Bava Batra 28b — the Talmud in English

And the other one: when it did not gore, what is there to pay?,

What it pays only for the fourth goring is only because it will not pay if it did not gore and cause damage!?

But

here—

with regard to the presumption of three years—

since it consumed the produce for three years, it stands in his possession,

since it consumed the produce for three years, we must establish it in his possession, just as an ox that is forewarned, which becomes forewarned through three gorings.

We further raise an objection:

from now—

that the source of the law of presumption is from a forewarned ox—even

a presumption unaccompanied by a claim,

to say, “I bought it from you,” but he says to the claimant, “I am holding the land because you did not protest against me throughout this entire period,” should this too

be a presumption!?

And

therefore

why

do we learn

in the Mishna below, 41a:

Any presumption

that a person established by holding land,

which is unaccompanied by a claim

from the one holding it, to say, “I bought it from you,” or the like,

is not a presumption!?

And we answer: But

what is the reason

that the presumption of three years is effective!? Is it not only because

we say: perhaps it is as he says

that perhaps there is indeed truth in what he claims, “I bought it from you”?

But

now,

in a case where

he does not claim, “I bought it,” and should

so, should

we

the court

claim for him

that he bought the field!?

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

B. An ox does not become forewarned unless witnesses came to the court and testified concerning its gorings; and the witnesses must testify in the presence of the ox’s owner.

Rav Avira challenges

the derivation from the forewarned ox:

From now

that from the forewarned ox you learn the law of the presumption of three years:

a protest

that the owner of the land makes against the holder during the three years,

not in his presence

of the holder,

should not be a protest

to invalidate his presumption, because we require

something similar to the forewarned ox: just as with the forewarned ox

the warning

in his presence

of the ox’s owner

we require, so here too—

with regard to a protest—

also in his presence

of the holder

we require!?

And we answer:

There—

with regard to the forewarned ox—“

And it was warned to its owner”

is written,

but

here,

with regard to a protest,

your fellow has a fellow, and your fellow’s fellow

also

has a fellow,

the fellow who heard the protest has a fellow to tell it to, and that fellow too has another fellow to tell it to.

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

This works well according to Rabbi Judah, who holds: an ox does not become forewarned unless they testified concerning it for three days one after the other; likewise, with regard to a presumption, one may say that three years are like three days—

But

however,

according to Rabbi Meir, who says

with regard to a forewarned ox:

if the ox spread out

its

gorings,

for it gored on three successive days, its owner is

liable

for full damages—

if it brought together

the ox

its gorings,

and it gored three times consecutively even on one day,

is it not all the more so

that it should be forewarned, to make its owner liable for full damages—

if so, with regard to the presumption of land, let us say that if

he consumed

the holder

three produce crops in one day,

he ate three portions of the field’s produce on one day,

such as

a fig

tree,

whose produce does not finish ripening at one time, and there are fruits that ripen in the morning, and he picked in the morning all the fruit that had ripened by that time, while others ripen in the evening and he picked them, should this too

be a presumption!? And we answer: We require

something similar to the forewarned ox: just as with the forewarned ox, at the time that this goring exists, that goring does not exist

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

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

so here too,

with regard to a presumption, this is not a presumption unless

at the time that this fruit exists, that fruit does not exist,

when he ate the first fruit, the second one did not yet exist; whereas with a fig tree, at the time of the first eating from it, the fruits of the second eating already exist, but have not yet ripened, and therefore this is not a presumption.

And we still raise an objection: if you come to learn from the forewarned ox, we still have to say that if

he consumed three produce crops over three days, such as the caper bush,

whose fruit is not recognizable at the time of the first eating, and in the end of three days it is finished ripening, so too should it

be a presumption!?

And we answer:

There, the fruit at any rate exists, and it is merely completing its ripening and proceeding,

even with the caper bush, the fruits of the second eating already exist at the time of the first eating, although they are not recognizable, and it is the completion of the fruit that takes place after three days.

And we still raise an objection:

he consumed three produce crops over thirty

days, such as alfalfa

a type of seed for the fodder of animals,

should it be a presumption!?

And we answer: But

what are the circumstances

in which it would be possible to eat from the alfalfa three times!? Necessarily, it is in a situation where

it sprouted

grew a little,

and he ate it; it sprouted and he ate it,

and if so,

there,

in such a case it is not a presumption, for

he is merely snatching and eating,

and this is not a complete eating.

And we still raise an objection:

he consumed three produce crops over three months

if he ate three meals in three months,

such as alfalfa,

that is, he waited until it had grown completely and ate it,

should it be a presumption,

for he ate a complete eating in the manner of owners!?

And we answer:

Who are the people of Usha!?

But we have received that it is

Rabbi Ishmael,

and

according to Rabbi Ishmael, so too

it is a presumption!

For

indeed

we learn

in our Mishna:

Rabbi Ishmael says: When do these words apply? In a grain field. But in an orchard: he gathered his grain, and gathered his olives, and gathered his summer fruit—these are three years.

The Gemara adds an explanation:

And

according to the Rabbis—

who disagree with Rabbi Ishmael—

what

is the source for the presumption of three years? For you cannot learn it from the forewarned ox, since the question concerning alfalfa will confront you.

Rav Yosef said: A verse is written: “

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

for

the

prophet

Jeremiah

was standing in

the year

ten

of King Zedekiah,

and warning

Israel

concerning

the year

eleven,

in which they would be exiled; and this is what Jeremiah said to them: Whoever buys a field now must write a deed concerning it as proof, for you will not remain in Israel for another three years, so that you could prove ownership through a presumption; and 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 it was not enough that the purchasers held the land for two years—that is, the tenth year of Zedekiah and the eleventh year—we may prove that there is no presumption of less than three years; and therefore the purchasers of the fields needed a deed as proof.

He said

in astonishment

to him, Abaye:

Perhaps

the presumption is established in only one year, whereas

there—

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

it is good advice

that

Jeremiah is informing them,

that it is worthwhile for them to have deeds in their possession, ready as proof, so that they will not need witnesses to the presumption when the owner of the field comes to challenge their ownership.