Talmud - Gittin 58b גיטין נ״ח ב׳

It is taught in a baraita (Tosefta 5:2) in accordance with the opinion of Shmuel that Rabbi Shimon ben Elazar says: If one first purchased a field belonging to a married woman from the wife, so that if her husband were to predecease or divorce her, the purchaser would then own it fully, and afterward he returned and purchased the same field from the husband, so that he will have the right to use it in the interim, his purchase stands. If he first acquired the field from the husband, and afterward he returned and purchased the same field from the wife, his purchase is void, unless the woman writes him a guarantee. This supports Shmuel’s opinion that only when the prior owner writes the buyer a guarantee is it assumed that he sold him the field wholeheartedly.

The Gemara asks: Let us say that this baraita is a conclusive refutation of the opinion of Rav, who said that a written bill of sale suffices and a guarantee is not required. The Gemara answers: Rav could have said to you: What is the guarantee mentioned here? It too is referring to a bill of sale, as it suffices that she sell him the field with a bill of sale, and it is not necessary for her to write him a guarantee in addition.

The Sages taught in a baraita: If one purchased land from a Sicarius and consumed its produce for three years in the presence of the prior owner, and then the one who purchased it from the Sicarius returned and sold it to another person, the prior owner has no claim against the second buyer.

The Gemara clarifies: What are the circumstances of the case? If the second buyer claims and says to the prior owner: After buying the property from the Sicarius, the first buyer returned and purchased it from you, providing you with proper reimbursement, then even the first buyer should be deemed credible if he claims that he purchased the property from the prior owner. This is because he has been physically in possession of the property for three years, and this can serve as proof that he is in fact the legal owner. And if the second buyer does not claim and say to the prior owner: He purchased the property from you, then even the second buyer should also not retain possession of the property. This is in accordance with the principle that physical possession of property that is not accompanied by a claim that the property was legally acquired cannot serve as proof of ownership.

Rav Sheshet says: Actually, it is referring to a case where the second buyer does not claim that the first buyer purchased the property from the prior owner. And although in general, physical possession of property that is not accompanied by a claim that the property was legally acquired cannot serve as proof of ownership, in a case such as this the court makes a claim on behalf of an heir and the court makes a claim on behalf of a buyer. Since heirs and buyers are generally unaware of the circumstances in which their predecessor obtained possession of the property, the court advances the claim on their behalf that it had been acquired legally.

And as to the other party, the first buyer, if he claims that he purchased the property from the prior owner, yes, he retains possession of the property, as his physical possession of the property is accompanied by a proper claim. But if he does not make such a claim, he does not retain possession, because the court does not make the claim on his behalf.

§ The Sages taught in a baraita (Tosefta 5:2): If property comes into one’s possession due to payment of a debt or due to unjust seizure [anparot] of the land by a gentile, the previously mentioned laws of Sicarii do not apply. And the unjustly seized land itself must remain in the possession of the gentile who seized it for at least twelve months before another buyer can take possession of it.

The Gemara raises an objection based on the fact that the twelve-month waiting period is relevant to the laws of Sicarii: But didn’t you say that the laws of Sicarii do not apply in this case? The Gemara answers: This is what the baraita is saying: Property purchased from the Sicarius himself must remain in his possession for at least twelve months.

Rav Yosef says that we have a tradition that there is no unjust seizure of land in Babylonia. The Gemara objects: But don’t we see that there is unjust seizure of land in Babylonia? Rather, say that there is no law of unjust seizure in Babylonia, meaning that this law is not applied in Babylonia. What is the reason for this? Since there is a regional seat of government [bei davar], and yet the owner does not go and complain before it that his property had been seized, say that he waived his rights to the property and consequently is unable to bring a claim about it.

It is related that Giddel bar Re’ilai received land from the residents of a certain valley in exchange for payment of the land tax [taska]. All of the residents of the valley would jointly pay the land tax. After some of the residents had gone away, those who remained authorized Giddel bar Re’ilai to use the land of the absentee owners, on condition that Giddel would pay the land tax on their behalf. Giddel gave the money for three years in advance, although the tax was ordinarily paid annually. Eventually, after the first year, the prior owners came and said to Giddel: With regard to the first year for which you paid the tax, you have already consumed the produce. Now we will pay the taxes and we will consume the produce, and you shall have no further rights to it.

The parties came before Rav Pappa to decide the case. At first he thought of writing for Giddel a document of authorization to repossess the property against the residents of the valley [baga], allowing Giddel to hold the land for two more years in compensation for the money that he had advanced for the taxes. Rav Huna, son of Rav Yehoshua, said to Rav Pappa: If so, you made this law like that applying to a Sicarius, and it has already been established that the law of Sicarii does not apply in Babylonia. Rather, Rav Huna, son of Rav Yehoshua, said: In this case Giddel placed his money on the horn of a deer, meaning that he himself put his money in jeopardy. The money he had advanced is regarded as a gift, and he has no right to demand that he be reimbursed.

§ The mishna teaches: This is the initial version of the mishna. Later, the court of those who came after the Sages who composed that mishna said: With regard to one who purchased a field from a Sicarius, he must give the prior owner one-fourth of the field’s value. Rav says: He gives him one-fourth of what he paid by giving him a portion of the land, or else one-fourth in money, whichever he prefers. And Shmuel says: He gives him one-fourth of the land, which is one-third of the money that he paid.

The Gemara explains: With regard to what do these amora’im disagree? One Sage, Shmuel, holds that the Sicarius sold the field to the buyer for one-fourth less than its actual value. Consequently, the buyer must return to the prior owner the amount by which he profited when he bought the property from the Sicarius, which is one-third of the money that he actually paid. And one Sage, Rav, holds that the Sicarius sold the field to the buyer for one-fifth less than its actual value. Consequently, the buyer is required to return to the prior owner only one-fifth of the actual value, which is one-fourth of what he actually paid.

The Gemara raises an objection from what is taught in a baraita: This is the initial version of the mishna. Later, the court of those who came after the Sages who composed that mishna said: With regard to one who purchased a field from a Sicarius, he must give the prior owner one-fourth of the field’s value, and the prior owner has the advantage. If he wants land, he takes what is due him in land, and if he wants money, he takes what is due him in money. When does this apply? At a time when the prior owner is unable to purchase the field himself; but if he is able to purchase it himself, he precedes anyone else.

Rabbi Yehuda HaNasi later convened a court, and they counted their votes and determined that if the field remained before, i.e., in the possession of, the Sicarius for twelve months, whoever first purchases the field acquires possession of it, but he must give the prior owner one-fourth of its value by giving him a portion of the land or one-fourth in money. This is in accordance with the statement of Rav, but it is difficult for Shmuel.

Rav Ashi said: When that baraita is taught, it is referring to one-fourth of the total amount after the money reached the prior owner’s possession. In other words, it does not refer to one-fourth of the money that the buyer paid the Sicarius, but one-fourth of the field’s actual value, which is one-third of what the buyer paid the Sicarius. Rav says:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Gittin 58b discusses property purchase order from a married woman versus her husband, and disputes over land bought from a Sicarius.