Babylonian Talmud: Tractate Baba Bathra

Folio 28a

CHAPTER III

MISHNAH. A PRESUMPTIVE TITLE¹  TO HOUSES, PITS, DITCHES AND CAVES, DOVECOTES, BATHS, OLIVE PRESSES, IRRIGATED FIELDS, SLAVES, AND ANYTHING WHICH IS CONTINUALLY PRODUCING²  IS CONFERRED BY THREE YEARS [UNCHALLENGED POSSESSION]³  FROM DAY TO DAY.⁴  A PRESUMPTIVE TITLE TO A NON-IRRIGATED FIELD IS CONFERRED BY THREE YEARS' POSSESSION NOT RECKONED FROM DAY TO DAY.⁵  R. ISHMAEL SAYS: IT IS SUFFICIENT TO HAVE THREE MONTHS IN THE FIRST YEAR, THREE MONTHS IN THE LAST AND TWELVE IN THE MIDDLE,⁶  MAKING EIGHTEEN MONTHS IN ALL. R. AKIBA SAYS: ALL THAT IS REQUIRED IS A MONTH IN THE FIRST, A MONTH IN THE LAST, AND TWELVE MONTHS IN THE MIDDLE, MAKING FOURTEEN MONTHS IN ALL.⁷  R. ISHMAEL SAYS: THIS REFERS ONLY TO A CORNFIELD,⁸  BUT IN A FIELD PLANTED WITH TREES,⁹  IF A MAN HARVESTS HIS GRAPES, GATHERS IN HIS OLIVES, AND CULLS HIS FIGS, THIS COUNTS AS THREE YEARS.¹⁰

GEMARA. R. Johanan said: I have heard those who attended at Usha¹¹  reasoning thus: Whence do we derive the rule that a presumptive title is acquired in three years?¹²  — From the 'goring ox'.¹³  Just as in the case of the' goring ox', after goring three times¹⁴  it passes out of the denomination¹⁵  of Tam¹⁶  into that of Mu'ad,¹⁷  so after a man has cropped¹⁸  a field for three years it passes [entirely] out of the possession of the seller and is established in the possession of the buyer.¹⁹  It may be objected to this that just as in the case of the goring ox its master does not become liable²⁰  till the fourth goring, so here the property should not become the fixed possession of the holder²¹  till the end of the fourth year? — How can you compare the two cases.²²  There, as soon as the ox has gored three times, it is regarded as Mu'ad,

1. Heb. hazakah, [H], which combines the meanings of 'holding' or 'occupation', and 'presumed ownership'. What is meant is a title not supported by documents or witnesses, but based on the mere fact of possession. The English legal term Is usucaption'.
2. Lit., 'yielding fruits'.
3. As will be seen later, such possession creates a presumption of ownership only if the possessor pleads at the same time that he came by the object in a lawful manner, e.g., by purchase or gift. If he does not advance this plea, the fact of his years' possession has no legal value.
4. I.e., from any date in one year to a corresponding date three years later. The reason for this regulation is discussed in the Gemara.
5. As explained in what follows.
6. Because some crops are sown in the last three months of the year and some in the first three, and to crop the field at these times is equivalent to possessing it for a year.
7. For R. Akiba's reason, v. infra 362.
8. Lit., 'field of white', so called because the corn casts no shade. (Jast.)
9. Which is also a kind of non-irrigated field.
10. Even though all three processes are carried out in one year, the idea being that the rightful owner would not permit another to take three crops off his field without protesting.
11. Usha was a town in Upper Galilee near Tiberias. Here, after the destruction of the Second Temple, the Sanhedrin was established when it left Jabneh, and here too after the war of Bar Cochba a synod was held composed mainly of the pupils of Judah b. Baba. On the question who is meant here by 'those who attended at Usha,' v. infra, p. 141, n. 4.
12. I.e., Why three precisely?
13. Lit., 'Mu'ad ox' (v. Glos.). V. Ex. XXI, 29.
14. This is based on the words of the text, from yesterday and the day before,' which, with to-day, make three; v. B.K 23b.
15. Here again. the Hebrew word is hazakah, which here has the meaning of 'presumed character'.
16. Lit., 'innocent', involving the payment of half the damage only. V. Glos.
17. Lit., 'testified against' and liable to pay for the damage in full.
18. Lit., 'eaten'.
19. I.e., so completely that he need no longer retain his title-deeds.
20. To pay the full damage.
21. If be can bring no proof of ownership.
22. Lit., 'so now'

but until it has gored the fourth time there is no reason why the owner should pay, whereas here, as soon as the use of it has been enjoyed for three years, the property becomes the fixed possession of the holder.

Now if this is correct¹  [that the law of hazakah is derived from the law of the ox], it would follow that three years' possession would confer a legal title even without a plea [of justification].²  Why then have we learnt³  that possession without a plea of justification does not confer a legal title? — The reason why [we confirm the holder in possession when he pleads justification] is because it is possible that his plea is truthful.⁴  But if he himself advances no plea, shall we put in a plea for him?⁵

R. 'Awira brought a strong objection against this analogy [between the field and the ox]. On this principle, he said, a protest made not in the presence of the holder should not be valid,⁶  after the analogy of the Mu'ad ox; for just as in the case of the Mu'ad ox [the warning] must be given in the presence of the owner, so here the protest should be made in the presence of the holder? — There [in the case of the ox] Scripture says, And it hath been testified to his owner';⁷  here [in the case of property] 'your friend has a friend, and the friend of your friend has a friend.'⁸

Now [suppose we accept the ruling] according to R. Meir, who said: 'If there was an interval between the gorings the owner is liable, all the more so then if they followed closely on one another.'⁹  [On the analogy of this], if a man gathered three crops on one day, as for instance figs [in three stages of ripeness]. this should constitute presumptive right, [should it not]?¹⁰ — No; the action must be strictly analogous to the case of the Mu'ad ox. Just as in the case of the Mu'ad ox at the time when the first goring took place there was as yet no second goring, so here at the time when the first fruit is plucked the second must not yet be in existence. But suppose he gathered¹¹  three crops in three days, as of a caperbush,¹²  should not that confer presumptive right? — In this case also the [second] fruit exists already [when he gathers the first crop] and it merely goes on ripening. But suppose he gathered three crops in thirty days, as of clover¹³  — should not this confer presumptive right? How exactly do you mean? That it is cropped as it grows? Then this is merely partial eating¹⁴  [and not the full eating required to confer presumptive right]. But suppose then that he consumed three crops in three months, as of clover,¹⁵  should not this confer presumptive right? — Who is meant by the 'Rabbis who attended Usha'? — R. Ishmael;¹⁶  and this actually would be the view of R. Ishmael, as we have learnt: R. ISHMAEL SAYS: THIS REFERS ONLY TO A CORNFIELD, BUT IN A FIELD PLANTED WITH TREES, IF A MAN HARVESTS HIS GRAPES, GATHERS IN HIS OLIVES, AND HARVESTS HIS FIGS, THIS COUNTS AS THREE YEARS.

And whence do the Rabbis¹⁷  derive the rule [that three years possession confers presumptive right]? — R. Joseph said: They derive it from the Scriptural verse, Men shall buy fields for money and subscribe the deeds and seal them.¹⁸  For there the prophet is speaking in the tenth year [of Zedekiah]¹⁹  and he warns the people [that they will go into captivity] in the eleventh.²⁰  Said Abaye to him: perhaps he was merely giving a piece of good advice?

1. Here follows a further objection against the analogy from the goring ox.
2. E.g., that the holder bought it from the claimant, but has lost the deed. V. infra 41a.
3. Infra 49a.
4. Lit., 'as he says now', E.g., if the claimant says, 'You stole it from me,' and the holder says, 'I bought it from you,' the fact that he has had the use of the land for three years creates a presumption that he is speaking the truth.
5. Hence the fact that a plea of justification is required does not militate against deriving the law of hazakah from that of the ox,
6. And the rule is that it is valid. V. infra 39a.
7. Ex. XXI, 29, implying 'in the presence of the owner'.
8. A popular saying. Someone is bound to tell the holder that the claimant has protested against his occupation of the land, and he will therefore take care not to lose his title-deed.
9. R. Meir uses this a fortiori argument in support of his view against that of R. Judah who defines a Mu'ad, 'an ox who gored on three successive days but not who gored three times in one day,' v, B.K. 24a.
10. And this is against all authority.
11. Lit., 'ate'.
12. One fruit of which is still very small when another is plucked.
13. Which is cropped three times in a month.
14. Lit., 'he merely plucks and eats it.'
15. Which is plucked up and sown afresh every month, so that all three crops have time to ripen fully.
16. We do not hear of R. Ishmael after the war of Bether, so he probably attended the Sanhedrin at Usha in the early part of the 2nd century C.E. As R. Johanan was not born till the later part of the century, he could hardly have known R. Ishmael personally. Perhaps we should translate above: 'I heard from those who attended (the Synod) at Usha that (those who attended the Sanhedrin there in the previous generation) used to say, etc.'
17. Who do not accept it. Ishmael's view that the rule of hazakah is derived from that of the ox.
18. Jer. XXXII, 44.
19. V. Ibid. 1.
20. V. Ibid. XXXIX, 2. As they will thus not have the use of the fields for more than two years, he warns them to be careful of their title-deeds.