בבא בתרא נז

בבא בתרא נז

הָהוּא שְׁטָרָא דַּהֲוָה חֲתִימִי עֲלֵיהּ בֵּי תְרֵי, שָׁכֵיב חַד מִינַּיְיהוּ. אֲתָא אֲחוּהּ דְּהַאי דְּקָאֵי, וְחַד אַחֲרִינָא, לְאַסְהוֹדֵי אַחֲתִימַת יְדֵיהּ דְּאִידַּךְ.

The Gemara relates: There was a certain document that had the signatures of two individuals on it. One of the signatory witnesses died, and when the court sought to ratify the document, which requires either that the witnesses personally attest to the validity of their signatures or that two other witnesses attest to the validity of the signatures, the brother of the witness who remained alive and one other individual came to testify with regard to the signature of the other, deceased, witness, while the living witness attested to his own signature.

סְבַר רָבִינָא לְמֵימַר: הַיְינוּ מַתְנִיתִין – שְׁלֹשָׁה אַחִין, וְאֶחָד מִצְטָרֵף עִמָּהֶן.

Ravina thought to say that this case is the same as the halakha in the mishna, which states that if testimony was given by three brothers, each of whom testify about one year, and another, unrelated individual joined with each of the brothers as the second witness, these are considered to be three distinct testimonies. Similarly, in this case, one brother attests to his own signature, while the other brother attests to the signature of the deceased witness.

אֲמַר לֵיהּ רַב אָשֵׁי: מִי דָּמֵי?! הָתָם לָא נָפֵיק נְכֵי רִיבְעָא דְמָמוֹנָא אַפּוּמָּא דְאַחֵי, הָכָא נָפֵיק נְכֵי רִיבְעָא דְמָמוֹנָא אַפּוּמָּא דְאַחֵי.

Rav Ashi said to him: Are these cases comparable? There, the property less one-quarter, i.e., three-quarters of the property in question, is not removed from the possession of the prior owner based upon the mouth, i.e., the testimony, of brothers. Each brother provides only half of the testimony for each year about which he testifies. Here, the property less one-quarter is removed from the possession of the debtor detailed in the document based upon the mouth of brothers. One brother attests to his own signature, which constitutes half of the testimony, while the other signature is authenticated by the testimony of the other brother and another individual. It follows that three-quarters of the testimony is given by brothers, and it is therefore invalid.

מַתְנִי׳ אֵלּוּ דְּבָרִים שֶׁיֵּשׁ לָהֶן חֲזָקָה, וְאֵלּוּ דְּבָרִים שֶׁאֵין לָהֶן חֲזָקָה? הָיָה מַעֲמִיד בְּהֵמָה בֶּחָצֵר; תַּנּוּר, רֵיחַיִם וְכִירַיִים; וּמְגַדֵּל תַּרְנְגוֹלִים; וְנוֹתֵן זִבְלוֹ בֶּחָצֵר – אֵינָהּ חֲזָקָה. אֲבָל עָשָׂה מְחִיצָה לִבְהֶמְתּוֹ – גָּבוֹהַּ עֲשָׂרָה טְפָחִים, וְכֵן לַתַּנּוּר וְכֵן לַכִּירַיִים וְכֵן לָרֵיחַיִם; הִכְנִיס תַּרְנְגוֹלִין לְתוֹךְ הַבַּיִת; וְעָשָׂה מָקוֹם לְזִבְלוֹ – עָמוֹק שְׁלֹשָׁה אוֹ גָבוֹהַּ שְׁלֹשָׁה; הֲרֵי זוֹ חֲזָקָה.

MISHNA: These are uses of property that have the means to establish the presumption of ownership, and these are uses of property that do not have the means to establish the presumption of ownership: If one would stand an animal in a courtyard; or if one would place an oven, a millstone, or a stove there; or if one raises chickens in a courtyard, or places his fertilizer in a courtyard, these actions are not sufficient to establish the presumption of ownership. But if one constructed a partition ten handbreadths high to contain his animal, and similarly if he constructed a partition for his oven, and similarly if he constructed a partition for his stove, and similarly if he constructed a partition for his millstone; or if one brought chickens into the house, or if he fashioned a place in the ground for his fertilizer that is three handbreadths deep or three handbreadths high, these actions are sufficient to establish the presumption of ownership.

גְּמָ׳ מַאי שְׁנָא רֵישָׁא, וּמַאי שְׁנָא סֵיפָא?

GEMARA: The Gemara asks: What is different in the first clause, where having an animal stand in a courtyard is insufficient to establish the presumption of ownership, and what is different in the latter clause, where constructing a partition is sufficient to establish the presumption of ownership?

אָמַר עוּלָּא: כֹּל שֶׁאִילּוּ בְּנִכְסֵי הַגֵּר קָנָה – בְּנִכְסֵי חֲבֵירוֹ קָנָה, כֹּל שֶׁאִילּוּ בְּנִכְסֵי הַגֵּר לֹא קָנָה – בְּנִכְסֵי חֲבֵירוֹ לֹא קָנָה.

Ulla says: With regard to any act which, if one were to perform it on ownerless property such as the property of a convert who dies without heirs he would acquire that property, that same act is sufficient for him to acquire the property of another if he performed it over the course of three years, provided it is accompanied by the claim that the property had been purchased. Conversely, any act that if one were to perform it on the property of a convert who died without heirs he would not acquire that property, that same act is not sufficient for him to acquire the property of another. Taking possession of ownerless property requires an act to be done with regard to the property itself, such as constructing a partition, but merely having an animal stand there is not sufficient. Therefore, it does not establish the presumption of ownership.

מַתְקֵיף לַהּ רַב שֵׁשֶׁת: וּכְלָלָא הוּא?! וַהֲרֵי נִיר – דִּבְנִכְסֵי הַגֵּר קָנָה, בְּנִכְסֵי חֲבֵירוֹ לֹא קָנָה! וַהֲרֵי אֲכִילַת פֵּירוֹת – דִּבְנִכְסֵי חֲבֵירוֹ קָנָה, בְּנִכְסֵי הַגֵּר לֹא קָנָה!

Rav Sheshet objects to this explanation: And is this an established principle? But there is plowing, which, if performed on the property of a convert who died without heirs one acquires it, but if performed on the property of another one does not acquire it. And additionally, there is consumption of produce for the duration of three years, which, if performed on the property of another one acquires it by establishing the presumption of ownership, but if performed on the property of a convert who died without heirs one does not acquire it. These cases contradict Ulla’s claim that the modes of acquisition are analogous.

אֶלָּא אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ:

Rather, Rav Naḥman said that Rabba bar Avuh said:

הָכָא בַּחֲצַר הַשּׁוּתָּפִין עָסְקִינַן – דִּבְהַעֲמָדָה כְּדִי לָא קָפְדִי, אַמְּחִיצָה קָפְדִי.

Here we are dealing with a courtyard belonging to partners, where they are not particular with regard to the mere placing of items in the courtyard, but are particular with regard to the construction of a partition. The presumption of ownership is established only where the lack of a protest indicates that the prior owner concedes that the property is no longer his. The co-owner’s silence in the face of his partner using the courtyard for a temporary purpose does not indicate a concession, but silence in the face of one who constructed a partition is a concession.

וּבְהַעֲמָדָה כְּדִי לָא קָפְדִי?! וְהָא תְּנַן: הַשּׁוּתָּפִין שֶׁנָּדְרוּ הֲנָאָה זֶה מִזֶּה – אֲסוּרִין לִיכָּנֵס לֶחָצֵר!

The Gemara asks: And are they not particular with regard to the mere placing of items? But didn’t we learn in a mishna (Nedarim 45b): Partners who through vows prohibited themselves from deriving benefit from one another are forbidden to enter into a courtyard jointly owned by them, since each one has a portion in it, and it would be considered a violation of one’s vow if one were to benefit from any part of the other’s property? This indicates that partners are particular even with regard to passage through the field; all the more so are they particular with regard to placing animals or vessels in the field.

אֶלָּא אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: הָכָא בִּרְחָבָה שֶׁל אֲחוֹרֵי בָתִּים עָסְקִינַן; דִּבְהַעֲמָדָה כְּדִי לָא קָפְדִי, וְאַמְּחִיצָה קָפְדִי.

Rather, Rav Naḥman said that Rabba bar Avuh said: Here we are dealing with a fenced-in yard located behind a group of houses that is used to store items not in regular use, where they are not particular with regard to the mere placing of items but are particular with regard to the construction of a partition.

רַב פָּפָּא אָמַר: אִידֵּי וְאִידֵּי בַּחֲצַר הַשּׁוּתָּפִין; וְאִיכָּא דְּקָפְדִי וְאִיכָּא דְּלָא קָפְדִי; גַּבֵּי מָמוֹנָא – לְקוּלָּא, גַּבֵּי אִיסּוּרָא – לְחוּמְרָא.

Rav Pappa said: This and that, i.e., the rulings of the mishna in tractate Nedarim as well as the rulings of the mishna here, are stated with regard to a courtyard belonging to partners, and the reason for the difference in the rulings is that there are those who are particular with regard to the other partner placing items in or passing through the courtyard, and there are those who are not particular. Therefore, in the mishna here, which issues a ruling concerning monetary matters, the halakha is to be lenient, and it is assumed that the partner is not particular about placing items in the courtyard, and the presumption of ownership is established. In the mishna in tractate Nedarim, which issues a ruling concerning ritual matters, the halakha is to be stringent, to prevent one from violating a vow.

רָבִינָא אָמַר: לְעוֹלָם לָא קָפְדִי, וְהָא מַנִּי – רַבִּי אֱלִיעֶזֶר הִיא; דְּתַנְיָא, רַבִּי אֱלִיעֶזֶר אוֹמֵר: אֲפִילּוּ וִיתּוּר אָסוּר בְּמוּדַּר הֲנָאָה.

Ravina said: Actually, partners are not particular about placing items in the courtyard, and in accordance with whose opinion is this mishna in tractate Nedarim? It is in accordance with the opinion of Rabbi Eliezer, as it is taught in a baraita that Rabbi Eliezer says: Even negligible benefits ordinarily waived are forbidden in the case of one prohibited by a vow from deriving benefit from another. In other words, one prohibited by a vow may not derive any benefit from the other, even a benefit that people commonly are not particular about and allow others to enjoy without first receiving permission. Therefore, although people are ordinarily not particular about others passing through their property, according to the opinion of Rabbi Eliezer, one who is prohibited by a vow from deriving benefit from his partner is prohibited from walking on the property.

אָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי בְּנָאָה: בַּכֹּל שׁוּתָּפִין מְעַכְּבִין זֶה אֶת זֶה, חוּץ מִן הַכְּבִיסָה – שֶׁאֵין דַּרְכָּן שֶׁל בְּנוֹת יִשְׂרָאֵל לְהִתְבַּזּוֹת עַל הַכְּבִיסָה.

Rabbi Yoḥanan says in the name of Rabbi Bena’a: Partners may prevent each other from using their courtyard for any purpose except for washing laundry. This is because it is not the way of Jewish women to be degraded over washing laundry by laundering their clothing in a public area. Therefore, they must be allowed to launder in the courtyard.

״וְעֹצֵם עֵינָיו מֵרְאוֹת בְּרָע״ – אָמַר רַבִּי חִיָּיא בַּר אַבָּא: זֶה שֶׁאֵין מִסְתַּכֵּל בְּנָשִׁים בְּשָׁעָה שֶׁעוֹמְדוֹת עַל הַכְּבִיסָה.

In connection with the matter of laundry being washed in public, the Gemara quotes the homiletic interpretation of a verse: “He that walks righteously, and speaks uprightly; he that despises the gain of oppressions, that shakes his hands from holding of bribes, that stops his ears from hearing of blood, and shuts his eyes from looking upon evil” (Isaiah 33:15). Rabbi Ḥiyya bar Abba says: This is referring to one who does not gaze at women while they are standing over the laundry, as it was common for them to stand in the water and raise the hems of their garments while laundering their clothing.

הֵיכִי דָמֵי? אִי דְּאִיכָּא דַּרְכָּא אַחְרִיתָא – רָשָׁע הוּא! אִי דְּלֵיכָּא דַּרְכָּא אַחְרִיתָא – אָנוּס הוּא! לְעוֹלָם דְּלֵיכָּא דַּרְכָּא אַחְרִיתָא, וַאֲפִילּוּ הָכִי – מִיבְּעֵי לֵיהּ לְמֵינַס נַפְשֵׁיהּ.

