


lvr: 42
dfh: a
notes:
 ntes={k11a_1:" That just as her 'ground' acts for her as regards a bill of divorcement it also acts for her as regards a found object."
,k11a_2:" Resh Lakish."
,k11a_3:" Divorce is a matter that has to do with the ritual part of the Law, while the claim to a found object is only a matter of money. In regard to the latter the deduction from Ex. XXII, 3, dealing with theft, to include 'ground' may be explained as an extension of the law of agency, i.e., the thief's 'ground' is treated as his, agent and it may be applied to other 'money matters'. The Scriptural indication is however necessary in the case of theft, as otherwise we might have thought that a thief's premises do not act for him, because of the principle that 'there is no agent for a sinful act'."
,k11a_4:" R. Johanan."
,k11a_5:" Which is not indicated anywhere in the Bible."
,k11a_6:" Resh Lakish."
,k11a_7:" Resh Lakish states the law regarding a found object &mdash; that it is not acquired by means of one's 'ground' &mdash; and R. Johanan states the law regarding a bill of divorcement &mdash; that it is acquired by means of one's ground. Or alternatively it could be said that one deals with the case of a male minor, and the other deals with the case of a female minor, and this accounts for the difference in their decision. It may thus be assumed that R. Johanan and Resh Lakish do not differ at all as regards the law as it applies to each case, and that they would both uphold each other's decision."
,k11a_8:" The injured stag and the unfledged pigeon cannot move out of the field in which they are found, and will therefore remain there, unless someone takes them away. The field, in these circumstances, acts for the owner and acquires the animal or the birds for him, if the owner expresses his wish in this respect before the others have taken hold of these finds. (V. however, Tosaf a.l.)"
,k11a_9:" V. <i>supra</i>. 10b."
,k11a_10:" They become his property, and the others have no right to take them away."
,k11a_11:" As the animals or birds are not staying in the field his 'ground' cannot acquire them for him."
,k11a_12:" The Mishnaic law that the field acquires for its owner the injured stag and the unfledged birds that are found there."
,k11a_13:" B.K.. 493; <i>infra</i> 102a, 118a; Hul. 141b."
,k11a_14:" As when it is surrounded by a fence."
,k11a_15:" I placed the sheaf there so that the labourers might see it and bring it home."
,k11a_16:" It shall not he subject to the law regarding a sheaf which has been forgotten in the field &mdash; the law given in Deut. XXIV, 19: <i>When thou reapest thy harvest in thy field, and hast forgot a sheaf in the field, thou shalt not go back to fetch it</i> etc."
,k11a_17:" I.e., even if the owner himself forgot it subsequently."
,k11a_18:" Deut. XXIV, 19."
,k11a_19:" [MS.M. 'Talmud', v. <i>infra</i> p. 206, n. 6.]"
,k11a_20:" The argument of the Gemara would then be as follows: 'I might think that it shall not be regarded as a forgotten sheaf, The Scriptural verse therefore tells us: And thou hast forgot a sheaf in the field etc., meaning thereby: Only when thou art in the field it is necessary that thou thyself shalt forget the sheaf in order to make it available for the stranger etc., but when thou hast returned to town it is not necessary that thou thyself shalt forget the sheaf: the forgetfulness of the labourers in the field has the same effect as thine own."
,k11a_21:" That the meaning of the verse is as stated, and that the conclusion of the Baraitha is correct (Tosaf.)."
,k11a_22:" The emphasis in the verse would then be that the law of the forgotten sheaf only applies to [H] (<i>'in the field'</i>) but never to [H] (<i>'in the town'</i>)."
,k11a_23:" Carrying with it the penalty of thirty-nine lashes."
,k11a_24:" This phrase is superfluous and thus serves as a basis for this deduction."
,k11a_25:" <i>Pe'ah</i> VI, 4."
,k11a_26:" Deut. ibid."
,k11a_27:" 'Ulla expressed the same view as Rab Judah expressed in the name of Samuel (v. p. 59. n. 9)."
,k11a_28:" Cf. Hor. (Sonc. ed) pp. 70f."
,k11a_29:" Joshua b. Hananiah, who was a Levite and was entitled to receive the first tithe. (Cf. 'Ar. 11b.) Rabban Gamaliel was afraid that if he waited till he returned home he would be too late to perform the duty of tithing for that year. [Or that the members of his household might make use of the produce on the assumption that he had set the tithe aside before his departure, incurring thereby the guilt of eating untithed produce]. According to the view of Rabbenu <i>Tam</i> (Tosaf. a.l. and Kid. 26b) this happened on the eve of the Passover festival of the fourth year, when all the tithe offerings had to be 'put away' (cf. Deut. XXVI, 12ff.) "
}

txt:
<p>
we derive [the law regarding] a found object from [the law regarding] divorce,<a id="k11a_1"><sup>1</sup></a>&nbsp; and the other<a id="k11a_2"><sup>2</sup></a>&nbsp; is of the opinion that we do not derive [the law regarding] a found object from [the law regarding] divorce.<a id="k11a_3"><sup>3</sup></a>&nbsp; And if you wish I will say: As regards a female minor there is no difference of opinion [and all agree] that we derive [the law regarding] a found object from [the law regarding] divorce, but here they differ regarding a male minor: One<a id="k11a_4"><sup>4</sup></a>&nbsp; says: We derive [the law regarding] a male minor<a id="k11a_5"><sup>5</sup></a>&nbsp; from [the law regarding] a female minor, and the other<a id="k11a_6"><sup>6</sup></a>&nbsp; says: We do not derive [the law regarding] a male minor from [the law regarding a female minor]. And if you wish I will say: One deals with one case<a id="k11a_7"><sup>7</sup></a>&nbsp; and the other deals with another case, and they do not really differ [as regards the law].
</p><p>
	<P><B><I>MISHNAH</I></B>. IF A MAN SEES PEOPLE RUNNING AFTER A LOST ARTICLE [E.G.,] AFTER AN INJURED STAG [OR] AFTER UNFLEDGED PIGEONS,<a id="k11a_8"><sup>8</sup></a>&nbsp; AND SAYS: 'MY FIELD ACQUIRES POSSESSION FOR ME',<a id="k11a_9"><sup>9</sup></a>&nbsp; IT DOES ACQUIRE POSSESSION FOR HIM.<a id="k11a_10"><sup>10</sup></a>&nbsp; BUT IF THE STAG RUNS NORMALLY, OR THE PIGEONS FLY [NATURALLY], AND HE SAYS: 'MY FIELD ACQUIRES POSSESSION FOR ME,' THERE IS NOTHING IN WHAT HE SAYS.<a id="k11a_11"><sup>11</sup></a>
</p><p>
	<P><B><I>GEMARA</I></B>. Rab Judah said in the name of Samuel: This<a id="k11a_12"><sup>12</sup></a>&nbsp; is, provided he is present by the side of his field. But ought not his field to acquire it for him [in any case], seeing that R. Jose, son of R. Hanina, said:<a id="k11a_13"><sup>13</sup></a>&nbsp; A man's 'ground' acquires [property] for him [even] without his knowledge? &mdash; These words apply only to a [piece of] 'ground' that is guarded,<a id="k11a_14"><sup>14</sup></a>&nbsp; but when [the piece] of 'ground' is not guarded, [then the law is that] if [the owner] is present by the side of his field he does [acquire the property], [but] if [he is] not [present] he does not [acquire it]. And whence do you derive that when [the piece of] 'ground' is not guarded [the owner] does [acquire the property] if he is present by the side of the field, [but that he] does not [acquire it] if [he is] not [present]? &mdash; From what was taught: If one stands in town and says, 'I know that the sheaf which I have in the field has been forgotten by the labourers,<a id="k11a_15"><sup>15</sup></a>&nbsp; [and it is my wish that the sheaf] shall not be regarded as forgotten',<a id="k11a_16"><sup>16</sup></a>&nbsp; I might think that it shall not [in any circumstances]<a id="k11a_17"><sup>17</sup></a>&nbsp; be regarded as forgotten: the scriptural verse therefore tells us: <i>And thou hast forgot a sheaf in the field</i> [etc.]<a id="k11a_18"><sup>18</sup></a>&nbsp; implying <i>'only if thou hast forgotten it [while thou wast] in the</i> field [does the law of the forgotten sheaf apply] and not [if thou hast forgotten it when thou hast returned] to town.' Now, this seems self-contradictory. First you say: 'I might think that it shall not be regarded as forgotten' &mdash; from which it would appear that [in fact] it is regarded as forgotten; and then the Gemara<a id="k11a_19"><sup>19</sup></a>&nbsp; concludes: 'Only if thou hast forgotten it [while thou wast] in the field [does the law of the forgotten sheaf apply] but not [if thou hast forgotten it when thou hast returned] to town' &mdash; from which it would appear that [in the case discussed] it is not regarded as a forgotten [sheaf]. It must therefore be assumed that what is meant is this: In the field, [i.e.,] if it was forgotten at the outset, [while the owner was still in the field,] it must be regarded as [a] forgotten [sheaf], [but] if it was remembered [by the owner in the field] and was subsequently forgotten [by the labourers] it is not regarded as [a] forgotten [sheaf]. For what reason? Since he was standing near it [in the field, the field] acquires it for him. But [when the owner is again] in town, even if [the sheaf] was at first remembered [by him] and was forgotten later [by the labourers in the field], it must be regarded as [a] forgotten [sheaf].<a id="k11a_20"><sup>20</sup></a>&nbsp; For what reason? Because he is not there beside it, so that [the field] does not require possession [of the sheaf] for him. But how does it follow?<a id="k11a_21"><sup>21</sup></a>&nbsp; Perhaps it is a Biblical decree that [only that which is forgotten by the owner while he is] in the field shall be subject to the law of the forgotten sheaf, but that [when the owner is] in town [again] the sheaf is no more subject to that law?<a id="k11a_22"><sup>22</sup></a>&nbsp; The Scriptural verse says [further]: Thou shalt not go back to fetch it &mdash; this is to include the sheaf which has been forgotten [by the owner on his return] to town. But is not this needed to indicate that disregard of the law involves the transgression of a negative command?<a id="k11a_23"><sup>23</sup></a>&nbsp; &mdash; If that were so, the Scriptural verse would only have to say 'Thou shalt not fetch it'. Why does it say: 'Thou shalt not go back'? [Obviously] in order to include the sheaf which has been forgotten [by the owner on his return] to town. But is not this [additional phrase] still required for [the rule] which we have learned: That which is in front of him [who is engaged in reaping] is not [subject to the law of the] forgotten [sheaf]; that which is behind him is [subject to the law of the] forgotten [sheaf], as it is included in the prohibition: 'Thou shalt not go back [to fetch it]'.<a id="k11a_24"><sup>24</sup></a>&nbsp; This is the general rule: All that can be included in the prohibition 'Thou shalt not go back [to fetch it]' is [subject to the law of the] forgotten [sheaf]; all that cannot be included in the prohibition 'Thou shalt not go back [to fetch it]' is not [subject to the law of the] forgotten [sheaf]?<a id="k11a_25"><sup>25</sup></a>&nbsp; &mdash; R. Ashi said: The Scriptural verse says: It shall be [for the stranger]<a id="k11a_26"><sup>26</sup></a>&nbsp; etc., so as to include that which has been forgotten [by the owner when he is back] in town.
</p><p>
	'Ulla also said:<a id="k11a_27"><sup>27</sup></a>&nbsp; 'This is, provided that he is present by the side of his field'. And Rabbah b. Bar Hanah said likewise: 'This is, provided that he is present by the side of his field'. R. Abba placed before 'Ulla the following objection: It happened once that Rabban Gamaliel and some elders were going in a ship.<a id="k11a_28"><sup>28</sup></a>&nbsp; Rabban Gamaliel then said: The tithe which I shall measure off [when I come home] is given [by me] to Joshua.<a id="k11a_29"><sup>29</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k11b_1:" This enabled Joshua to acquire the tithe without actually taking possession of it, as movable property may be acquired either by pulling it or having it placed within one's premises (v. <i>supra</i> 9b). According to Ma'as. Sh. V, 9 the leasing of the premises was confirmed by the immediate payment of a nominal rental by Joshua to R. Gamaliel."
,k11b_2:" The tithe which had to be given to the poor in the third and sixth year after the Sabbatical year."
,k11b_3:" Who held the office of almoner."
,k11b_4:" Ma'as. Sh. V, 9."
,k11b_5:" It is obvious that in this case the condition laid down by 'Ulla and the other Rabbis could not have been fulfilled. The conclusion must therefore be drawn that a person's premises may acquire for him the objects placed therein even if he is not standing by the side of the premises."
,k11b_6:" B.B. 84b."
,k11b_7:" Cf. <i>supra</i> 6b."
,k11b_8:" The leasing of the ground on which the tithes were lying enabled Joshua and Akiba to acquire the tithes, not because the ground acted for them as their 'hand' or 'agent', but because of the principle that 'movable property, which cannot be pledged as security to a lender, may be acquired together with immovable property, which can be pledged as security to a lender,' by means of the payment of the purchase price of the immovable property (v. Kid 26a). Rabban Gamaliel could therefore have leased to Joshua and Akiba any other piece of ground, with the same effect so far as the acquisition of the tithes is concerned. Even movable property which is received as a gift can be acquired in the same way. (Cf. <i>loc. cit</i>.)"
,k11b_9:" Heb. [H] <i>halipin</i>; cf. Ruth. IV, 7. What need was there then for Joshua and Akiba to pay R. Gamaliel for the lease of the ground? Cf. <i>supra</i> p. 30. n. 3."
,k11b_10:" The tithe offered by R. Gamaliel to Joshua and Akiba was not really the former's property as it belonged by law to the Levite poor. R. Gamaliel's right was limited to the choice of the person to whom the tithe was to be handed over. This right has no money value in the sense indicated to enable the recipient of the tithe to acquire it in association with a transaction of 'exchange'."
,k11b_11:" In the same way, and for the same reason, the tithe could not be acquired by means of the payment of the purchase price for immovable property. But it could be acquired in the way in which an ownerless object is acquired by one in whose premises it is placed, and for this reason the method employed by R. Gamaliel, as originally interpreted (by leasing his ground on which the tithe was lying), was correct."
,k11b_12:" Including the portions due to the Levites and to the poor."
,k11b_13:" Deut. XXVI, 12."
,k11b_14:" 'Giving' precludes selling, and 'exchange' is a method of sale. But the acquisition of movable property, even when it is received as a gift in association with immovable property is legally valid, and it is not regarded as a sale. This method may therefore be employed in reference to tithes."
,k11b_15:" R. Papa upholds the original version regarding R. Gamaliel's method of distributing the tithes by means of his 'ground'."
,k11b_16:" Literally: 'Where another mind causes one to acquire them,' i.e., where the recipient does not acquire (ownerless) goods by his own action, but has them conferred upon him by the owner, as in the case of R. Gamaliel. In such a case there is no need for the recipient to 'be standing by the side of the field,' as laid down by 'Ulla and others in regard to the case in our Mishnah."
,k11b_17:" The injured animal and immature birds are assumed to be able to move along slowly through the field, where they can be overtaken by the owner."
,k11b_18:" If someone's animals or birds have landed in a strange field and their owner gives them to the owner of the field as a present, Must the owner be able to overtake them in order to be able to acquire them, or not?"
,k11b_19:" V. Git. 77b; and <i>supra</i> 10b."
,k11b_20:" It is the husband's intention that the wife should take possession of the document, so that she may be divorced by it."
,k11b_21:" R. Ashi acknowledges the validity of the arguments advanced by R. Shimi and R. Shesheth, and he gives a new reason for the distinction between a bill of divorcement and a gift. In both cases the ground on which the object is placed acts as the recipient's agent, whether the recipient is present or not. Where the recipient has no knowledge of the action, the agency is valid only if the action yields an advantage or benefit to the recipient. Where the action results in a disadvantage (loss or injury) to the recipient, it has no validity. Therefore, in the case of a gift, the recipient's ground acquires it for him, whether he is aware of it or not. But in the case of the bill of divorcement thrown into the wife's house or court-yard (against her will) the agency of the premises is not effective because the result would be a disadvantage to her, and in such a case the premises could only act for her if she is present and aware of what is happening, for then the premises would be regarded as 'her hand' (cf. <i>supra</i> 10b) and not merely as her agent. Therefore the divorce is not valid unless the woman was beside her premises when the bill was thrown. "
}

