תלמוד על בבא בתרא 10:2

If somebody claimed a mina, the [defendant] denied it, and the [claimant] produced witnesses that the [defendant] owes him 50 [zuz]. The older Rebbi Ḥiyya said, [the defendant] has to swear about the remainder. Rebbi Joḥanan says, he does not have to swear¹²Following the principle that the defendant in a suit for money can by biblical law only be forced to swear if he admits that part of the claim is justified; based on Ex. 22:8, where the expression אֲשֶׁר יֹאמַר כִּי הוּא זֶה “if he agrees that this is so.” In Baba Meṣi‘a(1:1, 7d 1. 24; Babli 3a) the reason of the older R. Ḥiyya is “that what he admits himself should not have greater force than the testimony of witnesses.”. The older Rebbi Ḥiyya learned it from two who are grabbing a toga, as we have stated there¹³Mishnah Baba Meṣi‘a 1:1. If two people come to court, each grabs half of a toga and asserts ownership of the entire piece because he found it, each of them has to swear that he owns no less than half of it (so the court should not force obvious perjury) and takes half of the piece since “it is money in dispute”.: “Two are grabbing a toga, one says, I found it, and the other says, I found it.” The one who grabs half of it is as if he brought witnesses that that half belongs to him. The other says, “it belongs to me entirely”, and the fact that he grabs half of it is as if he brought witnesses that this half belongs to him. The one who says, “it belongs to me entirely”, swears that not the entire [toga] is the other’s. But he did not hear that Rebbi Hila said in the name of Rebbi Joḥanan¹⁴The student of the older R. Ḥiyya’s son Ḥizqiah. that this oath is a rabbinic institution, that a man should not see another in the market and tell him, the toga which you are wearing is mine, come and split your toga with me!¹⁵Baba Meṣ‘ia 1:1, 7d 1. 33; Babli 3a; both in the name of R. Joḥanan. Rabbinic institutions do not imply anything for biblical law. Rebbi Abin in the name of Rav: My uncle¹⁶The older R. Ḥiyya, half-brother to both of Rav’s parents. agrees in the case of a document. How is that? He claimed a mina, the [defendant] denied it, and the [claimant] produced a document that the [defendant] owed him 50 [zuz]. He has only fifty. And Rebbi Yose ben Rebbi Abun said, we can understand it from the following¹⁷Mishnah Baba Batra 10:2. If the amount of indebtedness is illegible, the use of the plural proves that the amount was at least two.: “‘The amount of … tetradrachmas’ and it was illegible, he owes no less than two. “If it is more, if the lender says five but the borrower says three, Ben Azzay says since he partially agreed to the claim, he has to swear, but the Sages say, what he agreed to is not of the kind which was claimed¹⁸In Baba Batra 10:2 (by the editorial team of Neziqin, different from the editors of the rest of the Yerushalmi) and the Babli, Baba Meṣi‘a4b, the “Sages” are identified as R. Aqiba. In the Babli, Ben Azzai is replaced by R. Simeon ben Eleazar, 2 generations younger than Ben Azzai and R. Aqiba. In both sources, the reason of R. Aqiba is given that the borrower, in agreeing to pay more than he could be forced to by the existing document, is like a person returning what the other had lost, not directly answering the lender’s claim.. Because it was not of the kind which was claimed! Therefore, if it were of the kind which was claimed, he would be obligated. And is it not here that the agreed sum was part of the claim¹⁹In our Mishnah, why should the divorcing husband not be forced to swear that he does not have to pay 200 zuz even if there are no witnesses, since he agrees that he owes 100? {The heirs, not being able to swear, would have to pay.}? Everybody agrees that he owes her a mina²⁰Since this amount is not in dispute, the husband cannot be considered as agreeing to part of the claim; no oath is due.. But she claimsanother mina from him, to which he does not agree. The burden of proof is on the claimant²¹This is the standard formulation, Babli Baba Qama 46b..

There, we have stated³⁹Mishnah Baba Batra 10:4. The statements of rabbis Abba and La (Ilai) are also quoted there in Halakhah 10:4.: “One writes a bill of divorce for a man even if his wife is not with him, and a receipt⁴⁰A receipt for the amount of the ketubah due her at her divorce. for a woman even if her husband is not with her, and the husband pays the fee⁴¹The scribe’s fee..” Rebbi Abba said, he⁴²The scribe. has to know both of them. Rebbi La⁴³He is R. Ilai. In the Babli, Baba Batra 167b, his statement is attributed to Rav. said, he has to know the husband for the bill of divorce and the wife for her receipt. Rebbi Abun bar Ḥiyya asked before Rebbi [ ⁴⁴Clearly, a name is missing. R. Abun bar Ḥiyya is known to have asked questions of R. Ilai (Yoma 3:5). ]: Think of it, if he brought another woman and divorced by means of her⁴⁵Can the agent of an absent husband not fraudulently give the bill of divorce to another woman, not the wife, and have that woman foreclose the ketubah from the husband’s local property?. He said to him, let the witnesses come and testify. But did not Rebbi Simeon ben Laqish say⁴⁶Cf. Ketubot 2:3, Note 56, Ševi‘it 10:5, Note 96 (Baba Batra 10:16, 14d 1.26); Babli 3a, Ketubot 18b. Signatories of documents cannot claim that they never signed unless they claim that the signatures are forgeries. that they considered witnesses who signed a document as if their testimony had been cross-examined in court? There, if they said, we did not sign at all. But here if they say, we signed this but not that⁴⁷The witnesses can identify the persons for whom they signed; this is not a second testimony.. The Mishnah disagrees with Rebbi Abba: “In earlier times, his name and her name and the names of his and her towns could change.” If he knows them, why would he change their names⁴⁸If the scribe knew all persons involved, he could not be tricked into writing a misleading document.? There are people who know others by sight but do not know their names. The Mishnah disagrees with Rebbi Ilai: “Rabban Gamliel the Elder instituted that one should write Mr. X and all his names, Mrs. Y and all her names⁴⁹The Mishnah treats husband and wife on an equal footing but R. Ilai does not., because of the public good.” The Mishnah about one who is forced to divorce⁵⁰One of those cases in which the wife can force a divorce (cf. Ketubot 7:10) when the husband’s cooperation cannot be taken for granted., Rebbi Ila speaks about one who divorces on his initiative; some want to say if he divorces at another place⁵¹Where he has to prove his and his wife’s identities to the scribe..

HALAKHAH: “If witnesses said, this is our signature,” etc. It was stated⁵²In slightly different wording in Tosephta Ketubot 2:1, Sanhedrin 6:5.: And similarly, the witnesses who testified whether to declare impure or pure, or to remove or include, or to forbid or permit, or to obligate or absolve⁵³These testimonies are all about personal status. To declare impure or pure is the same as to exclude (bastards from marrying Jewish partners or desecrated females from marrying Cohanim) or to include them in the pool of eligible marriage partners. Similarly, to forbid marriages (because the woman is still married) or to permit, to impose a purification sacrifice for sinful marriage or to absolve. The parallel Tosephta in Sanhedrin must be interpreted to deal with money matters, to impose payment or to absolve from payment., if they say we did invent this⁵⁴The text here is in doubt. The Erfurt ms. of the Tosephta reads מְבוּדִּין אָנוּin both places, “we were made to lie”; this is the reading of many German and Italian medieval authorities in the Yerushalmi. The text of the ms. and editio princeps is also the text of the Vienna ms. of the Tosephta and most African, Spanish, and French authorities; cf. Tosefta ki-Fshutah, part 6, p. 199–200. before their testimony was investigated by the court⁵⁵This does not necessarily mean investigation by cross-examination but indicates that identification of their signatures was accepted by the court; cf. Tosefta ki-Fshutah, part 6, p. 200–202., they can be believed; after their testimony was investigated by the court, they are not trustworthy.” Rebbi Simeon ben Laqish said, they considered witnesses who signed a document as if their testimony had been investigated by the court⁵⁶Once the signatures have been accepted, the witnesses cannot change their stories since “no witness can testify twice in the same matter” (Babli 18b; Bikkurim 3:4, Note 72). The Babli agrees, 18b. Cf. also Ševi‘it 10:5, Note 96.. If they say, these are our signatures, and others say, these are their signatures, Rebbi Ḥiyya stated: Their [testimony] does not add and does not detract⁵⁷Since their testimony is not needed, they do not have the power to modify the terms of the contract which they signed as witnesses.. Rebbi Yose said, our Mishnah says so, “if there are witnesses to identify their signatures, or if their signatures are confirmed from another document⁵¹If the witnesses were unknown to the court but another document was presented carrying their signatures and certified by another court as genuine, then the court judging the present document is empowered to certify their signatures by comparing them to the certified ones. Their mouth is not the one which permits; therefore, their mouth cannot prohibit., they are not trustworthy.”