Bava Batra 70

ודייני גולה אמרי כל שהעול כובשו לא הוי שיור כל שאין העול כובשו הוי שיור ולא פליגי הא בדיקלי הא באילני

But the judges of the exile, Shmuel and Karna, say: Any tree that is bent back by the yoke of oxen as the animals plow the ground under the tree, and in this way the tree does not impede the plowing, is not retained by the seller, as it is not a significant tree. Any tree that is not bent back by the yoke of the oxen is retained by the seller and not included in the sale. The Gemara comments: And these amora’im do not disagree with regard to the halakha: That which Rav said, that the only trees that the seller retains for himself and excludes from the sale are those that must be climbed by means of a rope, was said with regard to palm trees, while that which the judges of the exile said, that the only trees that are retained are those that are not bent back by the yoke of the oxen, was said with regard to other types of trees.

בעא מיניה רב אחא בר הונא מרב ששת חוץ מחרוב פלוני חוץ מסדן פלוני מהו אותו חרוב הוא דלא קני הא שאר חרובים קני או דלמא שאר חרובין נמי לא קני אמר ליה לא קנה

§ The Gemara cites a discussion related to the mishna’s ruling that a grafted carob tree and a sycamore trunk are not included in the sale of the field: Rav Aḥa bar Huna raised a dilemma before Rav Sheshet: If one selling a field said to the buyer: I am selling you the entire field except for such and such grafted carob tree, or except for such and such sycamore trunk, and there were other grafted carob trees or sycamore trunks in the field, what is the halakha? The Gemara explains the two sides of the question: Does the seller mean to say that it is this carob tree that the buyer does not acquire, but he does acquire the other carob trees, or perhaps he means that he also does not acquire the rest of the carob trees? Rav Sheshet said to him in response: The buyer does not acquire any of them.

איתיביה חוץ מחרוב פלוני חוץ מסדן פלוני לא קנה מאי לאו אותו חרוב הוא דלא קנה הא שאר חרובין קנה

Rav Aḥa raised an objection to Rav Sheshet from a baraita that states: If the seller said to the buyer: I am selling you this field except for such and such carob tree, or except for such and such sycamore trunk, the buyer does not acquire it. What, is it not that it is this carob tree that he does not acquire, but he does acquire the other carob trees?

אמר ליה לא אפילו שאר חרובין נמי לא קנה תדע דאילו אמר ליה שדי מכורה לך חוץ משדה פלונית ההיא הוא דלא קני הא אחרנייתא קני אלא לא קנה הכא נמי לא קנה

Rav Sheshet said to him: No, what this means is that he does not acquire even the other carob trees. Know that this is correct, as if a person selling a field said to the buyer: My field is sold to you except for such and such field that is adjacent to it, would you say that it is only that adjacent field that he does not acquire, but he acquires all the other fields owned by the seller? This is clearly not the case, as the seller explicitly stated that he is selling a certain field, not all of his fields. Rather, everyone would agree that the buyer does not acquire the other fields. Therefore, here too, the buyer does not acquire the other carob trees.

ואיכא דאמרי בעא מיניה רב אחא בר הונא מרב ששת חוץ מחצי חרוב פלוני חוץ מחצי סדן פלוני מהו שאר חרובין ודאי לא קני הא מה ששייר באותו חרוב קני או דלמא אפילו מה ששייר באותו חרוב נמי לא קני אמר ליה לא קני

And there are those who say that the discussion took place as follows: Rav Aḥa bar Huna raised a dilemma before Rav Sheshet: If one selling a field said to the buyer: I am selling you the entire field except for half of such and such carob tree, or except for half of such and such sycamore trunk, what is the halakha? The Gemara explains the two sides of the question: Do we say that the buyer certainly does not acquire the other carob trees, but he does acquire what remains from that carob tree that was mentioned, that is, the half of the carob tree that the seller did not specifically retain for himself? Or perhaps he does not acquire even what remains from that carob tree? Rav Sheshet said to him: Even what remains from that carob tree the buyer does not acquire.

