Bava Batra 47

קבלן אמרי לה מעיד ואמרי לה אינו מעיד אמרי לה מעיד כערב דמי ואמרי לה אינו מעיד דניחא ליה דלהוו בידיה תרוייהו דכי אתי בעל חוב מאי דבעי שקיל

With regard to an unconditional guarantor [kablan], from whom the creditor can collect even if the debtor is able to repay the loan, some say that he can testify on behalf of the debtor if the latter owns other land, and some say that he cannot testify even if the debtor owns other land. The Gemara explains: Some say that he can testify because he is like a guarantor, and some say that he cannot testify, as it is preferable for him that both fields be in the debtor’s possession, so that when a creditor comes to collect the debt, he will take what he wants, and not collect from the unconditional guarantor.

אמר רבי יוחנן אומן אין לו חזקה בן אומן יש לו חזקה אריס אין לו חזקה בן אריס יש לו חזקה גזלן ובן גזלן אין להן חזקה בן בנו של גזלן יש לו חזקה

§ Rabbi Yoḥanan said: A craftsman does not have the ability to establish the presumption of ownership, but the son of a craftsman has the ability to establish the presumption of ownership. A sharecropper does not have the ability to establish the presumption of ownership, but the son of a sharecropper has the ability to establish the presumption of ownership. Both a robber and the son of a robber do not have the ability to establish the presumption of ownership, but the son of the son of a robber has the ability to establish the presumption of ownership.

היכי דמי אי אתו בטענתא דאבוהון אפילו הנך נמי לא אי דלא אתו בטענתא דאבוהון אפילו בן גזלן נמי

The Gemara asks: What are the circumstances under which there is a distinction between the sons of the craftsman and the sharecropper and the son of the robber? If they come to court with the claim that the item in question belonged to their fathers, then even these sons of the craftsman and the sharecropper should not be able to establish the presumption of ownership, since their claims are based on ownership by those who cannot establish the presumption of ownership. If the case is that they do not come to court with the claim that the item in question belonged to their fathers, but that they own the item in their own right, then even the son of a robber should be able to establish the presumption of ownership.

לא צריכא דקא אמרי עדים בפנינו הודה לו הנך איכא למימר קושטא קא אמרי האי אף על גב דאודי נמי לא מהימן כדרב כהנא דאמר רב כהנא אי לאו דאודי ליה הוה ממטי ליה ולחמריה לשחוור

The Gemara answers: No, it is necessary to state this distinction in a case where the witnesses say: The prior owner admitted to their father in our presence that the property was the father’s and not stolen. The Gemara explains: With regard to these, the sons of the craftsman and sharecropper, it can be said that the sons are saying the truth, as their claim is substantiated by the testimony of the admission. But with regard to that one, the son of the robber, even though the prior owner admitted this, the son is still not deemed credible, in accordance with the statement of Rav Kahana, as Rav Kahana said: If the prior owner would not have admitted this to the robber, the robber would have brought him and his donkey to the taskmaster [leshaḥvar], meaning he would have caused him great difficulties. As a robber is assumed to be a ruffian, it is likely that the prior owner admitted this because he was intimidated, and not because the statement was true, so there is no evidence to support the claim of the robber’s son.

אמר רבא פעמים שאפילו בן בנו של גזלן נמי אין לו חזקה היכי דמי כגון דקא אתי בטענתא דאבא דאבוה

Rava says: There are times when even the son of the son of the robber does not have the ability to establish the presumption of ownership. What are the circumstances under which this is so? This is so, for example, in a case where he comes to court with the claim that the item in question belonged to his father’s father. Since his claim is based on its having belonged to one who did not have the ability to establish the presumption of ownership, he too is unable to establish the presumption of ownership.

היכי דמי גזלן אמר רבי יוחנן כגון שהוחזק על שדה זו בגזלנותא ורב חסדא אמר כגון דבית פלוני שהורגין נפשות על עסקי ממון:

The Gemara asks: What are the circumstances under which one is considered a robber, who does not have the ability to establish the presumption of ownership? Rabbi Yoḥanan says: In a case such as where it is established that he is in possession of this field through robbery. And Rav Ḥisda says: Not only in a case where there is knowledge about this specific field, but even in a case such as one where he is a member of the household of so-and-so, a certain known criminal family at the time who kill people over monetary matters. Since people would be afraid to lodge a protest against them, members of this family cannot establish the presumption of ownership with regard to any land.

תנו רבנן אומן אין לו חזקה ירד מאומנותו יש לו חזקה אריס אין לו חזקה ירד מאריסותו יש לו חזקה בן שחלק ואשה שנתגרשה הרי הן כשאר כל אדם

§ The Sages taught: A craftsman does not have the ability to establish the presumption of ownership. If he descended from his position of craftsmanship and no longer works at that craft, then he has the ability to establish the presumption of ownership with regard to items related to his former craft. A sharecropper does not have the ability to establish the presumption of ownership. If he descended from his position as a sharecropper, then he has the ability to establish the presumption of ownership with regard to land that he works and from which he profits for three years. A son does not have the ability to establish the presumption of ownership with regard to his father’s property, nor a wife with regard to her husband’s property. But with regard to a son who separated himself from his father’s finances, and a woman who became divorced, they are like other people with regard to this property, and have the ability to establish the presumption of ownership.

בשלמא בן שחלק איצטריך סלקא דעתך אמינא אחולי אחיל גביה קמשמע לן דלא אלא אשה שנתגרשה פשיטא לא צריכא

The Gemara asks: Granted, it was necessary to state that a son who separated himself establishes the presumption of ownership. If the baraita had not stated this, it would enter your mind to say that the father forgave the unauthorized use of his land by his son, and did not lodge a protest despite the fact that the land did not belong to the son. Therefore, the baraita teaches us that this is not so, and that the son does establish the presumption of ownership. But in the case of the woman who became divorced, it is obvious that she has no relationship with her ex-husband, so why is it necessary for the baraita to teach that she is able to establish the presumption of ownership? The Gemara answers: No, it is necessary to teach that she does not establish the presumption of ownership

במגורשת ואינה מגורשת וכדרבי זירא דאמר רבי זירא אמר רבי ירמיה בר אבא אמר שמואל כל מקום שאמרו חכמים מגורשת ואינה מגורשת בעלה חייב במזונותיה

in a case where there is uncertainty whether she is divorced or whether she is not divorced, and this is in accordance with the opinion of Rabbi Zeira. As Rabbi Zeira says that Rabbi Yirmeya bar Abba says that Shmuel says: Wherever the Sages said with regard to a woman that there is uncertainty whether she is divorced or whether she is not divorced, her husband is still obligated with regard to her sustenance. One might have thought that since she still has some right to her husband’s property, insofar as he still has an obligation with regard to her sustenance he would not lodge a protest if she used his land without his authorization. It is therefore necessary to clarify that this is not so, and she has the ability to establish the presumption of ownership in her husband’s property.

אמר רב נחמן אמר לי הונא כולן שהביאו ראיה ראייתן ראיה ומעמידין שדה בידן גזלן שהביא ראיה אין ראייתו ראיה ואין מעמידין שדה בידו

§ Rav Naḥman said: Rav Huna said to me that with regard to all of the types of people who do not have the ability to establish the presumption of ownership, when they bring proof by means of a document or witnesses that a field belongs to them, their proof is a valid proof and the court places the field in their possession. But if there is a robber who brings proof that a field is his, his proof is not a valid proof, and the court does not place the field in his possession. This is due to a concern that the proof was obtained through illegitimate means.

מאי קא משמע לן תנינא לקח מסיקריקון וחזר ולקח מבעל הבית מקחו בטל

The Gemara asks: What is this teaching us? We already learned in a mishna (Gittin 55b): If one purchased land from a Sicarius [Sikarikon], a violent gentile who had extorted the field from its owner with threats, and afterward one returned and purchased the same field from the prior owner, his purchase is void, as the owner of the field can say that he did not actually intend to sell him the field. This teaches that a purchase following a robbery is invalid, despite the existence of documents or testimony, rendering the statement of Rav Huna superfluous.

לאפוקי מדרב דאמר רב לא שנו אלא דאמר ליה לך חזק וקני אבל בשטר קנה

The Gemara answers: Rav Huna’s statement serves to exclude that which Rav says, as Rav says: They taught that the purchase of a field from the prior owner after one purchased it from a Sicarius is void only when the prior owner said to the buyer at the time of the sale: Go take possession and thereby acquire the field, but did not write a document. But if the transaction was performed along with a document being given, the buyer acquired the field.

קא משמע לן כדשמואל דאמר אף בשטר נמי לא קנה עד שיכתוב אחריות נכסים

Therefore, Rav Huna teaches us that he rules in accordance with the opinion of Shmuel, as Shmuel says: He does not acquire the field even if the transaction was performed along with a document being given, until the owner of the field writes a property guarantee, i.e., a document that states that if the property is seized by the seller’s creditor, the seller will reimburse the buyer for his loss. Writing such a document indicates that it is a sincere transaction.

ורב ביבי מסיים בה משמיה דרב נחמן קרקע אין לו אבל מעות יש לו במה דברים אמורים שאמרו עדים בפנינו מנה לו אבל אמרו עדים בפנינו הודה לו לא כדרב כהנא דאמר אי לאו דאודי ליה הוה ממטי ליה לדידיה ולחמריה לשחוור

And Rav Beivai concludes that discussion of the statement of Rav Huna, that a robber does not retain possession of the field even if he brings proof of the transaction, with a comment in the name of Rav Naḥman: The robber does not have rights to the land, but he does have rights to the money that he paid for the land, and the owner has to reimburse him. In what case is this statement that the robber is reimbursed said? It is specifically where the witnesses said: The robber counted out the money for the owner and gave it to him in our presence; but if the witnesses said: The owner admitted to the robber in our presence that he received payment, then the robber is not reimbursed, as the admission may have been made under duress. This is in accordance with the opinion of Rav Kahana, who says: If the owner would not have admitted to the robber that he received payment, the robber would have brought him and his donkey to the taskmaster.

אמר רב הונא תליוהו וזבין זביניה זביני מאי טעמא כל דמזבין איניש אי לאו דאניס לא הוה מזבין ואפילו הכי זביניה זביני ודילמא שאני אונסא דנפשיה מאונסא דאחריני אלא כדתניא

§ Apropos transactions performed under duress, the Gemara cites that which Rav Huna says: If one was suspended, e.g., from a tree, and thereby coerced to sell a certain item, and he sold it, his sale is valid. What is the reason? The Gemara suggests that it is because whatever a person sells, were it not for the fact that he is compelled by his need for money, he would not sell it, and even so, his sale is valid. This indicates that a transaction performed under duress is valid. The Gemara rejects this: But perhaps duress that results from his own needs, such as his need for money, is different from duress that results from another, as in this case. Rather, the basis for Rav Huna’s ruling is as it is taught in a baraita: