Bava Batra 41
סְתָמָא מַאי? רָבִינָא אָמַר: לָא חָיְישִׁינַן, רַב אָשֵׁי אָמַר: חָיְישִׁינַן. וְהִלְכְתָא: חָיְישִׁינַן:
What is the status of a document detailing a gift that is without specification as to whether the giver desired that it be publicized? Ravina says: We are not concerned that it may be a concealed gift, and Rav Ashi says: We are concerned. And the halakha is that we are concerned.
מַתְנִי׳ כׇּל חֲזָקָה שֶׁאֵין עִמָּהּ טַעֲנָה, אֵינָהּ חֲזָקָה. כֵּיצַד? אָמַר לוֹ: ״מָה אַתָּה עוֹשֶׂה בְּתוֹךְ שֶׁלִּי?״ וְהוּא אָמַר לוֹ: ״שֶׁלֹּא אָמַר לִי אָדָם דָּבָר מֵעוֹלָם״ – אֵינָהּ חֲזָקָה.
MISHNA: Any possession that is not accompanied by a claim explaining how the possessor became the owner is not sufficient to establish the presumption of ownership. How so? If the prior owner said to the possessor: What are you doing in my land? And the possessor said to him in response: I am in possession of the land because no person ever said anything to me about my being here, i.e., he states no valid claim as to why he would be the owner of the land, his mere use is not sufficient to establish the presumption of ownership.
״שֶׁמָּכַרְתָּ לִי״; ״שֶׁנָּתַתָּ לִי בְּמַתָּנָה״; ״אָבִיךָ מְכָרָה לִי״; ״אָבִיךָ נְתָנָהּ לִי בְּמַתָּנָה״ – הֲרֵי זוֹ חֲזָקָה. וְהַבָּא מִשּׁוּם יְרוּשָּׁה – אֵינוֹ צָרִיךְ טַעֲנָה.
But if the possessor claimed: I am in possession of the land because you sold it to me, or: Because you gave it to me as a gift, or: Because your father sold it to me, or: Because your father gave it to me as a gift, these are valid claims to ownership. In these cases, his possession is sufficient to establish the presumption of ownership. And one who comes to claim the land based on inheritance does not need a claim explaining why his ancestors had a right to the land.
גְּמָ׳ פְּשִׁיטָא!
GEMARA: The Gemara asks: Why does the mishna need to say this? Isn’t it obvious that one cannot establish the presumption of ownership absent a claim of ownership?
מַהוּ דְּתֵימָא: הַאי גַּבְרָא – מִיזְבָּן זְבִנָה לֵיהּ הַאי אַרְעָא, וּשְׁטָרָא הֲוָה לֵיהּ וְאִירְכַס; וְהַאי דְּקָאָמַר הָכִי – סָבַר: אִי אָמֵינָא מִיזְבָּן זְבִנָה לִי הַאי אַרְעָא, אָמְרִי לִי: אַחְוִי שְׁטָרָךְ; הִלְכָּךְ לֵימָא לֵיהּ אֲנַן: דִּלְמָא שְׁטָרָא הֲוָה לָךְ וְאִירְכַס, כְּגוֹן זֶה – ״פְּתַח פִּיךָ לָאִלֵּם״ הוּא; קָא מַשְׁמַע לַן.
The Gemara answers: It is necessary for the mishna to state this, lest you say: That man had actually purchased this land that he possessed, and he had a bill of sale, but it was lost. And the reason that he said that he is in possession of the land because no person ever said anything to him, is that he thought: If I say that the prior owner sold me this land, the court will say to me: Show us your bill of sale. Therefore, being that this may be the case, let us say to him: Perhaps you had a bill of sale and it was lost. In a case such as this, one would think that it is a situation where the court should apply the verse: “Open your mouth for the mute” (Proverbs 31:8), meaning the court should advise a litigant of his possible claims, because perhaps he does not state them out of ignorance. Therefore, the mishna teaches us that the court does not advance this claim on his behalf, and if he does not make the claim of his own volition, he does not establish the presumption of ownership.
(עֵנָב סִימָן)
§ The Gemara presents a mnemonic for the discussion that follows: Ayin, nun, bet.
רַב עָנָן שְׁקַל בִּידְקָא בְּאַרְעֵיהּ. אֲזַל הַדַּר גּוּדָא בְּאַרְעֵיהּ דְּחַבְרֵיהּ. אֲתָא לְקַמֵּיהּ דְּרַב נַחְמָן, אֲמַר לֵיהּ: זִיל הַדַּר.
The Gemara tells of a related incident: A torrent [bideka] of water swept through Rav Anan’s land, removing the wall which marked the boundary between his land and that of his neighbor. Rav Anan went back and rebuilt the wall, inadvertently placing it in his neighbor’s land. Rav Anan came before Rav Naḥman to ask him what he should do about it. Rav Naḥman said to him: Go return the boundary to its prior position.
וְהָא אַחְזֵיקִי לִי! אֲמַר לֵיהּ: כְּמַאן – כְּרַבִּי יְהוּדָה וְרַבִּי יִשְׁמָעֵאל, דְּאָמְרִי: כֹּל בְּפָנָיו – לְאַלְתַּר הָוֵי חֲזָקָה? לֵית הִלְכְתָא כְּווֹתַיְיהוּ.
Rav Anan replied: Why should I return the boundary? But didn’t I already establish the presumption of ownership of this land? Rav Naḥman said to him: In accordance with whose opinion are you claiming a right to the land? Is it in accordance with the opinion of Rabbi Yehuda and Rabbi Yishmael, who say: Any taking of possession that is done in the presence of the prior owner is sufficient to establish the presumption of ownership immediately? If so, your claim is not accepted since the halakha is not in accordance with their opinion.
אֲמַר לֵיהּ: וְהָא אַחֵיל – דַּאֲתָא וְסַיַּיע בְּגוּדָא בַּהֲדַאי! אֲמַר לֵיהּ: מְחִילָה בְּטָעוּת הִיא. אַתְּ גּוּפָךְ – אִי הֲוָה יָדְעַתְּ לָא עֲבַדְתְּ; כִּי הֵיכִי דְּאַתְּ לָא הֲוָה יָדְעַתְּ, הוּא נָמֵי לָא הֲוָה יָדַע.
Rav Anan said to Rav Naḥman: But didn’t the neighbor waive his ownership of this land, as he came and assisted in the building of the wall with me? Rav Naḥman said to Rav Anan: It is an erroneous waiving, since you yourself would not have placed the wall there if you had known that it was the wrong location for it. Just as you did not know that you were building it in the wrong location, so too, he did not know. Therefore, it is reasonable to assume that he did not knowingly waive his ownership of his property.
רַב כָּהֲנָא שְׁקַל בִּידְקָא בְּאַרְעֵיהּ. אֲזַל הַדַּר גּוּדָא בְּאַרְעָא דְּלָא דִּידֵיהּ.
The Gemara relates a similar incident: A torrent of water swept through Rav Kahana’s field, removing the wall that marked the boundary between his land and that of his neighbor. Rav Kahana went back and rebuilt the wall, inadvertently placing it in land that was not his.
אֲתָא לְקַמֵּיהּ דְּרַב יְהוּדָה. אָזֵיל אַיְיתַי תְּרֵי סָהֲדֵי, חַד אָמַר: תַּרְתֵּי אוּצְיָיתָא עָאל, וְחַד אָמַר: תְּלָת אוּצְיָיתָא עָאל. אֲמַר לֵיהּ: זִיל שַׁלֵּים תַּרְתֵּי מִגּוֹ תְּלָת.
Rav Kahana came before Rav Yehuda. Rav Kahana’s neighbor went and brought two witnesses. One said: Rav Kahana entered two rows into his neighbor’s land, and one said: Rav Kahana entered three rows into his neighbor’s land. Rav Yehuda said to Rav Kahana: Go and pay two out of the three that your neighbor is claiming by moving the wall two rows into your property.
אֲמַר לֵיהּ: כְּמַאן? כְּרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר – דְּתַנְיָא, אָמַר רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר: לֹא נֶחְלְקוּ בֵּית שַׁמַּאי וּבֵית הִלֵּל עַל שְׁתֵּי כִּיתֵּי עֵדִים – שֶׁאַחַת אוֹמֶרֶת מָנֶה, וְאַחַת אוֹמֶרֶת מָאתַיִם – שֶׁיֵּשׁ בִּכְלַל מָאתַיִם מָנֶה.
Rav Kahana said to Rav Yehuda: In accordance with whose opinion are you ruling that the testimony of witnesses who contradict each other is valid? Is it in accordance with the opinion of Rabbi Shimon ben Elazar? As it is taught in a baraita that Rabbi Shimon ben Elazar said: Beit Shammai and Beit Hillel did not disagree with regard to two sets of witnesses, where one set says that a litigant owes one hundred dinars and one set says that he owes two hundred. In such a case, everyone agrees that two hundred includes one hundred, and he is liable to pay one hundred.
עַל מָה נֶחְלְקוּ? עַל כַּת אַחַת – שֶׁאֶחָד אוֹמֵר מָנֶה, וְאֶחָד אוֹמֵר מָאתַיִם; שֶׁבֵּית שַׁמַּאי אוֹמְרִים: נֶחְלְקָה עֵדוּתָן, וּבֵית הִלֵּל אוֹמְרִים: יֵשׁ בִּכְלַל מָאתַיִם מָנֶה.
With regard to what did Beit Shammai and Beit Hillel disagree? They disagree with regard to one set of witnesses, where one witness says that a litigant owes one hundred dinars and one witness says that he owes two hundred; as in such a case, Beit Shammai say that their testimony is divided, and they do not combine to form a set of witnesses, and Beit Hillel say that two hundred includes one hundred, and they combine to form a set of witnesses. Rav Kahana assumed that Rav Yehuda based his ruling on Rabbi Shimon ben Elazar’s interpretation of the opinion of Beit Hillel.
אֲמַר לֵיהּ: וְהָא מַיְיתִינָא לָךְ אִיגַּרְתָּא מִמַּעְרְבָא, דְּאֵין הֲלָכָה כְּרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר! אֲמַר לֵיהּ: לְכִי תַּיְתֵי.
Rav Kahana then said to Rav Yehuda: How can you rely on this opinion? But I can bring you a letter from the West, Eretz Yisrael, stating that the halakha is not in accordance with the opinion of Rabbi Shimon ben Elazar, and that in fact Beit Hillel also disqualify two witnesses in such a case. Rav Yehuda said to Rav Kahana: I will accept that ruling when you will bring such a letter. Until then, I stand by my ruling.
הָהוּא גַּבְרָא, דְּדָר בְּקַשְׁתָּא בְּעִילִּיתָא אַרְבַּע שְׁנֵי. אֲתָא מָארֵי דְבֵיתָא, אַשְׁכְּחֵיהּ. אֲמַר לֵיהּ: מַאי בָּעֵית בְּהַאי בֵּיתָא? אֲמַר לֵיהּ: מִפְּלָנְיָא זְבֵינְתַּהּ, דְּזַבְנַהּ מִינָּךְ. אֲתָא לְקַמֵּיהּ דְּרַבִּי חִיָּיא, אֲמַר לֵיהּ: אִי אִית לָךְ סָהֲדֵי דְּדָר בָּהּ אִיהוּ דִּזְבַנְתְּ מִינֵּיהּ, וַאֲפִילּוּ חַד יוֹמָא – אוֹקֵימְנָא לַהּ בִּידָךְ; וְאִי לָא – לָא.
§ The Gemara relates: There was a certain man who resided in a loft in Kashta for four years. At the end of that period, the prior owner of the house came and found him there. The prior owner said to him: What do you want with this house of mine? The possessor said to him: I purchased it from so-and-so, who purchased it from you. The possessor came before Rabbi Ḥiyya, who said to him: If you have witnesses who will testify that he, from whom you purchased the house, resided in it, even if there is testimony that he resided in it for only one day, I will establish it in your possession, but if there is no testimony to his having resided there then I will not establish it in your possession, and it will revert back to its prior owner.
אָמַר רַב: הֲוָה יָתֵיבְנָא קַמֵּיהּ דְּחַבִּיבִי, וַאֲמַרִי לֵיהּ: וְכִי אֵין אָדָם עָשׂוּי לִיקַּח וְלִמְכּוֹר בַּלַּיְלָה? וַחֲזִיתֵיהּ לְדַעְתֵּיהּ, אִי אָמַר לֵיהּ: קַמַּאי דִּידִי זַבְנַהּ מִינָּךְ – מְהֵימַן, מִיגּוֹ דְּאִי בָּעֵי אֲמַר לֵיהּ: אֲנָא זְבֵנְתַּהּ מִינָּךְ.
Rav said: I was sitting before my uncle [deḥavivi], Rabbi Ḥiyya, and I said to him: But isn’t it common for a person to purchase a house and sell it immediately during the same night? It is possible that the seller purchased and sold the house without witnesses who saw him residing in it. And I saw that Rabbi Ḥiyya’s opinion was that if the possessor said to the claimant: The one who sold it to me purchased it from you in my presence, this claim is deemed credible, since if the possessor wanted to, he could have said to the prior owner of the house: I purchased it from you.
אָמַר רָבָא: כְּווֹתֵיהּ דְּרַבִּי חִיָּיא מִסְתַּבְּרָא, דְּקָתָנֵי: הַבָּא מִשּׁוּם יְרוּשָּׁה – אֵינוֹ צָרִיךְ טַעֲנָה. טַעֲנָה הוּא דְּלָא בָּעֵי, הָא רְאָיָה בָּעֵי.
Rava said: It stands to reason that the halakha is in accordance with the opinion of Rabbi Ḥiyya, as the mishna (41a) teaches: In the case of land that comes as an inheritance, one is not required to make a claim as to how the land came into his benefactor’s possession when one’s ownership of the land is challenged. This indicates that it is a claim that he does not need, but he does need proof that it had been in the possession of his ancestors.
וְדִלְמָא לָא רְאָיָה בָּעֵי, וְלָא טַעֲנָה בָּעֵי! וְאִיבָּעֵית אֵימָא: שָׁאנֵי לוֹקֵחַ – דְּלָא שָׁדֵי זוּזִי בִּכְדִי.
The Gemara rejects the inference from the mishna: But perhaps he does not need proof and does not need a claim. The only reason that the mishna mentions that he does not need a claim is to clarify that this does not fall into the category of a possession that is not accompanied by a claim. Therefore, one cannot infer from the ruling of that mishna what the halakha should be in this case. And if you wish, say instead that although the inference from the mishna is correct, it is not relevant to this case, as the case of a buyer is different, since he would not throw money away for nothing. The fact that he purchased the house indicates that he must have ascertained that the seller had a right to it.
אִיבַּעְיָא לְהוּ: נִרְאָה בּוֹ, מַאי? אָמַר אַבָּיֵי: הִיא הִיא. רָבָא אָמַר: עֲבִיד אִינִישׁ דְּסָיַאר אַרְעֵיהּ וְלָא זָבֵין.
A dilemma was raised before the Sages: If the seller was seen in the house, what is the halakha? Is this sufficient proof that he had purchased the house? Abaye said: It is identical to testimony that he had resided there. Rava said: This does not constitute proof, as a person is apt to survey [desayyar] land and ultimately not purchase it.
שְׁלֹשָׁה לָקוֹחוֹת מִצְטָרְפִין. אָמַר רַב: וְכוּלָּם בִּשְׁטָר.
§ The Gemara issues a ruling concerning the establishment of the presumption of ownership. Three buyers combine to establish the presumption of ownership. If one purchased a field and sold it to another, who then sold it to a third party, and in total, the three of them worked and profited from the field for three years, the third one has established the presumption of ownership. Rav says: And this is the halakha only if they all purchased the land with a bill of sale. As a result of the bill of sale, the prior owner will know that it is not the case that each of them worked and profited from the field for only one year and abandoned it, which would explain why he did not bother to lodge a protest.
לְמֵימְרָא דְּסָבַר רַב: שְׁטָר אִית לֵיהּ קָלָא, וְעֵדִים לֵית לְהוּ קָלָא? וְהָאָמַר רַב: הַמּוֹכֵר שָׂדֶה בְּעֵדִים, גּוֹבֶה מִנְּכָסִים מְשׁוּעְבָּדִים! הָתָם, לָקוֹחוֹת
The Gemara asks: Is this to say that Rav holds that a bill of sale generates publicity, but witnesses do not generate publicity? But doesn’t Rav say that with regard to one who sells a field in the presence of witnesses, and that field is later seized by the creditors of the seller, the buyer collects from the liened property that the seller had sold to others, to be reimbursed for his seized field? If not for the fact that the sale in the presence of witnesses generates publicity, those who later purchased land from the seller would not have been aware that the property they are purchasing is liened to the first buyer. The Gemara answers: There, with regard to buyers,
