Bava Batra 69

דרב אמר יחלוקו ושמואל אמר שודא דדייני התם ליכא למיקם עלה דמילתא הכא איכא למיקם עלה דמילתא

are presented in court,<span class="x" onmousemove="('comment',' I.e., where a man has first assigned a property to Reuben and then on the same day made out another deed assigning it to Simeon. The hour of the day at which the deed was written or transferred was not usually specified, save in Jerusalem. ');">¹</span> in which case Rab rules that the property should be divided between the claimants, and Samuel that the judges should assign it according to their own discretion?<span class="x" onmousemove="('comment',' According to Rashb. this means that they should estimate which of the two claimants the donor was more likely to favour; according to Tosaf. they should consult purely their own judgment. ');">²</span>

ומאי שנא מהא דתנן המחליף פרה בחמור וילדה וכן המוכר שפחתו וילדה זה אומר עד שלא מכרתי ילדה וזה אומר משלקחתי ילדה יחלוקו

— In that case there is no chance that further evidence should come to light,<span class="x" onmousemove="('comment',' The deeds themselves being the whole of the evidence bearing on the case. ');">³</span> here there is a chance that further evidence may come to light.<span class="x" onmousemove="('comment',' In which case the man who has seized the property may still be dispossessed. ');">⁴</span>

התם להאי

But why should the ruling here be different from what we have learnt: 'If a man exchanges a cow for an ass and it calves, and similarly if a man sells a female slave and she bears a child, if the seller says that the birth took place before the sale<span class="x" onmousemove="('comment',' Lit., 'before I sold it, I.e., before the purchaser had taken possession, and therefore the offspring was not included in the sale. ');">⁵</span> and the purchaser that it took place after the sale,<span class="x" onmousemove="('comment',' Lit., 'since I bought it.' ');">⁶</span> they must share the offspring'?<span class="x" onmousemove="('comment',' The transaction has to be one of exchange and not of sale in the case of the cow, for the reason that, in the case of all movables except human beings, a transaction of sale is not completed until the article bought is 'pulled' by the purchaser. Hence no dispute would have been possible about the calf. In the case of an exchange, however, the transaction is concluded as soon as the article given in exchange-here, the ass-is handed over. V. B.M. 100a. ');">⁷</span> In that case each