Bava Batra 41a (מא.) — the Talmud in English

A deed of gift that is written

without specification

, meaning that he did not tell them to conceal themselves and write it, nor did he tell them, “Sit in the marketplace and in the open thoroughfare and write it for him

—what

is the status of this gift? Does it have the status of a concealed gift, or not?

Ravina said: We are not concerned

about a concealed gift, and we collect with it.

Rav Ashi said: We are concerned

about a concealed gift, and we do not collect with it.

And the halakha is: We are concerned

about a concealed gift, and we do not collect with it.

Mishna:

Any claim of possession

lasting three years

that is not accompanied by a clear claim

by the possessor that he is the owner of the field, as the Mishna proceeds to explain,

is not considered an established claim of possession.

How so:

If

the owner of the field said to him

—to the possessor—“

What are you doing inside my property,”

and he

—the possessor—

said, “

I am holding it for this reason, because

no one has ever said anything to me,”

it is not a presumption

; and the Gemara will explain what this teaches us.

But if he said, “I am holding the field for this reason, because

you sold it to me

, or because

you gave it to me as a gift

, or because

your father sold it to me

, or because

your father gave it to me as a gift,”

this is a valid presumption.

And

an heir

who comes by virtue of inheritance

, saying, “I consumed the produce of this property for the requisite two years by virtue of my inheritance from my father, who was in possession of it on the day of his death

does not require a claim

clearly establishing that his father acquired it from this claimant; rather, we assert the claim in his place that his father acquired it from the one contesting his ownership.

Gemara

We learned in the Mishna: “How so? If he said to him, ‘What are you doing inside my property?’ and he said, ‘No one has ever said anything to me,’ it is not a presumption”:

And we raise the objection: But

it is obvious

, for how would he acquire the field!? And we answer:

Lest you say

that

this man actually purchased this land

[the possessor did indeed acquire the land],

but he had a deed and it was lost

[he had a deed, but it was lost],

and the reason he says this

is because he

thought

to himself, “

If I say, ‘I purchased this land from him,’ they will say to me

—the court—‘

Show your deed’,” [that is, the reason he does not explicitly make this claim is that he is mistaken about the law and does not know that a presumption is effective in place of a deed; he thinks that if he makes such a claim, the court will say to him, “Show your deed”]—

Therefore—

if the Mishna had not taught us otherwise—

we would say to him [we would say this to him; that is, we would prompt him to make the claim], “

Perhaps you had a deed and lost it

[perhaps you had a deed but lost it],” and because

in such a case

“

open your mouth for the mute

”

would apply—

it teaches us

that our Mishna means that we do not prompt him to make this claim.

A mnemonic:

There was an incident involving

Rav Anan

, when

a flood

from the river

took place in his field

[a torrent of water entered his field from the river and uprooted the fences separating his field from his neighbor’s field].

Rav Anan went

and

replaced the fence in his neighbor’s field [Rav Anan mistakenly replaced the fences beyond their original location, within his neighbor’s field].

The neighbor, who had initially helped Rav Anan put the fences there, later claimed that he wanted his parcel of land returned.

The neighbor, who had initially helped Rav Anan place the fences there, later claimed that he wanted his portion of the field returned.

Rav Anan came

before

Rav Naḥman

to ask about the law.

He said to him

—Rav Naḥman said to Rav Anan—“

Go back” [go and return the fences to their original location].”

Rav Anan said to Rav Naḥman: “Indeed, I returned the fences to an incorrect location. But the neighbor helped me do this, and this is like his having said to me, ‘Go, establish possession and acquire’ the additional parcel of land

;

and I established possession for myself

, and since I acted on his initiative and also maintained possession for a day or two, during which my wall stood on his land, while he knew of it and did not protest but remained silent, this is a presumption accompanied by a claim.”

Rav Nahman said to him,

Rav Nahman said to Rav Anan:

“According to whom,”

according to whose opinion do you think that possession of less than three years should make us believe you!? Surely

it is according to Rabbi Yehuda

and Rabbi Yishmael

son of Rabbi Yosei,

who say: Anyone who possessed the property

person who established possession

in his presence,

in the presence of the field’s owner,

immediately has established possession,

and possession for three years is not required.

However,

the halakha does not follow them [the halakha is not like them]; even when the owner is present, a presumption of three years is required. Therefore, return the parcel of land to its owners.

But still,

he said to him

—Rav Anan said to Rav Naḥman—“

But

, I have witnesses that he

waived

it to me,

for

for

he

came and assisted me with the fence [witnesses testify that he waived his claim to the parcel of land, for he assisted me], as though he had said to me, ‘Go, establish possession and acquire’!?”

He said to him

—Rav Naḥman said to Rav Anan—

The waiver

was made in error

: Your neighbor waived his claim to you in error, for

for your neighbor waived his rights to you only because

if you yourself had known, what would you have done [you yourself, had you known that you were mistaken regarding the location of the fallen fences]? Would you have placed them in your neighbor’s field

!?

Just as you did not know, he too did not know [just as you did not know, so too he did not know],

and therefore the waiver was made in error. There was an incident involving

Rav Kahana

, when

a flood took place in his field, and he replaced the fence on land that was not his [an incident involving Rav Kahana, when a flood uprooted the fences of his field, and he too mistakenly placed the fences within his neighbor’s field].

[an incident involving Rav Kahana, in which a flow of water uprooted the fences of his field, and he too mistakenly placed the fences within his fellow’s field].