have only themselves to blame.1
But did Rab indeed give this ruling? Have we not learnt [in a Mishnah]: If a man lends money to another on a bond, he may recover his debt even from property on which there is a lien2 [supposing there are no free assets]; if, however, the loan was made only in the presence of witnesses, he may only recover from property on which there is no lien? And should you answer that Rab is himself [considered] a Tanna and may dispute [the ruling of a Mishnah], this can hardly be, since Rab and Samuel have both laid down that a loan [contracted] by word of mouth3 cannot be recovered either from the heirs [of the debtor] or from those who have [subsequently] purchased [from him].4 — Are you arguing from a loan to a sale? When a man borrows money, he does so as secretly as possible, in order that his property may not depreciate.5 If he sells land, however, he does so as publicly as possible, in order that people may know about it.6
Our Rabbis taught: If the father7 occupies8 [the field] a year and the son two years, or the father two years and the son one year, or the father one year, the son one year and the purchaser9 one year, such occupation confers a title of ownership. Now this would indicate, would it not, that when a man purchases [a piece of land] it becomes generally known?10 But this would seem to conflict [with the following]: If a man occupies a field in the lifetime of the father11 one year and two years in the lifetime of the son, or two years in the lifetime of the father and one year in the lifetime of the son, or one year in the lifetime of the father, one year in the lifetime of the son, and one year in the lifetime of the purchaser,12 such occupation confers a title of ownership. Now if you assume that the purchase [of a piece of land] becomes generally known, surely there can be no protest stronger than this, [that the son has sold the land]?13 — R. Papa said: The case of which this passage speaks is where the son sells all his fields without specifying [any one in particular].14
MISHNAH. CRAFTSMEN,15 PARTNERS, METAYERS, AND TRUSTEES HAVE NO HAZAKAH.16 A MAN HAS NO HAZAKAH IN THE PROPERTY OF HIS WIFE NOR HAS A WOMAN HAZAKAH IN THE PROPERTY OF HER HUSBAND. A FATHER HAS NO HAZAKAH IN THE PROPERTY OF HIS SON NOR HAS A SON HAZAKAH IN THE PROPERTY OF HIS FATHER. THESE STATEMENTS APPLY ONLY TO CASES [WHERE OWNERSHIP IS CLAIMED] ON THE GROUND OF POSSESSION. IN THE CASE, HOWEVER, WHERE LAND IS PRESENTED AS A GIFT, OR OF BROTHERS DIVIDING AN INHERITANCE, OR OF ONE WHO SEIZES THE PROPERTY OF A PROSELYTE,17 OWNERSHIP CAN BE CLAIMED AS SOON AS THE FIRST STEP HAS BEEN TAKEN TOWARDS MAKING A DOOR OR A FENCE OR AN OPENING.
Original footnotes renumbered.
- Although the sale of the first property was not generally known, they should have enquired whether there was any lien on the property which they bought subsequently.
- Because anyone who lent the borrower money or bought from him subsequently ought to have known that there was already a prior claim on him.
- I.e., in the presence of witnesses but without a bond.
- Which is equivalent to saying that it cannot be recovered from property on which there is a lien.
- As it will if people know that he is pressed for money.
- And so he may have more offers. Hence there is no contradiction between the two rulings of Rab.
- The man who purchased the field.
- Lit., 'eats'.
- The man who purchases from the son.
- Because otherwise the original owner can say that he did not think that the last occupier intended to claim the land, and therefore did not trouble to make a protest.
- The original owner.
- The man who purchases from the son.
- And if it is not a protest, the reason must be that it does not become generally known.
- As in that case the occupier can plead that he understood that the sale did not include the field in question and therefore did not constitute a protest. But if he specifically sells that field, this constitutes a protest, because the sale is bound to come to the knowledge of the occupier, and the occupation therefore confers no title to ownership.
- To whom articles are taken for repair.
- I.e., the fact of their being in possession of any piece of (movable) property does not in itself constitute any title to ownership, since it is understood that they are left temporarily in possession of property by the rightful owners. V.I. delete 'craftsmen'.
- A proselyte who dies without (Jewish) issue has no heirs, and his property after death falls to the first occupier.
