Babylonian Talmud: Tractate Baba Bathra

Folio 36a

'The non-Jew said to me that he had bought it from you,' his plea is accepted. [But] can it be possible that a plea which would not be accepted if put forward by a non-Jew¹  should be accepted if put forward by a Jew in the name of a non-Jew? Raba therefore corrected himself as follows: If the Jew pleads, 'The non-Jew bought it from you in my presence and sold it to me,' his plea is accepted, because if he had liked he could have brought against him [without fear of contradiction the still stronger plea], 'I myself bought it from you.'

Rab Judah further said:²  If a man takes a knife and a rope and says, 'I am going to gather the fruit from so-and-so's date tree which I have bought from him, 'his statement is accepted, because a man would not ordinarily presume to gather the fruit from a tree which does not belong to him. Rab Judah further said: If a man occupies the strip of another man's field outside of the 'wild animals' fence,'³  this does not constitute a hazakah, because the owner can say, [The reason why I did not protest was because] whatever he sows, the wild animals eat up. Rab Judah further said: If he ate thereof⁴  [only] 'uncircumcised' produce,⁵  this does not count towards the three years of hazakah. It has also been taught to the same effect: If he takes from it only 'uncircumcised' produce, the produce of 'mingled seed',⁶  or the produce of the Sabbatical year,⁷  this does not confer hazakah. R. Joseph said: If he takes from the field immature produce,⁸  this does not confer hazakah.⁹  If, however-added Raba-the field is in the 'neck of Mahuza',¹⁰  this does confer hazakah. R. Nahman said: The occupation of land which is full of cracks does not confer hazakah.¹¹  If the land yields no more than is sown In it,¹²  its occupation does not confer hazakah.¹³  Members of the Exilarch's house do not obtain hazakah through occupation of our fields,¹⁴  nor do we obtain hazakah through occupation of theirs.¹⁵

AND SLAVES etc. Is there then a presumptive title to slaves? Has not Resh Lakish laid down that 'there is no presumptive title to living creatures?¹⁶  — Said Raba: [What Resh Lakish meant is that] there is no presumptive title in regard to them immediately, but there is after three years' possession.¹⁷  Raba further said: If the slave is an infant in a cradle, presumptive right to it is conferred immediately.¹⁸  Surely this is self-evident? — It required to be stated on account of the case where the child has a mother. You might think in that case that there is a chance that the mother brought it into the house where It now is [and left it there]. [Raba therefore] tells us that a mother does not forget her child.

Some goats [went into a field] in Nehardea [and] ate some peeled barley [which they found there]. The owner of the barley went and seized them, and made a heavy claim on the owner of the goats.¹⁹  The father of Samuel said: He can claim up to the value of the goats, because if he likes he can plead that the goats themselves are his by purchase.²⁰  [But surely] Resh Lakish has said that there is no hazakah to living things? Goats are an exception, because they are entrusted to a goatherd.²¹  But they are left to themselves morning and evening?²²  — In Nehardea thieves abound, and the goats are delivered from hand to hand.²³

R. ISHMAEL SAYS, THREE MONTHS etc. May we say that the actual difference [between R. Ishmael²⁴  and R. Akiba²⁵] is in regard to ploughing,²⁶  R. Ishmael holding that ploughing does not help to confer hazakah and R. Akiba that it does? — If this were the case, why should R. Akiba require a month

1. Because, as stated above, the non-Jew can only prove his right by producing the deed of sale.
2. v. supra 33b.
3. In fields adjoining woods it was customary to make a fence a little within the border of the field and to throw seeds on the strip outside, so that the animals from the wood should eat what grew from these and not seek to penetrate within the fence.
4. The field he occupied.
5. 'Orlah; Lev. XIX, 23, 24. When ye come to the land and plant trees for food, ye shall count the food thereof as uncircumcised; three years it shall be as uncircumcised unto you; it shall not be eaten of.
6. Kila'im; v. Lev. XIX, 29; Deut. XXII, 9.
7. 'Orlah and Kila'im are prohibited; the produce of the Sabbatical year was common property. Hence the owner would not trouble to protest in these
8. To feed cattle with.
9. Because by such a proceeding the occupier seemed to show that he was conscious that the field did not belong to him, and therefore the owner would not trouble to protest.
10. A fertile valley in the district of Mahuza where it was customary to do this, because corn was so abundant that it paid to feed cattle with it.
11. Such land being practically barren.
12. Lit., 'if he takes out a kor (of seed) and brings in a kor (of produce).'
13. Because it is not worth the owner's while to protest.
14. Because the ordinary man is afraid to protest against the occupation.
15. Because knowing that they are able to take forcible possession whenever they please, they do not trouble to protest.
16. Lit., 'those kept in the folds', i.e., young animals, because they are liable to stray.
17. And in this respect living things differ from inanimate, possession of which confers presumptive right immediately, on the presumption that 'whatever a man holds is his'.
18. Because the child could not have got into the house by itself; hence the presumption is that it was bought from the previous owner.
19. I.e., he asserted that the goats had eaten barley to a much greater value than their own.
20. I.e., if he asserted that the goats belonged to him, his plea would be valid (in default of rebutting evidence). Hence, in default of further evidence on either side, he can claim compensation up to the value of the goats.
21. And therefore if they are found in another man's property, it is presumed that he has bought them.
22. In the morning when they go by themselves from their owners to the goatherd, and in the evening when they go back by themselves from the goatherd to the owners.
23. I.e., from the owners to the goatherds and vice-versa, and therefore have no chance to stray.
24. Who requires a minimum of eighteen months. V. supra 28a.
25. Who requires a minimum of fourteen months.
26. I.e., if one ploughed the field without sowing.

in the first and third years? Even one day would be enough.¹  — No! Both are agreed that ploughing does not help to confer)hazakah, and the difference between them is whether a full or partially grown crop is required.²  Our Rabbis taught: Ploughing does not help to confer hazakah. Some authorities hold, however, that it does help. Who are 'some authorities'? — R. Hisda said: This is the opinion of R. Aha, as we see from the following: If a man ploughs a field fallow one year and sows it two,³  or [even] ploughs it fallow two years and sows it one, this does not confer hazakah. R. Aha, however, says that it does give him a presumptive right.

R. Bibi inquired of R. Nahman: What is the reason of those authorities who lay down that ploughing does confer hazakah? — [He answered:] A man will not see someone else plough his field and keep quiet. And what is the reason of those who say that ploughed fallow does not confer hazakah? — Because the owner says to himself, 'The more he ploughs the better for me.'⁴  The people of Pum Nahara sent to inquire of R. Nahman b. R. Hisda as follows: Will our master be so good as to instruct us whether ploughed fallow helps to confer hazakah or not? He replied: R. Aha and all the chief authorities of the age hold that ploughed fallow does help to confer hazakah. R. Nahman b. Isaac said: You gain nothing by citing authorities;⁵  for Rab and Samuel in Babylon and R. Ishmael and R. Akiba in Eretz Yisrael held that ploughing does not help to confer presumptive right. The views of R. Ishmael and R. Akiba [on the subject] can be derived from the Mishnah.⁶  Where do we find the view of Rab on the subject? — In the following statement: Rab Judah said in the name of Rab: This⁷  is the view of R. Ishmael and R. Akiba, but the Sages say that the hazakah [of such a field] is conferred only by occupation for three full years.⁸  Now the expression 'full years' is intended to exclude ploughed fallow, is it not?⁹  Where is the view of Samuel on the subject expressed? — In the following statement: Rab Judah said in the name of Samuel: This is the view of R. Ishmael and R. Akiba, but the Sages say that hazakah is not obtained until the occupier- has gathered in three crops of dates and culled three vintages and plucked three crops of olives. Where does the difference arise between Rab and Samuel? — The difference arises In the case of a young date tree.¹⁰

R. ISHMAEL SAID: THIS APPLIES ONLY TO A CORNFIELD etc. Abaye said: On the strength of R. Ishmael's ruling,¹¹  we may attribute the following opinion to the Rabbis.¹²  Suppose a man has thirty trees in a field planted ten to the beth se'ah,¹³  then if he takes the produce of ten in one year, ten in the next, and ten in the third year, this constitutes hazakah.¹⁴

1. Since a field can be ploughed in one day.
2. R. Ishmael requires a full crop, which takes at least three months to grow, and R. Akiba requires only a partially grown crop, for which one month is sufficient.
3. I.e., the first and the third year.
4. Lit., 'Let him only put every tooth of the plough into the ground,' i.e., so that he shall find it better prepared when he comes to it.
5. Lit., 'Is it an advantage (to you) to reckon up authorities?'
6. Where both lay down that a certain amount of cropping must be done in each of the three years.
7. That the period of hazakah for a non-irrigated field is not three full years but either eighteen months or fourteen months, in either case three crops being necessary.
8. Lit., 'from day to day'.
9. Because if the mere ploughing confers hazakah, one day in the year is sufficient. As Tosaf. points out, this reasoning conflicts with the statement made above, that the reason why the Rabbis require three full years is because up to that time a man is careful of his title-deeds.
10. Which produces three crops in less than three years. According to Rab, three croppings of such a tree would not confer hazakah, according to Samuel they would. R. Han., however, interprets the text to mean 'a date tree which casts its fruit,' and which therefore is not cropped three times even in three years. (V. Rashb.)
11. Viz., that the gathering in of one kind of crop is equivalent to occupation for a year.
12. The Rabbis differ from R. Ishmael only in requiring three years where he requires one, but they would agree with him as to what constitutes a crop. Hence we may attribute to them the ruling which follows.
13. 50 cubits square. The reason why ten is taken is because if there are more than ten to the beth se'ah, this constitutes a 'wood', and to plant a field so thickly is not the ordinary way of occupying it. If again there are less, the field is not occupied properly. Cf supra 26b
14. I.e., though the owner gathered grapes in each set only in one of the three years, he was reckoned as occupying the whole of the field, and so with the other two crops.