Bava Batra 41a — the Talmud in English

A deed of gift that is written

anonymously—

that is, he did not say to them that they should hide and write it, and he did not even say to them: “Sit in the marketplace and in the open place and write it for him”—

what

is the status of this gift? Does it have the status of a “hidden gift,” or not?

Ravina said: We are not concerned

about a “hidden gift,” and we collect by it.

Rav Ashi said: We are concerned

about a “hidden gift,” and we do not collect by it.

And the halakha is: We are concerned

about a hidden gift, and we do not collect by it.

Mishna:

Any presumption of ownership

of three years

that is not accompanied by a claim

stating clearly that the possessor is the owner of the field, as it proceeds to explain,

is not a presumption of ownership.

How so:

If

the owner of the field said to him

to the possessor, “

What are you doing inside what belongs to me,”

and he

the possessor

said, “

I am possessing it for this reason: because

no person has ever said anything to me,”

it is not a presumption of ownership;

and in the Gemara it will be explained what this teaches us.

But if he said, “I am possessing 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 presumption of ownership.

And

an heir

who comes on account of inheritance,

who says, “I consumed its produce for the years of presumption by virtue of my father’s inheritance, for he had possession of it on the day of his death,”

does not require a claim

clearly that his father acquired it from this person who challenges him; rather, we make the claim in his place that his father acquired it from the challenger.

Gemara:

We learned in the Mishna: “How so: If he said to him, ‘What are you doing inside what belongs to me,’ and he said, ‘No person has ever said anything to me,’ it is not a presumption of ownership”:

And we raise a difficulty: Is it not

obvious

that it is so, for how would he acquire the field!? And we answer:

Lest you say:

In truth,

this man purchased this land for him [indeed, the possessor acquired the land],

[the possessor did indeed acquire the land],

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

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

and this is why he says this, because he

is that he

thought

in his heart: “

If I say, ‘He sold this land to me,’ they will say to me

the court:

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

Therefore—

if the Mishna had not taught us otherwise—

let us say to him [let us say it to him ourselves, meaning, let us prompt him to make the claim]: “

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

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

in such a case

in such a case “

open your mouth for the mute”

it is—

therefore

it teaches us

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

The Anav sign.

There was an incident involving

Rav Anan

when he

took the flood

of the river

into his land [a flow of water entered from the river into his field and uprooted the fences between his field and his fellow’s 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 fellow’s land [Rav Anan mistakenly replaced the fences beyond their original location, within his fellow’s field].

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

And the neighbor, who had initially assisted Rav Anan in placing the fences there, subsequently claimed that he wanted his portion of the field returned.

Rav Anan came

and

before Rav Nahman

to ask about his law:

He said to him,

Rav Nahman 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

Rav Anan said to Rav Nahman: “Indeed, I returned the fences not to their correct location, but the neighbor assisted me in this, and it is as though he said to me, ‘Go, establish possession and acquire’ the additional portion of the field,

and I established possession for myself, and since I acted on his instruction and also possessed it for a day or two, during which my wall was on his land, and he knew and did not protest, but remained silent, my possession is a presumption of ownership accompanied by a claim.”

, 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.”

He said to him,

Rav Nahman said to Rav Anan:

According to whom,

according to whose opinion do you think that because of a presumption of ownership of fewer than three years you should be believed!? Surely

according to Rabbi Yehuda

and Rabbi Ishmael

son of Rabbi Yosei,

who say: Any

person who established possession

in his presence,

in the presence of the owner of the field,

immediately has a presumption of ownership,

and there is no need for a presumption of ownership of three years.

However,

the halakha is not in accordance with them, [the halakha is not like them], and even in his presence a presumption of ownership of three years is required; therefore, return the portion of the field to its owners.

But still,

And still

he said to him,

Rav Anan said to Rav Nahman: “

But

I have witnesses that he

waived

it for me,

for

behold,

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

He said to him

He said to him,

Rav Nahman said to Rav Anan:

The waiver

was made in error,

for your neighbor waived it for you, for

you yourself, had you known what would you have done [you yourself, had you known that you were mistaken concerning the placement 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 the waiver was made in error.

There was an incident involving

Rav Kahana

when

a flood took away the fence in his land, and he went and replaced the fence in land that was not his

[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].