איתיביה חוץ מחצי חרוב פלוני חוץ מחצי סדן פלוני שאר חרובין לא קנה מאי לאו שאר חרובין הוא דלא קנה הא מה ששייר באותו חרוב קנה

Rav Aḥa raised an objection to Rav Sheshet from a baraita that states: If the seller said to the buyer: I am selling you the entire field except for half of such and such carob tree, or except for half of such and such sycamore trunk, the buyer does not acquire the other carob trees. What, is it not that it is the other carob trees that he does not acquire, but what remains of that carob tree he does acquire?

אמר ליה לא אפילו מה ששייר באותו חרוב נמי לא קנה תדע דאילו אמר ליה שדי מכורה לך חוץ מחצי שדה פלוני ההוא הוא דלא קנה הא אידך קנה אלא לא קני הכא נמי לא קני

Rav Sheshet said to him: No, what this means is that he does not acquire even what remains of that carob tree. Know that this is correct, as if a person selling a field said to the buyer: My field is sold to you except for half of such and such field that is adjacent to it, would you say that it is only that half of the field that he does not acquire, but he acquires the other half of the field? This is clearly not the case, as the seller explicitly stated that he is selling a certain field and nothing else. Rather, everyone would agree that the buyer does not acquire the other half of the field. Therefore, here too, the buyer does not acquire what remains of the carob tree.

בעא מיניה רב עמרם מרב חסדא המפקיד אצל חבירו בשטר ואמר לו החזרתים לך מהו מי אמרינן מיגו דאי בעי אמר נאנסו מהימן השתא נמי מהימן או דלמא אמר ליה שטרך בידי מאי בעי אמר ליה מהימן

§ Rav Amram raised a dilemma before Rav Ḥisda: If one deposits certain items with another and receives a document signed by witnesses testifying that he deposited these items with this individual, and the bailee later says to him: I returned the items to you, but the document is still in the hands of the depositor, what is the halakha? Do we say that since if the bailee wanted to lie he could have said that the items were taken from him under circumstances beyond his control, and he would have been deemed credible; therefore now too, when he claims that he returned the items, he is deemed credible as well? Or perhaps, the one who deposited the items can say to him: If you returned the items, what is your document doing in my possession? Upon return of the deposit, you should have retrieved the document. Rav Ḥisda said to him: The bailee is deemed credible.

ולימא ליה שטרך בידי מאי בעי אמר ליה וליטעמיך וכי אמר ליה נאנסו מי מצי אמר ליה שטרך בידי מאי בעי אמר ליה

Rav Amram asked: But let the depositor say to the bailee: If you returned the items, what is your document doing in my possession? Rav Ḥisda said to him: And according to your reasoning, if the bailee had said to him that the items were taken from him under circumstances beyond his control, would he be able to say to him: What is your document doing in my possession? Since this claim could not have been stated had the bailee stated the alternative claim, it can also not be stated when the bailee claims that the items were returned. Rav Amram said to him:

סוף סוף כי אמר ליה נאנסו לאו שבועה בעי הכא נמי מאי נאמן נאמן בשבועה

Ultimately, even when the bailee says to the depositor that the items were taken from him under circumstances beyond his control, is he not required to take an oath? How, then, can you assert that he is deemed credible to claim that he returned the items without taking an oath? Rav Ḥisda said to him: Here too, what did I mean when I said that he is deemed credible? It means that he is deemed credible when he takes an oath.

לימא בפלוגתא דהני תנאי דתניא שטר כיס היוצא על היתומים דייני גולה אמרי נשבע וגובה כולו ודייני ארץ ישראל אמרי נשבע וגובה מחצה

The Gemara suggests: Let us say that Rav Amram and Rav Ḥisda disagree with regard to the issue that is the subject of the dispute between these tanna’im, as a halakha is taught in a baraita with regard to a purse document, i.e., a document that records an arrangement whereby one gives another money as an investment in a joint venture on condition that the profits will be divided equally between the two parties. If the person who received the money died, and this document was presented by the lender against the orphans, the judges of the exile say that the lender takes an oath that the money had never been returned to him, and he collects the entire sum. And the judges of Eretz Yisrael say that he takes an oath and collects only half of the sum.