txt:
<p>
and the place [where it lies] is leased to him [by me].<a id="k11b_1"><sup>1</sup></a>&nbsp; And the other tithe<a id="k11b_2"><sup>2</sup></a>&nbsp; which I shall measure off is given [by me] to Akiba b. Joseph<a id="k11b_3"><sup>3</sup></a>&nbsp; that he may acquire possession of it for the poor, and the place [where it lies] is leased to him [by me].<a id="k11b_4"><sup>4</sup></a>&nbsp; Now, were R. Joshua and R. Akiba standing by the side of the field of Rabban Gamaliel [when the latter made that declaration]?<a id="k11b_5"><sup>5</sup></a>&nbsp; &mdash; He ['Ulla] then said to him [R. Abba]: This student seems to imagine that people do not study the law.<a id="k11b_6"><sup>6</sup></a>&nbsp; When he [R. Abba] came to Sura<a id="k11b_7"><sup>7</sup></a>&nbsp; he related to those [at the College]: This is what 'Ulla said, and this is the objection that I placed before him. One of the Rabbis then answered him: Rabban Gamaliel made them acquire the movable property through the immovable property.<a id="k11b_8"><sup>8</sup></a>&nbsp; R. Zera accepted it. R. Abba did not accept it. Said Raba: He [R. Abba] did right in not accepting it: for had they not a 'cloth' by which to acquire from him [the tithes] as 'exchange'?<a id="k11b_9"><sup>9</sup></a>&nbsp; [It must] therefore [be said that] the enjoyment of the right [to give the tithes to whom one likes]<a id="k11b_10"><sup>10</sup></a>&nbsp; is not [regarded as something that has a] money [value] by which one could acquire [goods] as 'exchange'. In the same way [it must be said that] the enjoyment of this right is not [regarded as something that has a] money [value] for the purpose of being acquired through immovable property.<a id="k11b_11"><sup>11</sup></a>&nbsp; But this is not so: In regard to the priestly perquisites<a id="k11b_12"><sup>12</sup></a>&nbsp; [the term] 'giving' is used in Scripture:<a id="k11b_13"><sup>13</sup></a>&nbsp; 'Exchange' is a commercial transaction; [whereas the acquisition of] movable property through immovable property is [a transaction to which] 'giving' [may be] legitimately [applied].<a id="k11b_14"><sup>14</sup></a>&nbsp; R. Papa says:<a id="k11b_15"><sup>15</sup></a>&nbsp; [In a case where there is] a person bestowing [upon the recipient] the right [to the property] it is different.<a id="k11b_16"><sup>16</sup></a>&nbsp; And whence do you derive this? From what we have learned [in our Mishnah]: 'IF A MAN SEES PEOPLE RUNNING AFTER A LOST OBJECT' etc. And [in regard to this] R. Jeremiah said in the name of R. Johanan: 'This is, provided that [if] he runs after them and can overtake them.'<a id="k11b_17"><sup>17</sup></a>&nbsp; R. Jeremiah then asked: What is the law regarding a gift?<a id="k11b_18"><sup>18</sup></a>&nbsp; R. Abba b. Kahana approved [of the distinction implied in] this question, [and he answered: If the objects are given to the owner of the field, they become his] even if he runs after them, and cannot overtake them. For what reason? Is it not because [where there is] a person bestowing [upon the recipient] the right [to the property] it is different!
</p><p>
	Said R. Shimi to R. Papa: Behold there is [the case of] a bill of divorcement [thrown by the husband into the wife's house or court-yard],<a id="k11b_19"><sup>19</sup></a>&nbsp; where there is a person bestowing upon the recipient the right to its possession<a id="k11b_20"><sup>20</sup></a>&nbsp; &mdash; and yet 'Ulla said: 'That is, provided that she is present in the vicinity of her house or her court-yard'! &mdash; [The case of] a bill of divorcement is different, as it may be given even against her will. But can it not be concluded [the other way] by means of a Kal wa-homer: If [in the case of] a bill of divorcement, which may be given against [the wife's] will, it is valid if she is standing by the side of her house or her court-yard, but not otherwise, how much more should this be so in the case of a gift, for which [the recipient's] consent [is necessary]? &mdash; Therefore R. Ashi said:<a id="k11b_21"><sup>21</sup></a>
</P>


