Babylonian Talmud: Tractate Baba Bathra

Folio 41a

What is the rule where the donor does not specify [the place of writing]?¹  — Rabina said that we take no account of this;²  R. Ashi said that we do take account of it.³  The law is that we do take account of it.

MISHNAH. THE FACT OF POSSESSION⁴  IF NOT REINFORCED BY SOME PLEA OF RIGHT DOES NOT OF ITSELF CONFER A TITLE OF OWNERSHIP. FOR INSTANCE, IF A MAN SAYS TO ANOTHER, WHAT ARE YOU DOING ON MY PROPERTY, AND HE REPLIES, NO-ONE HAS EVER SAID A WORD TO ME ABOUT IT, HIS OCCUPATION CONFERS NO TITLE. IF, HOWEVER, HE PLEADS, I AM HERE BECAUSE YOU SOLD THE LAND TO ME, BECAUSE YOU GAVE IT TO ME, BECAUSE YOUR FATHER SOLD IT TO ME, BECAUSE YOUR FATHER GAVE IT TO ME, THEN HIS OCCUPATION CONFERS A TITLE OF OWNERSHIP. AN OCCUPIER BY VIRTUE OF INHERITANCE⁵  DOES NOT REQUIRE ANY SUCH PLEA.⁶

GEMARA. [THE FACT OF POSSESSION IF NOT REINFORCED BY SOME PLEA OF RIGHT DOES NOT OF ITSELF CONFER A TITLE OF OWNERSHIP.] Surely this is self-evident? — [The reason for stating it is this] We might say: The land really was sold to this man, and he had a deed and has lost it, and the reason why he pleads as he does is because he thinks that if he says he bought the land he will be asked to produce the deed of sale. Let the Beth din then suggest to him that perhaps he had a deed and lost it, on the principle of Open thy mouth for the dumb.⁷  The Mishnah therefore tells us [that this is not so].⁸

(Mnemonic 'ANaB.⁹)

R.'Anan's¹⁰  field was flooded through the bursting of a dam.¹¹  He afterwards went and restored the fence, [which, however, he built] on land belonging to his neighbour. The latter [on discovering this] sued him before R. Nahman. He said to him: 'You must restore the land.' 'But,' he rejoined, 'I have become the owner of it by occupation?'¹²  — Said R. Nahman to him: 'On whose authority [do you rely]? On that of R. Ishmael and R. Judah, who both lay down that [if the occupation takes place] in presence of the owner [without protest], it constitutes a title at once. The law however, is not in accordance with their ruling.'¹³  R. 'Anan thereupon said: 'But this man has tacitly waived his right because he came and helped me to build the fence?' R. Nahman replied: 'This was a waiver given in error. You yourself, had you known that the land was his, would not have built the fence on it. Just as you did not know, so he also did not know.'

R. Kahana's land was flooded through the bursting of a dam. He afterwards went and built a new fence on land which did not belong to him.

1. I.e., whether the deed of gift was to be written in a secret or a public place. This question was left open above.
2. I.e., we do not suppose that the donor meant it to be written secretly, and therefore it is enforceable.
3. And therefore the deed is not enforceable. if however, the gift has been made it cannot be recovered.
4. For three years in the case of land, etc., immediate in the case of movables.
5. I.e., one who inherited the land from the previous occupier.
6. Because he cannot be expected to know how his father came by the property.
7. Prov. XXXI, 8.
8. And though the plea is valid if put forward by him, we do not suggest it to him.
9. [The meaning of this mnemonic is obscure. V. Brull, J. Die Mnemotechnik des Talmuds, 40, and D.S. a.l. for attempted interpretations.]
10. Var. lec. 'Hanan'.
11. And the boundary marks were obliterated.
12. Because the owner has allowed me to remain in possession of it a certain time without protest.
13. But that of the Rabbis, who say that three years occupation is required to confer a title.

He came before Rab Judah, and the other went and brought two witnesses, one of whom asserted that R. Kahana had encroached to the extent of two rows¹  and the other to the extent of three rows. Rab Judah said to R. Kahana: Go and compensate the man for two out of the three rows. Said R. Kahana: Who is your authority [for this ruling]?²  [He replied:] Rabbi Simeon b. Eleazar, as it has been taught: 'Rabbi Simeon b. Eleazar states that Beth Shammai and Beth Hillel agreed that if there are two sets of witnesses [to a loan], one of which says [that the loan was for] one maneh and the other [for] two manehs, [their evidence is accepted in respect of the one maneh] because one maneh is included in two. Where they differed was in the case where there is one pair [of witnesses of whom] one says that [the loan was for] a maneh and the other [that it was for] two manehs. In that case Beth Shammai held that their evidence is at variance, whereas Beth Hillel held that two manehs include one.' R. Kahana rejoined: But I can bring you a letter from the West [Eretz Yisrael] to show that the halachah does not follow R. Simeon. To which Rab Judah replied: [Meanwhile my decision can stand] till you bring it.

A certain man lived four years in an upper room in Kashta. One day the owner of the room came and found him there, and said to him: What are you doing in this house? He replied: I bought it from so-and-so who bought it from you. He summoned him before R. Hiyya, who said to the occupier: If you can bring evidence to show that the man from whom you bought the house lived in it even for a single day, I will declare you the owner, but otherwise not. Rab said afterwards [to his disciples]: I was sitting in front of my uncle³  and I said to him, 'Will not a man sometimes buy and sell [a thing] on [the same] night?'⁴  I noted, however, his agreement in the case where the occupier said, 'The man from whom I bought it bought it from you in my presence;' then his word is accepted, because had he wished he [could have put forward a still stronger plea] by saying, I myself bought it from you. Raba said: The ruling of R. Hiyya is more likely to be right, because the Mishnah says [here], AN OCCUPIER BY VIRTUE OF INHERITANCE DOES NOT REQUIRE ANY PLEA. It is a plea that he does not require, but he does require to bring a proof [that the person from whom he inherited the land occupied it]!⁵  — Possibly, however, the Mishnah means that he requires neither plea nor proof.⁶  Or, if you like, I can say that a purchaser is [on a] different [footing from an heir], because he is not likely to have thrown away money for nothing.⁷

The question was asked [in the Beth Hamidrash:] If the previous owner was seen [on the property],⁸  what [are we to infer]?⁹  — Abaye replied: That is just what we mean.¹⁰  Raba, [however], said: It is quite possible for a man to measure out his field and not sell it after all.

Three [successive] purchasers of the same field can count as one.¹¹  Rab said: [This is only] if all the purchases were effected by deed.¹²  Does this indicate that in Rab's opinion a sale by deed becomes generally known but a sale in the presence of witnesses does not become generally known? Surely Rab [himself] has laid down that if a man sells a field [with a guarantee]¹³  in the presence of witnesses, the purchaser may recover even from property on which there is a lien?¹⁴  — In that case the purchasers

1. Or 'beds'.
2. That where two witnesses partly agree and partly differ you may accept what is common ground between them.
3. R. Hiyya.
4. And therefore why do you demand proof that the man from whom he bought it lived there.
5. And the same rule should apply to one who occupies in virtue of purchase from a third party.
6. And therefore Rab may be right.
7. Viz., to the third party from whom he bought it, unless he had made sure that he had bought it from the original owner. Hence even if we say that an heir requires to bring proof that his father occupied the land, the purchaser from a third party is not required to bring similar proof.
8. Taking its measurements.
9. Does this constitute proof that he sold it or not?
10. I.e., the kind of thing that constitutes 'proof'.
11. If A occupies a field one year and then sells it to B, who occupies it a second year and then sells it to C, who occupies it a third year, C at the end of the third year can claim ownership in virtue of the three years' occupation.
12. I.e., B's purchase from A and C's from B. The reason is that such purchases are likely to become known to the original owner, but otherwise they are not likely to become known to him and he may think that the successive occupiers have no intention of claiming the land as their own and therefore does not trouble to protest.
13. That if the property is claimed by a third party and has to be surrendered to him, he will allow the purchaser to recover the purchase price from any part of his remaining property.
14. I.e., even from property which the vendor has subsequently mortgaged or sold, the presumption being that the persons who have bought this property from him or taken it on mortgage were aware that there was a lien on his property. This would show that a sale in the presence of witnesses does become known.