Bava Batra 42b (מב:) — the Talmud in English

Gemara:

Shmuel’s father and Levi

Shmuel’s father, and Levi, Shmuel’s colleague]

taught,

they taught our Mishna as follows:

A partner has no presumptive ownership.

That is, they did not explicitly teach in our Mishna, “Craftsmen have no presumptive ownership,” but rather they taught it as follows: “Partners, sharecroppers, and guardians have no presumptive ownership

; and all the more so

a

craftsman

has no presumptive ownership, and the Mishna need not state this.”

Whereas

Shmuel taught

our Mishna: “

A craftsman

[“Craftsmen”]

has no presumptive ownership,”

but a partner does have presumptive ownership.

Shmuel did not teach in our Mishna, “Partners have no presumptive ownership,” because he maintains that if the partner had indeed not sold him his share, he would not have allowed him to consume the produce by himself. Rather, they would have worked the land and consumed its produce as partners.

And Shmuel, who says that a partner who consumed all the produce of the field has presumptive ownership,

follows his own reasoning —

in accordance with his own reasoning [

Shmuel followed his own view in this matter]:

For Shmuel said: Partners establish presumptive ownership against one another, and testify on behalf of one another,

to maintain his share in his possession, against a claimant who asserts that the property is not theirs.

And they become

the partners

paid custodians for one another,

as when one of them holds the partnership’s property in his possession, he is a paid custodian for his fellow; for this was the partners’ practice: one would hold the property in his possession and guard it, and afterward the other partner would hold it in his possession in turn. Consequently, each of them is a paid custodian for the other.

Rabbi Abba raised an objection to Rav Yehuda at Rabbi Zakkai’s olive press, [

Rabbi Abba challenged Rav Yehuda at Rabbi Zakkai’s olive press, presenting a contradiction between Shmuel’s statements]:

Did Shmuel say that a partner has presumptive ownership

of his fellow’s property!?

But didn’t Shmuel say: A partner,

who enters the partnership’s property, works it, and consumes the produce by himself,

is considered like one who entered with authorization

of his partner

? [

He is considered as though he entered with his partner’s authorization] —

Does this not mean [

Did Shmuel not intend to say by this]

that a partner has no presumptive ownership,

because he acts with his fellow’s authorization, and his fellow’s silence is therefore no proof of his ownership? And this contradicts what Shmuel said, that a partner does have presumptive ownership!?

And we answer: Indeed, Shmuel intended to say that a partner has no presumptive ownership; nevertheless,

it is not difficult:

This

one of Shmuel’s statements concerns a partner who entered the entire field, worked it, and consumed its produce, and claimed that he had purchased his partner’s share.

That

the other statement of Shmuel concerns a partner who took the choice portion for himself and claimed: “We divided the partnership’s property, and the part from which I consumed the produce came to me.”

Some explain the matter in this way,

there are those who interpret the distinction between the statements in one manner, as follows:

It is not the partners’ practice to divide the property in such a way that one of them consumes the entire field by himself for one period, and the other consumes it for a corresponding period afterward. Rather, they are careful to maintain a fixed division: either they work the entire field together and consume its produce together, or one works one portion and consumes the produce of the portion he worked, while the other works another portion. When they do this, they are careful to exchange the portions between them from time to time.

Therefore, if one partner consumed the entire field for three years [“he entered the entire field”], and on the basis of his possession of the entire field claimed that he had purchased his partner’s share, this constitutes presumptive ownership. For he did not act according to the partners’ practice. It is in this case that Shmuel said: “A partner does have presumptive ownership

”.

But if he consumed only half the field by himself for three years or more [“he entered half the field”], this does not constitute presumptive ownership for purposes of claiming that they had divided the property between them, because this is the partners’ practice. And some explain the matter in this way,

they said that the distinction is to be understood in the opposite manner, namely:

The partners’ practice is for one to consume the entire field for an extended period, and for the other to consume it for a corresponding period afterward. If one of them does not wish to wait so long to consume what is due to him, they work the entire field together and divide the produce between them. Therefore:

If “he entered the entire field,” he has no presumptive ownership, since this is the partners’ practice: one of them consumes the entire produce of the field by himself for an extended period.

But when one partner consumes only half the field by himself [“he entered half the field”], he does have presumptive ownership, since this is not the partners’ practice. For even when one of them is unwilling to wait, he does not work and consume the produce of half the field; rather, they work and consume the entire field together.

Ravina said

to reconcile Shmuel’s statements so that they do not contradict one another:

Both this and that

are speaking of a case

where he entered the entire field,

and one partner claims that he purchased his partner’s share.

And

nevertheless,

it is not difficult:

This

statement of Shmuel, that a partner has presumptive ownership, applies to a field

that is subject to division [

it contains four cubits for this one and four cubits for that one, which is the measure that enables a partner to compel his fellow to divide the property], because since there is enough for each of them, it is not the partners’ practice for one to consume the entire field and the other to do so afterward. Rather, one works one part of the field and the other partner works the other part.

This

statement of Shmuel, that a partner has no presumptive ownership, applies to a case

where it does not contain

in the field

the measure required for division.

Since there is not enough for each of them, this is the partners’ practice: one consumes the entire field, and the other does so afterward.

Concerning the matter itself, Shmuel said: A partner is considered like one who entered with authorization:

And we wonder: What

does this teach us

Shmuel by saying this, that

a partner has no presumptive ownership!?

If so,

let

Shmuel state explicitly:

A partner has no presumptive ownership!

He said

in explanation,

Rav Naḥman said that Rabba bar Avuha:

a. A sharecropper who works the field of the owner, even if he entered the field only when the standing grain was ready for reaping or the grapes were ready for harvesting, takes a share of what he did, according to the rate taken by the city’s sharecroppers—whether half, a third, or a quarter—and he is called one who “takes from the appreciation that has reached the shoulders.”

b. One who enters his fellow’s field and plants it without authorization is judged differently depending on whether the field was suitable for planting or whether it was intended for sowing and he planted it. If the field was suitable for planting, an assessment is made of how much a person would be willing to pay to have the field planted, and the owner of the field pays that amount to the planter; that is, he receives the customary share of the city’s sharecroppers.

But if it was a field that was not suitable for planting, the one who entered it is assessed, and his hand is on the lower side. If the appreciation exceeds the expenses that he incurred in the field, he receives only his expenses; and if the expenses exceed the appreciation, he receives only the amount of the appreciation.

Shmuel came

to say

two laws:

a.

The partner who enters

the field to work it takes from the produce the share belonging to his other partner, even

from appreciation that has reached the shoulders,

just as a sharecropper takes from appreciation that has reached the shoulders.

b. And

in a field

that is not suitable for planting, as in a field

that is suitable for planting.

That is, although in the ordinary case of one who enters without authorization there is a distinction in the law between a field that is suitable for planting and one that is not suitable for planting, nevertheless, in the case of a partner who enters the field, he receives in a field that is not suitable for planting the same as in a field that is suitable for planting. Namely, in every case he receives according to the practice of the city’s sharecroppers.

The Master said:

And they testify

the partners

on behalf of one another: