Bava Batra 57a — the Talmud in English

There was an incident involving

a certain document signed by two witnesses.

And

one of them died. [The incident involved a document signed by two witnesses. In the meantime, one of them died. The lender claimed that the document was forged, and it became necessary to verify the witnesses’ signatures.]

The surviving witness came and testified concerning his own signature, and he is trusted concerning it by himself. Although verification of witnesses’ signatures ordinarily requires two witnesses, the Sages state in the Mishna in Ketubot 20b that his testimony is considered as though he were testifying anew concerning the obligation of one hundred dinars recorded in the document. Therefore, his testimony alone is sufficient. But concerning the deceased witness’s signature,

the brother of the surviving witness came together with another person

with him,

to testify concerning the other witness’s signature. [The surviving witness’s brother came with another person to testify that the deceased witness’s signature was genuine.]

Ravina thought to say

that the testimony should be accepted, even though two brothers were joining together in verifying one document, because

this is what our Mishna teaches: [Our Mishna:]

Three brothers

testify concerning three years of presumptive ownership, each testifying concerning a different year,

and another witness joins with them. [Their testimony is valid, as explained in our Mishna.] We have therefore learned that brothers may testify concerning one claim of presumptive ownership when we do not need to combine them into a single group of witnesses. Here too, two brothers may testify concerning one document, with one testifying concerning one signature and the other testifying concerning the other signature.

Rav Ashi said to him,

to Ravina:

Are the cases comparable? [Can the case under discussion really be compared with the proof?]

There,

in our Mishna,

three quarters of the money do not leave the defendant’s possession on the basis of the brothers’ testimony, [You cannot say that three quarters of the property are taken away on the basis of the brothers’ testimony.] But

here,

in this incident,

three quarters of the money do leave the defendant’s possession on the basis of the brothers’ testimony?

This means that the reason brothers are disqualified from testifying as one group is that they are considered only as one witness. Therefore, when they testify concerning three years of presumptive ownership together with another witness, their testimony is accepted. Had one witness come to testify concerning all three years together, we would have accepted him to join with his colleague. But with regard to a document, had that surviving witness himself testified concerning the deceased witness’s signature, his testimony could not have been accepted. Once he had testified concerning his own signature, we trusted him because we regard him as though he were now testifying before us concerning the one hundred dinar obligation recorded in the document. It follows that half the money—the portion that one witness can establish in any case—has already been entirely established through this witness’s testimony. His testimony concerning the second signature therefore cannot be accepted together with another witness, because in that event half the money plus another quarter of the money would be taken away on the basis of the testimony of one witness. But the Torah states: “A matter shall be established on the testimony of two witnesses,” meaning that half must be established on the testimony of one witness and half on the testimony of the other.

Just as we cannot accept the surviving witness’s testimony to verify the deceased witness’s signature, so too we cannot accept the testimony of his brother, because he and his brother are considered like one person.

Mishna:

These

are the

matters—that is, these are the types of regular use that a person makes of his fellow’s courtyard—

that is, these are the uses that a person regularly makes of his fellow’s courtyard,

that establish a presumption of ownership after three years, enabling him to claim, “You gave me this right of use as a gift,” or “You sold it to me

” .

And these

are the

matters that do not establish a presumption of ownership,

even if he used them for three years. This is because the owners do not object to someone using what belongs to them even for four or five years. Therefore, the user does not acquire a presumption enabling him to say, “Why did you not protest against me?” The owner can respond: “I had no reason to protest, because you did not take possession of the land itself in the ordinary manner of establishing possession, and I suffered no loss. From now on, however, I object.”

How?

If one of the partners would place

one of the partners

an animal

in the courtyard

of the partners — whose primary purpose is only passage in and out—for three years; or if he would place there

an oven

for three years; or

a millstone and a stove [or a stove],

[или плиту],

and

likewise

if he raises chickens and places

the

manure

in the courtyard

of the partners: all of these

do not establish a presumption of ownership,

as the reason was explained above.

But

if

one of the partners made

one of the partners

a partition for his animal—

where he had been placing it—

ten handbreadths high; and likewise,

if he made a partition

for the oven

that he had been placing there,

and likewise for the stove and likewise for the millstone.

Or if he

brought chickens into the house

of the partners, since partners certainly customarily object to this—people object to such use—

and made a place [or made a place]

in the partners’ courtyard

for his manure, three handbreadths deep

so that it would not scatter,

or

he made a partition

three handbreadths high:

In all these cases,

this establishes a presumption of ownership,

because it is customary to object to such use, and if the owner did not protest, the user certainly acted with his authorization and permission.

Gemara:

In its question, the Gemara thought that our Mishna was dealing literally with uses that a person makes of his fellow’s courtyard. Therefore, the Gemara asks:

What is different about the first clause

of our Mishna, such as placing an animal in his fellow’s courtyard, which does not establish a presumption of ownership,

and what is different about the latter clause,

which does establish a presumption of ownership? Surely people object to a stranger’s permanent placement of an animal there!?

He said—

explained—

Ulla:

Keep this principle in mind:

Any

act that a person performs in his fellow’s courtyard

such that, had he

performed it

with the property of a convert

who died [and whoever comes first and establishes possession of it in order to acquire it acquires it], then

he acquires

—

It follows that if he did this

with his fellow’s property

and maintained this use for three years as well,

he acquires

the right of use; that is, he is trusted to claim, “I purchased this right

”. And

any

act that a person performs in his fellow’s courtyard

such that, had he

performed it

with the property of a convert, he would not acquire the land,

the land, then if he did this

with his fellow’s property

likewise

he does not acquire

the right of use, even if he maintained it for three years.

Therefore, he has no presumption of ownership based on using the courtyard to place his animals, oven, or stove, unless he made a partition, since had he enclosed property belonging to a convert, he would acquire it.

Rav Sheshet strongly objected: And

is it true that

this is a general principle,

that the laws of a three-year presumption of ownership and the laws of acquisition by establishing possession depend on one another?

A.

But

one who performed

plowing [plowed]

in his fellow’s land,

acquires property belonging to a convert

even if he struck the ground with only one hoe-blow, whereas

with his fellow’s property he does not acquire it [this does not establish a presumption of ownership]!?

[это не является חזקה]!?

B.

And

conversely:

But eating [

gathering ]

produce

that is already ripe,

with his fellow’s property, establishes acquisition,

whereas

with the property of a convert, he does not acquire it!?

It follows that these laws are not comparable to one another. The difficulty nevertheless remains: Why, when he makes these uses of the courtyard, does this not establish a presumption of ownership?

Rather, Rav Naḥman said that Rabba bar Avuha said

to explain the reason for the difference between the first and latter clauses: