Bava Batra 52

קבל מן הקטן יעשה לו סגולה ואם מת יחזיר ליורשיו

If one accepted a deposit from a minor, he cannot return it to him, as a minor is unable to properly safeguard the item. Instead, he must make a safe investment [segulla] for him, and if the minor dies, he must return it to his heirs.

וכולן שאמרו בשעת מיתתן של פלוני הן יעשה כפירושן ואם לאו יעשה פירוש לפירושן

And with regard to all these people, who said at the time of their death that the deposited item belongs to so-and-so, the bailee should act as they had explained, and if their explanation was not credible, the bailee should form an explanation of their explanation, i.e., ignore what they said.

דביתהו דרבה בר בר חנה כי קא שכבה אמרה הני כיפי דמרתא ובני ברתא אתא לקמיה דרב אמר ליה אי מהימנא לך עשה כפירושה ואי לא עשה פירוש לפירושה

The Gemara relates: When the wife of Rabba bar bar Ḥana was dying she said: These rings that are in my possession belong to Marta and the sons of her daughter. Rabba bar bar Ḥana came before Rav to ask what he should do. Rav said to him: If she is credible in your eyes, act as she had explained, and if not, form an explanation of her explanation, i.e., ignore what she said, and as her heir, keep them for yourself.

ואיכא דאמרי הכי אמר ליה אי אמידא לך עשה כפירושה ואי לא עשה פירוש לפירושה

And there are those who say that this is what Rav said to him: If you assess that it is likely that the rings were deposited with her, act as she had explained, and if not, form an explanation of her explanation.

מן הקטן יעשה לו סגולה מאי סגולה רב חסדא אמר ספר תורה רבה בר רב הונא אמר דיקלא דאכל מיניה תמרי

The baraita stated that if the bailee took a deposit from a minor, he must make a safe investment for him. The Gemara asks: What is meant by a safe investment? Rav Ḥisda says: The bailee should purchase a Torah scroll for the minor. Rabba bar Rav Huna says: He should purchase a date palm, from which the minor will consume dates.

ולא לאב בנכסי הבן ולא לבן בנכסי האב אמר רב יוסף אפילו חלקו רבא אמר חלקו לא

§ The mishna teaches: And a father does not have the ability to establish the presumption of ownership with regard to a son’s property, and a son does not have the ability to establish the presumption of ownership with regard to a father’s property. Rav Yosef says: Even if they separated and the son is no longer dependent on his father, the presumption of ownership still cannot be established by a father or son with regard to the other’s property. Rava says: If they separated, that is not the halakha, and the presumption of ownership can be established.

אמר רב ירמיה מדפתי עבד רב פפי עובדא חלקו לא כרבא אמר רב נחמן בר יצחק אישתעי לי רב חייא מהורמיז ארדשיד דאישתעי ליה רב אחא בר יעקב משמיה דרב נחמן בר יעקב חלקו לא והלכתא חלקו לא תניא נמי הכי בן שחלק ואשתו שנתגרשה הרי הן כשאר כל אדם

Rav Yirmeya of Difti said: Rav Pappi performed an action and ruled that if they separated, that is not the halakha, in accordance with the opinion of Rava. Rav Naḥman bar Yitzḥak said that Rav Ḥiyya, from the city of Hurmiz Ardeshid, told me that Rav Aḥa bar Yaakov told him in the name of Rav Naḥman bar Yaakov: If they separated, that is not the halakha. The Gemara notes: And this is the halakha: If they separated, that is not the halakha, and the presumption of ownership can be established. This is also taught in a baraita: A son who separated himself from his father’s finances and a wife who became divorced are like all other people with regard to establishing the presumption of ownership.

איתמר אחד מן האחין שהיה נושא ונותן בתוך הבית והיו אונות ושטרות יוצאין על שמו ואמר שלי הם שנפלו לי מבית אבי אמא אמר רב עליו להביא ראיה ושמואל אמר על האחין להביא ראיה אמר שמואל מודה לי אבא שאם מת על האחין להביא ראיה

§ It was stated: There was a case of one of the brothers in a family who was engaging in commerce in the house, managing the family finances after the death of their father, and there were bills of sale [onot] and other documents circulating with his name appearing as the owner of the property and as a lender, and that brother said: The money and property are mine, as they fell to me as an inheritance from the house of the father of my mother, who is not the mother of the other brothers, Rav says: It is upon him to bring proof of ownership; otherwise the property is divided equally among the brothers. And Shmuel says: It is upon the brothers to bring proof that the money or property belonged to their common father and consequently now belongs to all of them. Shmuel says: Abba, i.e., Rav, concedes to me that if that brother dies, it is upon the brothers to bring proof in order to collect money from the deceased brother’s heirs.

מתקיף לה רב פפא כלום טענינן להו ליתמי מידי דלא טען להו אבוהון והא רבא אפיק זוגא דסרבלא וספרא דאגדתא מיתמי בלא ראיה בדברים העשוים להשאיל ולהשכיר

Rav Pappa objects to Shmuel’s addendum: Do we claim on behalf of orphans anything that their father could not claim for them? But didn’t Rava remove a pair of scissors used for cutting garments and a book of aggada from orphans without requiring the prior owner who had asked the orphans to return these items to bring proof of ownership, and he would rule the same in the case of all items with regard to which it is common for them to be lent, and the one in possession has no presumption of ownership?

כדשלח רב הונא בר אבין דברים העשוין להשאיל ולהשכיר ואמר לקוחין הן בידי אינו נאמן קשיא

As Rav Huna bar Avin sent a ruling: If one other than the one previously established to be the owner is in possession of items that are typically lent or rented, and says: They are purchased, and that is why they are in my possession, he is not deemed credible. In this case as well, as the father of the orphans could not be awarded these documents without bringing proof, the same should be true of his orphans. Why, then, would Rav concede to Shmuel? The Gemara concedes: This is difficult.

אמר רב חסדא לא שנו אלא דאין חלוקין בעיסתן אבל חלוקים בעיסתן אימור מעיסתו קימץ

Rav Ḥisda says: They, i.e., Rav, taught his ruling, that the brother must bring proof that he owns the property listed in the documents that appear under his name, only when they do not divide any of their property, even with regard to their dough, i.e., they share everything, even their food. But if they divide with regard to their dough, say that this brother removed money from his dough, i.e., reduced his expenses for food, thereby amassing his own property.

ראיה במאי רבה אמר ראיה בעדים רב ששת אמר ראיה בקיום השטר

With regard to the requirement that proof be brought, the Gemara asks: With what is one considered to have brought proof? Rabba says: Proof is brought with the testimony of witnesses that he purchased the property listed in the document or granted the loan with his own money or that he inherited it from his mother’s family. Rav Sheshet says: Proof is brought with the court’s ratification of the document in which his name appears.

אמר ליה רבא לרב נחמן הא רב והא שמואל הא רבה והא רב ששת מר כמאן סבירא ליה אמר ליה אנא מתניתא ידענא דתניא אחד מן האחין שהיה נותן ונושא בתוך הבית והיו אונות ושטרות יוצאין על שמו ואמר שלי הן שנפלו לי מבית אבי אמא עליו להביא ראיה

Rava said to Rav Naḥman: This is the opinion of Rav and this is the opinion of Shmuel; this is the opinion of Rabba and this is the opinion of Rav Sheshet. In accordance with whose opinion does the Master hold? Rav Naḥman said to him: I know a baraita, which is the source of my opinion, as it is taught (Tosefta 9:2): In a case where there was one of the brothers who was engaging in commerce in the house, managing the family finances, and there were bills of sale and other documents circulating with his name appearing as the owner of the property or as a lender, and that brother said: The money and property are mine, as they fell to me as an inheritance from the house of the father of my mother, who is not the mother of the other brothers, it is upon him to bring proof of ownership.

וכן האשה שהיא נושאת ונותנת בתוך הבית והיו אונות ושטרות יוצאין על שמה ואמרה שלי הן שנפלו לי מבית אבי אבא או מבית אבי אמא עליה להביא ראיה

The baraita continues: And similarly, in the case of a woman, i.e., a widow, if her husband’s heirs see that she is engaging in commerce in the house with the property that had belonged to her husband, and there were bills of sale and other documents circulating with her name appearing on them as the owner, and she said: The money and property are mine alone, as they fell to me as an inheritance from the house of the father of my father or from the house of the father of my mother, and did not belong to my husband, it is upon her to bring proof. Rav Naḥman consequently holds in accordance with the opinion of Rav.

מאי וכן מהו דתימא אשה כיון דשביחא לה מילתא דאמרי קא טרחא קמי יתמי לא גזלה מיתמי קא משמע לן

Having quoted the baraita, the Gemara seeks to clarify it, and asks: What is the purpose of the clause of the baraita that begins: And similarly, where the halakha appears to be identical to that of the first clause? Lest you say that in the case of the woman, since the matter is laudable for her, in that people say: She is toiling on behalf of orphans; she would not steal from the orphans, and is therefore deemed credible if she says that the property in the documents that bear her name is her own, the baraita teaches us that this assumption cannot be relied upon, and she must bring proof of ownership.

במה דברים אמורים במחזיק אבל בנותן מתנה והאחין שחלקו וכו׳ אטו כל הני דאמרינן לאו בני חזקה נינהו

§ The mishna teaches: In what case is this statement, that one establishes the presumption of ownership after profiting from the property for a certain duration, said? It is said in a case of one who has mere possession of the property, which does in some cases serve as proof of ownership. But in a case of one who gives a gift, or brothers who divided their inheritance, or one who takes possession of the property of a convert who died without heirs and his property is now ownerless, as soon as one locked the door of the property, or fenced it or breached its fence even a bit, this is considered taking possession of the property, and effects acquisition. The Gemara asks: Is that to say that all of these whom we previously said possessed the field for three years are not subject to the halakhot of taking possession of property in this manner?

חסורי מחסרא והכי קתני במה דברים אמורים בחזקה שיש עמה טענה כגון מוכר אומר לא מכרתי ולוקח אומר לקחתי

The Gemara responds that the mishna is incomplete and this is what it is teaching: In what case is this statement said? It is said with regard to possession that is accompanied by a claim, i.e., when the possessor has a claim to counter that of the claimant, such as where the seller, i.e., the claimant, says: I did not sell, and the buyer, i.e., the possessor, says: I purchased. In that case, working and profiting from the land for three years establishes the presumption of ownership.

אבל חזקה שאין עמה טענה כגון נותן מתנה והאחין שחלקו והמחזיק בנכסי הגר דלמקני בעלמא הוא נעל גדר פרץ כל שהוא הרי זו חזקה

But with regard to possession that does not need to be accompanied by a claim, as the prior owner concedes that the one in possession is the owner, such as a case where another person gives one a gift, or there are brothers who divided their property, or there is one who takes possession of the property of a convert who died without heirs, where the function of possessing the item is only to acquire it and not to establish the presumption of ownership, if one locked the door of the property, or fenced it or breached its fence even a bit, this is considered taking possession of the property.

תני רב הושעיא בקדושין דבי לוי נעל גדר פרץ כל שהוא בפניו הרי זו חזקה בפניו אין שלא בפניו לא אמר רבא הכי קאמר בפניו לא צריך למימר ליה לך חזק וקני

Rav Hoshaya teaches in the baraita of tractate Kiddushin that was taught in the school of Levi: If one locked the door of the property, or fenced it or breached its fence even a bit, if this was done in the presence of the seller, this is considered taking possession of the property. The Gemara asks: One could infer that in his presence, yes, he acquires it; but not in his presence, no, he does not acquire it. Why not? In any event he has taken possession. Rava said that this is what Rav Hoshaya is saying: If the act was performed in the seller’s presence, the seller need not say to him: Go, take possession, and thereby acquire the property. Since the buyer is performing the act in the seller’s presence, there is no need for the seller to specify that he consents to the buyer’s acquiring it.