ז׳ באדר ה׳תשע״ז (March 5, 2017)

Bava Batra 42a-b: No Presumption of Ownership

We have learned (see daf 28) that the term ḥazaka (presumption of ownership) has two different meanings. While most of our perek deals with ḥazaka as an act that supports a claim of ownership, i.e. living or working a piece of land for three years will support a man’s claim that he had purchased the land, there is another type of ḥazaka, as well. A ḥazaka can also mean a formal act that shows that a person controls the land, which will serve as an act of kinyan – of taking possession of the land.

The Mishna on our daf refers to each of these ḥazakot separately.

The Mishna lists a number of people who may be employed on land or have reason to be on it for an extended period of time, even though they do not own it. Such people, the Mishna teaches, cannot attain a claim of ownership by working the land for three years, since it is clear that their situation is such that they are on the land legitimately, but in some other capacity – not as owners of the field. People in this category include:

  • Umanin – craftsmen who are building or performing work (according to the Rambam in his Commentary to the Mishna)
  • Shutafin – partners in the field
  • Arisin– sharecroppers who work the field for a percentage of its produce
  • Apotropin (stewards) – guardians of the interests of orphans, who work the field on their behalf
  • Ba’al be-nikhsei ishto – a husband working his wife’s property
  • Av be-nikhsei ha-ben – a father working his son’s property
  • Ben be-nikhsei ha-av – a son working his father’s property

In all of these cases, since the individual had legitimate reason to be on the field, there is no reason for the owner to complain, and his being there cannot support a claim that the field had been purchased by him.

In the case where the ḥazaka will serve as an act of acquisition, for example, where someone gives a present to another, then the ḥazaka of na’al, gadar u-faratz will be effective. That is to say, if the recipient of the present locked the door, put up a fence, or performed any other action that exhibited ownership, such a ḥazaka will effect ownership.

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