Masechet Bava Batra 35a-41b

hero image
Field with Trees
24 Sep 2009

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Bava Batra 35a-b

What should the court do in a civil case where the evidence does not allow for a clear-cut decision?

The Gemara on today’s daf raises the case of two contracts that have the same date, and there is no way of telling which one was written first. Both litigants claim that they bought the field and that it belongs to them. In such a situation, Rav says yachloku – they should divide the field between them; Shmuel rules shuda d’daynei – it is left to the discretion of the judges.

Understanding the ruling of shuda d’daynei is subject to different interpretations by the commentaries.

Rashi and the Rashbam explain that shuda d’daynei means that the judges must do their utmost to determine which one of the two claimants is most likely right, and the property should be given to him. In our case, where the contracts seem to carry equal weight, the court will need to investigate which one the seller was friendly with and did more business with. Most of the rishonim, however, view shuda d’daynei as power given to the court to make any decision that it chooses; they can give it to whichever litigant that they want to – although Tosafot point out that they cannot take a bribe from one side to decide in his favor. This appears to be the position of the Talmud Yerushalmi on this subject, as well.

Another approach to shuda d’daynei appears in the Gaonic responsa, which interprets it to mean that the judges should make a peshara – a compromise – which is also a reasonable method of dealing with a case where no clear decision can be reached.

Rabbeinu Chananel brings a tradition that shuda d’daynei can only be applied in cases of disputes over land, but Tosafot disagree, and prove that it can be done in any civil case.

Bava Batra 36a-b

Although we have learned that someone who lives or works on land for three years can claim to have a chazaka – he will no longer need to produce a document showing that he bought the land, since his presence on the land for three years with no objection from the owner will serve to support his claim of purchase – our Gemara lists a number of exceptions.

Rav Yehuda taught: Someone who claims to have worked land that is outside of the fenced-in area that is planted cannot claim to have a chazaka, since the owner can say that he did not bother to object to someone who used the area that was left for wild animals to eat from.

Rav Yosef taught: Someone who harvests grain before it ripens cannot claim a chazaka. The Rashbam explains that by harvesting it early he makes us suspicious that he is trying to make off with whatever he can take from the land. Others explain that the true owner can claim that he did not notice that the field was being worked, since the grain was not left until the normal harvest time.

Rav Nachman taught: If the produce of a field was equal to the investment in it, there is no chazaka, since the owner can claim that he did not mind that someone else worked his field, since it did not turn a profit.

A baraita taught that someone whose claim to a chazaka of three years included time that the trees were orlah – during the first three years after trees are planted no benefit can be obtained from their produce – or that the Sabbatical year fell out during that period, when the fruit cannot be commercially harvested by the owner, or if the field was planted kilayim – with a forbidden mixture of crops – the chazaka does not count. The Rashbam explains that the owner does not feel a need to make a complaint when the squatter is not making normal use of the field.

Rabbeinu Chananel had an alternative reading of this baraita, according to which these cases would create a chazaka. Tosafot explain that even under these circumstances the squatter may be deriving permitted benefit from the field, e.g. using the branches of the trees during the years of orlah, so the owner must register a complaint. The Rambam rules that even if the squatter made use of forbidden fruits, still the chazaka would apply, since he did receive benefit from the land for three years.

Bava Batra 37a-b

The Gemara presents the following discussion:

If one person claims the trees on a field and the other one claims the land, Rav Zevid rules that each one owns the thing that he claims. Rav Papa objects to this ruling, since the owner of the land can insist that the owner of the trees remove them from his property! Therefore Rav Papa suggests that we must view the person who claims the trees as owning a share of the land, as well.

The language used by the Gemara in presenting this case is that each of the two people were machzik – took hold of – the thing that they claimed. The Rashbam understands that this is not a case of chazaka of having worked the land for three years, which we have been discussing throughout this perek, rather that this is a discussion about two people, each of whom purchased a different part of the orchard from the original owner. The term chazaka in this case refers to the means of kinyan – of taking possession of the object at the time of purchase.

Tosafot disagree, arguing that the placement of this case here in the perek that deals with the idea of a chazaka of three years of working a field clearly indicates that the discussion is about two people, each of whom lays claim to the field based on their use of a different part of that field for three years. Rav Zevid’s ruling is that we accept each one’s argument with regard to the part that they had used.

The Ritva and the Meiri suggest that each of these explanations has merit, since they do not contradict one another. In fact, the act of kinyan chazaka through working a field (and the trees on the field) is exactly what will serve as a chazaka of three years, when it comes together with a claim of purchase.

Bava Batra 38a-b

Following the teaching presented in the first Mishnah in the perek (28a) that once a person lived or worked land for three years it is considered a chazaka – a reliable assumption – that he purchased the land, the Mishnah on our daf suggests that there are times when this chazaka will not apply.

The Tanna Kamma of our Mishnah teaches that Israel is divided into three parts for the purpose of chazaka – Judea (the southern part of the country), Ever HaYarden (the East Bank of the Jordan River) and the Galilee (the northern part of the country). Since travel between these areas was difficult, someone who lived or worked the land in one area would only get a chazaka in the field if the claimant had been with him in that area during that time. If the claimant was in one of the other areas, it is possible that he never found out that someone was working his land, and he had no reason – and no way – to object. Rabbi Yehuda says that the three year rule was made so that someone who was a great distance away – in Aspamia (Spain) – would hear about the person who moved onto his land and would have time to raise an objection.

