Babylonian Talmud: Tractate Baba Bathra

Folio 35a

are presented in court,¹  in which case Rab rules that the property should be divided between the claimants, and Samuel that the judges should assign it according to their own discretion?²  — In that case there is no chance that further evidence should come to light,³  here there is a chance that further evidence may come to light.⁴  But why should the ruling here be different from what we have learnt: 'If a man exchanges a cow for an ass and it calves, and similarly if a man sells a female slave and she bears a child, if the seller says that the birth took place before the sale⁵  and the purchaser that it took place after the sale,⁶  they must share the offspring'?⁷  In that case each

1. I.e., where a man has first assigned a property to Reuben and then on the same day made out another deed assigning it to Simeon. The hour of the day at which the deed was written or transferred was not usually specified, save in Jerusalem.
2. According to Rashb. this means that they should estimate which of the two claimants the donor was more likely to favour; according to Tosaf. they should consult purely their own judgment.
3. The deeds themselves being the whole of the evidence bearing on the case.
4. In which case the man who has seized the property may still be dispossessed.
5. Lit., 'before I sold it, I.e., before the purchaser had taken possession, and therefore the offspring was not included in the sale.
6. Lit., 'since I bought it.'
7. The transaction has to be one of exchange and not of sale in the case of the cow, for the reason that, in the case of all movables except human beings, a transaction of sale is not completed until the article bought is 'pulled' by the purchaser. Hence no dispute would have been possible about the calf. In the case of an exchange, however, the transaction is concluded as soon as the article given in exchange-here, the ass-is handed over. V. B.M. 100a.

had [at some time] a pecuniary interest [in the article in dispute].¹  but in this case of R. Nahman, if the property belonged to one, It never belonged to the other.

The Nehardeans laid down that if an outsider²  comes and seizes the property, he is not forced to surrender it,³  because R. Hiyya taught: He who robs the public⁴  is not a robber in the legal sense.⁵  R. Ashi said: He is indeed a robber in the legal sense,⁶  and why [does R. Hiyya say that] he is not a robber in the legal sense? Because he is unable to make restitution like an ordinary robber.⁷

THEIR PERIOD OF HAZAKAH IS THREE YEARS FROM DAY TO DAY. R. Abba said: If [the claimant of a piece of land] helps [the man In possession] to lift a basket of produce on to his shoulders, this at once creates a presumption [that the land belongs to the latter].⁸  R. Zebid said: If, however, he pleads, 'I have installed him [as a metayer] with a right to the produce [but not the ownership of the land],' his plea is accepted. This too is only the case if the plea is made within three years [of the alleged transfer], but not later. Said R. Ashi to R. Kahana: If he had made him a metayer [for more than three years], what was he to do?⁹  He said: He should have lodged a protest within three years. For, were you not to say so, then what about the so-called 'mortgage of Sura'¹⁰  containing the stipulation, 'On the termination of these [X] years this land shall be given up without payment.' Now suppose the mortgagee suppresses the mortgage bond and asserts that he has bought the land; are we indeed to say that his plea is to be accepted? Would the Rabbis make a regulation¹¹  which would expose the mortgager to unfair loss? But the fact is that he can protect himself by lodging a protest within three years; and so in this case also he can protect himself by lodging a protest within three years.

Rab Judah said in the name of Rab: A Jew who derives his title from a non-Jew is on the same footing as a non-Jew:¹²  just as a non-Jew cannot prove his right save through producing a deed of sale,¹³  so the Jew who derives his title from a non-Jew [to a field originally belonging to a Jew] cannot prove his right save through producing a deed of sale.¹⁴  Said Raba: If, however, the Jew pleads,

1. I.e., each was at some time the owner of the cow or the slave.
2. Lit., 'a man from the street'.
3. Because possibly it belongs to neither of the claimants.
4. The two claimants being regarded as the 'public' (lit., 'many').
5. And cannot be forced to make restitution.
6. And must be deprived of the property.
7. Because he does not know to which of the two claimants he should restore the property, and therefore he cannot make atonement like an ordinary robber.
8. This act being a kind of admission that the land belongs to him.
9. So as to ensure that he will be able to recover the property at the end of the period of leasing.
10. A form of deed by which a borrower transferred property to the lender for a fixed number of years.
11. Viz., that three years' occupation gives a title to ownership.
12. In the matter of hazakah.
13. It is assumed that a Jew is afraid to protest against the occupation of his land by a non-Jew, and therefore three years' undisturbed occupation confers no hazakah on the latter.
14. Given by the original Jewish owner to the non-Jew, even though both he himself and the non-Jew have enjoyed undisturbed occupation for three years.