Talmud - Bava Batra 41b בבא בתרא מ״א ב׳

Rav Kahana came before Rav Yehuda. Rav Kahana’s neighbor went and brought two witnesses. One said: Rav Kahana entered two rows into his neighbor’s land, and one said: Rav Kahana entered three rows into his neighbor’s land. Rav Yehuda said to Rav Kahana: Go and pay two out of the three that your neighbor is claiming by moving the wall two rows into your property.

Rav Kahana said to Rav Yehuda: In accordance with whose opinion are you ruling that the testimony of witnesses who contradict each other is valid? Is it in accordance with the opinion of Rabbi Shimon ben Elazar? As it is taught in a baraita that Rabbi Shimon ben Elazar said: Beit Shammai and Beit Hillel did not disagree with regard to two sets of witnesses, where one set says that a litigant owes one hundred dinars and one set says that he owes two hundred. In such a case, everyone agrees that two hundred includes one hundred, and he is liable to pay one hundred.

With regard to what did Beit Shammai and Beit Hillel disagree? They disagree with regard to one set of witnesses, where one witness says that a litigant owes one hundred dinars and one witness says that he owes two hundred; as in such a case, Beit Shammai say that their testimony is divided, and they do not combine to form a set of witnesses, and Beit Hillel say that two hundred includes one hundred, and they combine to form a set of witnesses. Rav Kahana assumed that Rav Yehuda based his ruling on Rabbi Shimon ben Elazar’s interpretation of the opinion of Beit Hillel.

Rav Kahana then said to Rav Yehuda: How can you rely on this opinion? But I can bring you a letter from the West, Eretz Yisrael, stating that the halakha is not in accordance with the opinion of Rabbi Shimon ben Elazar, and that in fact Beit Hillel also disqualify two witnesses in such a case. Rav Yehuda said to Rav Kahana: I will accept that ruling when you will bring such a letter. Until then, I stand by my ruling.

§ The Gemara relates: There was a certain man who resided in a loft in Kashta for four years. At the end of that period, the prior owner of the house came and found him there. The prior owner said to him: What do you want with this house of mine? The possessor said to him: I purchased it from so-and-so, who purchased it from you. The possessor came before Rabbi Ḥiyya, who said to him: If you have witnesses who will testify that he, from whom you purchased the house, resided in it, even if there is testimony that he resided in it for only one day, I will establish it in your possession, but if there is no testimony to his having resided there then I will not establish it in your possession, and it will revert back to its prior owner.

Rav said: I was sitting before my uncle [deḥavivi], Rabbi Ḥiyya, and I said to him: But isn’t it common for a person to purchase a house and sell it immediately during the same night? It is possible that the seller purchased and sold the house without witnesses who saw him residing in it. And I saw that Rabbi Ḥiyya’s opinion was that if the possessor said to the claimant: The one who sold it to me purchased it from you in my presence, this claim is deemed credible, since if the possessor wanted to, he could have said to the prior owner of the house: I purchased it from you.

Rava said: It stands to reason that the halakha is in accordance with the opinion of Rabbi Ḥiyya, as the mishna (41a) teaches: In the case of land that comes as an inheritance, one is not required to make a claim as to how the land came into his benefactor’s possession when one’s ownership of the land is challenged. This indicates that it is a claim that he does not need, but he does need proof that it had been in the possession of his ancestors.

The Gemara rejects the inference from the mishna: But perhaps he does not need proof and does not need a claim. The only reason that the mishna mentions that he does not need a claim is to clarify that this does not fall into the category of a possession that is not accompanied by a claim. Therefore, one cannot infer from the ruling of that mishna what the halakha should be in this case. And if you wish, say instead that although the inference from the mishna is correct, it is not relevant to this case, as the case of a buyer is different, since he would not throw money away for nothing. The fact that he purchased the house indicates that he must have ascertained that the seller had a right to it.

A dilemma was raised before the Sages: If the seller was seen in the house, what is the halakha? Is this sufficient proof that he had purchased the house? Abaye said: It is identical to testimony that he had resided there. Rava said: This does not constitute proof, as a person is apt to survey [desayyar] land and ultimately not purchase it.

§ The Gemara issues a ruling concerning the establishment of the presumption of ownership. Three buyers combine to establish the presumption of ownership. If one purchased a field and sold it to another, who then sold it to a third party, and in total, the three of them worked and profited from the field for three years, the third one has established the presumption of ownership. Rav says: And this is the halakha only if they all purchased the land with a bill of sale. As a result of the bill of sale, the prior owner will know that it is not the case that each of them worked and profited from the field for only one year and abandoned it, which would explain why he did not bother to lodge a protest.

The Gemara asks: Is this to say that Rav holds that a bill of sale generates publicity, but witnesses do not generate publicity? But doesn’t Rav say that with regard to one who sells a field in the presence of witnesses, and that field is later seized by the creditors of the seller, the buyer collects from the liened property that the seller had sold to others, to be reimbursed for his seized field? If not for the fact that the sale in the presence of witnesses generates publicity, those who later purchased land from the seller would not have been aware that the property they are purchasing is liened to the first buyer. The Gemara answers: There, with regard to buyers,

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

BavaBatra 41b explores conflicting witness testimony over boundary encroachment and examines the Beit Shammai-Beit Hillel dispute on partial agreement.