בבא בתרא קכח

בבא בתרא קכח

אַתָּה נְתַתּוֹ לִי בְּמַתָּנָה. רְצוֹנְךָ הִשָּׁבַע וְטוֹל?״ וְנִשְׁבַּע – אֵינוֹ יָכוֹל לַחְזוֹר בּוֹ.

or: You gave him to me as a gift, if he then adds: Although I owe you nothing, as the slave is mine, if it is your desire, take an oath that he is yours and take him; and the claimant takes an oath that the slave is his, the one in possession of the slave cannot retract his offer, although he was not obligated to make the offer.

מַאי קָא מַשְׁמַע לַן? תְּנֵינָא, אָמַר לוֹ: ״נֶאֱמָן עָלַי אַבָּא״; ״נֶאֱמָן עָלַי אָבִיךָ״; ״נֶאֱמָנִין עָלַי שְׁלֹשָׁה רוֹעֵי בָקָר״ – רַבִּי מֵאִיר אוֹמֵר: יָכוֹל לַחֲזוֹר בּוֹ, וַחֲכָמִים אוֹמְרִים: אֵינוֹ יָכוֹל לַחֲזוֹר בּוֹ!

The Gemara asks: What is Rabbi Abba teaching us? We already learned in a mishna (Sanhedrin 24a) that if one of the litigants said to the other: My father is trusted to adjudicate for me, or: Your father is trusted to adjudicate for me, or: These three cattle herders who are not experts in halakha are trusted to adjudicate for me, and all of the individuals this litigant mentioned are legally disqualified from serving as judges, Rabbi Meir says that the one who stated this can retract his statement, and the Rabbis say that he cannot retract it, and he is obligated to have them serve as judges if the other litigant so desires. Since this halakha is already stated in the mishna, what novel halakha did Rabbi Abba teach?

הָא קָא מַשְׁמַע לַן – דִּבְ״אֶתֵּן לָךְ״ מַחְלוֹקֶת, וַהֲלָכָה כְּדִבְרֵי חֲכָמִים.

The Gemara in tractate Sanhedrin records a dispute between amora’im as to the circumstances of the case of that mishna, with one amora holding that the dispute pertains only to a case where the one accepting the disqualified judge will need to forgive a debt if the judge rules in accordance with his opponent, while another amora holds that the dispute pertains even to a case where he will need to pay the other litigant if the judge rules in accordance with his opponent. By stating his ruling in a case where the litigant will have to give the slave to the other, Rabbi Abba teaches us this, that the dispute between Rabbi Meir and the Rabbis is even in a case where the litigant said: I will give you what you claim if that is the ruling of these judges, and the Rabbis hold that if he subsequently wishes to retract his suggestion, he cannot do so. And Rabbi Abba also teaches that the halakha is in accordance with the statement of the Rabbis.

שְׁלַח לֵיהּ רַבִּי אַבָּא לְרַב יוֹסֵף בַּר חָמָא, הֲלָכָה: גּוֹבִין מִן הָעֲבָדִים. וְרַב נַחְמָן אָמַר: אֵין גּוֹבִין.

§ Rabbi Abba also sent a ruling to Rav Yosef bar Ḥama that the halakha is that the creditors of one who died collect the debts from the Canaanite slaves the deceased left his heirs, i.e., they take the slaves, as slaves have the same status as land in this regard. And Rav Naḥman says that they do not collect the debt by taking the slaves.

שְׁלַח לֵיהּ רַבִּי אַבָּא לְרַב יוֹסֵף בַּר חָמָא, הֲלָכָה: שְׁלִישִׁי בְּשֵׁנִי – כָּשֵׁר. רָבָא אָמַר: אַף בְּרִאשׁוֹן.

§ Rabbi Abba also sent a ruling to Rav Yosef bar Ḥama that with regard to people with a common ancestor, the halakha is that the testimony of members of the third generation with regard to members of the second generation whose closest familial connection is through that ancestor is valid. For example, one can testify about his first cousin once removed, and is not disqualified as a relative. Rava says: Even the testimony of members of the third generation with regard to members of the first generation is valid; e.g., one can testify about his great-uncle.

מָר בַּר רַב אָשֵׁי אַכְשַׁר בְּאַבָּא דְאַבָּא; וְלֵית הִלְכְתָא כְּמָר בַּר רַב אָשֵׁי.

Mar bar Rav Ashi deemed one’s testimony with regard to his father’s father valid, as he considered it a case of testimony of a member of the third generation with regard to a member of the first generation, which Rava deemed valid. But the halakha is not in accordance with the opinion of Mar bar Rav Ashi.

שְׁלַח לֵיהּ רַבִּי אַבָּא לְרַב יוֹסֵף בַּר חָמָא: הָיָה יוֹדֵעַ לוֹ בְּעֵדוּת קַרְקַע עַד שֶׁלֹּא נִסְתַּמֵּא, וְנִסְתַּמֵּא – פָּסוּל.

§ Rabbi Abba also sent a ruling to Rav Yosef bar Ḥama concerning testimony: If one knew information that could serve as testimony about the boundary of another’s land before he became blind, and then he became blind, he is disqualified from bearing witness in a dispute as to the boundaries of that person’s properties.

וּשְׁמוּאֵל אָמַר: כָּשֵׁר, אֶפְשָׁר דִּמְכַוֵּין מִצְרָנַהָא. אֲבָל גְּלִימָא – לָא. וְרַב שֵׁשֶׁת אָמַר: אֲפִילּוּ גְּלִימָא, אֶפְשָׁר דִּמְכַוֵּין מִדַּת אׇרְכּוֹ וּמִדַּת רׇחְבּוֹ. אֲבָל נְסָכָא – לָא. וְרַב פָּפָּא אָמַר: אֲפִילּוּ נְסָכָא, אֶפְשָׁר דִּמְכַוֵּין מִדַּת מִשְׁקְלוֹתָיו.

And Shmuel said: He is fit to bear witness, as it is possible for him to determine the boundaries of the fields despite his blindness. But he is not fit to identify a movable item, e.g., a cloak, as he cannot see it. And Rav Sheshet said: He can identify even a cloak, as it is possible for him to determine its length and its width. But he is not fit to identify a piece of silver. And Rav Pappa said: He can identify even a piece of silver, as it is possible for him to determine its weight.

מֵיתִיבִי: הָיָה יוֹדֵעַ לוֹ בְּעֵדוּת עַד שֶׁלֹּא נַעֲשָׂה חֲתָנוֹ, וְנַעֲשָׂה חֲתָנוֹ; פִּיקֵּחַ, וְנִתְחָרֵשׁ; פִּיתֵּחַ, וְנִסְתַּמֵּא; שָׁפוּי, וְנִשְׁתַּטָּה – פָּסוּל.

The Gemara raises an objection from a baraita (Tosefta, Sanhedrin 3:5): If one knew information that could serve as testimony about another before he became his son-in-law, and then he became his son-in-law, thereby becoming a relative who is disqualified from bearing witness concerning him; or if he was able to hear at the time he witnessed an incident and then he became deaf; or if he was able to see at the time he witnessed an incident and then became blind; or if he was halakhically competent and then became insane, in all these cases, he is disqualified from bearing witness.

אֲבָל הָיָה יוֹדֵעַ לוֹ בְּעֵדוּת עַד שֶׁלֹּא נַעֲשָׂה חֲתָנוֹ, וְנַעֲשָׂה חֲתָנוֹ וּמֵתָה בִּתּוֹ; פִּיקֵּחַ וְנִתְחָרֵשׁ וְחָזַר וְנִתְפַּקֵּחַ; פִּיתֵּחַ וְנִסְתַּמֵּא וְחָזַר וְנִתְפַּתֵּחַ; שָׁפוּי וְנִשְׁתַּטָּה וְחָזַר וְנִשְׁתַּפָּה – כָּשֵׁר.

The baraita continues: But if he knew information about him that could serve as testimony before he became his son-in-law, and then he became his son-in-law, and then his daughter died, so that they are no longer related; or if he was able to hear, and then became deaf, and then again became able to hear; or if he was able to see, and then became blind, and then again became able to see; or if he was halakhically competent, and then became insane, and then again became halakhically competent, in all these cases, he is fit to bear witness.

זֶה הַכְּלָל: כׇּל שֶׁתְּחִלָּתוֹ אוֹ סוֹפוֹ בְּפַסְלוּת – פָּסוּל, תְּחִלָּתוֹ וְסוֹפוֹ בְּכַשְׁרוּת – כָּשֵׁר.

The baraita concludes: This is the principle: Anyone whose initial state or his ultimate state, i.e., his state at the time of the incident or at the time of his testimony in court, is one of disqualification for bearing witness is disqualified from bearing witness. But anyone whose initial state and his ultimate state is one of fitness to bear witness is fit to bear witness, even if he was disqualified in the interim. This baraita clearly states that one who is blind is disqualified from bearing witness.

תְּיוּבְתָּא דְכוּלְּהוּ! תְּיוּבְתָּא.

