Bava Batra 38a — the Talmud in English

And the reason is: since he necessarily acquired a right in the ground so that his tree could remain there, the ground is therefore his.

Rava objected to this:

But

since we learned that one who sells a single tree to his fellow does not acquire the ground, it follows that he did not acquire any ground at all. And as for what is difficult for you: since he acquired the tree in order that it remain in this ground, it follows that he acquired the ground’s nourishment also in order to plant another in this one’s place—

let the owner of the ground say to the owner of the tree: “

Turmeric

is what I sold you [it is a type of vegetable customarily sold together with the ground, and when the produce is completed, the buyer takes it];

uproot the turmeric and go [I sold you the tree only in the manner in which turmeric is sold: when your tree dries up, uproot it, take it, and go]!”

I did not sell you the tree except in the same manner as a radish is sold: when your tree dries up, uproot it, take it, and go!”

Rather, Rava said:

he acquires beneath the tree only

when he comes on the basis of a claim,

when he explicitly claims to the seller: “You sold me the tree and the ground beneath it in order to plant another in its place, and I consumed its produce for the period of presumptive possession, and I was no more careful with my documents than for three years.”

Mar Keshisha, son of Rav Hisda, said to Rav Ashi:

But if he sold it to him as turmeric, what could he have done,

if indeed he sold him the tree only in the manner in which turmeric is sold, what could he do so that this one would not establish presumptive possession of the tree and claim that he had also sold him the ground? Rav Ashi said to him:

He should have protested

against the purchaser of the tree and informed him that this one acquired only his tree, and not the ground beneath it, and thereby his presumptive possession would be nullified.

For if you do not say so,

that even a partial protest such as this—where he did not say concerning him, “He is a robber”—is a protest,

these Sura mortgages

where the borrower places the lender in possession of the produce of his field,

in which it is written

thus: “

When these years are completed, this land shall leave without money [when such-and-such a number of years has ended—as they established between them—the ground shall return to its owners without money and without payment]”—

when the number of years agreed upon between them has ended, the land returns to its owner without payment or price”—

and

if he holds the mortgage document in his possession and says, “

It was purchased by me,”

would he likewise be believed [could it be possible that the lender could conceal the mortgage document and claim, “It was purchased by me,” and we would believe him by virtue of presumptive possession for three years], whereas the claimant cannot nullify his presumptive possession through a partial protest!?

Could the lender conceal the deed of security and claim, “I purchased it,” and would we believe him on the basis of his having held the land for the period that establishes ownership? Yet the claimant cannot invalidate the other person’s established ownership through a partial protest!?

And if you would say: Indeed, so!?

And is it possible that

the Sages instituted—

who instituted the Sura mortgage—

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

could they have instituted an enactment through which the borrower might suffer a loss? Surely the Sages would not institute such an arrangement—

Rather,

necessarily there is no concern of loss in this, because

he should have

the borrower

protested

against the lender with a partial protest, and this protest would nullify the lender’s presumptive possession, and he would have no ability to cause the borrower a loss—

And if so,

here—

when he placed him in possession of the produce—

also,

if he is concerned that at the end of three years the lender will claim that it is his,

he should have protested

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

Mishna:

Three regions

are in the Land of Israel, which are divided from one another

with regard

to

presumptive possession: Judea, Transjordan, and the Galilee.

How so?

If

the owner of the ground

was in Judea, and one established presumptive possession

of his field that was

in the Galilee;

or the owner of the ground

was in the Galilee, and one established presumptive possession

of his field that was

in Judea—

or the owner of the ground was in Judea or in the Galilee, and one established presumptive possession of his field that was in Transjordan; or the owner of the ground was in Transjordan, and one established presumptive possession of his field that was in Judea or in the Galilee—

in all these cases,

it is not presumptive possession,

and the Gemara explains the reason: between these three regions caravans are not commonly found. If the owner of the ground protests in the place where he is, the protest will not be heard by the one in possession, so that he will know to be more careful with his document beyond three years. And since his protest is not a protest, the owner of the ground does not suffer a loss by not protesting, while the one in possession should have been careful with his document beyond three years, for he knows that the owner of the ground cannot protest—

until the owner of the ground is

with him

in the same

with the person who is using the land

region

[with the one in possession], so that both of them are in the Galilee, or in Judea, or in Transjordan, even if they are in different cities within that same region.

Rabbi Judah said,

in disagreement with the words of the first tanna, who maintains that presumptive possession is ineffective until both of them are in one region: even if they are in two regions, it is presumptive possession, for:

The Sages did not say

that presumptive possession is effective only after three years,

although they could have said: A person does not allow another to consume his field and remain silent at all,

although they could have said: A person would never allow another person to consume the produce of his field and remain silent for any period at all,

except that the owner of the ground should be

the owner of the land

in Spain [a place extremely distant from the Land of Israel, where caravans are not commonly found],

a place extremely far from the Land of Israel, where regular travel is uncommon—

and the purchaser should establish presumptive possession

of the land

for one year

in ground in the Land of Israel, and during this year word would spread that there is someone establishing presumptive possession in his field,

and

then

they would go and inform him

that someone has been establishing presumptive possession in his field for

one

additional year,

and the owner of the ground would come

the owner of the land

in another year

to protest against the one in possession. And it necessarily follows that it is proven that presumptive possession is effective even when the one in possession and the claimant are in two regions between which caravans are not commonly found.

Gemara:

We learned in the Mishna: There are three regions for presumptive possession: Judea, Transjordan, and the Galilee. If he was in Judea and one established presumptive possession in the Galilee ... it is not presumptive possession until he is with him in one region:

And we raise an objection:

What does the first tanna hold,

what is the reasoning of the first tanna, who distinguishes between presumptive possession carried out in two cities within one region and presumptive possession in two regions!?

If he holds: a protest

that the claimant makes

not in his presence

of the one in possession

is a protest

to nullify his presumptive possession [and because the protest certainly reached the one in possession, since the one who hears the protest tells his fellow, and his fellow tells his fellow, until the protest reached the one in possession], then he should hold that presumptive possession carried out in two cities is presumptive possession, since this one could protest even not in his presence—

If so,

even Judea and the Galilee [even if the one in possession was in Judea and the owner of the ground was in the Galilee]

even if the person using the land was in Judea and the owner was in the Galilee

also

should be presumptive possession, since he can protest not in his presence, just as he does in two cities!?

And

if he holds: a protest not in his presence is not a protest,

and therefore there is no presumptive possession in two regions, since he cannot protest, then

even Judea and Judea [if both of them were in Judea, but one was in one city and the other in another city]

if both were in Judea, but one was in one city and the other in a different city

also not

should it be presumptive possession, since, because a protest in his place is not a protest, the presumptive possession that he established is likewise not presumptive possession. And why did we learn, “until he is with him in one region”? It should have said, “until he is with him in one city”!?

Rabbi Abba bar Memel said that Rav said,

to explain the method of the first tanna:

The first tanna always holds:

the first tanna:

a protest not in his presence is a protest,

and therefore if he was with him in the same region, even in another city, it is presumptive possession

; and our Mishna

is dealing

with a time of emergency,

when there are hostilities between the inhabitants of Judea and the Galilee.

They taught

that it is not presumptive possession, because at such a time caravans are not commonly found traveling from the Galilee to Judea, and when caravans are not commonly found, his protest is not a protest when not in his presence, since the protest will not reach the ears of the one in possession; and since his protest is not a protest, his presumptive possession is likewise not presumptive possession.

And we raise an objection:

And

if so,

what is different about Judea and the Galilee that it specified,

for the same law should apply to every place where there is a time of emergency between two regions, that it is not presumptive possession. It should have said: All regions are divided from one another with regard to presumptive possession during a time of emergency!?

And we answer:

This teaches us

our Mishna, which specified Judea and the Galilee: