Bava Metzia 31

הא מית ליה ומאן דאמר ניחא ליה דליקום בהמנותיה בהדי בני נמי ניחא ליה דליקום בהמנותיה

[it could not be applied to this case], as he [the buyer] is dead.<span class="x" onmousemove="('comment',' And he cannot call the seller a robber any more. ');">¹</span>

סוף סוף קרו ליה בני לוקח גזלנא

But according to the view [of R. Ashi, viz.,] 'he wished to vindicate his honesty,' [it could be applied even to this case], as he [the robber] would wish to vindicate his honesty before [the buyer's] children also. [But, it is argued,] would not the buyer's children call him [who sold the field to their father] a robber?<span class="x" onmousemove="('comment',' Even when the buyer is dead, the desire on the part of the seller to vindicate his honesty may still have been the motive for his action in buying the field from the rightful owner, as the children of the dead buyer would call him a robber when they discover that the field was sold to their father unlawfully, and that they could not retain possession of it. ');">²</span>

אלא איכא בינייהו דמית גזלן מאן דאמר ניחא ליה לאיניש דלא לקריוהו גזלן הא מית ליה למ"ד ניחא ליה דליקום בהמנותיה ה"נ אע"ג דמית ניחא ליה דליקום בהמנותיה

— Therefore [we must say that] the difference between them would appear [in a case] where the robber died.<span class="x" onmousemove="('comment',' After he bought it from the original owner, and the question arises whether the robber's children inherit the field and are entitled to take it away from the person to whom their father sold it unlawfully. ');">³</span>

סוף סוף קרו לבניה בני גזלנא

According to the view [of Mar Zutra, viz.], 'he wished that he should not call him a robber,' [it could not be applied to this case,] as he [the robber] is dead.<span class="x" onmousemove="('comment',' Even if the robber did buy the field from the original owner in order to vindicate his honesty he would only have been concerned about his reputation during his life-time. ');">⁴</span>

אלא איכא בינייהו דיהבה במתנה מאן דאמר ניחא ליה דליקום בהמנותיה מתנה נמי ניחא ליה דליקום בהמנותיה מאן דאמר ניחא ליה דלא נקריוהו גזלנא א"ל מאי גזלינא מינך:

But according to the view [of R. Ashi, viz.,] 'he wished to vindicate his honesty,' [it could be applied even to this case,] as he [the robber] would wish that his honesty should be vindicated even when he is dead. [But, it is argued,] would not his children after all be called the children of a robber?<span class="x" onmousemove="('comment',' There is therefore a good reason why the robber should have wished that his honesty should be vindicated even after his death. ');">⁵</span>

פשיטא זבנה אורתה ויהבה במתנה לאו לאוקמה קמי לוקח קא בעי

— Therefore [we must say that] the difference between them would appear [in a case] where he [the robber] gave [the field] as a present: According to the view [of R. Ashi, viz.], 'he wished to vindicate his honesty,' [it could be applied even to] a present, [in regard to which] he would also wish to vindicate his honesty. But according to the view [of Mar Zutra, viz.], 'he wished that he should not call him 'a robber,' [it could not be applied to this case, for he could say [to the recipient of the gift], 'What have I taken away from you [that I should be called a robber]?'

נפלה ליה בירושה ירושה ממילא היא ולאו איהו קא טרח אבתרה

It is obvious that if he [who robbed a field and sold it], subsequently sold it [to another person], or bequeathed it to his heirs, or gave it away as a present, [and then bought it from the original owner, we must assume that] he did not, [in buying the field,] intend to secure it thereby for the [first] buyer.<span class="x" onmousemove="('comment',' If the robber sold the field a second time (to another person), or disposed of it in some other way after selling it to the first person, it is obvious that his subsequent action in buying the field from the original owner was not due to a desire to secure the field for the first buyer, and must have been prompted by a different motive. The first buyer would not then be entitled to keep the field, which would legally belong to the person to whom it was subsequently sold, given or bequeathed. ');">⁶</span>

גבי איהו בחובו חזינא אי אית ליה ארעא אחריתי ואמר האי בעינא לאוקמה קמיה לוקח קא בעי

If it came to him as an inheritance<span class="x" onmousemove="('comment',' If the person, from whom the field was taken away unlawfully, died, and the robber proved to be his heir, so that the latter became the rightful owner of the field. ');">⁷</span>

ואי לא זוזי הוא דבעי אפרועי

[we must assume this, too, for] an inheritance comes of itself, and he did not trouble himself to get it.<span class="x" onmousemove="('comment',' As the robber acquired the field merely as a result of the death of the owner, and not because of any steps or trouble he took to acquire it, it cannot be assumed that the robber, in acquiring the property, manifested a desire to secure its possession for the person to whom he sold it unlawfully. ');">⁸</span>

יהבה נהליה במתנה פליגי בה רב אחא ורבינא חד אמר מתנה כירושה דהא ממילא וחד אמר מתנה כמכר דאי לאו דטרח וארצי קמיה לא הוי יהיב ליה מתנה להכי טרח וארצי קמיה כי היכי דליקום בהמנותיה

If he took it in payment of a debt [due to him from the original owner of the field],<span class="x" onmousemove="('comment',' If, after appropriating the field illegally and selling it, the robber claimed it as payment of a debt due to him from the original owner. ');">⁹</span>

ועד אימת ניחא ליה דליקום בהמנותיה אמר רב הונא עד שעת העמדה בדין

then our attitude is [as follows]: if [the original owner] had other land, and [the robber] said, 'I want this,' [we assume that the robber, in acquiring the field,] intended to secure it thereby for the [first] buyer,<span class="x" onmousemove="('comment',' The fact that the robber insisted on getting this field as payment, while there were other fields owned by the debtor which he could have taken, would show that he was prompted by the motive of securing that field for the person to whom he sold it unlawfully. ');">¹⁰</span>

חייא בר רב אמר עד דמטא אדרכתא לידיה רב פפא אמר עד דמתחלן יומי אכרזתא

but if not,<span class="x" onmousemove="('comment',' If the debtor had no other field to offer. ');">¹¹</span>

מתקיף לה רמי בר חמא מכדי האי לוקח במאי קני להאי ארעא בהאי שטרא האי שטרא חספא בעלמא הוא

[we assume] that he merely wanted to be paid [his] money.<span class="x" onmousemove="('comment',' He only took the field because he wanted payment, not because he wished to secure it for the buyer. ');">¹²</span>

א"ל רבא תהא במאמינו בההוא הנאה דלא קאמר ליה מידי וקא סמיך עליה טרח ומייתי ליה גמר ומקני ליה

[In a case where the original owner] gave him [the robbed field] as a present, R. Abba and Rabina differ: One says, Gifted property is like inherited property, in that it [also] comes of itself.<span class="x" onmousemove="('comment',' I.e., without any effort on the part of the recipient. ');">¹³</span>

מתיב רב ששת מה שאירש מאבא מכור לך מה שתעלה מצודתי מכור לך לא אמר כלום מה שאירש מן אבא היום מכור לך מה שתעלה מצודתי היום מכור לך דבריו קיימין

But the other says, Gifted property is like bought property, for if the recipient had not exerted himself to win the favour [of the donor, the latter] would not have given him the present, and the reason why he [the recipient] exerted himself to win the favour [of the original owner of the field] was that he [the recipient who first robbed the field] might vindicate his honesty. And till when does he wish to vindicate his honesty?<span class="x" onmousemove="('comment',' Up till what stage in the proceedings do we assume that the robber, in buying the field from the original owner, intended to secure its possession for the person to whom he sold it unlawfully? ');">¹⁴</span>

אמר רמי בר חמא הא גברא והא תיובתא

— R. Huna says: Until [the buyer of the robbed field is] summoned to appear in court.<span class="x" onmousemove="('comment',' Until legal steps are taken by the original owner to retrieve his property from the person who bought it from the robber. As the latter's reputation is thus lost it cannot be said that he bought the field from the original owner in order to 'vindicate his honesty'. ');">¹⁵</span>

אמר רבא גברא קא חזינא ותיובתא לא קא חזינא הכא סמכא דעתיה והכא לא סמכא דעתיה הכא סמכא דעתיה דאזיל טרח ומייתי ליה כי היכי דלא נקרייה גזלנא הכא לא סמכא דעתיה

Hiyya b. Rab says: Until he [the buyer] receives the decree of the Court [entitling him to seize the robber's property].<span class="x" onmousemove="('comment',' [H] (from [H] 'to pursue'), a document authorising a creditor to search for property belonging to the debtor and to seize it wherever it may be. ');">¹⁶</span>

שלחוה לקמיה דרבי אבא בר זבדא אמר להו זו אינה צריכה לפנים אמר רבא זו צריכה לפנים ולפני לפנים הכא סמכא דעתיה והכא לא סמכא דעתיה

R. papa says: Until the days of the announcement [of the public sale of the robber's property] begin.<span class="x" onmousemove="('comment',' I.e., when property belonging to the robber has been discovered and the Court has begun to advertise its public sale for the purpose of compensating the person to whom the robber sold the field unlawfully. The period of such advertising usually extended over thirty days. Cf. 'Ar. 21b. ');">¹⁷</span>

הוה עובדא בפומבדיתא ואותביה אמר להו רב יוסף זו אינה צריכה לפנים ואמר ליה אביי צריכה לפנים ולפני לפנים הכא סמכא דעתיה הכא לא סמכא דעתיה

To this Rami b. Hama demurred:<span class="x" onmousemove="('comment',' He raised an objection to Rab's decision that the robber, in buying the field from the original owner, intended to secure its possession for the person to whom he sold it unlawfully, and that therefore the latter's purchase became legal. ');">¹⁸</span>

ומאי שנא רישא ומאי שנא סיפא אמר רבי יוחנן סיפא מה שאירש מאבא היום משום כבוד אביו מה שתעלה מצודתי היום

Seeing that this buyer acquired this land [from the robber] only by the deed of sale, [is not the sale invalid because] the deed is a mere potsherd?<span class="x" onmousemove="('comment',' The document is invalid because the robber did not own the field, and therefore had no right to sell it. 'A potsherd' is a common term for an invalid document, like the modern term 'a scrap of paper'. ');">¹⁹</span> — Raba answered him: It is a case where [the buyer] believes him [the robber]: Because of the pleasure [it gives the robber] that he [the buyer] said nothing to him, but trusted him implicitly, he [the robber] exerts himself to acquire the field for him [the buyer], and determines to confer upon him the rightful ownership [of the field].<span class="x" onmousemove="('comment',' We assume that the robber bought the field from the original owner because he appreciated the confidence placed in him by the person to whom he sold it unlawfully and who did not question the robber's right to sell it. It was for this reason — we assume — that he wanted to legalise the sale. ');">²⁰</span> R. Shesheth then asked: [It has been taught:<span class="x" onmousemove="('comment',' Tosef. Nedarim, Ch. VI end. ');">²¹</span> If one says to another,] 'What I am to inherit from my father is sold to you,' [or,] 'What my net is to bring up<span class="x" onmousemove="('comment',' I.e., any animals or birds or fishes that may be caught in the net (or snare). ');">²²</span> is sold to you,' [it is as if] he [had] said nothing.<span class="x" onmousemove="('comment',' His words are of no consequence. ');">²³</span> [But if he says,] 'What I am to inherit from my father to-day is sold to you,' [or,] 'What my net is to bring up to-day is sold to you, his words are valid?<span class="x" onmousemove="('comment',' The sale is legal. In the first instance the sale is not legal because at the time of selling the goods were not yet the property of the seller, and the sale does not become legalised by what took place after the sale. This contradicts the view of Rab who, in he case of the robber who bought the field after selling it unlawfully, says that he intended to sell his future rights, and thus this legalises the sale. ');">²⁴</span> — Rami b. Hama said [to that]: 'There is a man and there is a question!'<span class="x" onmousemove="('comment',' It is a great question worthy of the great man who asked it. ');">²⁵</span> Raba retorted: 'I see the man but I do not see [the force of] the question.'<span class="x" onmousemove="('comment',' He admits that R. Shesheth is a great man, but he does not admit that the question is great. ');">²⁶</span> Here<span class="x" onmousemove="('comment',' In Rab's case. ');">²⁷</span> he [the buyer] relied on him [the seller]; there he did not rely on him: Here he relied on him that he would exert himself and acquire [the robbed field] for him [the buyer] so that he might not call him a robber; there he did not rely on him.<span class="x" onmousemove="('comment',' In the case referred to by R. Shesheth, the person to whom the goods to be acquired were sold had no occasion to rely on the seller; it did not depend upon the seller whether he would ultimately acquire the goods or not. ');">²⁸</span> [The question of R. Shesheth] was then submitted to R. Abba b. Zabda, [and] he said: This [question] does not need [to be brought] inside [the College].<span class="x" onmousemove="('comment',' As no-one inside the College will be able to answer it (Rashi). In the [H] (cited by Rashi) this phrase is explained as meaning that the question is not good enough to be discussed in the College. ');">²⁹</span> Raba said: It does need [to be brought] inside, and even to the innermost [part]:<span class="x" onmousemove="('comment',' Literally: 'into the inside of the inside,' the meaning being obviously that the question was so important that it ought to be discussed by the best men in the College. ');">³⁰</span> Here he [the buyer] relied on him [the seller]; there he did not rely on him. A case occurred in Pumbeditha, and the question [of R. Shesheth] was asked. R. Joseph then said to them [who asked the question]: This does not need to be brought inside [the College]. But Abaye said to him [R. Joseph]: It does need to be brought inside, and even to the innermost part: Here<span class="x" onmousemove="('comment',' In Rab's case. ');">²⁷</span> he [the buyer] relied on him [the seller]; there he did not rely on him. And wherein does the first part [of the teaching quoted by R. Shesheth] differ from the last part? R. Johanan said: The last part, [viz.] 'What I am to inherit from my father to-day' — because of his father's honour;<span class="x" onmousemove="('comment',' By saying, 'What I am to inherit from my father to-day is sold to you' the seller indicates that his father is dying, and that he requires the money for the purpose of giving his father a decent burial. ');">³¹</span> 'What my net is to bring up to-day'