The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Bava Batra 28a-b
According to Jewish law, just because someone has possession of property and lives or works it, he cannot claim ownership of it. A person only becomes an owner if he receives that status from the original owner through a sale or by receiving a present, or if he claims an object that is hefker (ownerless), performing a formal act of possession (a kinyan). Thus, there can be no claim of ownership based on “squatters’ rights” and if someone else comes with proof of ownership, the person living or working the land will have to prove that he bought it.
The Halacha recognizes that a person cannot be expected to retain purchase documents forever, so if the person working the land can show that he has been in possession of the land for an extended period of time, working it with the original owner’s knowledge, that will serve as an acceptable proof of purchase.
Perek Chezkat HaBatim, the third chapter in Masechet Bava Batra, which begins on today’s daf, discusses these proofs, or chazakot – how long a person must have been in possession of the object in order to make his claim of chazaka, what uses constitute possession, whether it differs when applied to different objects, etc.
The Ritva points out that the term chazaka as it is used in this context is qualitatively different than the chazaka used as a kinyan – in taking possession of an object. He argues that in our case we are concerned with proof of ownership, while in the case of kinyan we need a formal act that creates the ownership. The Geonim see a single meaning for the term chazaka – holding or having possession of the object in a way that shows ownership. This chazaka is applied differently in these two different cases.
Bava Batra 29a-b
As we learned on yesterday’s daf, when someone has a chazaka – he has been living or working on land for three years – it can serve as a proof to his claim that he had purchased the property. Although Rabbi Yochanan had suggested that the source for this might be the rule that an ox becomes mu’ad (considered a goring ox) after three consecutive violent incidents, on our daf Rava concludes that it is based on a psychological evaluation of property owners. According to Rava, someone might choose to allow his friend to use his field for one or two years without complaint, but if he returns to use it for a third year, he will protest. If he does not do so, it is an indication that the person working the field must have purchased it.
Abayye objects to this reasoning, arguing that we know that certain people will not let anyone step foot on their property without complaint, yet we cannot create a different set of rules based on each individual’s attitudes and reactions. In response to Abayye, Rava clarifies his explanation, saying that the three year period is based on how long we can anticipate that a person would hold onto the contract that serves as proof to the purchase of the field. After three years, we can no longer expect a person to produce the contract, and the fact that he has been working the field without complaint will serve as proof of purchase. Only if there had there been a complaint, can we expect the purchaser to know that he had to hold onto the contract to prove ownership.
Abayye objects to this reasoning, as well, arguing that according to this idea, the original owner could only complain in the presence of the person claiming the land, because if he complained in front of witnesses in another place, the person claiming the land could always say that he did not know that he needed to protect the contract, since he did not know that his claim was contested.
Rava responds to this argument by saying chavrach chavra it lei, ve-chavra d’chavrach chavra it lei – your friend has a friend, and your friend’s friend has a friend, as well. Thus we can be certain that word of a challenge or complaint should reach the ears of the claimant.
Bava Batra 30a-b
On yesterday’s daf we learned about the power of chazaka – of working or living on land for three years – which can serve as a proof to a claim that one had purchased the property. As we saw, the reasoning behind this rule is that if he did not own the land, the true owner should have challenged his use of the land during that time.
What if the person who claims that he is the true owner was out of the country and claims that he did not know that anyone was on his land?
The Gemara on today’s daf tells of just such a case. Someone approached his friend and exclaimed to him “What are you doing in this house?” The accused answered “I purchased it from you and have been living here for more than three years!” In response the accuser said “I have been away on business – be-shukei barai – and did not know that you were living here.” The accused individual said “but I have witnesses that you spent a month of each year here in the community!” The accuser responded that during the time he was here he was busy with his business, to the exclusion of all other things. Rava rules that the argument is a reasonable one and that the purchaser will have to bring proof of his purchase, the years of chazaka notwithstanding.
The claim of be-shukei barai is understood by the Ramban as referring to a specific place that was far away. Most commentaries understand that it is a reference to travel to a place where caravans back and forth were limited or non-existent. Rabbeinu Chananel suggests that this halacha is true when there is a war or an emergency situation that did not allow for free travel between the two places.
Bava Batra 31a-b
The Gemara on today’s daf continues discussing how we deal with competing claims to property.
If two people both claim shel avotai – that a piece of land belonged to their ancestors – and in an attempt to buttress their claims, one brought witnesses that it had belonged to his father, while the other brought witnesses that he had lived there for three years, and therefore had a chazaka, Rabbah rules that we believe the one who has lived there for three years because of the principle mah lo le-shaker – what interest does he have in lying? Specifically, if he wanted to lie he could have done so in a more convincing manner, by saying that he had purchased it and had lived there for three years – a claim that would have been accepted by the courts. Abayye disagrees, arguing that witnesses are always more powerful that a claim based on mah lo le-shaker.
Can one of the parties change his claim? Specifically, can the individual who brought witnesses that he had been on the land for a significant amount of time, now claim that he did not really mean to say that the land belonged to his father? Can he now argue that he really had purchased it from the other party, and what he meant when he said shel avotai was that his claim on the property was so strong – having purchased it and worked it for three years – that it is as if it had belonged to his father?
This situation, referred to by the Gemara as to’en ve-chozer ve-to’en – to claim and rescind the claim in order to make a different one – is the subject of a disagreement between Ulla (who permits) and the Sages of Neharda’ah (who would not accept the new claim). As the Rashbam points out, to’en ve-chozer ve-to’en will only be considered if it clarifies and explains the earlier claim. If it negates the first claim entirely, the Gemara is clear that the new claim will not be accepted even according to Ulla. The Ramah says that this is true only if witnesses come, weakening his first claim and forcing him to clarify his statement. If no witnesses came, then he would be able to change his claim as he pleases without penalty. The Rashba limits this right only to cases where he wants to change from one winning claim to another. If he first admitted that he was wrong, however, and then wants to change to a winning claim, the court will not accept his new argument.
Bava Batra 32a-b
The Gemara on today’s daf presents two similar cases, but offers two different rulings in them.
In the first case, one person said to another “what are you doing in my field!?” The second one answered “I purchased it from you, and here is the contract!” The first replied “that contract is a forgery!” The second leaned over to Rabbah who was presiding over the court and said “It really is a forgery, but the real contract was lost, so I thought that I would produce this one in order to bolster my claim.”
Rabbah announced that he accepted the second man’s argument, since he has no reason to lie – had he wanted to lie, he could have insisted that the contract was a good one. Rav Yosef objected to this ruling, saying that the contract was clearly worthless, so the man had no claim.
In the second case, one person said to another “pay me the hundred zuz that you owe me, and here is the contract proving that you borrowed from me!” The second one answered “that contract is a forgery!” The first one leaned over to Rabbah who was presiding over the court and said “It really is a forgery, but the real contract was lost, so I thought that I would produce this one in order to bolster my claim.”
Rabbah announced that he accepted the first man’s argument, since he has no reason to lie – had he wanted to lie, he could have insisted that the contract was a good one. Rav Yosef objected to this ruling, saying that the contract was clearly worthless, so the man had no claim.
Somewhat surprisingly, Rav Idi bar Avin rules like Rabbah in the first case and like Rav Yosef in the second. In each case we leave the valuables in question in the hands of the person who is holding them – the field in the hands of the person living or working the land; the money in the hands of the person who was holding it.
The Rashbam suggests that Rav Idi is not really offering a significant ruling, rather he unsure of what the proper ruling is, and therefore leaves things as they were.
Bava Batra 33a-b
Sometimes, the certainty of a claim is enough to make the court believe someone.
The Gemara on today’s daf quotes Rav Yehuda as teaching that if a man goes by carrying his magala and tovlaya, saying “I will go and harvest that date palm that I purchased from so-and-so” we will believe him. The Gemara explains that this is based on the assumption that no one would have the gall to publicly harvest a date palm that was not his.
Tosafot and other rishonim point out that what gives this individual “believability” is not his public statement, so much as his public actions, i.e. harvesting the dates. He would even be believed if he harvested them without public fanfare, so long as he did not do it in a way that appeared to be covert. The Rashbam explains that this assumption only works after the fact, but if the original owner of the date palm stood in his way and objected to his actions, we would not trust his claim of purchase simply based on trust.
Two harvest implements are mentioned – magala and tovlaya. The magala is a type of scythe used in cutting down the dates. The tovlaya is the subject of some dispute.
According to Rabbeinu Chananel, the tovlaya is a rope that was commonly used by harvesters when climbing trees. Rabbeinu Gershom suggests that it was a basket which was used to catch the dates as they were cut with the magala. People would bring a scythe with a long handle and attach the long handle to the basket so that the fruit would land in the basket. Another explanation that appears in the Aruch is that the tovlaya is a blanket that was placed on the ground during the harvest so that the fruits would fall on it and could be collected easily without falling on the floor.
Bava Batra 34a-b
Does Jewish law ever recommend to two litigants to “fight it out” between them?
The Gemara on today’s daf appears to offer this ruling when it states kol d’alim gvar – whoever is stronger wins – in a case where two people each claim a piece of land, and neither of them has a proof that is stronger than the other’s.
The Rosh explains that this ruling is based on the assumption that the one who exerts himself more powerfully is more likely the true owner, and we will work with that assumption unless the other party brings a proof to court. He adds that it is essential for the court to have a mechanism for dealing with cases where two individuals are making claims and neither, apparently, can bring proof-positive of his position; if not, he argues, we will be left with situations of never-ending battles. The Shitah Mekubetzet rejects this ruling and explanation out of hand, arguing that kol d’alim gvar cannot possibly be a court ruling, rather it is an indication that the court cannot make a decision in this case, and that the court therefore recuses itself, leaving a situation where the stronger party will be allowed to take what he claims belongs to him. According to this approach kol d’alim gvar does not solve the problem, it merely postpones a decision, and should the losing party become stronger, he can grab it back, creating the never-ending battle that the Rosh was concerned about.
The Rashbam understands the meaning of kol d’alim gvar as either the person who is stronger takes it by force, or the one who brings the “stronger” proof.
While Rabbenu Baruch presents the ruling of kol d’alim gvar only in the context of a dispute over a field, the Rashbam suggests that it would apply in any case where two people argue and neither has convincing proof (or, alternatively, their proofs are of equal strength).
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.