Bava Batra 57a (נז.) — the Talmud in English

An incident occurred involving

a certain document upon which two witnesses had signed.

And

one of them died [an incident involving a document upon which two witnesses had signed, and meanwhile one of them died]. The lender claimed that the document was forged, and it became necessary to authenticate the witnesses’ signatures.

[A case about a shtar on which two were signed, and in the meantime one died]. And the lender alleged that the shtar was forged, and it was necessary to establish the signatures of the witnesses.

The surviving witness came and testified concerning his own signature, and he is trustworthy concerning it by himself. Although authentication of the witnesses’ signatures is performed only by two witnesses, nevertheless, the Sages maintain in Mishna Ketubot 20b that his testimony is considered as though he were returning and testifying concerning the obligation of the hundred dinars recorded in the document; therefore, his testimony alone suffices. But concerning the signature of the deceased,

the brother of this surviving witness came, together with another person,

with him

to testify concerning the signature of the other witness [the brother of the surviving witness came with another person to testify concerning the authenticity of the deceased witness’s signature].

[the brother of the living witness came with another, to testify to the truth of his signature].

Ravina thought to say

that the testimony should be deemed valid, even though two brothers were joining together in the authentication of one document, because

this is identical to our Mishna [our Mishna]:

[in our Mishna]:

Three brothers

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

and one other person joins with them [their testimony is valid, as explained in our Mishna]. We have therefore learned that brothers may testify concerning one presumptive ownership when we do not need to join them as one group of witnesses. Likewise, in this case, two brothers may testify concerning one document, with one testifying concerning one signature and the other testifying concerning the other signature.

[their testimony is valid, as explained in our Mishna]; hence we have learned that brothers can testify in one chazaka when we do not require them to be joined to a single act; and likewise in our present case, two brothers can testify on one shtar, when this one testifies to this signature and that one testifies to the other signature.

Rav Ashi said

to Ravina:

Are the cases comparable [is the case under discussion comparable to the proof]!?

[and is the present case similar to (that of) testimony?]!?

There,

in our Mishna,

not even three-fourths of the money emerges on the basis of the brothers’ testimony [you cannot say that three-fourths of the money is being extracted on the basis of the brothers’ testimony]. But

[You cannot say that we extract three-quarters of the funds on the basis of brothers], but

here,

in this incident,

three-fourths of the money emerges on the basis of the brothers’ testimony!?

That is to say, the reason for the disqualification of brothers from one testimony is that they are considered only as one witness. Therefore, when they testify concerning three years of presumptive ownership together with another witness, they should be accepted, for if one witness had come to testify concerning all three years at once, we would accept him to join with his fellow. But with regard to a document, if that surviving witness had testified concerning the signature of the other witness, it would not have been possible to accept his testimony. Since he himself had testified concerning his own signature, and we deemed him trustworthy because we view him as though he were now testifying before us concerning the hundred dinars recorded in the document, it follows that half of the money—the amount that a single witness can extract in any case—has already been extracted in full through this witness’s testimony. It is therefore impossible to accept his testimony concerning the second signature together with another witness, because it would then follow that we had extracted half the money plus another quarter of the money on the basis of the testimony of one witness, whereas the Torah says: “By the mouth of two witnesses shall the matter be established”—that is, half on the basis of this witness and half on the basis of that witness.

Just as we cannot accept the testimony of the surviving witness to authenticate the signature of the deceased witness, so too we cannot accept the testimony of his brother, for he and his brother are considered as one person.

Mishna:

These

are the

matters,

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

for which there is a presumption of ownership

of three years, enabling him to claim: “You gave it to me as a gift for this use,” or, “You sold it to me.”

And these

are the

matters for which there is no presumption of ownership,

even if he used them for three years. This is because the owners do not object to one who uses what belongs to them even for four or five years. Therefore, the possessor has no presumption of ownership with which to say to the owner, “Why did you not protest against me?” The owner can respond: “I did not consider it necessary to protest, since you did not establish possession of the substance of the land in the manner in which people ordinarily establish possession, and I suffered no loss. From now on, however, I object.”

How so?

If one of the partners placed

one of the partners’

animals

in the courtyard

of the partners—which is primarily intended only for entering and leaving— for three years; or if he placed there a

stove

for three years; or

a millstone and a stove [or a stove],

[or hearths],

and

also

raised chickens and placed

their

manure

in the courtyard

of the partners: all these

do not establish presumptive ownership,

as the reason was explained above.

But

if

one 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 a stove

where he had been placing it,

and likewise for a stove, and likewise for a millstone.

Or if he

brought chickens into the house

of the partners, since in this case partners certainly customarily 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 circumstances,

this establishes presumptive ownership,

because it is customary to object to such use, and if the owner did not protest against him, he certainly acted with the owner’s consent and authority.

Gemara:

In its initial question, the Gemara assumed that our Mishna was dealing, as it appears, with uses that a person makes in his fellow’s courtyard. Therefore, the Gemara asks:

What is different in the first clause

of our Mishna, such as placing an animal in his fellow’s courtyard, for which there is no presumption of ownership,

and what is different in the latter clause,

for which there is a presumption of ownership? Surely people object to the permanent placement of an animal by a stranger!?

He said—

Ulla

explained:

Adopt this principle:

Any

matter that one does in his fellow’s courtyard

that, if

he were to do the same

with the property of a convert

who died [and whoever comes first and establishes presumptive ownership of it in order to acquire it, it becomes his], he

acquires

the land—

It follows that if he did the same

with his fellow’s property

and maintained it in that manner for three years, he likewise

acquires

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

And

any

matter that one does in his fellow’s courtyard

that, if

he were to do the same

with the property of a convert, he would not acquire

the land, then if he did the same

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 concerning the use of placing his animals, a stove, or a stove, unless he made a partition, for if he had fenced in the property of a convert, he would acquire it.

Rav Sheshet raised an objection to it: And

is

this a general principle—that the laws of presumptive ownership of three years and the laws of presumptive ownership for acquisition depend on one another!?

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

plowed [a furrow]

in his fellow’s land,

with regard to the property of a convert, he acquires it,

even if he struck it with only a single hoe, whereas

with regard to his fellow’s property, he does not acquire it [it does not establish presumptive ownership]!?

does not establish a presumption

b.

And

conversely:

but the consumption of

[the gathering of]

ready

fruit,

with regard to his fellow’s property, effects acquisition,

whereas

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

Thus, these laws are not analogous to one another. The difficulty nevertheless remains: Why, when he makes these uses in the courtyard, does this not establish presumptive ownership?

Rather, Rav Naḥman said that Rabba bar Avuh said

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