1However, judges do sign a document even though they have not read it, as they are merely certifying the signatures without relating to the content of the document at all.
2§ The mishna taught that if someone established a field as a marker for another field, everyone agrees that he has lost his right to contest its ownership. Abaye said: They taught this only in a case where he stated this in a document unrelated to the field in question, which was written for another person. However, if he established it as a marker for himself, when he was buying a different field owned by the person who is in possession of the contested field, he has not lost his right.
3The reason is that the claimant can say: Had I not done this act of writing that the field belongs to him, he would not have sold me this other field. What have you to say against this argument? Will you say that I should have put out a notice and declared in the presence of witnesses that I am forced to write this way in the contract? I was concerned about doing this, as your friend has a friend and your friend’s friend has a friend. In other words, it is hard to keep an announcement of this kind secret, and ultimately my notice would have become public knowledge and would have reached the owner of the field himself, and he would have refused to sell me the other tract of land.
4§ The Gemara relates: There was a certain individual who established a field as a marker for another field, with ownership of the first field ascribed to someone else. Later he contested the ownership of the first field, claiming it as his own, and he subsequently died. And prior to his death he had appointed a steward to manage the properties of his orphans. The steward came before Abaye. Abaye said to him: The deceased established the field as a marker for another, and therefore he has lost his right to contest ownership of the land.
5The steward said to Abaye: If the father of these orphans were alive he would have claimed and said: I established one furrow for you. In other words, the marker I established by means of this field was not meant as a reference to the entire field but only to a furrow at the edge of the field. Abaye said to him: You have spoken well, as Rabbi Yoḥanan said: If he claimed and said: I established one furrow for you, he is deemed credible. Go and give him one furrow in any event, as you freely admit that at least one furrow belongs to the one currently in control of the property.
6On that particular furrow there was a row of palm trees, which the steward did not want to lose. He said to Abaye: If the father of these orphans were alive he would have claimed and said: I did in fact sell the field to him, but I went back and bought it from him sometime later. Abaye said to him: You have spoken well, as Rabbi Yoḥanan said: If he claimed and said: I went back and bought it from him, he is deemed credible. After the steward won his suit in court, Abaye said: One who wants to appoint a steward should appoint someone like this person, who knows how to look out for the rights of the orphans and how to argue on their behalf.
7MISHNA: With regard to one who went overseas and in the meantime the path leading to his field was lost, e.g., the path he used to reach his land was taken over by the owner of the field through which it passed, so that its exact position is now unknown, Admon says: Let him go to his field by the shortest possible route. And the Rabbis say: Let him buy himself a path from an owner of a neighboring field at whatever price he can, even if it is one hundred dinars [ maneh ], or let him fly through the air.
8GEMARA: The Gemara asks: What is the reason for the opinion of the Rabbis that he is not automatically entitled to a path leading to his field? After all, Admon speaks well, as it was established that he owned a path beforehand. Rav Yehuda said that Rav said: The mishna is dealing with a case where the field was surrounded on four sides by the property of four different people. Each of the four properties adjoining his field belonged to a different person, each of whom denied that his path cut through his land. Since he is unable to prove his claim with regard to each one of them, he has no choice but to buy himself a new path. The Gemara asks: If so, what is the reason for the opinion of Admon?
9Rava said: In a case where there are four owners of fields who come by virtue of four previous owners, and in a case where there are four owners who come by virtue of one previous owner of all four properties, everyone agrees that they may put off the claims of the owner of the field in the middle, as each can say: Your path did not cut through my property. When they disagree is in a case where there is one current owner of four fields who comes by virtue of four previous owners.
10Rava elaborates: Admon holds that the claimant can say to the landowner: In any case, I have a path through your property. Although he cannot prove where the path ran, it was certainly within the perimeter of the landowner’s property that borders his own tract of land, and for this reason he selects the shortest route. And the Rabbis hold that the landowner can say to the man: If you will stay silent, then stay silent and we will compromise; and if not, I will return the document of each field to its previous owner and you will not be able to negotiate with them, as you do not know through which field your path passed.
11§ The Gemara relates: There was a certain man who said to his heirs, in his will: I am leaving a palm tree for my daughter. The orphans went and divided up the property and they did not give the daughter a palm tree at all. Rav Yosef thought to say that this is exactly like the case of the mishna, as each heir can say to her: The tree designated for you is not in my portion but in that of a different heir.
12Abaye said to him: Are the cases comparable? There, each and every one of the fields’ owners can put him off, as in fact the path might not have passed through his property, whereas here, the palm tree is in their possession, i.e., they all share the obligation to give her a tree, and each is illegally holding on to a share of it. Abaye adds: What is their remedy? Let them give her a palm tree and go back and divide the inherited property once again from the outset. Since the palm tree will be taken from one of the shares, they must redistribute the estate afresh.
13The Gemara relates a similar story: There was a certain man who said to his heirs, in his will: I am leaving a palm tree for my daughter. He died and left behind two halves of palm trees, as there had been two trees he had shared with different business partners. The heirs wished to give the girl these two halves, despite the fact that tending to them would involve considerably more trouble than taking care of a single tree.
14Rav Ashi sat and posed a difficulty to the proposal of the heirs. Do people refer to two halves of a palm tree as a whole palm tree or not? If the statement of the dying father can reasonably be interpreted as referring to these two halves she is at a disadvantage, as the burden of proof rests upon the claimant. Alternatively, if this is an unreasonable explanation of his wishes, they must give her a whole tree. Which alternative is correct? Rav Mordekhai said to Rav Ashi: Avimi of Hagronya said as follows in the name of Rava: People do in fact refer to two halves of a palm tree as a whole palm tree. Consequently, the heirs may fulfill their father’s dying wish by giving the girl the two halves they inherited.