MISHNAH: ¹ 10:4, Note 62. If two persons hold on to one toga and each of them says “I found it” [or] “it wholly belongs to me”², each of them has to swear that he owns no less than half of it and they shall divide it evenly³23:1) “not to lend a hand to a wicked person to be an extortionary witness”, i. e., it is forbidden to administer an oath to a known felon (Mishnah Šebuot 7:4). But if each party only swear to the amount it actually will receive, it is possible that both swear to the truth. The formulation “no less than” implies that the oath is true even if one of them is the full owner; the language of the oaths does not contradict the claims brought before the court.. If one says “it wholly belongs to me” and one says “half of it belongs to me”, the one who says “it wholly belongs to me” shall swear that he owns no less than three parts⁴ always means /n+1. and the one who says “half of it belongs to me” shall swear that he owns no less than a quarter⁵ the underlying principle is: “Amounts in doubt are split evenly”. If neither party has proof by document or witnesses and A claims 100% of an amount available but B only claims 50%, 50% are assigned to A as undisputed amount. The remaining 50% are in dispute and have to be split evenly; each of the the parties receives 25%.. The first one takes three parts, the second takes a fourth.

footnotes: ¹ The main application of the Mishnah is to bankruptcy problems where the amount available for distribution is not sufficient to cover all claims. The principle underlying the distribution has been explained at length in Ketubot ² Each of them has to grab a similar length of cloth, to establish equality of claims. ³ There are no witnesses nor other kinds of proof; the case has to be settled by judicial oath. It is obvious that if the two claimants do not agree to possess the object in common it has to be split evenly. If both of them are ready to swear that the object entirely belongs to him, at least one of them is swearing falsely. Since the formulation of the oath is in the hand of the judges, they must be careful not to teach the parties to swear to a falsehood; they cannot let them swear about full ownership, for the court is warned (Ex. ⁴ 3/4. The language of “parts” follows the Egyptian (and Roman) pattern; n parts ⁵ As explained in Ketubot,

HALAKHAH: “If two people hold on to one stole,” etc. ⁷ 2:1, Notes 12–15. It was stated: One person said to another, give me the mina⁸ of 100 drachmas (denars). Zuz, “half sheqel” is the talmudic name of the denar. which you owe me. He answered, it never happened. He went and brought witnesses that the other owed him 50 zuz. The elder Rebbi Ḥiyya said, the confession of the witnesses is the same as his own confession; he has to swear about the remainder⁹ 6:1 based on Ex. 22:8. The rabbinic interpretation of the biblical expression אֲשֶׁר יֹאמַר כִּי הוּא זֶה is “if he [the defendant] agrees that there be a case.” If the defendant in a civil suit, in which there are no witnesses or documents, denies the entire claim, he does not have to swear a biblical oath (he may have to swear a rabbinical oath). But if he agrees to part of the claim, he has to swear a biblical oath to free himself from the remainder. Only if the claim is advanced as tentative, then any admission by the defendant is a gift to the claimant and by rabbinic rule no oath of any kind is due. (Cf. Giṭṭin 5:3, Note 84).. Rebbi Joḥanan said, the confession of the witnesses is not the same as his own confession that he should have to swear¹⁰ 22:8 insists on the defendant’s agreeing to part of the claim, witnesses can never force a judicial oath. This opinion is not mentioned in the Babli. In Ketubot(loc. cit. Note 7), R. Joḥanan denies that the oath is biblical; its rules cannot be determined by biblical arguments.. Rebbi La said, Rebbi Ḥiyya the elder’s statement is implied by “if two people hold on to one stole”. Since he holds on to half of it, is it not as if he brought witnesses that one half belongs to him? Could one not say that he swears and collects¹¹? Is this a similar case¹² is biblical; R. La’s argument is impossible. (In Ketubot, R. La quotes R. Joḥanan’s statement in the next paragraph.)?

footnotes: ⁷ A parallel but different text is in Ketubot ⁸ The Greek mina ⁹ A similar text, formulated as R. Ḥiyya’s statement, is quoted in the Babli, 3a. The oath required here is the biblical “oath imposed by the judges”, Mishnah Ševu‘ot ¹⁰ Since Ex. ¹¹ The argument is refuted. Since each party claims the entire stole, each one is disputing half of a claim. There is no claimant nor defendant; even R. Ḥiyya must agree that the oath imposed by the Mishnah is not biblical. ¹² For R. Ḥiyya, the case of the baraita

This topic¹³ came up between Rebbi Abba bar Mamal and Rav Amram. One said, one does not entrust an oath to a suspect person¹⁴. The other said, one does not even formulate an oath for such a one¹⁵. Rav Huna said: “An oath that I have property rights to it to the amount of no less than (the value of a peruṭah)¹⁶ [half of its value]¹⁷. Rebbi Joḥanan said, if it is about this, it is an institutional oath¹⁸ instituted rabbinical ordinance. In the words of the Babli (3a), “lest it be easy to assert unfounded claims on another person’s property.”.

footnotes: ¹³ The oath prescribed in the Mishnah. ¹⁴ How is this oath possible? Cf. Note 3. ¹⁵ The formulation of the oath in the Mishnah still leaves the court open to a charge of administering an oath which helps a person to be dishonest since one could read the text as: “An oath that I have no claim to it, less than half.” Therefore, a positive statement of claim has to be inserted into the formula. The same formula is attributed to Rav Huna in the Babli, 5b. ¹⁶ Reading of the Leiden ms., a scribal error. ¹⁷ Text of E, confirmed by the Babli. ¹⁸ He disagrees with R. Ḥiyya and holds that the oath is purely an ad hoc

It was stated¹⁹ 1:1, Notes 68–71; Babli Bava meṣi‘a 7a, Bava batra170a.: “If two persons were holding a document²⁰ and one said, it is mine but I had lost it; the other said, it is mine since I paid you. The document should be validated by its signatories, the words of Rebbi²¹. Rabban Simeon ben Gamliel said, they should split²¹.” Rabbi Eleazar said, it all depends on who is holding the signatures²². Rav Ḥisda said, if this²³ is true information, it follows Rabban Simeon²⁴.

footnotes: ¹⁹ Tosephta 1:15; Giṭṭin ²⁰ An IOU; the persons involved are the creditor and the debtor. ²¹ He holds that a paid IOU either should be torn up or the receipt should be written on the document or be attached to it. ²¹ He holds that a paid IOU either should be torn up or the receipt should be written on the document or be attached to it. ²² Since only the signatures validate the document. He follows the reformulation of the Mishnah in the Tosephta (1:1): “If two people hold on to one toga, each one takes what he holds in his hand.” Presumably they split the remainder. ²³ The opinion reported in the name of R. Eleazar the Amora. ²⁴ Since for Rebbi an IOU without a receipt is valid, irrespective of who holds it.

One says, half is mine; the other says, a third is mine. The one who says that half is his shall swear that no less than a quarter be his; the one who says that a third is his shall swear that no less than a sixth be his. The principle involved: One only swears on half of what he agreed to²⁵ is mine; the other says, a third is mine. The one who says that all is his shall swear that no less than five parts (5/6) are his; the one who says that a third is his shall swear that no less than a sixth is his. The principle involved: One only swears on half of what he agreed to.” In the case of the Tosephta, the second claimant surrenders 2/3 to the first. Only 1/3 is in dispute; it is split evenly. The first one receives 2/3 + 1/6 = 5/6; the second receives 1/6. Rabbinic practice decrees that one only swears on half of the amount which is in dispute; in this case each would swear that he owns no less that one sixth in addition to what he has by consensus [Maimonides, Ṭo‘en weniṭ‘an9:8 (Maggid Mišneh ad 9:9), Šulḥan ‘Arukh Ḥošen Mišpaṭ 138:2 (Note)]. In the Yerushalmi the total of the claims only adds up to 5/6; they can be satisfied in full. There is no reason why anybody should swear. One has to explain the baraita as dealing with a case of bankruptcy in which the claims themselves are not sufficiently documented and can each be considered only by an affirmatory oath..

footnotes: ²⁵ On the face of it, the paragraph is unintelligible. R. E. Fulda comments: “I do not feel empowered to emend.” The corresponding Tosephta (1:2) is clear:“One says, all

MISHNAH: If two persons were riding on an animal or one was riding and one was walking, each of them says “it wholly belongs to me”²⁶, each of them has to swear that he owns no less than half of it and they shall divide it evenly. If they agree²⁷ or if they have witnesses, they divide without an oath.

footnotes: ²⁶ It will be explained in Mishnah 3 that the finder is not the person who first saw the abandoned property but the one who lifted it to acquire. It would be reasonable to expect that if a walker and a rider simultaneously came upon some lost property the walker had a better chance to grab the object first. But in the absence of proof these arguments are irrelevant to the court; both parties must be given equal standing. ²⁷ Even after the court gave its verdict, the parties are free to come to an amicable settlement.

HALAKHAH: “If two persons were riding on an animal,” etc. Rebbi Ḥuna said: It was stated there²⁸ 65b, in the name of Rav Aḥdevoi bar Ammi who lived a generation before R. Ḥuna and was known for his construction of impossible situations.: “A woman comes²⁹ riding on an animal and two men lead her. She says: these are my slaves; the donkey and the load are mine. Each of them says: this is my wife, the other is my slave, and the donkey and the load are mine³⁰ 10:5 Note 96, Bikkurim 3:4 Note 72, Ketubot 3:3 Note 56; Babli Ketubot 18b). In line with the principles of Mishnah 1, the court has to impose a solution compatible with all statements.. She needs a bill of divorce from both of them³¹ from either of the men. From Mishnah Qiddušin 3:11 it would seem that therefore she can marry another person without a bill of divorce, as stated explicitly in the Babli; but the formulation in the Yerushalmi does not seem to support this statement. and has to manumit both of them. They have to manumit one another. In the donkey and the load they are equal co-owners.

footnotes: ²⁸ A different, incompatible version is in the Babli, Qiddušin ²⁹ From overseas, without identification papers. ³⁰ Since the rules of court proceedings state that “once somebody testified (under cross-examination), he cannot testify a second time”, they cannot come back to court and change their statements (cf. Ševi‘it ³¹ Since the woman denies being married and there are no witnesses, she certainly has no claim to ketubah

MISHNAH: Somebody was riding on an animal when he saw a find and said to another person: “give it to me”. If [that one] took it and said: “I acquired it”, he acquired it³² Note 100.. If after he had handed it over, he said: “I acquired it first,” he did not say anything³³.

footnotes: ³² Since ownerless property only can be acquired by action, never by intent or declaration (cf. Ketubot 5:5, ³³ The rider acquired the object by grabbing it in his hand; he is the presumed owner. The walker is now a claimant and “the burden of proof is on the claimant”. If he did not articulate his claim before handing over the object there can be no witnesses and no proof.

HALAKHAH: “Somebody was riding on an animal,” etc. Rebbi Isaac says, from this rule one cannot infer anything, not from its beginning nor from its end. “Somebody was riding on an animal when he saw a find and said to another person: ‘give it to me’. If [that one] took it and said: ‘I acquired it’, he acquired it”. If he had said, “acquire it for me”, he would have acquired it. That means, from this rule one cannot infer anything, not from its beginning nor from its end³⁴ points out, this refers to the disagreement between R. Joḥanan and R. Simeon ben Laqish (Peah 4:6, Note 112), on whether a person can acquire a find for another person by lifting it. The Mishnah does not help in solving the dispute. The first sentence does not help since it does not exclude that had the rider said, “acquire it for me” instead of “give it to me”, the walker would have acquired it for the rider by lifting and would not have been able to claim that he acquired it. The second sentence does not have to be quoted since it obviously is irrelevant for the disagreement between R. Joḥanan and R. Simeon ben Laqish..

footnotes: ³⁴ As Pene Moshe

MISHNAH: If somebody saw a find and fell upon it³⁵ when another person grabbed it, the one who grabbed it acquired it. If one saw people running after a find³⁶, after an injured deer, after young pigeons unable to fly, and he said: “my field shall acquire it for me”, it acquired it for him³⁷ 6:2, Note 71.. If the deer was running normally, or the pigeons were flying, and he said: “my field shall acquire it for me”, he did not say anything³⁸.

footnotes: ³⁵ Without moving the find, it is not acquired. The second person in grabbing the find must have moved it a little; therefore, he acquired it. ³⁶ Lying on an open field after it was harvested, before the field was ploughed. ³⁷ A person’s real estate acquires for its owner any property lying there of which he is cognizant; cf. Giṭṭin ³⁸ Animals and birds on a field are not lying there; real estate cannot acquire moving objects.

HALAKHAH: “If somebody saw a find” etc. Rabbi Simeon ben Laqish said [in the name of] Abba Cohen bar Delaiah³⁹: A person acquires a find within four cubits from himself⁴⁰ 4:2, Note 31; Giṭṭin 8:3. If a person stands in the public domain, an ownerless object is within four cubits of him but of no other person, then he has the right to acquire the object and no other person has the right to enter the circle of four cubits around him to take the object. It is clear that taking possession requires intent by the acquirer (cf. Babli Bava meṣi‘a 10a/b).. Rebbi Joḥanan said, only if it fell into his hand⁴¹. A Mishnah disagrees with Rebbi Simeon ben Laqish: ⁴² 4:2, Notes 40–46; Giṭṭin 8:3 (49c line 10).“If he took some of the peah and threw it on the rest, he has nothing of it.”⁴³ the uncut grain at the end of a field, is done from a private domain. But since the Torah grants the poor the right to enter a field after the end of the harvest to collect peah and forgotten stalks and sheaves, the harvested field has the status of public domain for the poor. A poor person acquires peah by taking it. He cannot then take his property and spread it over the remainder of standing produce to claim ownership, neither can he lie down on it for the same purpose. As with any acquisition, an action seems to be needed. He⁴⁴ answered: Explain it if the did not say that his four cubits should acquire it for him. But does it not say afterwards: “If he fell on it or spread his talith on it, one removes him from it?” That is the same, if he did not say that his four cubits should acquire it for him. But did not Rebbi Ḥiyya state⁴⁵ 2:2.: “If two were pushing one another because of a sheaf and another poor person came and grabbed it from before them, he is entitled to it³⁵.” It is the same; he did not say that his four cubits should acquire it for him. But did we not state: “If somebody saw a find and fell upon it when another person grabbed it, the one who grabbed it acquired it.” It is the same, he did not say that his four cubits should acquire it for him. But did we not state⁴⁶ 8:2.: “If it landed close to her it is a bill of divorce, close to him it is no bill of divorce, half and half she is divorced and not divorced.” Ḥizqiah said, the Mishnah speaks of the scribe’s fee⁴⁷ 8:3, Note 47, the expression is: “The scribe of the second bill of divorce earns money.” Since divorce is a unilateral act by the husband, he has to pay the scribe. But if the wife is “divorced and not divorced”, a second bill of divorce is in the interest of both parties. The husband needs it in order to free himself from the duty to pay for his divorced wife’s upkeep (Giṭṭin 8:2, Note 36), while the ex-wife needs it in order to be able to remarry. Therefore, they share the cost of the second bill.. ⁴⁸ 4:2, Notes 29–39; Giṭṭin 8:3 (49c l. 8). They objected: Is it not written: “I in my poverty did prepare⁴⁹ 22:14. David in his poverty prepared 100’000 talents of gold and 1’000’000 talents of silver for the future Temple. How can a superrich person be called poor?”? How is that? If it was in his possession, he was rich. If it was not in his possession, how can a person dedicate what is not his? It must be that it was within four cubits from him⁵⁰ 4:2, Note 50.. Rebbi Abin said, what means “in my poverty?” That there is no wealth before Him Who commanded and the world came into existence! Another explanation: he fasted⁵¹ and donated the price of his meal to Heaven.

footnotes: ³⁹ “Resh Laqish” for “R. Simeon ben Laqish” and the omission of “in the name of” are typically Babylonian style. ⁴⁰ Peah ⁴¹ No acquisition in the public domain can be effected by thought. ⁴² The remainder of this paragraph essentially is from Peah ⁴³ Taking Peah, ⁴⁴ R. Simeon ben Laqish, defending his position. ⁴⁵ Tosephta Peah ³⁵ Without moving the find, it is not acquired. The second person in grabbing the find must have moved it a little; therefore, he acquired it. ⁴⁶ Mishnah Giṭṭin ⁴⁷ In Giṭṭin ⁴⁸ The text is a reformulation of Peah ⁴⁹ 1Chr. ⁵⁰ Peah ⁵¹ Reading עני as “to be deprived”.

It was stated: “One who says, my house¹ shall acquire for me any find that fell into it, did not say anything. If the find was known, his words stand⁵² into it, did not say anything.” This text is intelligible. Real estate acquires for its proprietor by the owner’s will, as expressed in the second sentence. A future find is not foreseeable and cannot be the object of today’s will. In the Halakhah, the past has to be read as future..” As in the case of Rebbi Abba bar Mina’s⁵³ sharecropper who climbed a date palm⁵⁴, found pigeon chicks there, and took them. He went to ask the master, who said nothing to him⁵⁵. He went and returned them. Rebbi Abba bar Mina said, his returning is more difficult for us⁵⁶ than his finding.

footnotes: ¹ Any of his real estate. ⁵² Tosephta 1:4. There, the text reads: “One who says, my house shall acquire for me any find that will fall ⁵³ It is not impossible that he be R. Abba bar Zamina as conjectured by R. Eliahu Fulda. ⁵⁴ On R. Abba’s property. ⁵⁵ He was not quite sure whether the chicks belonged to himself, as property owner, or to his sharecropper, the finder. ⁵⁶ Since he treated them as ownerless property that nevertheless had an owner, even if it was not clear who the owner was.

MISHNAH: The find of his small son or daughter⁵⁷, or of his Canaanite⁵⁸ 1:3. male or female slave, his wife’s find⁵⁹ contract that the wife’s earnings, including her finds, are the husband’s, since the latter is responsible for his wife’s expenses. This clause can be modified by contract if the wife earns her own money and renounces her claim to her upkeep by the husband (Ketubot 7:1, Note 9)., these are his. The find of his adult son or daughter, or of his Hebrew male or female slave⁶⁰ 1:2., his wife’s find after he divorced her even though he did not yet pay her ketubah⁶¹, these are their own.

footnotes: ⁵⁷ Even though in general קטן has to be translated as “underage”, the Mishnah might refer to children who do not earn their upkeep, irrespective of age. ⁵⁸ Of non-Jewish origin, whose person is his master’s property. Cf. Mishnah Qiddušin ⁵⁹ It is part of the Ketubah ⁶⁰ A purely theoretical statement, Hebrew slavery having disappeared with the Babylonian exile; Cf. Mishnah Qiddušin ⁶¹ Then he still is obligated to pay for her upkeep but has no claim to her earnings.

