Bava Batra 41aבבא בתרא מ״א א
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41aמ״א א

סתמא מאי רבינא אמר לא חיישינן רב אשי אמר חיישינן והלכתא חיישינן:

What is the status of a document detailing a gift that is with-out specification as to whether the giver desired that it be publicized? Ravina says: We are not concerned that it may be a concealed gift, and Rav Ashi says: We are concerned. And the halakha is that we are concerned.

מתני׳ כל חזקה שאין עמה טענה אינה חזקה כיצד אמר לו מה אתה עושה בתוך שלי והוא אמר לו שלא אמר לי אדם דבר מעולם אינה חזקה

MISHNA: 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. How so? If the prior owner said to the possessor: What are you doing in my land? And the possessor said to him in response: I am in possession of the land because no person ever said anything to me about my being here, i.e., he states no valid claim as to why he would be the owner of the land, his mere use is not sufficient to establish the presumption of ownership.

שמכרת לי שנתת לי במתנה אביך מכרה לי אביך נתנה לי במתנה הרי זו חזקה והבא משום ירושה אינו צריך טענה:

But if the possessor claimed: I am in possession of the land because you sold it to me, or: Because you gave it to me as a gift, or: Because your father sold it to me, or: Because your father gave it to me as a gift, these are valid claims to ownership. In these cases, his possession is sufficient to establish the presumption of ownership. And one who comes to claim the land based on inheritance does not need a claim explaining why his ancestors had a right to the land.

גמ׳ פשיטא

GEMARA: The Gemara asks: Why does the mishna need to say this? Isn’t it obvious that one cannot establish the presumption of ownership absent a claim of ownership?

מהו דתימא האי גברא מיזבן זבנה ליה האי ארעא ושטרא הוה ליה ואירכס והאי דקאמר הכי סבר אי אמינא מיזבן זבנה לי האי ארעא אמרי לי אחוי שטרך הלכך לימא ליה אנן דלמא שטרא הוה לך ואירכס כגון זה (משלי לא, ח) פתח פיך לאלם הוא קמ"ל

The Gemara answers: It is necessary for the mishna to state this, lest you say: That man had actually purchased this land that he possessed, and he had a bill of sale, but it was lost. And the reason that he said that he is in possession of the land because no person ever said anything to him, is that he thought: If I say that the prior owner sold me this land, the court will say to me: Show us your bill of sale. Therefore, being that this may be the case, let us say to him: Perhaps you had a bill of sale and it was lost. In a case such as this, one would think that it is a situation where the court should apply the verse: “Open your mouth for the mute” (Proverbs 31:8), meaning the court should advise a litigant of his possible claims, because perhaps he does not state them out of ignorance. Therefore, the mishna teaches us that the court does not advance this claim on his behalf, and if he does not make the claim of his own violation, he does not establish the presumption of ownership.

(ענ"ב סימן)

§ The Gemara presents a mnemonic for the discussion that follows: Ayin, nun, bet.

רב ענן שקל בידקא בארעיה אזל הדר גודא בארעיה דחבריה אתא לקמיה דרב נחמן א"ל זיל הדר

The Gemara tells of a related incident: A torrent [bideka] of water swept through Rav Anan’s land, removing the wall which marked the boundary between his land and that of his neighbor. Rav Anan went back and rebuilt the wall, inadvertently placing it in his neighbor’s land. Rav Anan came before Rav Naḥman to ask him what he should do about it. Rav Naḥman said to him: Go return the boundary to its prior position.

והא אחזיקי לי אמר ליה כמאן כר' יהודה ור' ישמעאל דאמרי כל בפניו לאלתר הוי חזקה לית הלכתא כוותייהו

Rav Anan replied: Why should I return the boundary? But didn’t I already establish the presumption of ownership of this land? Rav Naḥman said to him: In accordance with whose opinion are you claiming a right to the land? Is it in accordance with the opinion of Rabbi Yehuda and Rabbi Yishmael, who say: Any taking of possession that is done in the presence of the prior owner is sufficient to establish the presumption of ownership immediately? If so, your claim is not accepted since the halakha is not in accordance with their opinion.

אמר ליה והא אחיל דאתא וסייע בגודא בהדאי אמר ליה מחילה בטעות היא את גופך אי הוה ידעת לא עבדת כי היכי דאת לא הוה ידעת הוא נמי לא הוה ידע

Rav Anan said to Rav Naḥman: But didn’t the neighbor waive his ownership of this land, as he came and assisted in the building of the wall with me? Rav Naḥman said to Rav Anan: It is an erroneous waiving, since you yourself would not have placed the wall there if you had known that it was the wrong location for it. Just as you did not know that you were building it in the wrong location, so too, he did not know. Therefore, it is reasonable to assume that he did not knowingly waive his ownership of his property.

רב כהנא שקל בידקא בארעיה אזל הדר גודא בארעא דלא דידיה

The Gemara relates a similar incident: A torrent of water swept through Rav Kahana’s field, removing the wall that marked the boundary between his land and that of his neighbor. Rav Kahana went back and rebuilt the wall, inadvertently placing it in land that was not his.