Bava Batra 35b — the Talmud in English

And we explain it:

there

with regard to the offspring—

for this one

for the seller of the cow or the maidservant has

a monetary connection

[monetary affiliation] with the offspring,

and for that one

for the purchaser of the cow or the maidservant as well

there is a monetary connection

with the offspring—

for the cow and the maidservant had originally belonged to this one and then passed into the possession of that one, and our doubt is at what time they gave birth: whether when they were still in the possession of the seller, or after they had passed into the possession of the purchaser.

But

here

with regard to land or a boat, where this one says, “It belonged to my ancestors forever,” and that one says, “It belonged to my ancestors forever”—then

if

the land or the boat

of this one

[belongs to this one], then surely

it does not belong to that one

it belongs to him neither now nor ever; and

if it belongs to that one

then surely

it does not belong to that one

it belongs to him!

The Nehardeans say concerning the law of land or a boat where “this one says ‘It belonged to my ancestors,’ and that one says ‘It belonged to my ancestors,’” and the court ruled kol de-alim gavar:

And

if one from the marketplace came and took possession of it,

although he does not claim that it belongs to him,

we do not remove it from his possession,

because even the two who contended over it have no proofs that it belongs to them, and perhaps it belongs to neither of them!

And this is

that Rabbi Hiyya taught: One who robs the public is not called a

robber,

and the Nehardeans explain that the reference is to a third party who took possession of an object over which two others were contending, and neither one has proofs that it belongs to him, and it is possible that it belongs to neither of them.

Rav Ashi said: Actually—

a robber of the public, similar to what the Nehardeans said—

is called a robber

with regard to removing it from him when someone else who makes no claim concerning it comes ;

and what is the meaning of

“is not called a robber,”

which Rabbi Hiyya said concerning a robber of this kind? He comes to make the law more stringent for him:

it cannot be

this robbery

returned

[he is not atoned for by returning it], for he must return the stolen property to its owners, and not remove it from his possession and abandon it to the first two under the law of kol de-alim gavar; and since he does not know who the owners are, it follows that he cannot return it.

We learned in the Mishna: Their presumption is three years from day to day:

Rabbi Abba said:

If he himself loaded for him a basket of produce

[if the claimant loaded for the possessor a basket containing produce from his field],

immediately

when he did so

it is a presumption,

for this is like one who admitted to the possessor that the land belongs to him.

Rav Zevid said:

And

nevertheless,

if the claimant claimed

the claimant

and said:

The land is mine forever, and the reason I assisted him with the produce was that

I brought him down for produce

as a tenant farmer receiving one-half, one-third, or one-quarter, he is

believed.

And this statement applies

that a person can claim to the possessor of a field, “I brought him down for produce”—

within three

years during which the other has held the land, and in order to refute the proof arising from the fact that he loaded for the possessor a basket of produce— -

But after three

years during which a person held the field,

not

can the claimant say: This one held the field because “I brought him down for produce,” even if he did not load for him a basket of produce; because a person is not careful with his document for more than three years, and this person should have protested, as the Gemara explains later in the matter.

He said—

he wondered

Rav Ashi to Rav Kahana:

And

if

indeed

I brought him down for produce, what could I have done,

[if indeed he brings his fellow down to eat produce, such as when he gives him his field as a mortgage for repayment of his debt, what can he do]!? That is to say, since he cannot claim “I brought him down for produce” after this one has held it for three years, it follows that anyone who brings his fellow down for produce for a period of more than three years will lose his field]!?

He said to him

Rav Kahana to Rav Ashi:

He should have protested,

he had the power to protest to the possessor within three years and say to the witnesses, “Know that I brought him down for produce for such-and-such years, and the body of the land is mine.” And if he has no bill of sale, he will not be able to claim, “I had a document and it was lost, because I was not careful with it after three years,” for since the owner of the field protested to him, he should have been careful with his document; and although this is not a complete protest like the other protests, in which he claims, “He is sitting in the field by robbery,” for even according to the claimant’s words he is lawfully holding the land, nevertheless it is a protest!

For if you do not say this,

that even a partial protest such as this is a protest,

these mortgages of Sura

[where the borrower brings the lender down to eat the produce of his field],

in which it is written

“When these years are completed, this land shall go out without money,”

[at the completion of a certain number of years—as was fixed between them—the land will return to its owners without money and without payment], would we say that

if he conceals the mortgage document in his possession and says

“It is purchased property in my possession,”

then too he is believed,

[and is it possible that the lender can forever conceal the mortgage document and claim “It is purchased property in my possession”], and we should believe him by virtue of a three-year presumption, whereas the claimant cannot invalidate his presumption by means of a partial protest!?

And if you would say: Here too

[indeed, he can do so]—

But is it possible that

the Rabbis enacted

—when they enacted the mortgage of Sura —

something through which he could come to

a loss,

[is it possible that the Sages would enact something through which the borrower could come to a loss]!? Surely the Sages would certainly not enact an enactment of this kind—

The rabbinic enactment exists because one who lends money to his fellow against his field is forbidden to consume the produce because of interest; but if he deducts the consumption of the produce from the value of the loan—for example, they establish that for a loan of ten maneh he will consume it for ten years—this is permitted, since it emerges that he purchases the produce of each year for one maneh. And even if the produce is worth more than the value of the loan, there is no concern, since he is equally close to loss and to profit, for even if the field is ruined, one maneh will be deducted each year from the loan debt. Rather,

necessarily there is no concern of loss, because

he should have

the borrower

protested

to the lender with a partial protest, and this protest would invalidate the lender’s presumption, so he would have no power to cause the borrower a loss—

And if so,

here

when he brought him down for produce—

also,

if he is concerned that at the end of three years the tenant farmer will claim that it belongs to him,

he should have protested

to the lender within the three years with a partial protest, for even a partial protest is a protest!

Rav Yehuda said in the name of Rav:

A gentile who held land belonging to a Jew for three years and claimed, “I purchased it,” is not believed, for they spoke of a three-year presumption only with regard to a Jew; because gentiles are generally robbers and violent, and the Jew is afraid to protest against them, therefore they did not enact

a presumption for them.

And not only that, but even

a Jew who comes on account of

that

gentile is

that Jew—

like a gentile

himself:

Just as a gentile has no presumption except through a document, so a Jew who comes on account of a gentile has no presumption except

through a document.

That is to say, a gentile held land for three years and then went and sold it to a Jew: we do not place the land in the possession of the Jew by virtue of his presumption, because the gentile’s presumption is not effective to establish the gentile’s credibility in his claim; and consequently, it is not only the case that if the Jew himself did not hold it, we do not place the land in his possession, for the gentile’s presumption is not effective for him, nor for a Jew who comes on account of him; but even if the Jew himself held the land for three years, we do not place the land in his possession, for the Jew’s presumption is a presumption without a claim, since he does not claim, “I know that the gentile purchased it from the Jew, and it is mine,” but relies on the presumption by which the gentile held it—and that is not a presumption.

Rava said: And if he said

the

Israelite

who held possession of it for three years after he purchased it from the gentile—to the Israelite claimant: