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Babylonian Talmud: Tractate Baba Mezi'a
I was sitting before R. Nahman,1 and wished to refute him from the law of 'overreaching';2 but observing [my intentions] he drew my attention to the case of a barren woman.3 [Raba proceeds to explain.] Now 'overreaching', being as it is [the result] of renunciation in error,4 [we find that it] is not a [legal] renunciation! 'But observing [my intention], he drew my attention to a barren woman,' for a barren woman [makes] renunciation in error, and yet it is valid. For we learnt:5 An objecting woman,6 a consanguineous relation in the second degree,7 and a constitutionally barren woman can claim no kethubah,8 usufruct,9 alimony,10 or worn out raiment.11 But it is not so: neither [the law of] 'overreaching' refutes him, nor [that of] a 'barren woman' supports him. [Thus: the law of] overreaching does not refute him, for he [the victim did not know that he was defrauded at all, that he should forego it.12 Nor does [the law of] a 'barren woman' support him, because she is satisfied to be designated a married woman.13
A woman once instructed a man, 'Go and buy me land from my relatives,' and he went and did so. Said he [the vendor] to him [her agent], 'If I have money, will she return it to me?' 'You and Nawla,'14 he replied, 'are relatives.'15 Rabbah son of R. Huna said: Whenever one says, 'You and Nawla are relatives,' he [the vendor] relies upon it, and does not completely transfer it [the object of sale].16 Now, the land is [certainly] returnable; but what of the crops?17 Is it as direct usury, which can be legally reclaimed;18 or perhaps it is only indirect19 usury, and cannot be reclaimed? — Rabbah b. Rab said: It stands to reason that it is considered indirect usury and cannot be reclaimed in court. And thus did Raba say, It is considered indirect usury and cannot be reclaimed in court.
Abaye inquired of Rabbah: What of a mortgage?20 Is the reason there [in the previous case] that he made no stipulation? Then here too there was no stipulation!21 Or, perhaps, there it is a sale, but here a loan? — He replied: The reason there is that no stipulation was made; so here too there was no stipulation. R. papi said: Rabina gave a practical decision, calculated [the value of] the crops, and ordered it to be returned, thus disagreeing with Rabbah son of R. Huna.
Mar,22 the son of R. Joseph, said in Raba's name: With reference to a mortgage: Where it is customary to make [the creditor] quit [whenever the loan is repaid],23 if he took the usufruct to the amount of the loan, he must quit it;24 but if in excess thereof, [the surplus] is not returnable;25 nor is one loan26 balanced against another.27 But when it [the mortgaged estate] belongs to orphans, if he [the creditor] enjoyed its usufruct to the amount of the loan, he must quit it; if it [the usufruct] exceeded it, [the surplus] is returnable, and one loan is balanced against another. R. Ashi said: Now that you rule, If the usufruct exceeded the loan, [the balance] is not returnable; then even if it [merely] equalled it, he must not be dismissed without payment. Why? Because to dismiss him without payment is tantamount to making him return [what he has already had]; whereas it is only indirect interest, which is not reclaimable at law. R. Ashi gave a practical decision in reference to orphans [minors],
Baba Mezi'a 67b
just as though they were adults.1
Raba, the son of R. Joseph, said in Raba's name: With reference to a mortgage, where it is the usage to make [the creditor] quit [whenever] the loan is repaid],2 one must not enjoy the usufruct without making a [fixed annual] deduction.3 But a scholar must not enjoy the usufruct even at a [fixed] allowance. How else shall he take them? — By a stipulated time limit.4 Now, this is well on the view that a stipulated time limit is permitted; but on the view that it is forbidden, what can you say? For it has been stated: As for a stipulated time limit, R. Aha and Rabina differ therein: one maintained that it is permitted — the other that it is forbidden. What is meant by a 'stipulated time limit'? — If he [the creditor said], 'For the first five years, the usufruct is mine without deduction; thereafter, I will make you a full allowance for the crops.' Others maintain: Any arrangement involving no deduction is forbidden. What then is meant by a 'stipulated time limit'? — If he [the creditor] said to him, 'For the first five years the usufruct is mine at a [fixed] deduction;5 thereafter, I will make you a full allowance for the crops.' Now, he who forbids the first arrangement will permit the second; but he who forbids [even] the second, on what condition may he [a scholar] have the usufruct? — When it is as the mortgage bonds arranged in Sura, in which it was written, 'On the expiry of a certain number of years this estate reverts [to the debtor] without any payment.6
R. Papa and R. Huna, the sons of R. Joshua, said: As for a mortgage, where it is the practice to make [the creditor] quit [whenever the loan is repaid], the [creditor's] creditor cannot exact his debt from it,7 the first-born receives no double portion therein,8 and the seventh year cancels it [the privilege of usufruct].9 But where the creditor is not obliged to give up possession [whenever the loan is repaid], his creditor can exact his debt from it, the first-born receives a double portion, and the seventh year does not cancel it.10
Mar Zutra also said in R. Papa's name: With reference to mortgaged property, where it is the usage to make [the creditor] quit, he must give up possession [absolutely], even of the dates on the mattings;11 but if he has already picked them up [and placed them] in baskets, they are his.12 But on the view that the purchaser's utensils effect ownership for him even in the domain of the vendor,13 even if they have not been gathered into baskets, they are his.14
Now, it is obvious, where the usage is that the creditor must quit, but he stipulated [when making the loan], 'I will not quit it [before a certain time]' — then surely he has so stipulated [and it is binding]. But what if he promised to quit [immediately on repayment] where the usage does not compel him to go: is it necessary to submit him to a binding act15 or not?16 — R. Papa said: It is unnecessary; R. Shesheth the son of R. Idi ruled: It is necessary. And the law is that he must perform a binding act.
Now, if he [the debtor] states, 'I am about to bring you the money,'17 he [the creditor] may not take the usufruct [in the meanwhile].18 [Where he however states] 'I will go, make earnest effort [to obtain it], and bring the money' — Rabina ruled: He may take the usufruct; Mar Zutra, the son of R. Mari, said: He may not. And the law is that he may not take the usufruct.
R. Kahana, R. Papa and R. Ashi did not take usufruct with deduction; Rabina did. Mar Zutra said: What is the reason of him who takes it with deduction? — Because it is analogous to 'a field of possession';19 with respect to this, did not the Divine Law order, even though there may be greater usufruct therefrom,
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