Babylonian Talmud: Tractate Baba Bathra

Folio 39a

and tomorrow I am going to sue him,' this is a protest.¹  Suppose the owner says to those to whom he makes the protest, 'Do not tell the occupier,' is this a valid protest? — R. Zebid says, [It is not, because] he has distinctly told them not to tell. R. Papa, however, says [that it is, because] what he meant was, 'Do not tell the occupier, but you can tell others,' and 'your friend has a friend and your friend's friend has a friend.' If the men to whom he made the protest say, 'We will not tell the occupier,' [is it a protest?]-R. Zebid says [that it is not, because] they distinctly say, 'We will not tell him' — R. Papa, however, says that it is, because what they meant was,'We will not tell the occupier himself but we will tell others,' and 'your friend has a friend and your friend's friend has a friend.' If he said to them, 'Don't say a word about this,' [is it a protest?] — R. Zebid says [it is not, because] he has told them not to say a word. If they say to him, 'We will not say a word about it,' [even] R. Papa says [it is not a protest, because] they tell him distinctly, 'We are not going to say a word.' R. Huna the son of R. Joshua, however, says that [it is a protest, because] if a man has no responsibility in regard to a certain statement, he will blurt it out without thinking.²

Raba said in the name of R. Nahman: A protest made not in the presence of the occupier is a valid protest — Raba questioned³  R. Nahman's ruling [on the ground of the following]: R. JUDAH SAYS THAT THE PERIOD IN WHICH OCCUPATION CONFERS HAZAKAH WAS FIXED AT THREE YEARS IN ORDER THAT IT MIGHT BE POSSIBLE FOR A MAN TO BE IN SPAIN DURING THE FIRST YEAR IN WHICH HIS FIELD IS OCCUPIED AND FOR INFORMATION TO BE BROUGHT TO HIM IN THE SECOND YEAR AND FOR HIM TO RETURN HIMSELF IN THE THIRD YEAR. Now if we are to assume, [he said], that a protest made not in the presence of the occupier is a valid protest, why should the man have to come back? Let him stay where he is and make the protest! — There [R. Judah is merely suggesting] as a piece of good advice that he should return and take possession of his land and the produce.⁴  I From the fact that Raba questioned R. Nahman's ruling, it would seem that he was not of opinion that a protest made not in the occupier's presence is valid. [How can this be,] seeing that Raba has laid down that a protest made not in the presence of the occupier is valid?⁵  — He adopted this view after he had learnt it from R. Nahman.

R. Jose b. Hanina once came across the disciples of R. Johanan, and inquired of them whether R. Johanan had ever laid down the number of persons in whose presence a protest must be made. R. Hiyya b. Abba [replied] that R. Johanan had laid down that a protest must be made in the presence of two persons; R. Abbahu, that it must be made in the presence of three persons. May we say that the difference in principle [between R. Hiyya b. Abba and R. Abbahu] is in regard to the dictum of Rabbah son of R. Huna, for Rabbah son of R. Huna said that disparaging remarks made in the presence of three persons

1. According to R. Han. the warning lies in the threat to go to law; according to Rashb. in the use of the term 'my land'.
2. And therefore the chances are that they will after all tell.
3. In spite of the fact that he reported it himself.
4. Because the longer he delays the more trouble he will have to recover the produce; the protest, however, is valid if made abroad.
5. V. supra p. 168.

do not constitute slander?¹  The one who says that a protest can be made in the presence of two persons [R. Hiyya bar Abba], we would say, does not accept the dictum of Rabbah son of R. Huna,²  while the one who says that three persons must be present [R. Abbahu] does accept it? — No; both accept the dictum of Rabbah son of R. Huna, and the essential difference between them here is this: the one who says that the protest may be made in the presence of two persons is of opinion that a protest made not in the presence of the occupier is no protest,³  whereas the one who says that three persons must be present is of opinion that a protest made not in the presence of the occupier is valid.⁴  Alternatively we may reply that both [R. Hiyya b. Abba and R. Abbahu] agree that a protest made not in the presence of the occupier is valid, and the point on which they join issue here is this, that the one who says the protest may be made in the presence of two persons considers that [what] we require [them for is] to provide evidence,⁵  while the one who holds that three persons must be present considers that [what] we require [them for is to ensure] that the matter should be bruited abroad.

Giddal b. Minyumi had occasion to make a protest [against the occupation of some land of his]. He found R. Huna and Hiyya b. Rab and R. Hilkiah b. Tobi sitting together and made his protest in their presence. A year later he again came to make a protest. They said to him: This is not necessary. Rab has laid down distinctly that if the owner makes a protest in the first year he need not repeat it.⁶  (According to another report, Hiyya b. Rab said to him: Since the owner made a protest in the first year he need not repeat it.) Resh Lakish said in the name of Bar Kappara: It is necessary to repeat the protest every three years. R. Johanan found this dictum very surprising. Can a robber, he said, obtain a title from continued occupation?⁷  A robber, do you say? What you should rather say is 'Can one who is like a robber⁸  obtain a title from continued occupation?' Raba said: The law is that the owner must make a protest at the end of every three years.

Bar Kappara taught: If an owner protests [against the occupation of his land] and [after an interval] repeats his protest a second and a third time,⁹  if he [always] adheres to his first plea the occupation confers no title, but if he does not then it does confer a title.¹⁰

Raba said in the name of R. Nahman: A protest [against the occupation of property] must be made in the presence of two persons

1. Lit., 'evil tongue'. For the essence of the 'evil tongue' is that the remarks made should not come to the ears of the person disparaged, but if they are made in the presence of three persons they are pretty sure to come to his knowledge.
2. I.e., he holds that even if made in the presence of only two persons a statement will come to the ears of the person concerned; hence it is sufficient for the owner to make his protest in the presence of two persons.
3. Hence the question of publicity does not arise, and the two persons are needed only to act as witnesses that the protest has been made by the owner to the occupier.
4. Hence three persons most be present at such a protest to ensure that sufficient publicity is given to it.
5. That the protest has been duly made within the specified three years.
6. Within the next three years, v. infra.
7. If the rightful owner neglects to protest within a given time.
8. Since he pleads that he had a deed of purchase and lost it, he can hardly be put on the same footing as a robber. On the other hand, since he cannot produce the deed and continues to occupy the land after the former owner's protest, he is like a robber.
9. Lit., 'repeats his protest and repeats his protest'.
10. E.g., if he says on the first occasion 'so-and-so is robbing me of my field,' and on the second occasion 'so-and-so has only taken this field from me on mortgage, not purchased it,' this being a virtual admission that his first plea was false. Hence neither plea is accepted, and the occupier is entitled to the land.