The Gemara concludes: The refutation of the opinions of all the amora’im who held that a person who became blind after witnessing a matter can, in certain cases, testify about it, is indeed a conclusive refutation.

שְׁלַח רַבִּי אַבָּא לְרַב יוֹסֵף בַּר חָמָא: הָאוֹמֵר עַל תִּינוֹק בֵּין הַבָּנִים – נֶאֱמָן. וְרַבִּי יוֹחָנָן אָמַר: אֵינוֹ נֶאֱמָן.

§ Rabbi Abba sent another ruling to Rav Yosef bar Ḥama: One who says something concerning one child among his sons is deemed credible, and Rabbi Yoḥanan says that he is not deemed credible.

מַאי קָאָמַר? אָמַר אַבָּיֵי: הָכִי קָאָמַר, הָאוֹמֵר עַל תִּינוֹק בֵּין הַבָּנִים: ״יִירַשׁ כׇּל נְכָסַי״ – נֶאֱמָן, כְּרַבִּי יוֹחָנָן בֶּן בְּרוֹקָה. וְרַבִּי יוֹחָנָן אָמַר: אֵינוֹ נֶאֱמָן, כְּרַבָּנַן.

The Gemara asks: What is Rabbi Abba saying? Abaye said that this is what Rabbi Abba is saying: One who says concerning one child among his sons: He shall inherit all my property, is deemed credible, in accordance with the opinion of Rabbi Yoḥanan ben Beroka, who holds that one can bequeath all his property to one of his heirs (130a). And Rabbi Yoḥanan says that he is not deemed credible, in accordance with the opinion of the Rabbis, who disagree with Rabbi Yoḥanan ben Beroka.

מַתְקֵיף לַהּ רָבָא: הַאי ״נֶאֱמָן״ וְ״אֵינוֹ נֶאֱמָן״?! ״יִירַשׁ״ וְ״לֹא יִירַשׁ״ מִבַּעְיָא לֵיהּ!

Rava objects to this explanation: According to Abaye’s explanation, this wording: Is deemed credible, and: He is not deemed credible, is not precise; he should have employed the terms: Shall inherit, and: Shall not inherit, as the issue is the ability of the father to specify who will inherit from him, not his credibility.

אֶלָּא אָמַר רָבָא: הָכִי קָאָמַר, הָאוֹמֵר עַל תִּינוֹק בֵּין הַבָּנִים: ״בְּכוֹר הוּא״ – נֶאֱמָן, כְּרַבִּי יְהוּדָה. וְרַבִּי יוֹחָנָן אָמַר: אֵינוֹ נֶאֱמָן, כְּרַבָּנַן.

Rather, Rava said that this is what Rabbi Abba is saying: One who says about one child among his sons that he is his firstborn is deemed credible, in accordance with the opinion of Rabbi Yehuda (127b); and Rabbi Yoḥanan says that he is not deemed credible, in accordance with the opinion of the Rabbis, who disagree with Rabbi Yehuda.

שְׁלַח לֵיהּ רַבִּי אַבָּא לְרַב יוֹסֵף בַּר חָמָא: הָאוֹמֵר ״תִּטּוֹל אִשְׁתִּי כְּאֶחָד מִן הַבָּנִים״ – נוֹטֶלֶת כְּאֶחָד מִן הַבָּנִים. אָמַר רָבָא: וּבִנְכָסִים שֶׁל עַכְשָׁיו, וּבְבָנִים הַבָּאִין לְאַחַר מִכָּאן.

§ Rabbi Abba sent another ruling to Rav Yosef bar Ḥama: In a case of one who says: My wife will take a portion of my estate like one of the sons, she takes a portion like one of the sons, as it is considered a gift. Rava says: And this ruling is only with regard to the husband’s current property, which he can give her as a gift. The husband cannot give her a portion of his future property. And furthermore, the calculation of her portion must take into account not only the number of sons the husband has at the time of his statement, but also the sons who come, i.e., who will be born, afterward.

שְׁלַח לֵיהּ רַבִּי אַבָּא לְרַב יוֹסֵף בַּר חָמָא: הַמּוֹצִיא שְׁטַר חוֹב עַל חֲבֵירוֹ; מַלְוֶה אוֹמֵר: לֹא נִפְרַעְתִּי כְּלוּם, וְלֹוֶה אוֹמֵר: פָּרַעְתִּי מֶחֱצָה, וְהָעֵדִים מְעִידִין שֶׁפָּרַע כּוּלּוֹ – הֲרֵי זֶה נִשְׁבָּע, וְגוֹבֶה מֶחֱצָה מִנְּכָסִים בְּנֵי חוֹרִין; אֲבָל מִמְּשׁוּעְבָּדִין לָא, דְּאָמְרִי: אֲנַן אַעֵדִים סָמְכִינַן.

