daf bit: Bava Batra 153

[cellio]

We previously learned that if a sick man makes a gift and then recovers, there are cases where the gift can be rescinded. What if there is a disagreement -- he says "I was sick and recovered" and the recipient says "you were in perfect health" (in which case the gift would certainly stand)? Rabbi Meir says the giver must prove he was sick; however, the sages say the burden of proof is on the claimant. (153a)

Comments

[talvinamarich.livejournal.com]

Is there a general rule stated elsewhere on accepting someone's word?

If a man says [it] is so when speaking of his own experience or conduct, does the law presume that he speaks truth, or does it require him to provide proof? Put a different way: does the law have a general principle of the "burden of proof", or does it vary by type of case?

Am I making any sense? I had to rewrite this about three times, it's been one of those months. :P And I can prove it!

[cellio]

You're making sense. I am not aware of a general rule; it seems to vary by type of case. There are some general principles that tend to come up in the discussions, such as "why would he lie?". (If someone could have made a much stronger claim with equal credibility, the fact that he made a lesser claim is considered significant. At least sometimes.) Another is that a beit din (court) will not transfer property from one person to another unless the latter has a valid claim -- even if that beit din would not have awarded the property to the first one originally! Possession is significant -- again, at least sometimes; I am loathe to make generalizations about the whole system when I have learned only part of it.

[talvinamarich.livejournal.com]

Well, at least I made some sense. :P

It is interesting to read about these, because they show that things we take for granted--presumption of innocence, burden of proof, etc.--evolved rather than being timeless principles.

I sometimes get the feeling that the text you are studying was an attempt by the scholars to seek out those basic principles.

As an aside: now that I have read a fair number of these in your blog, I am tempted to say to the next (usually Southern) Conservative Judge who has posted the Ten Commandments in his courtroom, "Very nice, but have you read the case law?"

[cellio]

You're pretty close, actually (and I agree with the sentiment regarding the judges...).

Tradition teaches that two laws were given at Sinai, the written law (torah, 5 books of Moshe) and the oral law (which was, err, oral). Later, at a time when there was risk of it being lost, the oral law was recorded in the mishna. The mishna tends to be a lot of "the law is X in this case, Y in that case" -- not a lot of analysis and back-and-forth discussion. Later still, the g'mara recorded the commentary on the mishna (that's where the arguments tend to be, and also a lot of the midrash). The g'mara also recorded teachings that were contemporary with the mishna but not recorded in it, so there is some entanglement. The g'mara isn't just a later commentary.

The mishna to an extent and the g'mara moreso are, in fact, case law (mixed with statute). The g'mara is full of "you say the law is X, but Rabbi So-and-So did Y", and then you have the discussion of what made Rabbi So-and-So's situation different ("oh, that was the holiday offering, not Shabbat!" etc). Or, sometimes, it's a real disagreement.

To put my postings on this in context, the talmud consists of more than 5000 (double-sided) pages, generally tightly-packed. I am quoting a couple sentences from whatever page I'm pulling from.