Babylonian Talmud: Tractate Baba Bathra

Folio 38a

Raba strongly questioned this ruling, on the ground that the seller can say, 'What I sell you is [sold in the same way as] garden crocus;¹  pluck up your garden crocus and be off'? — No, said Raba; this is only the case when he is able to plead so expressly.²  Mar Kashisha the son of R. Hisda said to R. Ashi: If the seller did sell him [the tree in the same way as] a plot of garden crocus,³  what was he to do?⁴  — He should have lodged a protest within three years. For should you not say so,⁵  then in the case of the 'mortgage of Sura'⁶  which stipulates that 'on the termination of these [X] years this land shall be given up without payment,' if the mortgagee suppresses the bond and says that he has bought the land, would his plea indeed be valid? Have the Rabbis then made a regulation through which the mortgager is exposed to unfair loss?⁷  The fact is that he should protect himself by lodging a protest. So here also it is incumbent on him to lodge a protest.

MISHNAH. THERE ARE [IN ERETZ YISRAEL] THREE DISTRICTS [WHICH ARE DISTINCT FROM EACH OTHER⁸] IN THE MATTER OF HAZAKAH — JUDEA, TRANSJORDAN, AND GALILEE. THUS, IF THE OWNER IS IN JUDEA AND THE OCCUPIER IN GALILEE, OR THE OWNER IN GALILEE AND THE OCCUPIER IN JUDEA, THE OCCUPATION DOES NOT CONFER HAZAKAH;⁹  IT ONLY DOES SO IF THE OWNER IS IN THE SAME DISTRICT¹⁰  WITH THE OCCUPIER. R. JUDAH SAYS: THE PERIOD IN WHICH OCCUPATION CONFERS HAZAKAH WAS FIXED AT THREE YEARS ONLY IN ORDER THAT IT MIGHT BE POSSIBLE WHEN A MAN IS IN SPAIN¹¹  FOR ANOTHER TO OCCUPY HIS FIELD ONE YEAR, AND FOR INFORMATION TO BE BROUGHT TO HIM [WHICH WILL ALSO TAKE] A YEAR, AND FOR HIM TO RETURN HIMSELF, [WHICH WILL TAKE] A THIRD YEAR.¹²

GEMARA. What is the reason of the first Tanna [on which he bases his ruling]?¹³  If he holds that a protest raised by the owner not in the presence of the occupier is a valid protest, then [it should be valid] even [if the owner is] in Judea and [the occupier in] Galilee.¹⁴  If, however, he holds that a protest [raised by the owner] not in the presence of the occupier is not a valid protest, then [it should be equally] invalid even if both are in Judea?¹⁵ — R. Abba b. Memel replied in the name of Rab: The first Tanna is indeed of the opinion that a protest raised [by the owner] not in the presence of the occupier is a valid protest, and our Mishnah was formulated at a time when there were hostilities between Judea and Galilee.¹⁶  Why then are Judea and Galilee particularly specified?¹⁷  — To show us

1. Which it was customary to uproot after it had ripened, the soil being left to the owner of the field.
2. That is to say, if he advances this plea, it is accepted (in default of rebutting evidence), even though he has no document to prove it.
3. I.e., without making any express stipulation.
4. To prevent the purchaser after three years affirming that he bought the soil also and wants to plant another.
5. I.e., that such a step is effective.
6. V. supra p. 159, n. 4'
7. I.e., the danger of losing his land.
8. I.e., form self-contained units, as explained in what follows.
9. I.e., the fact of the occupier having had unchallenged possession of the land for three years does not create a presumption that he is the owner. The reason is discussed in the Gemara.
10. I.e., Judea, Transjordan and Galilee.
11. Spain is taken as being the furthest point to which an owner of land in Eretz Yisrael was likely to go.
12. R. Judah therefore does not hold that the period of three years was fixed because after that a man is not careful of his title-deed (V. supra 29a), nor does he regard Judea, Transjordan and Galilee as self-contained units in the matter of hazakah.
13. That the three districts are independent.
14. Because someone is sure to convey information of it to the occupier, and he will be careful of his title-deed if he has one.
15. But in different towns.
16. Hence caravans did not travel between them and it was difficult to know in one what was going on in the other.
17. l.e., why should not the Tanna have formulated his ruling thus: 'All districts of Eretz Yisrael are independent units in regard to hazakah when they are not on peaceful terms.'

that Judea and Galilee are normally reckoned to be on hostile terms.¹

Rab Judah said: Rab laid down that occupation of the property of a fugitive does not confer hazakah.²  When I related this to Samuel,³  he said to me: Must then the owner [in ordinary cases] make his protest in the presence of the occupier?⁴  [According to Samuel then,] what did Rab mean to teach us in this ruling? That [as a rule] a protest raised not in the occupier's presence is invalid?⁵  But [how can this be,] seeing that Rab has laid down⁶  that a protest raised not in the occupier's presence is valid? — Rab [in making this latter statement] was giving the reason of the Tanna of our Mishnah, but he did not himself concur.

There is another version [of this passage, as follows:] Rab Judah said: Rab laid down that occupation of the property of a fugitive does confer hazakah. When I related this to Samuel, he said: Of course! Do you imagine the protest has to be made in the presence of the occupier? What then does Rab desire to indicate [by this ruling?] That a protest made not in the occupier's presence is valid? But surely this has been laid down by Rab already? — The truth is that this is what Rab wishes to indicate, that even if the owner made his protest in the presence of two men who are not able to report it to the occupier,⁷  it is still a valid protest.⁸  For so R. Anan reported: 'It has been expressly stated to me by Mar Samuel that if the protest is made in the presence of two men who are able to report it to the occupier, it is valid, but if of two men who are not able to report it to the occupier, it is not valid. And Rab?⁹  — [He goes on the principle that] "your friend has a friend and your friend's friend has a friend".'¹⁰

Raba said: The law is that it is not permissible to take possession of the property of a fugitive,¹¹  and a protest made not in the presence of the occupier is valid. Are not these two rulings contradictory? — No; the latter relates to a fugitive on account of debt, the former to a fugitive on account of manslaughter.¹²

What constitutes a protest? — R. Zebid says: If the owner says, 'So-and-so is a robber,' this is no protest.¹³  If, however, he says: 'So-and-so is a robber who has seized my land wrongfully

1. I.e., that communication between them is difficult.
2. Even if the owner makes no protest.
3. Rab Judah was first a pupil of Rab and when Rab died he studied under Samuel.
4. Which the fugitive cannot do.
5. This being the reason why, in the case of the fugitive, the unchallenged occupation does not confer a title of ownership.
6. V. supra.
7. E.g., because they are about to go abroad.
8. And Samuel did not think of this; hence his surprise at Rab's saying something which appeared self-evident.
9. What is his view?
10. And therefore if the two persons in whose presence the protest is made are not themselves able to report it, the protest is still valid, as in any case it will eventually reach the ears of the occupier.
11. Presumably because a protest made not in the presence of the occupier is not valid.
12. A fugitive on account of debt does not mind his whereabouts being known, so he will not refrain from making a protest, but a fugitive on account of manslaughter will not do this, for fear lest he may be discovered.
13. Because this constitutes no warning to the occupier to take care of his deed of purchase.