Bava Batra 28b (כח:) — the Talmud in English

And as for the other one, if it did not gore, what is there to pay,

what it pays only upon the fourth goring is merely because it would not pay if it had not gored and caused damage!?

But

here—

with regard to the presumption of possession for three years—

once he has consumed the produce for three years, it stands in his possession,

once he has consumed the produce for three years, we must establish it as being in his possession, just as an ox becomes a forewarned ox through three goring incidents.

We further raise an objection:

if so—

since the source of the law of presumptive possession is the forewarned ox—even

presumptive possession unaccompanied by a claim,

meaning that he does not say, “I purchased it from you,” but rather says to the claimant, “I possess the land because you did not protest against me throughout this period,” should this too

be considered presumptive possession!?

And

why

why

did we learn

in the Mishna below, on 41a:

any presumptive possession

that a person established over land,

that is unaccompanied by a claim

by the possessor, such as saying, “I purchased it from you,” or the like,

is not presumptive possession!?

And we answer: but

what is the reason

that the presumption of possession for three years is effective!? It is only because

we say: perhaps it is as he says,

perhaps there is indeed truth in his claim, “I purchased it from you”]!

But

now,

in a case where

he does not claim “

I purchased it,” and

we

the court

should we claim on his behalf

that he purchased the field!?

A. The presumption of possession for three years is effective only when the owner of the field remained silent throughout those three years and did not protest; but if he protested, this is not presumptive possession.

B. An ox becomes forewarned only if witnesses come to court and testify concerning its gorings; and the witnesses must testify in the presence of the ox’s owner.

Rav Avira challenges this

the derivation from the forewarned ox:

If so,

since you derive the law of the presumption of possession for three years from the forewarned ox:

a protest

that the landowner made against the possessor during the three years,

not in his presence

of the possessor,

should not be considered a protest

that nullifies his presumption of possession, because we require

a comparison to the forewarned ox: just as with the forewarned ox,

the forewarning

in the presence

of the ox’s owner

is required, so too here—

with regard to a protest—

in his presence

of the possessor

is required!?

And we answer:

there—

with regard to the forewarned ox—“

and it was testified concerning its owner”

is written.

But

here,

with regard to a protest,

your friend has a friend, and your friend’s friend

also

has a friend,

the friend who heard the protest has a friend to whom to relate it, and that friend too has another friend to whom to relate it.

We further raise an objection to the derivation from the forewarned ox:

This works well according to Rabbi Yehuda, who maintains that an ox becomes forewarned only when testimony was given concerning it on three consecutive days; with regard to presumptive possession too, one can say that three years are equivalent to three days—

but

however

according to Rabbi Meir, who says

with regard to a forewarned ox:

if the ox spaced out

the ox

its gorings,

for if it gored on three consecutive days, its owner is

liable

for full damages—

if it brought together

the ox

its gorings,

and gored three times consecutively even on a single day,

all the more so

should it be considered forewarned, making its owner liable for full damages—

if so, with regard to presumptive possession of land, let us say that if

the possessor consumed

the possessor

three fruits on one day,

meaning that he consumed three of the land’s fruits on a single day,

for example,

the

fig tree,

whose fruits do not ripen all at once: some fruits ripen in the morning, and he gathered in the morning all the fruits that had ripened by then, while others ripen in the evening, and he gathered them as well, should this too

be considered presumptive possession!? And we answer: we require

We require it to be

a comparison to the forewarned ox: just as with the forewarned ox, when this goring existed, the other goring did not exist,

when it gored the first time, the second goring did not yet exist at all—

here too,

with regard to presumptive possession, it is not a valid presumption unless

when this fruit exists, the other fruit does not exist,

when he consumed the first fruit, the second fruit did not yet exist; whereas with a fig tree, at the time of his first consumption of its fruit, the fruits of the second consumption already exist, although they have not yet ripened. Therefore, this is not a valid presumption.

We nevertheless raise an objection: if you derive the law from the forewarned ox, we should still say that if

he consumed three fruits on three days, such as in the case of a caper bush,

whose fruit is not discernible at the time of the first consumption and becomes fully developed only after three days, should this likewise

be considered presumptive possession!?

And we answer:

there, in any event, the fruit exists; it is merely continuing to ripen,

even in the case of a caper bush, the fruits of the second consumption already exist at the time of the first consumption, although they are not discernible; it is merely the completion of the fruit that occurs after three days.

We nevertheless raise an objection:

if he consumed three fruits in thirty

days, such as in the case of alfalfa,

a type of seed used as fodder for animals,

should this be considered presumptive possession!?

And we answer:

what are the circumstances

in which he could consume alfalfa three times!? Necessarily, this is referring to a situation in which

it sprouted

grew a little,

and he consumed it; it sprouted and he consumed it,

and if so,

there,

in such a case it is not a valid presumption, since

he is merely pulling off and consuming it,

and this is not complete consumption.

We nevertheless raise an objection:

if he consumed three fruits in three months,

if he consumed three times in three months,

such as in the case of alfalfa,

meaning that he waited until it had fully grown and consumed it,

should this be considered presumptive possession,

since he consumed it completely, in the manner of owners!?

And we answer:

Who are the authorities of Usha!?

We have received as a tradition that

it is Rabbi Yishmael, and

according to him,

according to Rabbi Yishmael, this too

is a valid presumption!

For

after all

we learned

in our Mishna:

Rabbi Yishmael says: When does this statement apply? To a grain field. But with regard to an orchard: If he gathered his grain, harvested his olives, and gathered his figs, these constitute three years.

The Gemara proceeds to explain:

And

according to the Rabbis—

who disagree with Rabbi Yishmael—

what

is the source for the presumption of possession for three years? For you cannot derive it from the forewarned ox, since the case of alfalfa would pose a difficulty.

Rav Yosef said: A verse is written: “

Fields shall be purchased for money, and deeds shall be written and sealed ...,”

for

the

prophet

Jeremiah

was standing in

the year

ten

of the reign of King Zedekiah,

and warning

the Jewish people

concerning

the year

eleven,

during which they would be exiled. Jeremiah said to them as follows: Whoever purchases a field now must write a deed as proof, for you will remain in Israel for no more than three years, so that you will not be able to establish ownership through presumptive possession. Therefore, one who wishes not to lose his purchase must have in his possession a deed of sale signed by witnesses. And from the fact that the two years during which the purchasers held the land—namely, the tenth year of Zedekiah and the eleventh year—were insufficient, it follows that presumptive possession is not established in fewer than three years. Therefore, the purchasers of the fields required a deed as proof.

Abaye

questioned

him in astonishment:

Perhaps

presumptive possession is established after only one year, whereas

there—

with regard to Jeremiah, who warned them to write deeds—

it was merely good counsel

that

Jeremiah teaches us,

that it would be worthwhile for them to have deeds ready in their possession as proof, so that they would not need witnesses to establish presumptive possession when the owner of the field would come to challenge their ownership.