The Gemara clarifies: What are the circumstances? If it is referring to a case where there is another way by which the one walking could reach his destination, then one who walks past the women, consequently placing himself in a situation where he will be tempted to gaze at them, is wicked. Alternatively, if it is referring to a case where there is no other way by which he can reach his destination, then he is a victim of circumstance, so why is he required to shut his eyes? The Gemara explains: Actually, it is referring to a case where there is no other way by which he can reach his destination, and even so, he is required to compel himself to avoid gazing at the women.

בְּעָא מִינֵּיהּ רַבִּי יוֹחָנָן מֵרַבִּי בְּנָאָה: חָלוּק שֶׁל תַּלְמִיד חָכָם – כֵּיצַד? כֹּל שֶׁאֵין בְּשָׂרוֹ נִרְאֶה מִתַּחְתָּיו. טַלִּית שֶׁל תַּלְמִיד חָכָם – כֵּיצַד? כֹּל שֶׁאֵין חֲלוּקוֹ נִרְאֶה מִתַּחְתָּיו טֶפַח. שֻׁלְחָן שֶׁל תַּלְמִיד חָכָם – כֵּיצַד? שְׁנֵי שְׁלִישֵׁי גְּדִיל, וּשְׁלִישׁ גְּלַאי – וְעָלָיו קְעָרוֹת וְיָרָק. וְטַבַּעְתּוֹ מִבַּחוּץ.

§ The Gemara quotes additional matters that Rabbi Yoḥanan learned from Rabbi Bena’a. Rabbi Yoḥanan asked Rabbi Bena’a: How should the garment of a Torah scholar worn under his clothes be fashioned? He replied: He can wear any garment long enough that his flesh is not visible from beneath it. Rabbi Yoḥanan asked: How should the cloak of a Torah scholar be fashioned? He replied: He can wear any garment long enough that a handbreadth of his garment worn under his clothes is not visible from beneath it. Rabbi Yoḥanan asked: How should the table of a Torah scholar appear? He replied: Two-thirds of the table is covered with a cloth, and one-third is uncovered, and upon that third are dishes and vegetables. And its ring, used to hang the table, should be positioned on the outside, not on the side that faces the one who is eating.

וְהָא תַּנְיָא: טַבַּעְתּוֹ מִבִּפְנִים! לָא קַשְׁיָא – הָא דְּאִיכָּא יָנוֹקָא, הָא דְּלֵיכָּא יָנוֹקָא.

The Gemara asks: But isn’t it taught in a baraita that its ring should be positioned on the inside? The Gemara answers: This is not difficult. This baraita, which states that its ring should be positioned on the outside, is referring to a case where there is a child who may play with the ring and overturn the table, while that baraita, which states that its ring should be positioned on the inside, is referring to a case where there is no child present.

וְאִי בָּעֵית אֵימָא: הָא וְהָא דְּלֵיכָּא יָנוֹקָא; וְלָא קַשְׁיָא – הָא דְּאִיכָּא שַׁמָּעָא, הָא דְּלֵיכָּא שַׁמָּעָא.

And if you wish, say instead that both this and that refer to a case where there is no child present, and this is not difficult: This baraita, which states that its ring should be positioned on the inside, is referring to a case where there is an attendant who may bump into the ring, while that baraita, which states that its ring should be positioned on the outside, is referring to a case where there is no attendant.

וְאִי בָּעֵית אֵימָא: הָא וְהָא דְּאִיכָּא שַׁמָּעָא; וְלָא קַשְׁיָא – הָא בִּימָמָא, הָא בְּלֵילְיָא.

And if you wish, say instead that both this and that refer to a case where there is an attendant, and this is not difficult: This baraita, which states that its ring should be positioned on the outside, is referring to when the meal is eaten during the day, when the attendant can see the ring and avoid it, while that baraita, which states that its ring should be positioned on the inside, is referring to when the meal is eaten during the night.

וְשֶׁל עַם הָאָרֶץ – דּוֹמֶה

The Gemara continues: All of the above is referring to the table of a Torah scholar, but the table of an ignoramus is similar