Bava Batra 38b — the Talmud in English

For Judah and Galilee are deemed like a time of emergency:

that is, even when there is peace between them, it is as though there were an emergency between them, and because caravans are not commonly found traveling from one to the other, therefore, whenever the claimant was in Galilee and the possessor established possession in Judah, it is not possession.

Rav Judah said in the name of Rav:

One does not establish possession of the property of a fugitive,

that is, one who established possession of a fugitive’s property and said, “I purchased it from him”—his possession, established during the flight of the owner of the land, is not possession; because according to Rav, “a protest not made in his presence is not a protest” to invalidate the possessor’s possession, and the fugitive cannot come and protest in the presence of the possessor, since after all he fled from this place for some reason, and whenever he is unable to protest, the possessor’s possession is not possession!

Rav Yehuda added and said:

When I stated this before Shmuel

when Rav died and I went to study under Shmuel, and I reported this teaching to him in Rav’s name,

he said to me

Shmuel:

And why should this not be possession?

Does

every owner of land whose field is being possessed

need to protest in the presence

of the possessor

of him

in order to invalidate the possessor’s possession!? So that we should say: Since this one is unable to protest, this one’s possession is also not possession!?

But even if he protests not in his presence, his protest is a protest; and if so, this one’s possession is possession, since even a fugitive can protest not in the presence of the possessor.

And

we raise an objection against

Rav: What does he teach us [

what does he come to teach us ] [

does he hold ]!?

A protest not made in his presence is not

a protest!?

And

yet

Rav said: A protest not made in his presence is a protest!?

For this is how Rav explained the reason of the First Tanna in our Mishna, as explained on page a, and it implies that he too held like the First Tanna, and therefore explained his reason.

And we answer: Rav indeed holds that “a protest not made in his presence is not a protest,” and

Rav

only

explains the reason of the Tanna of our Mishna [

Rav came only to explain the reason of the First Tanna ],

but he does not hold

it

as his own position, but rather like the position of Rabbi Judah, who holds: A protest not made in his presence is not a protest.

Some say:

Thus

Rav Judah said in the name of Rav:

One does establish possession of the property of a fugitive,

and

when I related it before Shmuel, he said to me: It is obvious; does he need to protest in his presence!?

And

this is how we raise the objection:

What does Rav come to teach us!?

That

a protest not made in his presence is a protest!?

But

already

Rav said it once [

once ] on page a, in explaining the words of the First Tanna; and since Rav explained our anonymous Mishna in this way, we already know that this is what he holds!?

And we answer:

Rather, this he comes to teach us,

Rav, by saying: One does establish possession of the property of a fugitive:

even if he protested

the claimant

in the presence of two who cannot tell him,

the possessor, that the owner of the land protested against him, also

it is a protest,

because they will tell others, and others will tell others, until it is heard by the possessor’s ears.

And Shmuel, who raised a difficulty against Rav’s words and said, “It is obvious; does he need to protest in his presence?”—that is because he did not understand from Rav’s words that he came to teach this, and that Rav said, “One does establish possession of the property of a fugitive,” only to teach that a protest in his presence is not required; on the contrary, he does not hold that a protest before two who cannot tell him is a protest—

And

as Rav Anan said: It was explained to me by Mar Shmuel himself [

I heard it from Shmuel’s own mouth ]:

If he protested before two people who can tell him, it is a protest,

but

if he protested before two people who cannot tell him, it is not a protest.

And

we explain the reason of

Rav,

who disputes Shmuel’s words and holds that a protest even before two who cannot tell him is possession: because he holds that even if these people themselves do not inform the possessor that the claimant protested against him,

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

the friend who heard the protest has a friend to whom he will relate the protest, and that friend has a friend to whom he will relate it, and thus the protest will ultimately reach the possessor’s ears ].

Rava said: The halakha:

a.

One does not establish possession of the property of a fugitive.

b.

And a protest not made in his presence is a protest,

and if so, possession not established in his presence is possession, and one who establishes possession of a fugitive’s property has possession.

And we are astonished at Rava’s words:

Two things [

for here Rava said two things that cannot be maintained together ], for if he can protest not in his presence, why should one not establish possession of a fugitive’s property!?

And we answer:

It is not difficult:

Here—

when Rava said: A protest not made in his presence is a protest, and to teach that one does establish possession of a fugitive’s property—in a case where the owner of the land was

a fugitive because of money,

who owed money and had nothing with which to repay it, and was evading the creditor until he would have money with which to repay him; for one who flees because of a debt is not pursued, and he is not concerned that people will learn where he is, and he can protest not in the presence of the possessor. Therefore one does establish possession of his property, since a protest not made in his presence is a protest.

Here—

when Rava said: One does not establish possession of the property of a fugitive—in a case where the owner of the land was

a fugitive because of murder [

“murder” in Persian ], who committed murder in his place, and is afraid of the blood-avenger, lest he kill him; he is also concerned about revealing where he is, lest the blood-avenger pursue him there to kill him. It follows that he cannot protest even not in his presence, and therefore one does not establish possession of his property.

The Gemara explains:

What are the circumstances of a protest,

how does one protest not in his presence?

Rav Zevid said:

If he said before witnesses:

So-and-so [

and he specifies the name of the possessor of the land ]

is a robber,

and he does not add, saying: “He is eating my land through robbery,”

it is not a protest, because even if the witnesses say this wording to the possessor, he will not take care of his document, since he does not know why he calls him “a robber,” such that he should take care of his document.

because even if the witnesses repeat this wording to the possessor, he will not take care of his document of ownership. He does not know why the owner calls him a “robber” and therefore will not be careful to preserve his document.

Only if he said: “

So-and-so is a robber, for he is consuming my land through robbery,”