HALAKHAH: “The find of his small son or daughter,” etc. Rebbi Joḥanan said, only if they are not dependent on their father. But if they are dependent on their father, their finds belong to the latter⁶²6:1, Note 21.. Rebbi Simeon ben Laqish says, a person cannot acquire a find for another⁶³. Rebbi [Hila]⁶⁴ added from E.. said: Not that Rebbi Simeon had formulated thus, but he had a problem with what Rebbi Hoshaiah stated: If a person hires a worker for any work, the latter’s finds belong to the employer. Rebbi Simeon ben Laqish said, should the finds of a person who can resign at any moment belong to his employer⁶⁵ 4:6, Notes 108–110. The statement naturally is not applicable to a worker hired to scout for finds (Babli 12b).?

footnotes: ⁶² This is the only opinion registered in the Babli, 12b, and in Ketubot ⁶³ Therefore, קטן in the Mishnah means “underage”; the finds of aduult children, 12.5 years for girls and 13 years for boys, belong to them even though they still live in their father’s house. ⁶⁴ Word missing in L and editio princeps; ⁶⁵ The last two sentences are formulated similarly in Peah

What is the difference between his Hebrew male and female slaves and his Canaanite male and female slaves? Rebbi Joḥanan said, since he is not empowered to change the employment of his male⁶⁶ 26:39 prohibits to let the male Hebrew slave “work slave’s work”. This is interpreted in Mekhilta dR. Ismael Neziqin 1, Mekhilta dR. Simeon ben Ioḥai p. 160, Sifra Behar Pereq7(3) that the slave must be employed in the trade he exercised before being sold. or female⁶⁷ Hebrew slave, that one’s find belongs to himself. Since he is empowered to change the employment of his male or female Canaanite slave, their find belongs to their master. They objected: He is not empowered to change the employment of his wife, but her find belongs to him. As we have stated there: “He forces her to work with wool,⁶⁸ 5:6” he cannot force her to work any other material⁶⁹ 5:6, Note 163.. ⁷⁰ 6:1, Notes 17–21. Rebbi Abba bar Mina and Rebbi Yasa in the name of Rebbi Joḥanan: there is another reason in the case of the wife. What is another reason in the case of the wife? Rebbi Ḥaggai said, because of quarrel⁷¹40b. The husband should not be angry that he has to pay for all of his wife’s needs but cannot get his hands on her find.. Rebbi Yose said, lest she smuggle away her husband’s property and say: it is a find. They objected: before witnesses¹ several similar instances are invoked.⁷³ to explain the question: מַה מַפְקָה בֵּינֵיהוֹן. מָצָאת בָּעֵדִים. מָאן דָּמַר מִפְּנֵי הַקְּטָטָה. אֵין כָּאן קְטָטָה. וּמָאן דָּמַר שֶׁלֹּא תְהֵא מַבְרַחַת נְכָסִים מִשֶּׁל בַּעֲלָה וְאוֹמֶרֶת מְצִיאָה מָצָאתִי. הָא בָּעֵדִים לֹא אָֽסְרוּ זֶה אֶלָּא מִפְּנֵי זֶה. What is the difference between them? If she found it in the presence of witnesses. For him who says, because of quarrel, would there not be quarrel? For him who says, lest she smuggle away her husband’s property and say: I found a find, it follows that before witnesses they forbade one because of the other.? They forbade⁷⁴ no verb is mentioned in this sentence. R. Yose holds that the worst case has to be presumed in all situations since detailed investigation probably is impossible. one because of the other⁷⁴ no verb is mentioned in this sentence. R. Yose holds that the worst case has to be presumed in all situations since detailed investigation probably is impossible..

footnotes: ⁶⁶ Lev. ⁶⁷ Since she is underage, it is a question whether her find belongs to her father or her master. She probably should not have been mentioned in this connection; the use of the singular in the remainder of the sentence is correct, as compared to the plural used in the next sentence. ⁶⁸ Mishnah Ketubot ⁶⁹ Cf. Ketubot ⁷⁰ An expanded version of this discussion is in Ketubot ⁷¹ This is the only reason mentioned in the Babli, 12b, Ketubot ¹ If she finds an object before witnesses, there is no reason for R. Yose’s rule. In Ketubot, ⁷³ E has a longer text, but shorter than the analogous one in Ketubot, ⁷⁴ The wife’s find is handed over to the husband even in cases where it was not necessary.The use of “forbade” seems inadequate here; one would expect “decreed” or “instituted” the rule. In Ketubot, ⁷⁴ The wife’s find is handed over to the husband even in cases where it was not necessary.The use of “forbade” seems inadequate here; one would expect “decreed” or “instituted” the rule. In Ketubot,

“His wife’s find after he divorced her.” Rebbi Yosana in the name of Rebbi Aḥa: A man who divorced his wife without paying her ketubah is liable for her upkeep until he gave her the last penny⁷⁵ 6:2 (30c line 57) Note 22. Alfasi (Ketubot Chapter 13, # 390) proves that the Babli disagrees and limits the husband’s liability to the amount of the ketubah.. Rebbi Yose said, the Mishnah says this, “his wife’s find after he divorced her.⁷⁶” Rebbi Hoshaiah said, the Mishnah is needed lest you say that because he is liable for her upkeep until he gave her the last penny, her find should be his.

footnotes: ⁷⁵ A similar rule, in the name of R. Isaac, is in Ketubot ⁷⁶ If the husband had no financial responsibility for his ex-wife there would be no reason for him to claim her find.

MISHNAH: One who found documents of indebtedness containing an alienation clause should not return them since the court will foreclose on their basis⁷⁷ but probably it came with its Accadic name šatārum “written document” from Babylonian practice.. If they do not contain an alienation clause, he should return them since the court will not foreclose on their basis⁷⁸, the words of Rebbi Meïr. But the Sages say, in no case should he return them since the court will foreclose on their basis⁷⁹.

footnotes: ⁷⁷ The standard document of indebtedness was written as a mortgage covering all the real estate in the debtor’s possession at the moment of the execution of the deed. In contrast to general Egyptian and Roman practice the debtor was allowed to sell his real estate, but the alienation clause stated that the sale did not break the mortgage lien. If the debtor was unable to pay, the creditor could have regress on the buyer, who then would have to sue the debtor for his loss. The finder might not return the deed which he found since the mortgage might have been paid but the receipt somehow became separated from the document. If the deed was returned to the creditor, the latter might use it against an innocent buyer who would not know that it had been liquidated. This standard mortgage might have its root in the Ptolemaic and later Roman-Egyptian obligatio omnium bonorum, ⁷⁸ Since the deed cannot be used against a third party, one assumes that the debtor has the means to prove that the debt was paid. In the Tosephta, 1:5, the formulation is: should return it if the debtor agrees. ⁷⁹ They rule that an alienation clause is always implied in a written bill of indebtedness; its absence only shows the incompetence of the scribe formulating the contract.

HALAKHAH: “One who found documents of indebtedness,” etc. It was stated in the name of Rebbi Meïr: Both based on a document containing an alienation clause or a document containing no alienation clause, he collects from unincumbered property⁸⁰. Following this opinion of Rebbi Meïr, to what purpose does he return it? To cover the mouth of his pitcher⁸¹ It seems to refer to another tradition of R. Meïr’s, quoted in the Babli, 13a, by Samuel: A contract containing no alienation clause cannot be used to foreclose. This means that such a contract is hardly worth the paper it is written on. E has a different text with an additional sentence: תַּנֵּי בְשֵׁם רִבִּי מֵאִיר. בֵּין שְׁטָר שֶׁיֵּשּׁ בּוֹ אַחֵרָיוּת נְכָסִין וּבֵין שְׁטָר שֶׁאֵין בּוֹ אַחֵרָיוּת נְכָסִין גּוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים. וַחֲכָמִים אומ׳ שְׁטָר שֶׁיֵּשּׁ בּוֹ אַחֵרָיוּת נְכָסִין גּוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים וְשֶׁאֵין בּוֹ אַחֵרָיוּת נְכָסִין אֵנוֹ גוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים. It was stated in the name of Rebbi Meïr: Both based on a document containing an alienation clause or a document containing no alienation clause, he collects from incumbered property. But the Sages say, he collects from incumbered property based on a document containing an alienation clause, but based on a document containing no alienation clause, he cannot collect from incumbered property. S. Lieberman suggests to read תַּמָּן אוֹמְרִים “there (in Babylonia), they say” instead of “but the Sages say.” This then properly refers the entire discussion to positions of R. Meïr quoted in the Halakhah. One could also suggest to read אֲחֵרִים אוֹמְרִים “others say,” and refer to the opinion stated as R. Meïr’s in Ketubot 4:9, Note 217, which is identical with that quoted here in the name of the “Sages”.. ⁸² 10:1, Notes 12–13. Rav’s statement is a reformulation, Samuel’s a copy. Rav said, an heir is like the holder of encumbered property. Just as a loan executed before witnesses cannot be collected from encumbered property, so it cannot be collected from heirs. Samuel said, what was received cannot be foreclosed on mortgaged property, but on free property it can be foreclosed. Here you say, it can be collected, but there you say, it cannot be collected⁸³. There is no comparison between one who agreed to a small lien and one who never agreed to a lien.

footnotes: ⁸⁰ Property which is in the debtor’s possession without being subject to any third party lien. In this version of R. Meïr’s position, a creditor who wants to be secure has to write a contract which forbids the debtor to either sell his property or to mortgage it to another person. ⁸¹ In this context, the remark is a non sequitur. ⁸² The following two sentences are from Bava Qamma ⁸³ Unencumbered property can be foreclosed on basis of an IOU missing an alienation clause. The property of the recipient of a gift cannot be foreclosed.

Rebbi Eleazar said, for I am saying that he wanted to take a loan but did not⁸⁴ 10:5 permits to write a mortgage document for the debtor and have it signed even though the creditor not be present at that moment. As the Babli, 12b, explains, the problem with this is that the mortgage might have been executed in April but the loan was given only in October. If the debtor sold real estate in the meantime, the buyer in effect bought unencumbered property while the mortgage document falsely classified it as encumbered. Therefore, the Babli restricts the permission to mortgage deeds with which the title to the land is immediately deposited with the creditor, the Egyptian ὑπάλλαγμα (cf. R. Taubenschlag, The Law of Graeco-Roman Egypt in the Light of the Papyri, pp. 208 ff.) The Yerushalmi (loc. cit. Halakhah 10:5) gives standing in court only to unilateral promises of payment for future services.. Rebbi Eleazar said, if the debtor agreed, he should return it. Rebbi Eleazar said, if the document was generally known to be in the creditor’s hand, he should return it. But all three are broken⁸⁵, “the Sages say, in no case should he return them.” Rebbi Abbahu in the name of Rebbi Joḥanan: Because of conspiracy⁸⁶3:9, Note 133. Lender and borrower might conspire to defraud the innocent buyer; see Note 84.. Rebbi Yasa in the name of Rebbi Joḥanan: If its date was that very day, he should return it¹⁸⁸.

footnotes: ⁸⁴ He explains the reason of the Sages. Mishnah Bava Batra ⁸⁵ All three statements of R. Eleazar are rejected in practice. ⁸⁶ Greek κοινωνία, cf. Yebamot ¹ The document was dated the day it was found; the witnesses are still available who can testify to its genuineness. ⁸⁸ E here has an addition which is irrelevant:וַאֲפִילוּ אֵין זְמַנוֹ יוֹצֵא לבוֹא בַּיּוֹם יַחֲזִיר. מָהוּ פְליג, ומד רַבִּי אַבָּהוּא בְשֵׁם רַבִּי יוֹחָנָן. מִפְּנֵי קָיְנוֹנִייָה. ומד רַבִּי יוֹחָנָן. אִם הָיָה זְמַנוֹ יוֹצֵא לְבוֹא בַּיוֹם יַחֲזִיר.But could he not return it if the date was not of the same day? Do they disagree? But Rebbi Abbahu said* in the name of Rebbi Johanan: Because of conspiracy. Rebbi Johanan said*: If its date was that very day, he should return it.* Reading ומר for ומד.

But could he not return it if the date was not of the same day? Do they disagree? But Rebbi Abbahu said* in the name of Rebbi Joḥanan: Because of conspiracy. Rebbi Joḥanan said*: If its date was that very day, he should return it.

MISHNAH: One who found women’s bills of divorce⁸⁹ If the ketubah was paid, the bill should be torn up. Therefore, one could assume that the woman would take care to watch over the document and, in case it was lost, to publicly announce its loss and ask the public to return it to her. In the absence of such a public announcement, the finder has to assume that the bill was not delivered. Similar arguments apply to the other documents enumerated in the Mishnah. or slaves’ bills of manumission, dispositions⁹⁰ of gift or receipts⁹¹ should not return them since I say that they were written but he changed his mind not to deliver them.

footnotes: ⁸⁹ The divorcee would need the bill to collect her ketubah. ⁹⁰ Greek διαθήκη, usually referring to testamentary gifts. ⁹¹ Documents which prove the liquidation of a mortgage.

HALAKHAH: “One who found women’s bills of divorce,” etc. It was stated: One whou found women’s bills of divorce with ketubot⁹² which either had a receipt written on it or was torn where the witnesses had signed as proof of liquidation of the debt. Then the bill certainly had been delivered to the woman, the ketubah had been paid, and no monetary consequences would follow the return of the bill to the woman. The baraita does not contradict the Mishnah. E has a different formulation of the last sentence: .וּכְתוּבָּה לֹא הוּחְזְקָה בְיַד הָאִשָּׁה Was the ketubah not prima facie evidence in the woman’s hand? should return them.” Is the ketubah not prime facie evidence?

footnotes: ⁹² He found a bill of divorce and attached to it a ketubah

If a person took a documented loan and paid it back, he cannot use the document to take a second loan because it diminishes the power of the buyers. Rebbi Yasa in the name of Rebbi Joḥanan: Even on the same day⁹³. Rebbi Ze‘ira asked before Rebbi Yasa: Here you say, even on the same day. But there⁹⁴, you say, if its date was that very day, he should return it! He answered, a person is apt to take a loan and repay it the same day, but a person is not apt to repay a loan and take it the same day¹ evidence, as in the cases of the Mishnah.⁹³. Rebbi Ḥaggai asked before Rebbi Yasa: It is the same day, the same witnesses, and the same amount. What is the meaning of “it diminishes the power of the buyers”⁹⁶? He answered, if the property had not been mortgaged⁹⁷. But some say, if the witnesses did not sign for this loan²⁹³.

footnotes: ⁹³ The same statement is in the Babli, 17a. ⁹⁴ In the preceding Halakhah. ¹ It is a matter of prima facie ⁹³ The same statement is in the Babli, 17a. ⁹⁶ The formulation implies that the creditor can unlawfully foreclose property from the innocent buyer in case of nonpayment of the debt. ⁹⁷ If the first loan was not given as a mortgage. ² All the statements of R. Ḥaggai are true; nevertheless the document is invalid since the witnesses did not certify the loan actually given but a predecessor loan. ⁹³ The same statement is in the Babli, 17a.

MISHNAH: One who found letters of appraisal⁹⁹, letters of sustenance¹⁰⁰, or documents of ḥalîṣah¹⁰¹ or repudiation¹⁰², or documents of arbitration¹⁰³, or any other court document, should return them. If he found in a basket¹⁰⁴ or in a box¹⁰⁵ a bundle¹⁰⁶ or joined documents he should return them. How many are joined documents? Three documents connected one to the other. Rabban Simeon ben Gamliel says, if one persons borrows from three, he should return it to the borrower; if three persons borrow from one, he should return it to the lender. If he found a document among his documents whose nature was unknown to him¹⁰⁷, it should lie there until Elijah comes¹⁰⁸. If it has an agreement¹⁰⁹ as a receipt; R. Hananel explains “receipt or codicill”. attached to it, he should follow the agreement.

footnotes: ⁹⁹ Court documents in which the value of property in execution is appraised for the creditor. ¹⁰⁰ Court documents empowering a widow to sell from her late husband’s property for her sustenance. ¹⁰¹ Court documents authorizing a childless widow to remarry outside her late husband’s family. ¹⁰² Court documents confirming that an underage, fatherless girl walked out on a marriage arranged by her mother or her brothers. ¹⁰³ Court documents in which the parties to a civil suit appoint a panel of arbitration judges and promise to abide by their judgment. ¹⁰⁴ Arabic حِفش “basket, bag”. ¹⁰⁵ Greek γλωσσοκομεῖον “chest, box”. ¹⁰⁶ Documents rolled and tied together. In joined documents one is joined to the next. ¹⁰⁷ According to Rashi, a third party document; according to Maimonides and Ravia, a valid IOU in a bundle of receipted documents. ¹⁰⁸ The announcer of the Messiah is reputed to know all the answers. ¹⁰⁹ Greek σύμφωνον “contract”, an expression used in Byzantine era papyri for special stipulations within a written contract (cf. Taubenschlag, Note 84, p. 224). The commentators of the Babli and Alfasi follow the Geonim and Rashi in explaining symphon

HALAKHAH: “One who found letters of appraisal,” etc. Rav Jeremiah in the name of Rav: If it contained a certification by the court, it should be returned¹¹⁰. Rebbi Ḥama the father of Rebbi Hoshaia said, the tamarisks among the judges of the diaspora are like chicks among the judges of the Land of Israel¹¹¹.

footnotes: ¹¹⁰ Even a private document. ¹¹¹ The statement of Rav, the mightiest of the Babylonian authorities, is in error. As the Galilean authorities explain in the Babli, 16b, the only case in which a court certified mortgage document can be returned, is an instruction by the court that ownership of a well-defined property of the debtor is transferred to the creditor in liquidation of the mortgage. In this case, no third party buyer is endangered. But a document certified for unspecified foreclosure cannot be returned since an innocent third party might be damaged.

Rav Hamnuna said, if the sale contract was written on the first of Nisan but payment was only on the tenth of Nisan¹¹² I 30a, the Babli disputes the validity of any sale document predating the transfer of ownership., they have to write: Even though we wrote the document on the first of Nisan it was agreed that payment be made on the tenth of Nisan.

footnotes: ¹¹² Then ownership will only be transferred on the 10th; the piece of property will be at the disposal of the creditors of the seller, not of the buyer, between the 1st and the 10th. In the interpretation of Sefer Ha‘iṭṭur

Rav Jeremiah in the name of Rav: A stipulation produced by the creditor in the creditor’s handwrtiting is invalid¹¹³ I 41a (Notes מט to נא) gives two slightly different versions of parts of this paragraph., for I am saying that he has trained in writing documents. This implies that in the hand of another it would be valid. Rebbi Isaac bar Naḥman in the name of Samuel: A stipulation is only valid if it is in the possession of the creditor but written by the debtor. But did we not state¹¹⁴ 7:9, quoted Ketubot 9:7 (Note 177), Sanhedrin 8:6 (20b l. 62), Babli 20b, Šebuot 45. This is the oath required from heirs if they sue for payment of IOU’s they inherited. It is clear that the creditor’s heirs are not the creditor himself.: “That our father did not charge us, that our father did not tell us, that we did not find a document among our father’s documents that this note was paid.” Therefore, it might be found paid. What about this? Rebbi Yose ben Rebbi Abun said, explain it that it was a testamentary gift., since people are not likely to impair their testamentary gifts¹¹⁵7:9, 38a l. 48..

footnotes: ¹¹³ The same statement is in the Babli, 20b. Sefer Ha‘iṭṭur ¹¹⁴ Mishnah Šebuot ¹¹⁵ Attachments to documents of testamentary gifts written by the donor are to be accepted at face value. The same statement is repeated in Šebuot