Baba Bathra 42b
GEMARA. Samuel's father1 and Levi learnt [from the Mishnah] that a partner has no hazakah, still less a craftsman.2 Samuel, however, learnt that a craftsman has no hazakah, but a partner has.3 Samuel in this is consistent. For Samuel has said that partners have hazakah as against each other and can give evidence in one another's favour4 and can stand to one another in the relation of paid keepers [of their common property].5 R. Abba pointed out the following contradiction to R. Judah in the [burial] cave of R. Zakkai's field: Did Samuel really say that a partner has hazakah? Has not Samuel said that a partner is regarded as having freedom of entry6 [into the whole of the joint property], and is not this equivalent to saying that a partner has no hazakah [against the other partner]?7 — [He replied:] There is no contradiction. In the one case [Samuel is speaking of a partner] who takes possession of the whole [of the joint field], in the other of one who takes possession of only half of it.8 [To the question which is which,]9 some answer one way and some the other.10 Rabina said: In both cases [Samuel is speaking] of a partner who takes possession of the whole [of the joint field], but still there is no contradiction, because in the one case he speaks of a field which has to be divided [if either partner demands]11 and in the other of a field which has not to be divided [if either partner objects].12
[To revert to] a previous text: 'Samuel said that a partner is regarded as having freedom to work the whole of the joint property.' What does this tell us? That a partner has no hazakah? Why does he not say distinctly that a partner has no hazakah? — R. Nahman said in the name of Rabbah b. Abbuha: [He chooses the other mode of expression] to show that the partner is entitled to a full half of the mature produce13 in a field that is not meant for plantation in the same way as he would be in a field meant for plantation.14
Partners may give evidence in one another's favour.
Original footnotes renumbered.
- Abba b. Abba.
- Because unlike the partner he never had any share in the property. Evidently therefore they omitted the word 'craftsmen' from the Mishnah (Rashb.).
- Because the fact that he has been left in undisturbed possession of the whole of the joint property constitutes a presumption that the other partner has made over to him his share.
- Not being regarded as interested parties even where the matter in dispute is a part of the joint property.
- If some of the joint property is stolen while in possession of A, B can claim from him restitution of his share in the same way as he could claim from someone in whose charge he had placed it for a fee, A's 'fee' being constituted by B's willingness to take charge of it with the same responsibility for a similar period.
- I.e., permission from the other partner to work the whole of the joint field for his own benefit.
- Because this permission naturally does not mean any waiving by the other partner of his title to his share of the property.
- Viz., the better half, and afterwards he maintains that a division has been actually effected and that this half belongs to him.
- I.e., which kind of partner, according to Samuel, has hazakah and which has not.
- Some say that by taking possession of the whole field the partner acquires hazakah, because it is not usual for the other partner to allow this, and that by taking possession of one half, even the better half, he does not acquire hazakah, because one partner will often allow the other to do this several years running. Others say that by taking possession of the whole a partner does not acquire hazakah because it is the custom of joint owners that each should occupy the whole property several years running, but by taking possession of one particular half he does acquire hazakah because the presumption is that had the field not been divided he would not have confined himself to this particular half.
- I.e., a field which allows of four cubits square being assigned to each. Possession of such a field confers hazakah since, as there is room for both, one partner is not likely to allow the other to occupy the whole for several years running.
- I.e., a plot too small to allow of four cubits being assigned to each partner. In this case it would be natural for each partner to work the whole plot several years running, and therefore possession of the whole does not constitute a title of ownership.
- Lit., 'improved value that reaches the shoulders,' or 'improved value that is dealt with by the carriers.' The exact meaning of the expression is obscure; it obviously refers to the improved value of trees as opposed to the improved value of land, but there is a difference of opinion as to whether all fruit trees are included, or only those that need careful tending, like vines. V. Tosaf. s.v. [H]
- If a man plants another man's field without the latter's permission, he is entitled to the whole of the 'mature produce that reaches the shoulders,' but only on condition that the field was meant for plantation and not for sowing. Otherwise he can recover no more than his outlay. If, however, he has the consent of the owner, he takes the whole of the produce in any case. Samuel here tells us that the partner in this respect is on the same footing as the metayer who works the field with the owner's consent.