lvr: 42
dfh: a
notes:
 ntes={k12a_1:" Cf. Kid. 23a and 32b; A person's 'ground' acquires for him the object given to him, if even he is not present and is not aware of the gift, because it is assumed that he agrees that the 'ground' should act for him and receive on his behalf the gift from the donor, who wishes to bestow upon the recipient the right to the possession of the object. It is different, however, in the case of a found object, as there is no one to bestow upon the claimant the right to the property, and unless he is present, or the ground where the object is found is guarded (fenced in), the 'agency' cannot take effect nor can the principle of his 'hand' be applied when he is not present (Rashi)."
,k12a_2:" Cf. <i>infra</i> 102a."
,k12a_3:" Through the door of a house belonging to another person."
,k12a_4:" So that the owner of the first house could claim the purse on the ground that his premises had acquired it for him before it reached the other house. Cf. Git. 77a."
,k12a_5:" In which case the animal or the birds are bound to get beyond his field and land on someone else's ground. And yet the law is that he acquires the animal or birds. The owner of the first house, through which the purse passed after being thrown (away), should therefore also acquire the purse."
,k12a_6:" There is no comparison between the case of the purse thrown through the door of a house, and the animal or birds moving through a field, as moving on the ground is like resting on the ground, and the owner acquires the objects before they leave his field."
,k12a_7:" Cf. Keth. 46b."
,k12a_8:" Cf. Lev. XXV, 46."
,k12a_9:" Cf. Keth. <i>loc. cit</i>."
,k12a_10:" It is therefore assumed that when he picked up the object he did it in behalf of his father."
,k12a_11:" Cf. Lev. XIX, 9."
,k12a_12:" As he receives part of the crops he is no more poor, and he is in the same position as the owner of the field. His son is therefore not allowed to gather the gleaning for him."
,k12a_13:" For although the labourer is no more poor, his son and wife may still be regarded as poor, and they may gather part of the crops."
,k12a_14:" As he receives part of the crops."
,k12a_15:" He himself does not hold that an object found by a minor belongs to his father."
,k12a_16:" Lit. 'ways of peace'."
,k12a_17:" Git. 59b."
,k12a_18:" According to the view of R. Jose the robbed object can be reclaimed by legal proceedings. But even according to him it is not a Biblical law that a minor has a right to acquire things for himself. Consequently by gleaning after his father, and on behalf of his father (who is now rich) he robs the poor."
,k12a_19:" Cf. <i>Pe'ah</i> VIII, 1. Abaye admits that a minor has no right of possession, but he advances another reason why a minor may glean after his father: When the poor learn that the labourer in the field has a wife and children they give up hope of finding any gleanings there. The field is thus regarded as one through which the old people ([H]) have passed (old people who come last and walk slowly and haltingly, so that they cannot miss anything still left on the ground) and in which everybody is allowed to take away the gleanings &mdash; even the rich &mdash; because of the assumption that the poor are satisfied that after these last gleaners have searched the field nothing worth taking is left."
,k12a_20:" This is why the son may gather the gleanings for his father."
,k12a_21:" If the only reason why the son is permitted to gather the gleaning is that his presence serves to keep the poor away, although he is not legally entitled to glean in the field, it is like placing a wild beast in the field in order to frighten the poor people away, which is, of course, wrong. "
}

txt:
<p>
[A person's] 'ground' [acts for him because] it is included in [the term] 'hand', and is no less effective than a [human] agency: In the case of a bill of divorcement, where the agency would work to her disadvantage, [we say that] one may not do anything to a person's disadvantage except when the person is present. But in the case of a gift, where the agency would work to the advantage [of the recipient, we say that] one may do something to a person's advantage when the person is absent.<a id="k12a_1"><sup>1</sup></a>
</p><p>
	[To revert to] the above text: 'IF A MAN SEES PEOPLE RUNNING AFTER A LOST ARTICLE etc. R. Jeremiah said in the name of R. Johanan: This is provided that if he runs after them he can reach them. R. Jeremiah asked: What [is the law] in [the case of] a gift? R. Abba b. Kahana approved of the [distinction implied in the] question [and answered]: 'Even though if he runs after them and cannot reach them.' Now, Raba asked:<a id="k12a_2"><sup>2</sup></a>&nbsp; If one throws [away] a purse through one door and it falls through another door,<a id="k12a_3"><sup>3</sup></a>&nbsp; what is the law? [Do we say that even] when a thing does not come to rest in the air it is regarded as being come to rest there,<a id="k12a_4"><sup>4</sup></a>&nbsp; or not? &mdash; R. Papa said to Raba, (and according to some R. Adda b. Mattena said to Raba, while according to others Rabina said to Raba): Is not this the same as [the case in] our Mishnah: IF A MAN SEES PEOPLE RUNNING AFTER A LOST ARTICLE [etc.]. and R. Jeremiah said in the name of R. Johanan: 'This is, provided that if he runs after them he can reach them', and R. Jeremiah asked: 'What is the law in the case of a gift?' and R. Abba b. Kahana approved of the [distinction implied in the] question [and answered]: 'Even though if he runs after them and cannot reach them'?<a id="k12a_5"><sup>5</sup></a>&nbsp; [Raba] answered him: You speak of [a case where the objects were] moving [on the ground]: moving [on the ground] is different, as it is like resting.<a id="k12a_6"><sup>6</sup></a>&nbsp; 
</p><p>
	<P><B><I>MISHNAH</I></B>. AN OBJECT FOUND BY A MAN'S SON OR DAUGHTER WHO ARE MINORS,<a id="k12a_7"><sup>7</sup></a>&nbsp; OR BY HIS CANAANITE BONDMAN OR BONDWOMAN,<a id="k12a_8"><sup>8</sup></a>&nbsp; OR BY HIS WIFE,<a id="k12a_9"><sup>9</sup></a>&nbsp; BELONGS TO HIMSELF. AN OBJECT FOUND BY HIS SON OR DAUGHTER WHO ARE MAJORS, OR BY HIS HEBREW MANSERVANT OR MAIDSERVANT, OR BY HIS WIFE WHOM HE HAS DIVORCED, ALTHOUGH HE HAS NOT PAID [HER THE AMOUNT DUE TO HER ACCORDING TO] HER MARRIAGE-CONTRACT, BELONGS TO THE FINDER.
</p><p>
	<P><B><I>GEMARA</I></B>. Samuel said: For what reason has it been laid down that an object found by a minor belongs to his father? Because when he finds it he brings it hurriedly to his father<a id="k12a_10"><sup>10</sup></a>&nbsp; and does not retain it in his possession. Shall we then say that Samuel is of the opinion that a minor has no right to acquire anything for himself [and that this is] in accordance with Biblical law? Surely it was taught: If one hires a labourer [to work in his field] the son [of the labourer] may gather the gleaning behind [his father]?<a id="k12a_11"><sup>11</sup></a>&nbsp; [But if the labourer receives] a half or a third or a fourth [of the crops as wages] his son may not gather the gleaning behind him.<a id="k12a_12"><sup>12</sup></a>&nbsp; R. Jose says: In either case his son and his wife may gather the gleaning behind him.<a id="k12a_13"><sup>13</sup></a>&nbsp; And Samuel said: The <i>halachah</i> is like R. Jose. Now it is all well if you say that a minor has a right to acquire things for himself in accordance with Biblical Law. For then his son gathers the gleanings for himself, and the father acquires it from him. But if you say that a minor has no right to acquire anything for himself, then the son must gather the gleaning for his father; but his father is rich,<a id="k12a_14"><sup>14</sup></a>&nbsp; &mdash; why then may his wife and son gather the gleaning behind him? &mdash; Samuel merely gave the reason of the Tanna of our Mishnah, but he himself does not hold that view.<a id="k12a_15"><sup>15</sup></a>&nbsp; And does R. Jose hold the view that a minor has a right to acquire things for himself in accordance with Biblical law? Have we not learnt: An object found by a deaf-mute, an imbecile, and a minor [may not be taken away from them as the law of] robbery is applied to them out of consideration for the public good.<a id="k12a_16"><sup>16</sup></a>&nbsp; R. Jose says: It is actual robbery.<a id="k12a_17"><sup>17</sup></a>&nbsp; And R. Hisda says: It is actual robbery because of an enactment by the Rabbis; the difference is as regards reclaiming the object by law?<a id="k12a_18"><sup>18</sup></a>&nbsp; &mdash; Therefore Abaye said: [The field] is treated as if the last gleaners had passed through it,<a id="k12a_19"><sup>19</sup></a>&nbsp; so that the poor themselves dismiss it from their minds, thinking that the son of that [labourer] would gather the gleaning.<a id="k12a_20"><sup>20</sup></a>&nbsp; R. Adda b. Mattena then said to Abaye: Is it permissible for a man to cause a lion to lie down in his field in order that the poor may see it and run away?<a id="k12a_21"><sup>21</sup></a>&nbsp; &mdash; Therefore Raba said:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k12b_1:" The Rabbis have conceded the son the right to glean after his father, although legally he has no such right."
,k12b_2:" That the reason why our Mishnah decides that the object found by a minor belongs to his father is that a minor has no right of possession."
,k12b_3:" Therefore an object found by a son who is maintained by his father, even if he be an adult, belongs to his father (to avoid ill-feeling), and an object found by one who is not maintained by his father, even if he be a minor, belongs to himself. (Rashi.)"
,k12b_4:" <i>Supra</i> 10a; <i>infra</i> 118a. Thus we see that an object found by a hired labourer engaged to do general work belongs to the employer. The Hebrew servant ought to be treated in the same way, as his time is his master's, and anything he does is done for the master."
,k12b_5:" The master would therefore not wish him to interrupt his work in order to lift up a found object, the value of which would seldom exceed the value of his work, so that if it does happen that the servant lifts up a valuable object the master can only claim compensation for the time in which he interrupted his work in order to acquire the object."
,k12b_6:" The finding of the object involved no interruption in the servant's work. The object therefore belongs to the servant, and there is no compensation due to the master."
,k12b_7:" When a meadow has been flooded, and the fish remained after the waters have receded."
,k12b_8:" The sign of puberty."
,k12b_9:" [A Hebrew maid-servant secures her freedom on attaining puberty. Cf. Kid. 14b.]"
,k12b_10:" As she is still a minor, v. <i>supra</i> 12a."
,k12b_11:" The death of her father necessitates her release."
,k12b_12:" Cf. Kid. 16a, and Keth. 43a."
,k12b_13:" V. Kid. <i>loc. cit</i>."
,k12b_14:" The words [H] used in the Mishnah are meant to indicate that the found objects do not belong to the master but become the property of the children's father (who acquires them from the children)."
,k12b_15:" It is doubtful whether the divorce is valid, as when the husband has thrown to her a bill of divorcement in an open street, and it is not certain whether the document was nearer to him or to her when it fell to the ground."
,k12b_16:" Keth. 97b; Git. 74a; B.B. 47b."
,k12b_17:" Seeing that he tried to divorce her; consequently the husband forfeits all claim to whatever she finds."
,k12b_18:" I.e., to either of the parties named therein."
,k12b_19:" The Court will exact payment from the mortgaged property even if the debtor has sold it to others after incurring the debt. This may lead to injustice, as explained below in the Gemara."
,k12b_20:" The court will not exact payment from the purchasers of the debtor's real property, and the possibility of injustice will not arise."
,k12b_21:" And the creditor is legally entitled to exact payment from the mortgaged property even if the debtor has sold it, so there is no injustice."
,k12b_22:" Which the debtor disposed of after incurring the debt."
,k12b_23:" So that an injustice may still be done to the debtor, who may have paid the debt already, as he claims to have done."
,k12b_24:" The first month of the year, corresponding mostly to April."
,k12b_25:" The seventh month of the year, corresponding mostly to October."
,k12b_26:" The fact that they were not properly taken care of, and were thus lost, would show that no importance was attached to them. There is thus a prima facie case against their validity."
,k12b_27:" Cf. B.B. 167b."
,k12b_28:" V. p. 71, n. 2. "
}

txt:
<p>
[In this case] the right to take possession has been conceded to one who really has no such right.<a id="k12b_1"><sup>1</sup></a>&nbsp; For what reason? &mdash; [Because] the poor themselves are pleased [with this concession], so that when they are hired [as labourers] their children may also be allowed to glean after them. Now this [Samuel's view]<a id="k12b_2"><sup>2</sup></a>&nbsp; differs from that of R. Hiyya b. Abba. For R. Hiyya b. Abba said in the name of R. Johanan: [By] MAJOR [we do] not [mean one who is] legally a major, nor [do we mean by] MINOR [one who is] legally a minor, but a major who is maintained by his father is regarded as a minor, and a minor who is not maintained by his father is regarded as a major.<a id="k12b_3"><sup>3</sup></a>
</p><p>
	AN OBJECT FOUND BY HIS HEBREW MANSERVANT OR MAIDSERVANT BELONGS TO THE FINDER. Why? Ought not [the servant] to be regarded as a [hired] labourer? And it has been taught: 'An object found by a [hired] labourer belongs to himself. This is the law only when [the employer] said to him: "Weed for me today; hoe for me today," but if [the employer] said to him: "Do work for me today." the object found by him belongs to the employer'?<a id="k12b_4"><sup>4</sup></a>&nbsp; &mdash; R. Hiyya b. Abba said in the name of R. Johanan: The servant referred to here [in our Mishnah] is one [who does highly skilled work, such as] perforating pearls, so that his master does not wish to change him over to any other kind of work.<a id="k12b_5"><sup>5</sup></a>&nbsp; Raba says: We deal here with [a servant] who picked up a found object while doing his work.<a id="k12b_6"><sup>6</sup></a>&nbsp; R. papa says: [The object found by the hired labourer belongs to the employer] when [the employer] hired him to collect ownerless objects, as, for instance, when a meadow was flooded with fish.<a id="k12b_7"><sup>7</sup></a>
</p><p>
	What kind of a MAIDSERVANT is it [that our Mishnah speaks of]? If it is one who has grown two hairs,<a id="k12b_8"><sup>8</sup></a>&nbsp; what business has she with him [who claims to be her master]?<a id="k12b_9"><sup>9</sup></a>&nbsp; And if she has not grown two hairs, then if she has a father the found object belongs to her father,<a id="k12b_10"><sup>10</sup></a>&nbsp; and if she has no father she should have been released on the death of the father.<a id="k12b_11"><sup>11</sup></a>&nbsp; For Resh Lakish said: The Hebrew maidservant gains her liberty from the master through the death of her father, which law may be derived by means of a <i>Kal wa-homer</i>!<a id="k12b_12"><sup>12</sup></a>&nbsp; &mdash; But was not Resh Lakish refuted?<a id="k12b_13"><sup>13</sup></a>&nbsp; [Yes.] But does not this [law of our Mishnah] provide an additional refutation? &mdash; No. You may assume that [our Mishnah refers to a case where] the father is alive, but the words, IT BELONGS TO THE FINDER, mean [in her case] that the master is excluded.<a id="k12b_14"><sup>14</sup></a>
</p><p>
	AN OBJECT FOUND BY HIS WIFE [WHOM HE HAS DIVORCED], etc. If he has divorced her it is self-evident [that the object found by her belongs to her]! &mdash; Here we deal with the case of a woman who has been divorced and yet is not divorced.<a id="k12b_15"><sup>15</sup></a>&nbsp; For R. Zera said in the name of Samuel: Wherever the Sages have said [that a woman is] 'divorced and yet not divorced' her husband is obliged to maintain her.<a id="k12b_16"><sup>16</sup></a>&nbsp; Now the reason why the Rabbis said that an object found by a wife belongs to her husband is that he may entertain no ill-feeling towards her. Here [it is obvious that the husband] entertains intense ill-feeling towards her.<a id="k12b_17"><sup>17</sup></a>&nbsp; 
</p><p>
	<P><B><I>MISHNAH</I></B>. IF ONE FINDS NOTES OF INDEBTEDNESS CONTAINING A MORTGAGE CLAUSE PLEDGING [THE DEBTOR'S] PROPERTY, ONE SHALL NOT RETURN THEM,<a id="k12b_18"><sup>18</sup></a>&nbsp; BECAUSE THE COURT WILL ENFORCE PAYMENT ON THE STRENGTH OF THEM.<a id="k12b_19"><sup>19</sup></a>&nbsp; IF THEY CONTAIN NO SUCH MORTGAGE CLAUSE, ONE SHALL RETURN THEM, BECAUSE THE COURT WILL NOT ENFORCE PAYMENT<a id="k12b_20"><sup>20</sup></a>&nbsp; ON THE STRENGTH OF THEM. THIS IS THE VIEW OF R. MEIR. BUT THE SAGES SAY: ONE SHALL NOT RETURN THEM IN EITHER CASE, AS THE COURT WILL ENFORCE PAYMENT [IN BOTH CASES].
</p><p>
	<P><B><I>GEMARA</I></B>. With what kind of circumstances do we deal here? If the debtor admits [that the debt is due], then, even if there is a mortgage clause [in the documents], why shall [the finder] not return them, seeing that the debtor admits [that he has not paid the debt]?<a id="k12b_21"><sup>21</sup></a>&nbsp; And if the debtor does not admit, why should [the finder] return [the documents where they do not contain a mortgage clause]? Granted that [the creditor] may not exact payment from encumbered property,<a id="k12b_22"><sup>22</sup></a>&nbsp; but he may certainly exact payment from unencumbered property!<a id="k12b_23"><sup>23</sup></a>&nbsp; &mdash; Yes. [It is] indeed [a case] where the debtor admits his debt, but the reason [why the documents are not to be returned is this]: We apprehend that they might have been written to secure a loan [say] in Nisan<a id="k12b_24"><sup>24</sup></a>&nbsp; whereas the loan was not granted until Tishri,<a id="k12b_25"><sup>25</sup></a>&nbsp; so that [the lender] would come to seize unlawfully the property bought [by others from the borrower during that space of time]. But if so, we ought to entertain the same fear as regards all documents that come before us? &mdash; Ordinary documents are not suspect, but these are suspect.<a id="k12b_26"><sup>26</sup></a>&nbsp; Then [the question arises] regarding the law that we learnt [in a Mishnah]: A note of indebtedness may be written for the borrower even when the lender is not present.<a id="k12b_27"><sup>27</sup></a>&nbsp; How do we write it deliberately [seeing that] we ought to apprehend that the note might have been written with the intention of borrowing in Nisan, whereas the loan was not granted until Tishri, so that the lender would seize unlawfully the property [which others will have] bought [from the borrower during that space of time]!<a id="k12b_28"><sup>28</sup></a>&nbsp; &mdash; Said R. Assi:
</P>


lvr: 42
dfh: a
notes:
 ntes={k13a_1:" By which the borrower transfers to the lender his property from the date of the document, so that the lender is entitled to seize property sold by the borrower after that date, whether the loan has actually been granted or not; v. B. B. (Sone. ed.) p. 753, n. 1."
,k13a_2:" We need not fear that he would have the document written before the actual date of the loan, as the Court would not allow such a document to be written."
,k13a_3:" I.e., with the borrower, to hand him over the money."
,k13a_4:" The lender. As soon as the witnesses have signed the document the borrower's property becomes legally liable to be seized by the lender, even if the money has not really been lent yet. There is therefore no fear of the lender seizing the borrower's sold property unlawfully, even if the document is an ordinary note of indebtedness."
,k13a_5:" V. <i>infra</i> 18a; Git. 27a."
,k13a_6:" Even if the creditor received the document at a later date, his right to the property is conceded from the date of the document. But if the document was cancelled and was never handed over to the creditor, the latter has no right to the debtor's property."
,k13a_7:" Lit., 'We do not say (thus)'."
,k13a_8:" Which are not to be returned because they may have been written illegally in the absence of the lender (before the date of the actual loan), and the fact that they were dropped by the owner would show that they were not deemed to be valid documents."
,k13a_9:" Why should not the documents be returned, seeing that their validity from the date of the witnesses' signatures could not be questioned?"
,k13a_10:" [G]."
,k13a_11:" The borrower may have dropped the document because he had already paid the debt, but he may subsequently have conspired with the lender to exact payment from the purchasers of the borrower's land (as if the debt had not been paid) with a view to sharing in the spoil."
,k13a_12:" V. <i>infra</i> 16b."
,k13a_13:" Samuel assumes that the borrower would tear up the note of indebtedness as soon as the debt is paid, and the conspiracy could not therefore arise. Cf. <i>infra</i> ibid."
,k13a_14:" In which case the return of the lost documents might involve an injustice to the purchasers of the borrower's property, to which the lender would have no legal claim."
,k13a_15:" V. p. 73, n. 1."
,k13a_16:" Why should the document not be returned to the lender, seeing that it is valid from the date of writing?"
,k13a_17:" I.e., the borrower maintains that the document was forged, and his plea is accepted because the loss of the document tends to show that it was not properly taken care of, the reason for the negligence being, one had a right to assume, that the document was deemed to be invalid."
,k13a_18:" Cf. <i>supra</i> 7b. "
}

txt:
<p>
[The Mishnah deals] with deeds of transfer,<a id="k13a_1"><sup>1</sup></a>&nbsp; in which case he pledged himself [that his property would be at the disposal of the lender from the date given in the note].
</p><p>
	But if this is so, [how do we understand] our Mishnah, which teaches that, IF THERE IS A CLAUSE IN THEM MORTGAGING THE DEBTOR'S PROPERTY, THEY SHALL NOT BE RETURNED, and which has been explained as dealing with a case where the debtor admits the debt, and for the reason that [the documents] might have been written to secure a loan in Nisan, while the loan was not granted until Tishri, and [the lender] would seize unlawfully the property bought [by others from the borrower during that space of time]? Why should not [the documents] be returned? We ought to see: If it is a case of a deed of transfer, then he has pledged himself [to let the lender have the property from the date of the deed]; if it is not a deed of transfer, there is nothing to apprehend,<a id="k13a_2"><sup>2</sup></a>&nbsp; for you have said that if the lender is not present with him<a id="k13a_3"><sup>3</sup></a>&nbsp; we do not write [the note of indebtedness]? &mdash; R. Assi answered: Although ordinarily we do not write notes which are not deeds of transfer, when the lender is not present, in our Mishnah, which [deals with a document that] has been dropped and has consequently become suspect, we do apprehend that by some chance it might have been written [in the absence of the lender]. Abaye says: The witnesses acquire for him<a id="k13a_4"><sup>4</sup></a>&nbsp; [the right to the property] by [affixing] their signatures [to the document], even if it is not a deed of transfer, [Abaye's reason for this explanation being] that he objected [to R. Assi's version]: If you say that notes which are not deeds of transfer are not written when the lender is not present, then there is no ground for the apprehension that by some chance they may have been written [in the absence of the lender]. But [it may be asked]: What of [the other Mishnah] which we learnt: If one has found bills of divorcement given to wives, deeds of liberation given to slaves, wills of dying persons, deeds of gifts and receipts, one need not return them, as they may have been written and then cancelled, without being handed over [to the persons mentioned in the deeds].<a id="k13a_5"><sup>5</sup></a>&nbsp; Now, even if they have been cancelled, what does it matter, in view of your statement that 'the witnesses acquire for him [the right to the property] by [affixing] their signatures [to the document]'? &mdash; This statement only applies to a case where [the documents] came to his [the creditor's] hand,<a id="k13a_6"><sup>6</sup></a>&nbsp; but in a case where they did not come to his hand it does not apply.<a id="k13a_7"><sup>7</sup></a>
</p><p>
	[The question arises,] however: [As regards] our Mishnah, which teaches: IF ONE HAS FOUND NOTES OF INDEBTEDNESS, IF THEY CONTAIN A CLAUSE MORTGAGING [THE DEBTOR'S] PROPERTY, ONE SHALL NOT RETURN THEM, and we explained that [it refers to a case] where the debtor admits [the debt], and the reason why [the notes are not returned] is that they may have been written with a view to granting a loan in Nisan, while the loan may not actually have been granted until Tishri &mdash; it is right according to R. Assi, who says that [the first cited Mishnah] refers to deeds of transfer, as [this latter Mishnah can then be explained as] referring to [documents which are] not deeds of transfer,<a id="k13a_8"><sup>8</sup></a>&nbsp; as previously stated. But according to Abaye, who says: The witnesses, by their signatures, acquire for him [the lender the right to the property], how can it be explained?<a id="k13a_9"><sup>9</sup></a>&nbsp; &mdash; Abaye will answer you: The reason for the teaching of our Mishnah is the fear that the debt may have been already paid and that a fraudulent agreement<a id="k13a_10"><sup>10</sup></a>&nbsp; [may have been reached between the lender and the borrower].<a id="k13a_11"><sup>11</sup></a>&nbsp; But how could it be explained according to Samuel, who says<a id="k13a_12"><sup>12</sup></a>&nbsp; that we are not afraid that the debt may have been already paid and that a fraudulent agreement [may have been reached between the lender and the borrower]?<a id="k13a_13"><sup>13</sup></a>&nbsp; It would be right if he [Samuel] shared the view of R. Assi, who says that [the first cited Mishnah] is to be understood as referring to deeds of transfer, [as he could then explain our Mishnah as referring] to [documents which are] not deeds of transfer.<a id="k13a_14"><sup>14</sup></a>&nbsp; But if he [Samuel] shared the view of Abaye, who says: The witnesses, by their signatures, acquire for him [the right to the property],<a id="k13a_15"><sup>15</sup></a>&nbsp; &mdash; how can it be explained?<a id="k13a_16"><sup>16</sup></a>&nbsp; &mdash; Samuel explains the Mishnah as referring to a case where the debtor does not admit [the genuineness of the document].<a id="k13a_17"><sup>17</sup></a>&nbsp; But if so, why should [the document] be returned when it does not contain a clause mortgaging [the borrower's] property? Granted that he [the lender] may not exact payment from encumbered property, he may surely exact payment from unencumbered property! &mdash; Samuel has his own reason. For Samuel stated: R. Meir used to say: A note of indebtedness which has no clause mortgaging property does not [entitle the creditor to] exact payment from either encumbered or unencumbered property. But since it does not [entitle one] to exact payment, why should it be returned? &mdash; R. Nathan b. Oshaiah said: That the lender may use it as a stopper for his bottle. Then let us give it back to the borrower that he may use it as a stopper for his bottle?<a id="k13a_18"><sup>18</sup></a>&nbsp; &mdash; It is the borrower
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k13b_1:" Lit., 'There was no such thing'. The borrower cannot claim the document as he maintains that it is forged."
,k13b_2:" According to R. Meir every note of indebtedness must, in order to be valid, contain a clause mortgaging the borrower's property, otherwise the loan is treated as a verbal loan without witnesses, and the lender can only claim his money if the borrower admits the debt."
,k13b_3:" The Sages in the Mishnah."
,k13b_4:" The Rabbis recognise the validity of the document to the extent that they treat it as a verbal loan to which witnesses testify. The lender can therefore exact payment in ordinary cases from unencumbered property, even when the borrower denies the debt. But in the case of a lost document the borrower's denial is accepted (for the reason indicated above) and the document is therefore deemed to be forged and is not returned."
,k13b_5:" Even if he admits that the document is genuine, but contends that the debt has been paid."
,k13b_6:" Therefore they must not be returned, even if their genuineness is admitted, as we are afraid of a 'fraudulent agreement'."
,k13b_7:" It was maintained before that the Baraitha refutes the view of R. Eleazar in one point only. "
}

txt:
<p>
who denies the whole transaction.<a id="k13b_1"><sup>1</sup></a>
</p><p>
	R. Eleazar says: The difference of opinion [in our Mishnah] concerns a case where the debtor does not admit [his indebtedness]. R. Meir being of the opinion that a document which contains no clause mortgaging [the debtor's] property does not entitle [the creditor] to exact payment either from encumbered property or from unencumbered property,<a id="k13b_2"><sup>2</sup></a>&nbsp; while the Rabbis<a id="k13b_3"><sup>3</sup></a>&nbsp; are of the opinion that it does not entitle [the creditor] to exact payment from encumbered property, but that it does entitle him to exact payment from unencumbered property.<a id="k13b_4"><sup>4</sup></a>&nbsp; But in a case where the debtor admits [the debt] all agree that [the document] should be returned, and that we are not afraid that the debt may have been already paid and a fraudulent agreement reached [between the lender and the borrower to exact payment from the purchasers of the borrower's property]. But R. Johanan says: The difference of opinion [in our Mishnah] concerns a case where the debtor admits [his indebtedness], R. Meir being of the opinion that a document which contains no clause mortgaging [the debtor's] property does not entitle [the creditor] to exact payment from encumbered property, but it does entitle him to exact payment from unencumbered property. But in a case where the debtor does not admit [his indebtedness]<a id="k13b_5"><sup>5</sup></a>&nbsp; all agree that [the document] should not be returned, because we are afraid that it may have been already paid.
</p><p>
	It has been taught in support of R. Johanan, and in refutation of R. Eleazar in one point, and of Samuel in two points: If one has found notes of indebtedness in which there is a clause mortgaging [the debtor's] property, even if both [the debtor and creditor] admit [the genuineness of the documents], one should not return them either to the one or to the other. But if they contain no clause mortgaging [the debtor's] property, then as long as the borrower admits [the debt] they should be returned to the lender, but if the borrower does not admit the debt, they should not be returned either to the one or to the other. This is the view of R. Meir, for R. Meir maintained that notes of indebtedness which contain a clause mortgaging [the debtor's] property [entitle the lender to] exact payment from encumbered property,<a id="k13b_6"><sup>6</sup></a>&nbsp; and that those that contain no clause mortgaging [the debtor's] property [entitle the lender] to exact payment from unencumbered property [only]. But the Sages say: In either case does [the document entitle the lender to] exact payment from encumbered property. This is a refutation of R. Eleazar in one point, as he maintained that according to R. Meir a document that contains no clause mortgaging [the debtor's] property does not [entitle the lender to] exact payment either from encumbered or unencumbered property, and he [further] said that both R. Meir and the Rabbis agree that we are not afraid of a fraudulent agreement [between the lender and the borrower to exact payment from the purchasers of the borrower's property], while the Baraitha teaches that a document which contains no clause mortgaging [the debtor's] property [does not entitle the creditor to] exact payment from encumbered property but does [entitle him to exact] payment from unencumbered property, and it [further] proceeds to indicate that both R. Meir and the Rabbis agree that we are afraid of a 'fraudulent agreement', for it teaches that even if both parties admit [the debt] one must not return [the documents] either to the one or to the other, which shows that we are afraid of a fraudulent agreement [between the parties to rob the purchasers of the borrower's property]. But are not these two points?<a id="k13b_7"><sup>7</sup></a>
</P>


lvr: 42
dfh: a
notes:
 ntes={k14a_1:" The reason why R. Eleazar finds himself in disagreement with the Baraitha in the two points mentioned is that he interprets the Mishnah as referring to a case where the debtor does not admit the debt, and it therefore follows that the document, on the view of R. Meir, does not entitle the lender to exact payment even from unencumbered property, and when in consequence thereof R. Eleazar has to add, 'But when the debtor admits (the debt) all agree that (the document) should be returned,' he explains that 'we are not afraid that the debt may have been already paid and a fraudulent agreement reached,' etc. The two conclusions therefore result from the same premise."
,k14a_2:" Cf. <i>infra</i> 16b."
,k14a_3:" Which renders the debtor's property liable to legal seizure by the creditor irrespective of the date of the actual loan."
,k14a_4:" Even when the debtor does not admit the debt, for it is assumed that if the debt had been paid the document would have been torn up."
,k14a_5:" [V. D.S. a.l., printed editions read 'here'.]"
,k14a_6:" But according to R. Eleazar even a deed of transfer would not have to be returned if the debtor does not admit the debt, and the reason why R. Meir says that a document containing no mortgage clause should be returned is that it is of no use to the creditor, as he cannot enforce payment with such a document, and he may just have the paper for what it is worth."
,k14a_7:" All notes of indebtedness must be assumed to contain the mortgage clause, as no one will lend money without adequate security, and if a note is produced which contains no mortgage clause it can only be due to an error on the part of the scribe who, in writing the note, failed to carry out the instructions given to him by the creditor. Cf. <i>infra</i> 15b; Keth. 104b; B.B. 169b."
,k14a_8:" The scribe must ask whether, in drawing up a deed of sale of land, he is to insert clauses dealing with the guarantees given to the buyer in case the land is seized by the seller's creditors, and making clear the buyer's claims to compensation for improvements made by him in the land; to the best portions of the seller's land (as indemnity to the buyer); and to the seller's property generally as security against loss through seizure by the seller's creditors. For all this the seller's consent is required, which would show that the omission of the mortgage clause in a document is not merely 'a scribe's error'."
,k14a_9:" I.e., that there is a conflict of opinions between Amoraim as to what Samuel's view really was."
,k14a_10:" In the case of a loan, where the lender derives no benefit from the transaction, one must assume that the lender will take no risks and will insist on adequate security. In such a case the omission of the mortgage clause could only be due to a mistake on the part of the scribe."
,k14a_11:" The buyer will take risks, for even if the land is ultimately seized by the seller's creditors, he (the buyer) will in the meantime have profited by the produce of the land."
,k14a_12:" I.e., you have no case, as you have not secured yourself by asking for a guarantee to be inserted in the deed of sale."
,k14a_13:" I.e., that even if the guarantee is not inserted in the deed, the Court assumes that the omission is only a scribe's error, and that the guarantee must have been given."
,k14a_14:" Cf. B.K. 8b; Keth. 92b; and Tosaf. a.l."
,k14a_15:" Against seizure by the seller's creditors."
,k14a_16:" Reuben may put up a counter-claim against the creditor, and thus prevent him from taking away the land bought by Simeon."
,k14a_17:" The creditor cannot plead that Reuben's counter-claim does not affect his right to seize the land bought by Simeon, and that Simeon's claim should be dealt with by the Court as a separate action."
,k14a_18:" I.e., I shall have to refund him the purchase money. I am thus directly concerned in your action against Simeon, and I have a right to stop you from seizing his land in virtue of my counter-claim."
,k14a_19:" Although legally Simeon has no redress, as I did not offer him any guarantee against loss through the actions of my creditors, I do not wish him to feel that I have let him down by selling him property which was liable to be seized by my creditors. "
}