§ Rabbi Abba sent another ruling to Rav Yosef bar Ḥama: In the case of one who produces a promissory note against another, and the creditor says: I was not repaid anything, and the debtor says: I repaid half the debt, and the witnesses testify that the debtor repaid the entire debt, then this debtor takes an oath that he repaid half, as is the halakha with regard to one who admits to a part of a claim, and he is exempt from paying that half. And the creditor collects the second half from unsold property; but not from liened property that was sold after the loan, as the buyers can say: We rely on the witnesses that the debt was repaid in its entirety.

וַאֲפִילּוּ לְרַבִּי עֲקִיבָא, דְּאָמַר: מֵשִׁיב אֲבֵדָה הָוֵי – הָנֵי מִילֵּי הֵיכָא דְּלֵיכָּא עֵדִים, אֲבָל הֵיכָא דְּאִיכָּא עֵדִים – אִירְתוֹתֵי אִירְתַת.

The Gemara compares this halakha to the case of a promissory note that states that the debtor owes the creditor: Sela coins, without stating how many. The creditor claims that he lent the debtor five sela and the debtor claims that he borrowed only three. Rabbi Akiva holds that since the wording of the promissory note indicates a minimum debt of two sela, and the creditor could not have collected the third sela without the debtor’s admission, the latter’s admission to a part of the claim cannot render him liable to take an oath. The Gemara states: And even according to Rabbi Akiva, who says that the debtor is not liable to take an oath, as with regard to the third sela his legal status is similar to that of one who returns a lost item, this statement applies only in a case where there are no witnesses to the loan. But where there are witnesses, as is the case in Rabbi Abba’s ruling, the debtor fears denying the entire debt. Therefore he is liable to take an oath that he repaid half, as one who admits to a part of the claim.

מַתְקֵיף לַהּ מָר בַּר רַב אָשֵׁי: אַדְּרַבָּה, אֲפִילּוּ לְרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר דְּאָמַר: מוֹדֶה מִקְצָת הַטַּעֲנָה הָוֵי – הָנֵי מִילֵּי הֵיכָא דְּלֵיכָּא עֵדִים דְּקָא מְסַיְּיעִי לֵיהּ, אֲבָל הֵיכָא דְּאִיכָּא עֵדִים דְּקָא מְסַיְּיעִי לֵיהּ – וַדַּאי מֵשִׁיב אֲבֵדָה הָוֵי.

Mar bar Rav Ashi objects to this: On the contrary; even according to Rabbi Shimon ben Elazar, who disagrees with Rabbi Akiva and says that the debtor is considered one who admits to a part of the claim, this statement applies only in a case where there are no witnesses who support him. But here in the case of Rabbi Abba, where there are witnesses who support him, testifying that he repaid the entire debt, his legal status is certainly that of one who returns a lost item, and he does not need to take an oath that he repaid half.

דָּרֵשׁ מָר זוּטְרָא מִשְּׁמֵיהּ דְּרַב שִׁימִי בַּר אָשֵׁי: הִלְכְתָא בְּכׇל הָנֵי שְׁמַעְתָּתָא, כְּדִשְׁלַח לֵיהּ רַבִּי אַבָּא לְרַב יוֹסֵף בַּר חָמָא. אֲמַר לֵיהּ רָבִינָא לְרַב אָשֵׁי: דְּרַב נַחְמָן, מַאי? אֲמַר לֵיהּ: ״אֵין גּוֹבִין״ מַתְנֵינַן לַהּ, וְכֵן אָמַר רַב נַחְמָן.

§ Mar Zutra taught in the name of Rav Shimi bar Ashi: The halakha in all these halakhot is as Rabbi Abba sent to Rav Yosef bar Ḥama. Ravina said to Rav Ashi: What about the statement with which Rav Naḥman disagreed, i.e., that a debt can be collected by taking the slaves the debtor left his heirs? Is the halakha in accordance with this ruling of Rabbi Abba as well, despite the principle that in monetary matters the halakha is in accordance with Rav Naḥman’s opinion? Rav Ashi said to him: We teach a different tradition, that Rabbi Abba’s statement rules that a creditor does not collect the debt from the slaves the debtor left his heirs, and that Rav Naḥman said the same.

וְאֶלָּא הִלְכְתָא – לְאַפּוֹקֵי מַאי?

The Gemara asks: But then what possibility does Mar Zutra exclude in ruling that the halakha is in accordance with Rabbi Abba’s statement?