Bava Batra 28bבבא בתרא כ״ח ב
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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28bכ״ח ב

ואידך כי לא נגח מאי לשלם הכא כיון דאכלה תלת שני קיימא לה ברשותיה

and the requirement for there to be another, fourth, incident for the owner to be liable to pay full damages exists because before it gores after having become a forewarned ox, what is there for the owner to pay? Here, once he has worked and profited from the land for three years, the land is established as being in his possession.

אלא מעתה חזקה שאין עמה טענה תיהוי חזקה אלמה תנן כל חזקה שאין עמה טענה אינה חזקה

The Gemara asks: If that is so, according to the explanation that the forewarned ox is the source for the presumption of ownership with regard to land, even possession that is not accompanied by a claim, i.e., where the possessor has no explanation as to how he acquired it, should be sufficient to establish the presumption of ownership, just as goring three times automatically establishes its having the status of a forewarned ox. Why did we learn in a mishna (41a): Any possession that is not accompanied by a claim explaining how the possessor became the owner is not sufficient to establish the presumption of ownership?

טעמא מאי דאמרינן דלמא כדקאמר השתא איהו לא טעין אנן ליטעון ליה

The Gemara answers: What is the reason that possession that is not accompanied by a claim is not sufficient to establish the presumption of ownership? Because in a standard case where one has presumptive ownership, we say that even if the claimant proves that the field was once his, since the other is in possession of the land, perhaps the truth is as he says, that he purchased it from the previous owner. But now that he himself does not claim that he purchased it, will we claim this for him?

מתקיף לה רב עוירא אלא מעתה מחאה שלא בפניו לא תיהוי מחאה דומיא דשור מועד מה שור המועד בפניו בעינן אף הכא נמי בפניו בעינן

Rav Avira objects to the explanation that the presumption with regard to land is derived from the halakha of a forewarned ox: If that is so, a protest that the claimant lodges during the three years not in the presence of the possessor should not be considered a protest, because it must be similar to the halakha of a forewarned ox: Just as we require that the testimony concerning a forewarned ox be in its owner’s presence, so too here, we should also require that a protest be lodged in the possessor’s presence.

התם (שמות כא, כט) והועד בבעליו כתיב הכא חברך חברא אית ליה וחברא דחברך חברא אית ליה

The Gemara answers: This is not difficult. There, with regard to a forewarned ox, it is written: “And warning has been given to its owner” (Exodus 21:29), indicating that the warning must be issued in the presence of the owner. Here, with regard to the protest, your friend has a friend, and the friend of your friend has a friend, so that the protest will become known even if lodged not in the presence of the possessor, as word of it will spread. There is no Torah edict mandating that the protest be lodged in his presence, and it is sufficient that he hears of it, even secondhand.

ולר"מ דאמר ריחק נגיחותיו חייב קירב נגיחותיו לא כ"ש אכלה תלתא פירי בחד יומא כגון תאנה ליהוי חזקה

The Gemara further asks: And according to Rabbi Meir, who says: When the ox performs its gorings at intervals its owner is liable, if it performs its gorings successively, is it not all the more so the case that its owner is liable? According to his opinion, the animal must gore only three times to become forewarned, and it is not required that the gorings occur on three separate days; they can all occur on the same day. Similarly, one could say that if he profited from the field by consuming three fruits of, for example, a fig tree, within one day, that should be sufficient to establish the presumption of ownership.

דומיא דשור המועד מה שור המועד בעידנא דאית ליה הא נגיחה ליתא להא נגיחה הכא נמי בעידנא דאיתא להאי פירא ליתא להאי פירא

The Gemara answers: This would not be a valid comparison, as presumptive ownership with regard to land must be similar to the halakha of a forewarned ox: Just as with a forewarned ox, at the time when the animal has this goring, it does not have that goring, as each act of goring occurs at a separate time, here too, in order for the consumption of the produce to establish the presumption of ownership, it must be that at the time when this fruit is here, that fruit is not here. When all the produce of the field is extant concurrently, consumption of this produce does not establish the presumption of ownership, even if the produce is consumed at three different times.