txt:
<p>
 &mdash; 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.<a id="k14a_1"><sup>1</sup></a>&nbsp; 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:<a id="k14a_2"><sup>2</sup></a>&nbsp; If one finds a deed of transfer<a id="k14a_3"><sup>3</sup></a>&nbsp; in the street one should return it to the owners, and we are not afraid that [the debt] may have been already paid.<a id="k14a_4"><sup>4</sup></a>&nbsp; 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 where<a id="k14a_5"><sup>5</sup></a>&nbsp; the borrower does not admit [the genuineness of the document] we are afraid that [the debt] may have been paid.<a id="k14a_6"><sup>6</sup></a>
</p><p>
	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.<a id="k14a_7"><sup>7</sup></a>
</p><p>
	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]'?<a id="k14a_8"><sup>8</sup></a>&nbsp; Shall we say that he who stated the one view [of Samuel] did not state the other?<a id="k14a_9"><sup>9</sup></a>&nbsp; &mdash; 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.<a id="k14a_10"><sup>10</sup></a>&nbsp; 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,<a id="k14a_11"><sup>11</sup></a>&nbsp; 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.'<a id="k14a_12"><sup>12</sup></a>&nbsp; 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?'<a id="k14a_13"><sup>13</sup></a>&nbsp; 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.'
</p><p>
	Abaye said:<a id="k14a_14"><sup>14</sup></a>&nbsp; If Reuben sold a field to Simeon with a guarantee,<a id="k14a_15"><sup>15</sup></a>&nbsp; and Reuben's creditor came and took it away from him, the law is that Reuben may go and sue him [the creditor],<a id="k14a_16"><sup>16</sup></a>&nbsp; and he [the creditor] cannot say to him [Reuben]: 'I have nothing to do with you,'<a id="k14a_17"><sup>17</sup></a>&nbsp; for he [Reuben] may say to him [the creditor]: 'What you take away from him [Simeon] comes back on me.'<a id="k14a_18"><sup>18</sup></a>&nbsp; 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.'<a id="k14a_19"><sup>19</sup></a>
</p><p>
	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]
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k14b_1:" And has not paid the purchase price. (Rashi.)"
,k14b_2:" Even if he has not paid yet, for the buyer acquires the land legally when he takes possession of it, and the purchase price, if not paid, becomes a debt due to the seller (Rashi)."
,k14b_3:" You agreed to buy the field without examining my title, and you have to stand the consequences."
,k14b_4:" [To level them round (Rashi).]"
,k14b_5:" Although in the end the seller must make good the buyer's loss, the buyer has no right to withdraw from the transaction on the plea that in the end his money will have to be refunded."
,k14b_6:" I need not refund your money until the Court has given its decision regarding the legality of the seizure and your title to have the money refunded."
,k14b_7:" The seller had acquired the field wrongfully and had no title to the property. The rightful owner then comes and seizes the field from the buyer."
,k14b_8:" If during his tenure of the field the buyer improved it by manure or by erecting a fence round it, he may claim compensation from the seller. The obvious question why the original (rightful) owner, who regains possession of his field, is not made to pay for the improvement, may be answered by referring to a case where the seller allowed the field to deteriorate after taking it away from the rightful owner, and the buyer only restored it to its original condition so that the original owner derives no actual benefit from the change (Rashi)."
,k14b_9:" As the seller had no right to the field the transaction was entirely invalid, and there was no sale. The money handed over to the seller could therefore only be regarded as a loan, and when the seller returns to the buyer a larger sum than the purchase-price paid him, it appears like interest on the money."
,k14b_10:" Lit., 'it was lax in his hand.' Similar expressions occur in Shab. 113; 115a; Kid. 65a."
,k14b_11:" Cf. Git. 48b. The reason why one may not hold encumbered property liable for such purposes is that it would prevent people from buying land, as such obligations are so common that they would arise in nearly every case. [This is apart from the fact that the amount involved is not fixed; v. n. 1.]"
,k14b_12:" And has improved it before the original owner seized it again. The buyer may then collect the purchase price from the seller's encumbered property even if this property has been sold after the purchase of that field, for as long as the deed of sale contains a guarantee clause the claim involved has priority. The compensation for the improvement, however, can only be collected from unencumbered property &mdash; 'out of consideration for the public good' &mdash; as at the time when the deed of sale was written, and the guarantee clause inserted, no one knew what the compensation for improvements would amount to, and it is not in the interests of the public to allow such claims. In any case, this shows that the buyer is entitled to compensation from the seller, who had no title to the land, for the amount he spent on improvements."
,k14b_13:" The seller was entitled to sell, but the seller's creditors were entitled to seize the property, in which case the buyer is certainly entitled to the return of the money he spent on improvements, and if he receives a larger amount than the price he paid for the field it does not appear like interest on a loan, as the original sale was valid, and the return of the field is a new transaction."
,k14b_14:" Cf. B.K. 95b."
,k14b_15:" The produce of the field or the improvement therein may be claimed by the original owner who was robbed of his property, no matter whether the produce was there when the field was first taken away, or not. The owner can always claim the land with all its improvements, except that the buyer may demand back his outlay which brought about the improved condition of the field, provided that the sum demanded by the buyer does not exceed the amount by which the value of the field was increased as a result of the improvements."
,k14b_16:" Cf. p. 82, n. 4."
,k14b_17:" Lit., 'as it is'."
,k14b_18:" I.e., the first part deals with a person who has been robbed of his field, and the second part deals with a creditor who has seized the field from the buyer."
,k14b_19:" V. <i>infra</i> 72b; B.B. 157b."
,k14b_20:" Viz., that the person who acquired the field unlawfully has not sold it, and it is he who is made to give it up, not a buyer."
,k14b_21:" The Court compels the buyer to return the field to the rightful owner, who is also entitled to demand from the seller the value of the improvement. From this we would infer that the buyer collects the value of the improvement from the seller who had no title to the field &mdash; a contradiction to the view of R. Nahman."
,k14b_22:" Viz., that the person who robbed the field did not sell it, and it is this person who is compelled by the Court to return it to the owner."
,k14b_23:" The original (rightful) owner is not expected to pay for the produce of the field, with the exception of the buyer's outlay in looking after the field, as he is entitled to the produce of his own land. The buyer is therefore entitled to compensation from the person who sold him the field unlawfully, and from him the buyer can claim the value of the field as well as the value of the produce, which he may collect from unencumbered property &mdash; again a contradiction to the view of R. Nahman. "
}

txt:
<p>
may retract as long as he has not taken possession of it,<a id="k14b_1"><sup>1</sup></a>&nbsp; but if he has taken possession of it he cannot retract,<a id="k14b_2"><sup>2</sup></a>&nbsp; for he [Reuben] may say to him [Simeon]: 'You bought a bag sealed with knots, and you got it.'<a id="k14b_3"><sup>3</sup></a>&nbsp; When is he deemed to have 'taken possession'? When he has set his foot upon the landmarks.<a id="k14b_4"><sup>4</sup></a>&nbsp; But some say that even [when the field is sold] with a guarantee [the buyer may not retract]<a id="k14b_5"><sup>5</sup></a>&nbsp; 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.'<a id="k14b_6"><sup>6</sup></a>
</p><p>
	It was stated: If one sells a field to his neighbour and it turns out not to be his own,<a id="k14b_7"><sup>7</sup></a>&nbsp; &mdash; 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].<a id="k14b_8"><sup>8</sup></a>&nbsp; But Samuel says: He is entitled to the money [he paid] but not to [compensation for the] improvement.
</p><p>
	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?<a id="k14b_9"><sup>9</sup></a>&nbsp; R. Huna answered: Yes and No, for he was hesitant.<a id="k14b_10"><sup>10</sup></a>
</p><p>
	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.<a id="k14b_9"><sup>9</sup></a>&nbsp; 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.<a id="k14b_11"><sup>11</sup></a>&nbsp; [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?<a id="k14b_12"><sup>12</sup></a>&nbsp; &mdash; No, [it refers to land seized by] a creditor.<a id="k14b_13"><sup>13</sup></a>&nbsp; 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,'<a id="k14b_14"><sup>14</sup></a>&nbsp; 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,<a id="k14b_15"><sup>15</sup></a>&nbsp; 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!<a id="k14b_16"><sup>16</sup></a>&nbsp; &mdash; How does it follow? This [first part] deals with one case,<a id="k14b_17"><sup>17</sup></a>&nbsp; and this [second part] deals with another case.<a id="k14b_18"><sup>18</sup></a>&nbsp; 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.<a id="k14b_19"><sup>19</sup></a>&nbsp; Now, how is this to be understood? If we say that [it is to be understood] as stated,<a id="k14b_20"><sup>20</sup></a>&nbsp; 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!<a id="k14b_21"><sup>21</sup></a>&nbsp; &mdash; [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].
</p><p>
	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,<a id="k14b_22"><sup>22</sup></a>&nbsp; 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]!<a id="k14b_23"><sup>23</sup></a>&nbsp; &mdash; 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
</P>


lvr: 42
dfh: a
notes:
 ntes={k15a_1:" The robber was robbed (by heathen men of violence, against whom there is no redress). In such a case the first (Jewish) robber is responsible to the rightful owner, and he is made to pay the owner for his loss. Cf. B.K. 116b."
,k15a_2:" The term, 'He has had to give it up' (lit., 'It is made to go out from under his hand'), applied to the person who first robbed the field, indicates that this first robber is in possession of the field, and is made to give it up as a result of the intervention of the Court. It cannot therefore be assumed that bandits took it away."
,k15a_3:" Rabbah son of R. Huna cannot accept the version that the robber dug pits etc. in the field, as the term 'It is made to go out etc.' implies that the field was intact when the court intervened to compel its return to the rightful owner."
,k15a_4:" I.e., one part refers to the buyer of the field, and the other to the original owner. The former demands the cost of the field itself, and is entitled to exact payment from encumbered property, while the latter demands compensation for the produce of his field, and is entitled to exact payment from unencumbered property only."
,k15a_5:" The Court then intervened and compelled the person who had bought the field to return it to the rightful owner, and it was given back in its original condition."
,k15a_6:" As the claim of the robbed person is not based on any document, the payment which the robber has to make in compensation for the property he had seized is like the repayment of a loan granted without a note of indebtedness."
,k15a_7:" The reason why encumbered property is liable to be seized by the seller's creditor who has written evidence as to his claim is that the writing of the document ensures publicity, which should prevent people from advancing money on such property. A trial in Court has the same effect as regards publicity and the consequent warning to would-be mortgagees."
,k15a_8:" How could it be said with certainty that cases would arise where a person who acquired a field wrongfully would be tried for seizing the field itself but not for appropriating its produce?"
,k15a_9:" He first wants to make sure that he will recover the main loss, and subsequently he tries to regain the smaller losses."
,k15a_10:" A highly respected friend of Samuel. Cf. Sanh. 72b; Shab. 58a."
,k15a_11:" V. <i>supra</i> 14a. The guarantee given to the buyer in the deed of sale is to include a clause entitling the buyer to recover his loss, in the event of the property being claimed by creditors, by exacting payment from the seller's best property, as compensation for the original value of the field as well as for the improvements he made and for the produce of the field."
,k15a_12:" [In which case the formula provides for compensation in respect of the improvement made by the buyer in the field.] How then could Samuel have said that the person who has bought a field from a robber and has to return it to the rightful owner cannot claim compensation for the improvement he made in it?"
,k15a_13:" The robber repays with land, not with money, and therefore the additional amount paid for the improvement does not appear as usury given for borrowed money; cf. <i>supra</i> 24b."
,k15a_14:" This is not permitted, as any advance in the price of corn would increase the value of the returned measure, and the increase would be usury."
,k15a_15:" There is no usury in a sale."
,k15a_16:" [The payment for the increase included in the guarantee becomes thus due from the moment of the sale and is no longer regarded as usury.]"
,k15a_17:" I.e., the seller undertakes to satisfy all claims against the property and to be responsible for any loss the buyer may sustain because of previous claims against the property or for any other reason. The guarantee refers to 'produce and improvement' as well as to the original value of the property sold."
,k15a_18:" As the seller is thus responsible to the buyer, the creditor enforces his claim against the property acquired by the buyer and the produce it has yielded, and the latter then seeks redress from the seller."
,k15a_19:" As there is no guarantee given by a donor as regards previous claims against the property given away, the recipient is not entitled to compensation from the donor, and if the former loses the improvements he has made in the property he has no redress. For this reason the creditor of the donor ought not to be entitled to the improvement made by the recipient, as the loss would be the latter's, not the debtor's."
,k15a_20:" I.e., why should a person who receives a free gift be more protected against loss than a person who pays for what he gets?"
,k15a_21:" Lit., 'It is better and better.' The creditor has no right to inflict a loss upon the recipient of the gift by taking away the improvement made by the recipient. As the recipient cannot reclaim the loss from the donor, whose debt is the cause of the creditor's action against the recipient of the gift, there is no reason why the latter should lose more than the value of the gift itself, which was originally accepted by the creditor as security for his loan."
,k15a_22:" According to R. Huna the rightful owner of the field has a right to claim the improvement, as the field, which was taken away from him wrongfully and sold illegally, never became the property of the buyer. But a creditor who seizes a field for a debt due to him from the seller has no right to claim the improvement made in it by the buyer, for the latter acquired the field legally, and, until the creditor seized it, it was his property."
,k15a_23:" The buyer is entitled to compensation from the seller to the amount by which the value of the improvement exceeds the expense incurred in making the improvement, as the improvement helped to pay the seller's debt. But the cost of the improvement the creditor has to refund to the buyer, who spent his money on improving the field before the creditor seized it."
,k15a_24:" The buyer cannot claim from the creditor the excess of his expenditure over the actual value of the improvement, and he loses this amount."
,k15a_25:" According to which the rightful owner of the field, designated 'creditor', has to pay for the improvement."
,k15a_26:" As it is laid down in both parts of the Baraitha that the creditor has to refund the cost of the improvement, while Samuel teaches that the creditor may collect his debt from the improvement, without repaying the cost incurred by the buyer."
,k15a_27:" V. p. 86, n. 4."
,k15a_28:" V. ibid. n. 7. "
}

txt:
<p>
bandits took away [the field from the person who acquired it unlawfully].<a id="k15a_1"><sup>1</sup></a>&nbsp; When the [original owner who was] robbed [of his field] comes to demand the capital [value of the field] he may exact payment from encumbered property. But if he comes to demand the value of the fruit he may exact payment from unencumbered property [only]. Raba does not give the same explanation as Rabbah son of R. Huna because it says, 'He has had to give it up again,' which obviously means through the [intervention of the] Court.<a id="k15a_2"><sup>2</sup></a>&nbsp; And Rabbah son of R. Huna does not give the same explanation as Raba, because it says, 'He has had to give it up again,' which obviously means in its original condition [and not full of holes].<a id="k15a_3"><sup>3</sup></a>&nbsp; R. Ashi said: It refers partly to one and partly to the other,<a id="k15a_4"><sup>4</sup></a>&nbsp; viz., if one violently took away from a neighbour a field full of fruit, and ate the fruit and sold the field,<a id="k15a_5"><sup>5</sup></a>&nbsp; when the buyer comes to demand the capital [value of the field itself] he may exact payment from encumbered property; when the robbed [neighbour] comes to demand [the value of] the fruit he may exact payment from unencumbered property [only]. [The question now arises:] Both according to Raba and according to Rabbah son of R. Huna this is [like] a debt contracted verbally,<a id="k15a_6"><sup>6</sup></a>&nbsp; and a verbally contracted debt does not entitle [the creditor] to exact payment from encumbered property? &mdash; Here we deal with a case where [the robber first] stood his trial and then sold [the field].<a id="k15a_7"><sup>7</sup></a>&nbsp; But if so, the produce [of the field should] also [be recoverable from encumbered property]? &mdash; [The case is one where the robber] has stood his trial as regards the capital [value of the field itself] but has not stood his trial as regards the produce. But how can this be determined?<a id="k15a_8"><sup>8</sup></a>&nbsp; &mdash; It is the usual practice: When a person sues, he sues first for the principal.<a id="k15a_9"><sup>9</sup></a>
</p><p>
	But does Samuel [really] hold the view that he who bought [a field] from a robber is not entitled to [compensation for the] improvement [he made in the field]? Did not Samuel say to R. Hinena b. Shilath [the scribe]:<a id="k15a_10"><sup>10</sup></a>&nbsp; Consult [the seller, when drawing up a deed of sale], and write, 'best property, improvement, and produce'?<a id="k15a_11"><sup>11</sup></a>&nbsp; Now, to what [kind of transaction does this apply]? If [it applies] to a creditor [claiming the field for his debt], is he entitled to the produce of the field? Has not Samuel said: The creditor exacts payment from the improvement, [which means] from the improvement only, but not from the produce? It must therefore [be said that it applies] to one who bought [a field] from a robber!<a id="k15a_12"><sup>12</sup></a>&nbsp; &mdash; R. Joseph said: Here we deal with a case where [the robber] owns land.<a id="k15a_13"><sup>13</sup></a>&nbsp; Said Abaye to him: Is it permitted to borrow a measure [of corn and to repay the loan] with [the same] measure,<a id="k15a_14"><sup>14</sup></a>&nbsp; when [the borrower] has land? &mdash; He [R. Joseph] answered him: There [it is] a loan; here [it is] a sale.<a id="k15a_15"><sup>15</sup></a>
</p><p>
	Some say: R. Joseph said: Here we deal with a case where there was a formal act of acquisition [whereby the seller pledged himself to be immediately responsible to the buyer for the improvement].<a id="k15a_16"><sup>16</sup></a>&nbsp; [But] Abaye said to him: Is it permitted to borrow a measure [of corn and to repay the loan] with [the same] measure, when there was a formal act of acquisition [whereby the borrower pledged himself to be immediately responsible to the lender for an increase in price]? &mdash; He [R. Joseph] answered him: There [it is] a loan; here [it is] a sale.
</p><p>
	[To revert to] the above text: Samuel said: 'A creditor exacts payment from the improvement.' Said Raba: You may know [that this view is correct], for the seller writes [in the deed of sale] the following [guarantee] to the buyer: 'I shall confirm, satisfy, clear, and perfect these purchases<a id="k15a_17"><sup>17</sup></a>&nbsp; &mdash; them, the gains resulting from them, and the improvements to be made in them &mdash; and I shall stand [as surety] for you, and this purchaser agrees [to it] and accepts it.'<a id="k15a_18"><sup>18</sup></a>&nbsp; R. Hiyya b. Abin then said to Raba: If this is so, [would you say that] in the case of a gift, regarding which [the donor] writes no such [guarantee], [a creditor who has a previous claim to the property] may indeed not appropriate the improvement?<a id="k15a_19"><sup>19</sup></a>&nbsp; &mdash; He [Raba] answered him: Yes. But [R. Hiyya then asked]: Does a gift confer a greater right [on the recipient] than a sale [does on the buyer]?<a id="k15a_20"><sup>20</sup></a>&nbsp; &mdash; [The former] answered: Yes, it undoubtedly does.<a id="k15a_21"><sup>21</sup></a>
</p><p>
	R. Nahman said: The following Baraitha corroborates the view of Mar Samuel, but our colleague Huna explains it as referring to a different matter. For it was taught: If one has sold a field to a neighbour and then [the buyer] has to surrender it [to another claimant], he [the buyer] may, when seeking redress, exact repayment of the capital [value of the field itself] from encumbered property, and the [refund of the cost of the] improvement he collects from unencumbered property. But our colleague Huna explains it as referring to a different matter, [viz.], to that of one who has bought [a field] from a person who acquired it wrongfully.<a id="k15a_22"><sup>22</sup></a>&nbsp; Another [Baraitha] taught: If one has sold a field to his neighbour, and he [the buyer] has improved it, and then a creditor [of the seller] comes and seizes it, he [the buyer], when seeking redress,is entitled, in a case where [the value of] the improvement is greater than the cost [thereof], to collect [the value of] the improvement from the owner of the land and the cost thereof from the creditor.<a id="k15a_23"><sup>23</sup></a>&nbsp; But in a case where the cost [of the improvement] is greater than the [value of that] improvement, he [the buyer] is only entitled to collect from the [seller's] creditor the amount of the cost which corresponds to the [value of the] improvement.<a id="k15a_24"><sup>24</sup></a>&nbsp; Now, how does Samuel explain this [Baraitha]? If [he explains it as referring] to one who bought [the field] from a person who acquired it wrongfully, then the first part [of the Baraitha]<a id="k15a_25"><sup>25</sup></a>&nbsp; contradicts him, for Samuel said [above]: 'He who buys [a field] from a person who acquired it wrongfully is not entitled to [compensation for] the improvement [he made in the field].' [And] if [he explains it as referring] to [the seller's] creditor [seizing the field], then both the first part and the second part [of the Baraitha] contradict him,<a id="k15a_26"><sup>26</sup></a>&nbsp; for Samuel said [above]: 'A creditor exacts payment from the improvement [made in the field by the buyer]'?If you like, I shall say [that Samuel will explain the Baraitha as referring] to one who bought [the field] from a person who acquired it wrongfully, and where the latter owns land,<a id="k15a_27"><sup>27</sup></a>&nbsp; or where there was a formal act of acquisition [whereby he pledged himself at the sale that he would pay for the improvement].<a id="k15a_28"><sup>28</sup></a>&nbsp; [And] if you like, I shall say [that Samuel will explain the Baraitha as referring] to [the seller's] creditor [seizing the field]. [Nevertheless] there is no contradiction [to Samuel's views]. [For] here [the reference is] to an improvement
</P><hr noshade size="1" width="100%"><P></P>


lvr: 42
dfh: b
notes:
 ntes={k15b_1:" V. B.B. (Sonc. ed.) p. 569, n. 8. Our Baraitha deals with a case where the improved produce of the field is nearly ready to be harvested, so that, although it is still attached to the field and still needs the soil, it may be regarded as 'ripe fruit' whose cost of production the creditor has to refund."
,k15b_2:" Cf. <i>infra</i> 110b; B.K. 95b."
,k15b_3:" Samuel was known to have repeatedly allowed creditors to seize property sold by the debtors and to appropriate the improvement made in it by the buyers, without compensation for the expense incurred, even though the improved produce was near harvesting."
,k15b_4:" In such cases Samuel does not award the buyer the expense of his improvement, as the creditor is entitled to the full repayment of the debt due to him from the seller."
,k15b_5:" Cf. <i>infra</i> 110b; B.K. 96a."
,k15b_6:" The creditor cannot be prevented from seizing the land, if he prefers it to the money offered him by the buyer in settlement of his debt, as the creditor has a prior claim to the land."
,k15b_7:" Let the buyer, in the case dealt with in our Baraitha, say to the creditor, who claims the field with the improvement: 'As I am entitled to keep the land if I am able to repay your debt, I am surely entitled to retain part of the field as compensation for the amount which I have spent on the improvement, and which I am entitled to recover from you.'"
,k15b_8:" [H], in other places spelt [H], a measure of grain, or a piece of ground in which such an amount of grain can be sown."
,k15b_9:" In which case all would agree that the buyer cannot put off the creditor by paying the seller's debt, and that the creditor is entitled to seize the field."
,k15b_10:" The buyer is entitled to demand the return of the money he paid the seller for the field which the rightful owner has reclaimed. The fact that the buyer knew that the sale was illegal does not deprive him of the right to reclaim his money from the seller."
,k15b_11:" As the sale of the field was illegal, the buyer never really acquired the field, and as he knew this to be the case he has only himself to blame for the loss he incurred in improving a field which was not his own."
,k15b_12:" For safe keeping &mdash; to be demanded back in due course."
,k15b_13:" He will not undertake to look after somebody else's money."
,k15b_14:" It will make the recipient feel bashful of accepting the gift."
,k15b_15:" Git. 45a; 'Ar. 30a; cf. Kid. 46b."
,k15b_16:" Cf. Kid. 2a."
,k15b_17:" Where the buyer knew that the field did not belong to the seller."
,k15b_18:" In view of the fact that the money is regarded as a deposit, according to Rab."
,k15b_19:" I.e., the case of a brother giving money to his sister for the purpose of betrothing her to him."
,k15b_20:" In view of the fact that the money is regarded as a present, according to Samuel, and one is apt to give a present to a sister."
,k15b_21:" Where a person pays money to a stranger for a field which he knows to have been wrongfully acquired."
,k15b_22:" That the money is not to be regarded as a gift, and must be returned."
,k15b_23:" How can it be said that the reason why Rab says that the money is to be returned is that it has to be regarded as a deposit, and that the reason why Samuel says that the money is not to be returned is that it has to be regarded as a gift, seeing that in either case the person who handed over the money would not have deemed himself entitled to take possession of the field and to use its produce. If he did so, it would show that he meant to buy the field with the money, and that, not being familiar with the law, he deemed the sale valid. Rab and Samuel must therefore have given their decisions for reasons other than those stated above."
,k15b_24:" I.e., he knows that it is not a sale, and the money was not handed over as purchase-money. He only intended to take possession of the field and use its produce until the rightful owner reclaimed it, and the money was to be treated as a deposit (in the view of Rab) or as a gift (in the view of Samuel)."
,k15b_25:" Samuel's view that the scribe must consult the seller regarding the inclusion of 'improvement' in the indemnity clause, and that non-inclusion is not regarded as an accidental omission by the scribe, is thus rejected."
,k15b_26:" So that in every case the buyer whose field is seized by the seller's creditors can claim indemnity from the seller's property, contrary to the view of Samuel."
,k15b_27:" Is the robber entitled to take the field away from the person to whom he sold it unlawfully, just as any other person would have been who bought the field from the rightful owner?"
,k15b_28:" The robber."
,k15b_29:" The person who bought the field from the robber."
,k15b_30:" When the robber sold the field he made over to the buyer any right that he (the robber) might subsequently acquire in regard to the field, and therefore the robber has no right to claim the field from the person who bought it from him. It is assumed, indeed, that the robber only bought the field in order to legalise its sale to the first buyer."
,k15b_31:" What was the motive that could have prompted the robber to secure the property for the buyer?"
,k15b_32:" What would be the effect of their difference in actual cases that may arise? "
}

txt:
<p>
which [has matured and] is ready to be carried away,<a id="k15b_1"><sup>1</sup></a>&nbsp; [but] there [the reference is] to an improvement which [has not yet matured and] is not ready to be carried away. But do not cases occur daily<a id="k15b_2"><sup>2</sup></a>&nbsp; where Samuel allows [creditors] to collect [their debts] even from improvements which [have matured and] are ready to be carried away?<a id="k15b_3"><sup>3</sup></a>&nbsp; &mdash; There is no contradiction: These [are cases] where [the creditor] claims from him [the seller] an amount equal to [the combined value of] the land and the improvement;<a id="k15b_4"><sup>4</sup></a>&nbsp; the other is [a case] where [the creditor] claims from him [the seller] an amount equal to the value of the land alone, in which case the creditor compensates him [the buyer] for [the value of] his improvement and dismisses him. [But, it is asked:] This is right and proper according to the view of him who says<a id="k15b_5"><sup>5</sup></a>&nbsp; that when the buyer has money [to pay the seller's debt] he cannot dismiss the creditor [by paying him the money].<a id="k15b_6"><sup>6</sup></a>&nbsp; But according to the view of him who says that when the buyer has money [to pay the seller's debt] he can dismiss the creditor [by paying him the money], let him<a id="k15b_7"><sup>7</sup></a>&nbsp; say unto him [the creditor]: 'If I had money I would have kept you away from the whole field [by paying the amount due to you] &mdash; now that I have no money give me a piece<a id="k15b_8"><sup>8</sup></a>&nbsp; of ground in the field corresponding to the value of my improvement'! &mdash; Here [in the Baraitha] we deal with a case where he [the seller] had made it [the field] an hypothec,<a id="k15b_9"><sup>9</sup></a>&nbsp; in that he said [to the creditor], 'You shall receive payment only from this.'
</p><p>
	If [the buyer] knew that [the field] did not belong to him [who sold it], and [yet] he bought it, Rab says: He is entitled to the purchase-price<a id="k15b_10"><sup>10</sup></a>&nbsp; but not to the [value of the] improvement.<a id="k15b_11"><sup>11</sup></a>&nbsp; But Samuel says: He is not entitled even to the purchase-price. Wherein do they differ? Rab is of the opinion that a person, knowing that [the seller] has no land, will make up his mind and give him [the money] as a deposit.<a id="k15b_12"><sup>12</sup></a>&nbsp; But then he should say to him that it is to be regarded as a deposit? He is afraid that he [the seller] will not accept it [as such].<a id="k15b_13"><sup>13</sup></a>&nbsp; But Samuel is of the opinion that a person, knowing that [the seller] has no land, will make up his mind and give him [the money] as a present. But then he should say to him that it is to be regarded as a present? He [the recipient] might be bashful.<a id="k15b_14"><sup>14</sup></a>&nbsp; But has not this difference of opinion [between Rab and Samuel] been expressed once already? Has it not been stated:<a id="k15b_15"><sup>15</sup></a>&nbsp; 'If a man betrothed his sister to himself [by giving her money],<a id="k15b_16"><sup>16</sup></a>&nbsp; Rab says: The money has to be given back. But Samuel says: The money is to be regarded as a present. Rab says that the money has to be given back, [because he is of the opinion that] a person, knowing that one's betrothal to one's sister is not valid, will make up his mind and give [her the money] as a deposit. But then he should say to her that it is to be regarded as a deposit? He is afraid that she will not accept it [as such]. But Samuel says that the money is to be regarded as a present, [because he is of the opinion that] a person, knowing that one's betrothal to one's sister is not valid, will make up his mind and give [her the money] as a present. But then he should say to her that it is to be regarded as a present? She might feel bashful? &mdash; It is necessary [to have the difference of opinion recorded in both cases]. For if it were taught [only] in that case<a id="k15b_17"><sup>17</sup></a>&nbsp; [we might think that only] in such a case does Rab say [that the money is to be returned],<a id="k15b_18"><sup>18</sup></a>&nbsp; because people do not usually give presents to strangers, but as regards a sister [we might think that] he agrees with Samuel. And if it were taught [only] in this case,<a id="k15b_19"><sup>19</sup></a>&nbsp; [we might think that only] in such a case does Samuel say [that the money is not to be returned],<a id="k15b_20"><sup>20</sup></a>&nbsp; but as regards the other case<a id="k15b_21"><sup>21</sup></a>&nbsp; [we might think] that he agrees with Rab.<a id="k15b_22"><sup>22</sup></a>&nbsp; [Therefore] it is necessary [to state both cases].
</p><p>
	[Now, behold,] both according to Rab, who says [that the money is to be regarded as] a deposit, and according to Samuel, who says [that the money is to be regarded as] a present &mdash; how does [the person who has given the money] go down [to the field] and how does he eat the fruit [thereof]?<a id="k15b_23"><sup>23</sup></a>&nbsp; He thinks, 'I shall go down to the field and work [in it] and shall eat [the fruit] thereof,<a id="k15b_24"><sup>24</sup></a>&nbsp; just as he [who acquired it wrongfully] would have done, and when the [rightful] owner of the field will come [and claim it] my money will be [treated] as a deposit, according to Rab, who says [that it is to be regarded as] a deposit, and as a gift, according to Samuel, who says [that it is to be regarded as] a gift.'
</p><p>
	Said Raba: The law [in regard to the above controversy] is that he [the buyer] is entitled to the purchase-price as well as to the [value of the] improvement, even if the improvement was not mentioned [in the indemnity clause in the deed of sale].<a id="k15b_25"><sup>25</sup></a>&nbsp; If [the buyer] knew that [the field] did not belong to him [who sold it], he [the buyer] is entitled to the purchase-price but not to [the value of] the improvement, [and the omission of] the guarantee clause is [to be regarded as] an error of the scribe,<a id="k15b_26"><sup>26</sup></a>&nbsp; both in [the cases of] notes of indebtedness and in [the cases of] deeds of sale. Samuel asked Rab [the following question]: If [the robber who sold the field unlawfully] bought it subsequently from the original owners, what is the law [then]?<a id="k15b_27"><sup>27</sup></a>&nbsp; &mdash; [Rab] said to him [in reply]: What was it that the first person<a id="k15b_28"><sup>28</sup></a>&nbsp; sold to the second person?<a id="k15b_29"><sup>29</sup></a>&nbsp; [Surely the former sold to the latter in advance] every right that he [the former] might subsequently acquire!<a id="k15b_30"><sup>30</sup></a>&nbsp; [And] for what reason?<a id="k15b_31"><sup>31</sup></a>&nbsp; &mdash; Mar Zutra said: [Because] he wished that he [the buyer] should not call him a robber. R. Ashi said: [Because] he wished to vindicate his honesty. What is the difference between them?<a id="k15b_32"><sup>32</sup></a>&nbsp; &mdash; The difference would be seen [in a case] where the buyer died. According to the view [of Mar Zutra, viz.], 'he wished that he should not call him a robber,'
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