Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Over the last several weeks, Daf Yomi readers have explored the Talmudic laws governing the possession of real property. The rule of thumb stated in Tractate Bava Batra is that anyone who makes use of a piece of property—such as a field or a house—for three consecutive years is presumed to be its legal owner. But this formula left open a question that I have been wondering about: Does it legalize squatting? That is, does mere possession qualify as legal ownership, or does the possessor also have to give a valid explanation for how he came to own the property in the first place? If not, then anyone who was stealthy or lucky enough to usurp a neighbor’s field for three years would gain title to it, which hardly seems fair.

In fact, the mishna in Bava Batra 42a makes clear, mere possession is not enough to establish the presumption of ownership: “Any possession that is not accompanied by a claim is not presumption.” In other words, to show that you are the owner of a field, you must not only have worked the field for three years, you must also testify that the previous owner sold it or gave it to you, or that you inherited it from your ancestors. To illustrate this rule, the Gemara mentions a case in which the boundary wall between two neighbors’ fields was washed away in a flood. The two neighbors—Rav Anan and another, unnamed man—rebuilt the wall, but they accidentally rebuilt it in the wrong place, so that Rav Anan effectively annexed some of his neighbor’s property.

When the error was discovered, the neighbor came to court asking for his land back, but Rav Anan refused. Because both men built the new wall together, he argued, didn’t the neighbor waive his right to the disputed land? But the judges ruled against Rav Anan: Even though he could demonstrate possession of the land, he could not give a legal reason why it should belong to him. After all, the neighbor never agreed to sell or give it to him; he only consented to the building of the new wall because “he did not know” it was in the wrong place. Rav Anan should not be able to profit from a mistake.

The rabbis go on to clarify the concept of chazaka, the presumption of ownership, in other cases. When the property at issue is real estate, like a house or a field, it seems straightforward to define what possession means: The field’s possessor is the person who sows and harvests it; the house’s possessor is the person who lives in it. But the Talmud observes that this is not always the case. For instance, the owner of a field might hire a sharecropper to work it on a long-term lease. If a sharecropper works a field for three years, he does not become the presumed owner but remains a tenant. Thus a sharecropper is unable to establish chazaka by actual possession. Still, there are ways even for a sharecropper to demonstrate ownership of his land, as the Gemara explains in Bava Batra 46b. If he stops paying a share of the produce to the owner and consumes the whole yield of the field himself, this is a sign that the land belongs to him alone. Again, according to Rav Nachman, if a sharecropper installs subtenants to work for him, and the owner of the field doesn’t protest, this constitutes proof that the sharecropper has acquired the land.

Things are trickier when it comes to movable goods, which can often find themselves in the possession of people other than their legal owner. For instance, you might give your cloak to a tailor to mend, or to a launderer to clean; but that doesn’t mean that the tailor or launderer becomes the owner of the cloak. For this reason, a craftsman cannot establish chazaka by possession. Even if the craftsman testifies that the item was given to him as a gift, his testimony has no weight: “He has not said anything,” as the Gemara puts it. The same principle holds for other categories of people who customarily share or borrow property, such as spouses or children. A husband cannot establish legal possession of his wife’s house simply because he lives in it, because spouses customarily live together.

Another kind of person who might habitually be in possession of things that do not belong to him, of course, is a thief. But how could a court determine that a given individual had come into possession of a field or a horse by theft? In Bava Batra 47a, Rabbi Yochanan suggests that robbery would have to be directly proved; but Rav Chisda gives a more expansive answer, taking into account the possibility of intimidation. After all, a robber who used violence to obtain a piece of property would be just as capable of threatening violence to prevent the rightful owner from lodging a protest. Thus Rav Chisda says that anyone who is known to belong to a household “who kill people over monetary matters” is presumed to be a robber, and is unable to establish chazaka.

Here is yet another example of the way the Talmud relies on hearsay and reputation in legal matters. As we’ve seen in many connections, the rabbis often take for granted that what is said about a person has a basis in truth. Naturally, this opens up great possibilities for abuse—what if a certain family is widely assumed to be violent, but no one can actually prove it? Should they be convicted in the court of public opinion? But the rabbis had a different idea of standards of proof that we do today; for them, it was logical to believe that a person’s neighbors had a better idea of their character than an impartial judge. Even if a robber presented a written deed in court, then, it should not be admissible, because the presumption is that it was obtained by fraud or force.

This discussion of intimidation raises another legal problem, to which the rabbis give a counterintuitive answer. Is a transaction concluded under duress a valid transaction? In Rav Huna’s example, if someone suspended you from a tree and wouldn’t let you down until you agreed to sell him your land, would this constitute a legal sale? The natural answer would seem to be no: Buying and selling should be motivated by mutual agreement, not threats. But the rabbis disagree, pointing out in Bava Batra 47b that in any sale, the seller is motivated by some kind of need: “Whatever a person sells, were it not for the fact that he is compelled by his need for money, he would not sell it, and even so, his sale is valid.” If you disallow a sale when the seller is hanging from a tree, the logic goes, you would have to disallow a sale when the seller needs to buy bread for his children, a still more urgent need. Hard-headedly, Rava concludes, “The halakha is that if one was suspended and he sold, his sale is valid.” Put more neutrally, the court cannot inquire into the motives for a transaction, so long as the records are in order. Otherwise, courts would have to stop being arbiters of law and undertake to do total justice—something no legal system has ever managed to achieve.

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Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on Tablet’s complete archive of more than four years of columns, click here.





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