אכלה תלתא פרי (בתלתא יומי) כגון צלף ליהוי חזקה התם פירא מיהא איתיה ומגמר הוא דקא גמר ואזיל

The Gemara asks: Based on this, if he profited from the field by consuming three fruits within three consecutive days, for example, the fruits of a caper bush, whose fruits ripen day after day, that should be sufficient to establish the presumption of ownership, as all three fruits were not ripe concurrently. The Gemara answers: There, with regard to the caper bush, at least the fruit is here and it is in the process of finishing its ripening during the three days. This is not similar to the goring ox, where each goring is fully independent of the others.

אכלה תלתא פירי בתלתין יומי כגון אספסתא ליהוי חזקה היכי דמי דקדיח ואכלה דקדיח ואכלה התם משמט הוא דקא שמיט ואכיל

The Gemara challenges: Based on this, if he profited from the field by consuming three fruits within thirty days, for example, alfalfa [aspasta], which quickly regrows when cut, and which is repeatedly cut over a short period of time, that should be sufficient to establish the presumption of ownership. The Gemara explains: What are the circumstances where it could regrow three times within thirty days? Where it grows a little and he cuts and consumes it, where it grows a little more and he consumes it, such that he cuts it three times within thirty days. There, he is seizing and consuming the alfalfa, which is not the normal way of farming it, and consequently he does not establish the presumption of ownership, which is established only through standard use of the land.

אכלה תלתא פירי בתלתא ירחי כגון אספסתא ליהוי חזקה מאן הולכי אושא ר' ישמעאל לר' ישמעאל הכי נמי

The Gemara challenges: Based on this, if he profited from the field by consuming three fruits within three months, for example, alfalfa, where he did employ the standard method of harvesting it, that should be sufficient to establish the presumption of ownership. The Gemara explains: Who are they who travel to Usha whose opinion is under discussion? It is Rabbi Yishmael. Indeed, according to Rabbi Yishmael, this would establish the presumption of ownership.

דתנן רבי ישמעאל אומר בד"א בשדה הלבן אבל בשדה אילן כנס את תבואתו ומסק את זיתיו וכנס את קייצו הרי אלו ג' שנים

This is as we learned in the mishna that Rabbi Yishmael says: In what case is this statement, that eighteen months are required for a non-irrigated field, said? With regard to a white field, i.e., a grain field. But with regard to a field of trees, once he gathered his produce, and then harvested his olives, and then gathered his figs, these three harvests are the equivalent of three years. Rabbi Yishmael is of the opinion that three harvests are sufficient.

לרבנן מאי

The Gemara asks: According to the Rabbis, who hold that three years, and not three harvests, are required to establish the presumption of ownership, what is the source for the concept of this type of presumptive ownership?

אמר רב יוסף קרא כתיב (ירמיהו לב, מד) שדות בכסף יקנו וכתוב בספר וחתום שהרי נביא עומד בעשר ומזהיר על אחת עשרה

Rav Yosef said that it is written in the verse detailing the purchase of a field from Hanamel by Jeremiah, his cousin, during the time of the siege of Eretz Yisrael: “Men shall buy fields for money, and subscribe the deeds, and seal them” (Jeremiah 32:44). This describes the writing of a bill of sale to serve as proof of ownership of the field, since he was unable to remain living there for three years to establish the presumption of ownership. As the prophet Jeremiah stood in the tenth year of King Zedekiah’s reign and warned people to write bills of sale for the eleventh year, when Eretz Yisrael would be overrun. Consequently, despite the fact that one purchasing a field there would be able to live on the land for two years, this would not be sufficient to establish the presumption of ownership, which is why he said that they should have bills of sale written.

א"ל אביי דלמא התם עצה טובה קמ"ל

Abaye said to him: Perhaps there he merely teaches us good advice, that it is advisable to have documents to preclude the need to present witnesses that can attest that one had been living on the land. This is not a proof that the presumption of ownership cannot be established in less than three years.