ודכולי עלמא אית להו דנהרדעי דאמרי נהרדעי האי עיסקא פלגא מלוה ופלגא פקדון

And it is understood that everyone agrees with the opinion of the Sages of Neharde’a, as the Sages of Neharde’a say: With regard to this joint venture, whereby one person gives money to another on condition that it will be used for business purposes and that the profits will be divided equally between the two parties, half of the invested money is considered a loan, for which the borrower is exclusively liable, and half is considered a deposit, so that if it is lost under circumstances beyond his control, the borrower is exempt from the liability to return it.

מאי לאו בהא קא מיפלגי דמר סבר מצי אמר ליה שטרך בידי מאי בעי ומר סבר לא אמרי

According to this assumption, everyone agrees that the claimant can recover from the orphans by means of an oath the half of the money that is considered a loan, just as he would have been able to demand that money from their father. Concerning the half that is considered a deposit, what, is it not with regard to this point that they disagree, as one Sage, the judges of the exile, holds like Rav Amram that the depositor can say to the bailee: What is your document doing in my possession? Therefore, neither the father nor his children are deemed credible to claim that they had returned the half that is considered a deposit, and the investor can collect that half as well. And one Sage, the judges of Eretz Yisrael, holds like Rav Ḥisda, that one cannot assert this claim, and therefore the investor can collect only the half that is considered a loan. But as for the half that is considered a deposit, the father would have been deemed credible in his claim that he had already returned it.

לא דכולי עלמא אית להו דרב חסדא והכא בהא קמיפלגי דמר סבר אם איתא דפרעיה מימר הוה אמר ומר סבר אימור מלאך המות הוא דאנסיה

The Gemara rejects this opinion: No, everyone, i.e., both the judges of the exile and the judges of Eretz Yisrael, agrees with the opinion of Rav Ḥisda, that the father can claim that he returned the money. And here, they disagree about the following issue, as one Sage, the judges of the exile, holds that if it is so that he had in fact repaid the money, he would have told his children that he repaid it. Since he did not tell them, it may be assumed that he never repaid the money. And one Sage, the judges of Eretz Yisrael, holds that you can say that it was the Angel of Death that prevented him from doing so, meaning he died before he had the opportunity to give his children a detailed report concerning his financial affairs.

שלח רב הונא בר אבין המפקיד אצל חבירו בשטר ואמר לו החזרתיו לך נאמן ושטר כיס היוצא על היתומין נשבע וגובה כולו

Apropos this discussion, it is related that Rav Huna bar Avin sent the following ruling: If one deposits an item with another and receives a document attesting to the deposit, and the bailee later says to him: I returned the item to you, the bailee is deemed credible even if the document is still in the hands of the depositor. And with regard to a purse document attesting to a joint venture that was presented by the lender to support his claim against the borrower’s orphans, the lender takes an oath that the money had never been returned to him and collects the entire sum from the orphans.

תרתי שאני התם דאם איתא דפרעיה מימר הוה אמר

The Gemara asks: Don’t these two halakhot contradict each other? If the father is deemed credible when he claims that he repaid a loan, the court should present this claim on behalf of his orphans. The Gemara answers: It is different there, as if it is so that the father had, in fact, repaid the money, he would have told his children that he repaid it. Since he did not tell them anything about it, it may be assumed that he never repaid the money.

רבא אמר הלכתא נשבע וגובה מחצה אמר מר זוטרא הלכתא כדייני גולה אמר ליה רבינא למר זוטרא הא אמר רבא נשבע וגובה מחצה אמר ליה אנן דדייני גולה

Rava said: With regard to the case of a purse document that was presented to support a claim against orphans, the halakha is that the claimant takes an oath that the money had never been returned to him and then collects half of the sum recorded in the document, in accordance with the judges of Eretz Yisrael. The Gemara relates that two generations later, Mar Zutra said: The halakha is in accordance with the opinion of the judges of the exile. Ravina said to Mar Zutra: Didn’t Rava say that the claimant takes an oath and collects half of the sum? Mar Zutra said to him: With regard to the opinion of the judges of the exile, we