Kiddushin, Ayin Daled, Part 1

 

Introduction

The Talmud continues to deal with the issue of believability.

 

נאמן בעל מקח לומר לזה מכרתי ולזה אין מכרתי במה דברים אמורים בזמן שמקחו בידו אבל אין מקחו בידו אינו נאמן

 

A seller is believed when he says: To this one I sold and to this one I did not sell.

When was this stated? When the sold item is still in his hand; but if the sold item is no longer in his hand, he is not believed.

 

As longer as the seller still holds the item, he is believed to say that he sold it to a certain person and not to another person. But once the buyer takes possession, the seller is no longer believed.

 

וניחזי זוזי ממאן נקט לא צריכא דנקט מתרוייהו ואמר חד מדעתאי וחד בעל כורחי ולא ידיע הי מדעתו והי לא מדעתו

 

Then let us see whose money he holds? This is necessary only when he holds [money] from both, and states: one [paid me] with my consent, and the other against my will, and it is not known which was with his consent and which against his will.

 

If we can see whose money the seller holds, then the item belongs to the person who paid. That seems quite obvious. Therefore, the ruling that the seller is believed is only when both paid him, one to whom he did want to sell and the other who tried to force him to sell to him take my money! In such a case, as long as he still holds the item, he is believed.

 

נאמן דיין לומר לזה זכיתי ולזה חייבתי במה דברים אמורים שבעלי דינים עומדים לפניו אבל אין בעלי דינים עומדים לפניו אינו נאמן

 

A judge is believed when he says: I have ruled in favor of this one; I have ruled against that one. When was this stated? When the litigants are still standing before him; but if they are no longer standing before him, he is not believed.

 

As long as the litigants are still in front of him, the judge is believed to say in whose favor he ruled. But once they leave, and there is some sort of official record, he is no longer believed to counter the official record.

 

וניחזי זכותא מאן נקיט לא צריכא דקריע זכותייהו וניהדר ונידיינינהו בשודא דדייני

 

Then let us see who holds the judgment written in favor? This is necessary only if their judgment writ was torn.

Then let us go back and judge them again? [It was a case of] the judges discretion.

 

If one of the litigants holds the documentation proving that he won the case, then the judge is not believed to counter that document. The judge is believed only if the evidence was torn up. And the reason we cannot rejudge the case is that this was not a clear cut case. It was one that involved the judges discretion and such discretion cannot be recreated.