Babylonian Talmud: Tractate Baba Bathra

Folio 29a

For if you hold otherwise, what do you make of the verse, Build ye houses and dwell in them, and plant gardens and eat the fruit of them?¹  That obviously is a piece of good advice,²  and so here too; the proof is that it says in the same connection, and put them in an earthen vessel that they may continue many days!³  — No, said Raba, [the reason according to the Rabbis is this]: For the first year a man will forgo [his rights to the produce], for two years a man will forgo [his rights], but for a third year no man will forgo his rights. Said Abaye to him: In that case, when the land is restored [to the original owner on claiming it after two years], it should be restored without the produce;⁴  why then has R. Nahman laid down that both the property and the produce have to be restored?⁵  — Raba therefore correcting himself said: For the first year a man is not particular about another man usurping his field,⁶  nor is he particular for the second year, but the third year he is particular. Said Abaye to him: If that is so, what of the people of Bar Eliashib who object even to anyone crossing their field? In their case should not occupation confer presumptive right immediately [if they do not object]? And if you say that that if so, then you introduce a kind of sliding scale?⁷  — Raba therefore [again corrected himself and] said: For one year a man takes care of his title-deed, and so for two, three years does he take care; beyond that he does not take care. Said Abaye to him: If that is so, then [it would follow that] a protest made not in the presence of the holder is no protest, since the latter can say, 'If you had protested to me personally, I should have taken more care of my title-deed'? — The other can retort, '[You must have known of my protest because] your friend has a friend and your friend's friend has a friend.'⁸

R. Huna said: The three years mentioned in the Mishnah only count if the occupier took the crops in all three successively. What does this statement tell us? Does not the Mishnah say that PRESUMPTIVE TITLE IS CONFERRED BY THREE YEARS [POSSESSION] FROM DAY TO DAY? — You might think that the expression FROM DAY TO DAY was only meant to exclude short years,⁹  and that interrupted years were permissible;¹⁰  now I know that this is not so. R. Hama said: R. Huna admits [that interrupted years are also sufficient] in places where it is customary to leave fields fallow [in alternate years]. Is not this self-evident?¹¹  — It required to be stated in view of the case where some owners leave their fields fallow and some do not, this man being one of those who do. You might think that in this case the claimant can say to him, 'If the field is yours, you ought to have sown it.'¹²  Now I know that this is not so, because the other can answer, 'I cannot keep watch over a single field in a whole valley';¹³  or he can also answer, 'I prefer this way, because it makes the field more productive.'

We learnt: [PRESUMPTIVE TITLE TO HOUSES] IS CONFERRED BY THREE YEARS [POSSESSION]. [Why should this be, seeing that] in the case of houses we can know if a man lives there by day but not if he lives there by night?¹⁴  Abaye answered: Who is it that testifies to [a man having lived in] a house? — The neighbours; and the neighbours know whether he has lived in it by night as well as by day. Raba answered: [The way it can be known] is if, for instance, two persons come forward and say, We hired the house from him and lived in it day and night for three years. Said R. Yemar to R. Ashi: But these men are interested witnesses,¹⁵  because if they do not make this assertion we shall tell them to go and pay the rent to the claimant?¹⁶ — R. Ashi replied: Only incompetent judges would proceed thus.¹⁷  [No.] The case Raba has in mind is where they come with the rent and inquire to whom they are to give it.

Mar Zutra said: If the claimant demands that two witnesses should be produced to testify that the occupier lived in the house three years day and night, his demand is valid.

1. Ibid. XXIX, 5.
2. And not a rule of law.
3. Ibid. XXXII, 24. This obviously is a piece of good advice merely, and thus the question remains, whence do the Rabbis derive the rule that three years' possession confers presumptive right?
4. Because the original owner waived his right for the time being.
5. v. infra p. 155.
6. Though he does not waive his right to the produce.
7. The period required to confer hazakah will vary with the degree to which the original owners are particular.
8. V. supra p. 140.
9. E.g. six months in the first year and six in the last.
10. So long as three full years were made up altogether.
11. That in such places there must be three full years of occupation in all, but not necessarily at one stretch.
12. Even though the fields all round are left fallow.
13. Because he would have to bear singly the whole expense of the watchman.
14. And according to R. Huna, the occupation must be continuous.
15. And therefore their evidence cannot be accepted.
16. To whom but for their evidence we should assign the house.
17. I.e., accept their evidence, if they have already paid rent to the defendant.

[And though in this case the court does not suggest the plea] Mar Zutra admits that where the claimant is an itinerant peddler,¹  even if he does not raise the plea, the court raises it for him.²  R. Huna also admits that [though normally the three years must be continuous], in the case of the shops of Mahuza³  [this is not necessary], because they are only used by day and not by night.

Rami b. Hama and R. 'Ukba b. Hama bought a maidservant in partnership, the arrangement being that one should have her services during the first, third and fifth years, and the other during the second, fourth and sixth. Their title to her was contested, and the case came before Raba. He said to the brothers: Why did you make this arrangement? So that neither of you should obtain a presumptive right against the other [was it not]?⁴  Just as you have no presumptive right against each other, so you have no presumptive right against outsiders. This ruling, however, only holds good if there was no written agreement between them to share [the maidservant]: if there was such an agreement, it would become bruited abroad.⁵

Raba said: If the occupier has utilised⁶  the whole field except the space of the sowing of a quarter of a kab, he acquires ownership [after three years] of the whole field with the exception of that space. Said R. Huna the son of R. Joshua: This only applies [if the space so left over] was suitable for sowing; but if it was not suitable for sowing, it is acquired along with the rest of the field. To this R. Bibi b. Abaye strongly objected, saying: If that is so, how does a man acquire a piece of rock [through occupation]? Is it not by stationing his animals there and laying out his crops there?⁷  So here too, he should have stationed his animals there and laid out his crops there.

A certain man said to another, 'What right have you⁸  in this house?' He replied, 'I bought it from you, and I have had the use of it for a period of hazakah.'⁹  To which the other replied, 'But I have been living in an inner room [and therefore did not protest].'¹⁰  The case was brought before R. Nahman, who said to the defendant: You must prove that you have had constant use of the house¹¹  [for three years without the claimant]. Said Raba to him: Is this a right decision? Is not the onus probandi in money cases always on the claimant?

A contradiction was pointed out between Raba's ruling here and his ruling in another place, and between R. Nahman's ruling here and his ruling in another place. For a certain man

1. V. supra p. 109.
2. Because as such people are away for long periods, it is easy for other persons to occupy their houses without being noticed.
3. An important commercial centre in Babylonia.
4. By having three years' undisturbed possession.
5. And therefore it was incumbent on the claimant to lodge a protest before three years had passed, and since he did not do so, a presumptive right has been established.
6. Lit., 'eaten'.
7. I.e., by making some use of the ground to show that it is his.
8. Lit., 'What do you want?'
9. I.e., three years. And therefore it is mine, although I cannot produce any record of the purchase.
10. Because to a certain extent I had the use of your room, being able to pass in and out, and therefore it has not belonged to you for three years.
11. Lit., 'prove your eating'.