According to Rav Hai Gaon, Rabbi Yehuda does not disagree with the Tanna Kamma, since according to the Gemara‘s explanation the Tanna Kamma only suggests his ruling in a she’at chirum – a time of danger when the borders were closed. Rabbi Yehuda is simply teaching that in normal times, even if the claimant is a great distance away, we assume that within three years he will have time to receive reports about his land and come to make a claim.

Many rishonim disagree and understand that Rabbi Yehuda disagrees with the Tanna Kamma on two points:

  1. Three years is the standard determined by the Sages and it will establish chazaka in all cases, and
  2. In an ordinary case, where the original owner is nearby and knows what is going on, even a shorter amount of time will serve as a chazaka since the original owner clearly knew about the activities on the field and did not object. Three years is only necessary when the original owner is far away.

Bava Batra 39a-b

We have learned that someone working or living on land for three years has a chazaka – he can claim to have purchased the land without having to produce proof – since if he had not obtained the land legally, the true owner should have objected during those three years.

Rabbi Yossi b’Rabbi Chanina met two of Rabbi Yochanan‘s students and asked them whether Rabbi Yohanan had taught how this complaint – or mecha’ah – had to be done.

Rabbi Chiya bar Aba quoted Rabbi Yochanan as saying that the mecha’ah had to be done in front of two people. Rabbi Abahu quoted Rabbi Yochanan as saying that the mecha’ah had to be done in front of three people.

The Talmud Yerushalmi quotes these opinions and explains that the difference of opinion is based on the question of whether you need to make the complaint in front of bet din – a Jewish court – which is made up of three people, or if simply saying it in front of witnesses will suffice. Our Gemara offers a number of different approaches to this argument, the first of which suggests that the question is whether Rabbah bar Rav Huna’s rule about lashon ha-ra – libelous statements – is accepted. According to Rabbah bar Rav Huna, once a statement is made in front of three people it is assumed to be known and widespread, so a statement that is made in front of three people can be repeated without concern for the laws prohibiting lashon hara. If this position is accepted, we need three people in order to be sure that the complaint with reach the ears of the squatter; if this position is rejected then even two people will suffice to carry the message via social networking.

Rabbeinu Yonah offers several possible explanations for Rabbah bar Rav Huna’s rule about lashon ha-ra. One possibility is that this is talking about something that a person is allowed to say – he may be complaining, for example about someone who wronged him, and he is turning to these people to assist him in his efforts to receive justice. Another suggestion is that this is a person who will not accept the rebuke of this individual, so he turns to others to assist him in getting the person to return to a proper path. If he complained in front of two people, it would appear as though he was trying to hide his statement from the person he was talking about; since he said it in front of three, it is clear that he wants his statement publicized.

Bava Batra 40a-b

On occasion someone might be in a situation where he is forced to agree to participate in an act of halakhic significance, but he tells the witnesses that he is being forced to do this against his will. Such a statement – referred to by the Gemara as a moda’ah – may be written down by the witnesses and used to prove that the action was not one that he really agreed to.

The Gemara explains that in cases where the person’s agreement is an essential part of the act – e.g. a divorce or a gift – it is obvious that such a statement should work, even with no reason or explanation given, since the individual has made clear that he is not a willing participant. A case that all agree would be one where a moda’ah will be important is like the case of an orchard, where someone leased the orchard for three years. When the three years was over he said to the owner “either agree to sell me this land, or else I will destroy the lease that I am holding and claim that I purchased the land from you.” If the true owner does not have a record of the lease, this threat is a real one, since the person who leased the field will be believed in court since he can prove that he worked the field for three years with no complaint from the owner.

Rabbeinu Chananel explains that the true owner will have to warn witnesses beforehand that he is being forced to sell the land, and then bring them with him when he demands to have the land returned to him. The witnesses will then hear the person on the land claim to have purchased it, and when the true owner follows by agreeing to sell it to him, the witnesses will be able to record that they know that he was selling it under duress.

Bava Batra 41a-b

In many cases, the Gemara rules that it is the job of bet din – of the Jewish court – to offer arguments on behalf of a defendant if he does not think to offer them on his own. This idea is based on the passage in Mishlei (31:8), which says petach pikhah le-ilem – “open your mouth on behalf of the dumb” – if someone cannot speak, that is he does not know how to defend himself verbally, the responsible party should do so on his behalf.

The Gemara on our daf quotes this ruling in order to explain that it does not apply in the case that appears in our Mishna.

As we have learned (see daf 28), according to Jewish law, just because someone has possession of property and lives or works it, he cannot claim ownership of it. A person only becomes an owner if he receives that status from the original owner through a sale or by receiving a present, or if he claims an object that is hefker (ownerless), performing a formal act of possession (a kinyan). Thus, there can be no claim of ownership based on “squatters’ rights” and if someone else comes with proof of ownership, the person living or working the land will have to prove that he bought it.

Our Mishnah teaches about a case where someone approaches a person and says “what are you doing on my land?!” and the accused person responds “no one ever told me that I could not be here.” Without a claim of purchase, the accused will lose his claim to the land. The Gemara suggests that we need to teach this halacha because otherwise we may have thought that the accused person really had purchased the land, but he had lost his contract, and, as Tosafot explains – not being familiar with the law – he may have feared that if he claimed to have purchased the land, but had no contract he would lose the land and be branded a liar and a thief, as well.

The Gemara concludes, however, that in such a case we can assume that the accused would share all of his arguments with the court, so they cannot speak on his behalf.

In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.