Bava Batra 42b — the Talmud in English

Gemara:

Shmuel’s father and Levi

Shmuel’s father, and likewise 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, tenant-farmers, and trustees have no presumptive ownership

and all the more so

that of a

craftsman

there is no presumptive ownership, and the Mishna need not teach 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 holds that if he had indeed not sold him his share, he would not have allowed him to consume it alone; rather, they would have worked the land and consumed it in partnership.

And Shmuel follows

the view that a partner who consumed all the produce of the field has presumptive ownership—

his own view

Shmuel followed his own position in this matter:

For Shmuel said: Partners establish presumptive ownership against one another, and testify for one another

to establish his share in his possession, against a claimant who says that it does not belong to them.

And they become

the partners

paid custodians for one another,

when one of them holds the partnership property in his possession, he is a paid custodian for his colleague, for such was the practice of partners: one holds the property in his possession and guards it, and afterward the other partner holds it in his possession, so each of them is found to be a paid custodian for his colleague.

Rabbi Abba raised a contradiction to Rav Yehuda at the oil press of Rabbi Zakkai,

Rabbi Abba challenged Rav Yehuda there, presenting a contradiction in Shmuel’s statements:

Did Shmuel say: A partner has presumptive ownership

in his colleague’s property!?

But did Shmuel not say: A partner

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

is considered like one who entered with permission

of his partner

?

He is therefore as one who entered with his partner’s permission—

Is it not to say

that Shmuel intended to say by this

that a partner has no presumptive ownership,

because he acts with his colleague’s permission, and there is no proof of ownership from his partner’s silence? 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 is the case where he entered into the whole field,

one of Shmuel’s statements concerns a partner who entered to work and consume the produce of the entire field, and claimed that he had acquired his partner’s share.

This is the case where he entered into half,

the other statement of Shmuel concerns a partner who took the superior portion for himself and claimed: “We divided the partnership’s property, and what I consumed came to my share.”

Some state the distinction in this direction,

there are those who explain the distinction between the teachings in one way, as follows:

It is not the practice of partners to divide between themselves in such a manner that one consumes the entire field alone for one period, and the other consumes it opposite him afterward. Rather, they are particular about a fixed division: 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. And when they do so, they are particular to exchange the portions between themselves from time to time.

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

”. But if he consumed only half the field alone for three years or more [“he entered into half”], this is not presumptive ownership for claiming that they divided it between themselves, because this is the practice of partners.

And some state the distinction in this direction,

they said that the distinction is in the other direction, namely:

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

If “he entered into the whole,” he has no presumptive ownership, for this is the way of partners: one of them consumes the produce of the field alone for an extended period, all the produce of the field.

But when one partner consumes only half the field alone [“he entered into half”], he has presumptive ownership, for this is not the practice of partners. For even when one is not prepared to wait, he does not work and consume half a field; rather, they work and consume the entire field together.

Ravina said

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

Both this and that

speak of a case

where he entered into the whole,

and one partner claims that he acquired 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 has the legal measure for division

it contains four cubits for this one and four cubits for that one, which is the measure by which one partner can compel his colleague to divide, since it contains enough for this one and enough for that one, it is not the practice that one consumes the entire field and the other afterward; rather, one works one part of the field and the second partner the other part.

This

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

where it does not have

in the field

the legal measure for division.

Since it does not contain enough for this one and enough for that one, this is the way of partners: one consumes the entire field, and the other afterward.

The body of the matter: Shmuel said: A partner is considered like one who entered with permission:

And we wonder: What indeed

does this teach us

Shmuel by this, that

a partner has no presumptive ownership!?

If so,

let

Shmuel say explicitly:

A partner has no presumptive ownership!

He said

he answered

Rav Naḥman in the name of Rabbah bar Avuha:

a. A tenant-farmer who works the field of the owner, even if he entered the field only when the standing grain was already fit to be harvested or the grapes were fit to be gathered, takes from what he did according to the measure taken by the tenant-farmers of the city—whether half, a third, or a quarter—and he is called “one who takes from produce that has reached the shoulders.”

b. One who enters his colleague’s field and plants it without permission: there is a distinction in his law between a field prepared for planting and a field intended for sowing which he planted. If it was a field prepared for planting, they assess how much a person would be willing to pay for planting the field, and the owner of the field pays that amount to the planter; that is, he takes according to the practice of the tenant-farmers of the city.

And if it was a field not prepared for planting, they assess the one who entered, and his hand is on the lower level. For if the increase was greater than the expense that the one who entered spent on the field, he takes only the expense; and if the expense was greater than the increase, the one who entered takes only the amount of the increase.

Shmuel came

to say

in his words two laws:

a.

The partner who enters

the field to work it takes from the produce of his partner’s share, even

from produce that has reached the shoulders,

just as a tenant-farmer takes from produce that has reached the shoulders.

b. And

in a field

that is not prepared for planting, as a field

that is prepared for planting.

That is, although in the ordinary case of one who enters without permission there is a distinction in his law between whether the field was prepared for planting or whether the field was not prepared for planting, nevertheless, in the case of a partner who entered, he takes in a field not prepared for planting just as in a field prepared for planting. Namely, in every case he takes according to the practice of the tenant-farmers of the city.

The master said:

And they testify

the partners

for one another: