How do you acquire title to land under Jewish law? In the last weeks of Daf Yomi reading, we have seen that there are several ways. Most often, land is acquired by means of a purchase, documented by a deed of sale—but possession of a plot of land for three years also grants presumptive ownership of it. If someone has planted and harvested the same field for three years, or in some cases for three consecutive growing seasons, then the land is presumed to be his, even if he lacks a written deed. This is only the case, however, if he can also provide a valid explanation for how the land came to be in his possession—that is, he must testify that he purchased it, or inherited it, or received it as a gift.
All these rules apply to land that passes from one owner to another. But there are other ways of acquiring property under Jewish law, as we read this week in Bava Batra 52b—types of “possession that do not need to be accompanied by a claim.” In this situation, the prior owner of the property concedes it has passed into the claimant’s possession, through means other than a sale. This could be a deed of gift, or the division of inherited property between heirs, or—most intriguing from a legal point of view—the seizure of property belonging to a convert who dies without a Jewish heir.
In all these cases, the claimant to the property does not need to present a written document or tell a valid story about how he came to own it. All he must do is make some alteration to the property, in order to publicly demonstrate that it is under his control. With a house, “if one locked the door, or fenced it or breached its fence even a bit, this is considered taking possession of the property,” says the Gemara. With agricultural land, any improvement will do: “if one placed a stone and it helps” to achieve some purpose, or “if one removed a stone and it helps, this is taking possession.” This principle is very similar to the one established by John Locke, the 17th-century English philosopher, when he deals with the origins of private property. Originally, Locke says, everything in nature is a common possession; it is only by mixing one’s labor with the products of nature that one turns them into property.
When the Gemara says that altering a fence “even a bit” is legally significant, how much does it mean? According to Shmuel, “a bit” requires raising an existing fence to the height of 10 handbreadths, which is the height of a legally significant barrier. But the rabbis challenge this view: “If we say that, initially, one could not climb over it and now too one could not climb over it, what did he accomplish?” Say the fence was originally nine handbreadths tall, which made it too tall to climb over, and then the new owner added one handbreadth more. The fence is technically now a legal barrier, but practically speaking it was just as effective before the addition; so what has actually changed here?
Similarly with a breach: If a breach was already wide enough to pass through, and the owner widens it further, what actual difference has he made? But the Gemara insists that even such a small alteration could have a practical effect. In the case of the fence, perhaps “initially one could climb over it with ease, and now one could only climb over it with effort”; so too with the breach, “initially one could enter through it with effort, and now one could enter through it with ease.” In these cases, the claimant has made a meaningful alteration to the property, and so he can claim possession of it.
In the course of this discussion, the rabbis turn to the issue of what happens when a Jew purchases property from a gentile. Such transactions must have occurred regularly in Babylonia and throughout the diaspora, but their status under Jewish law remains problematic because halakha governs only transactions where both parties are Jewish. When a gentile sells land to a Jew, therefore, there is a moment in the process when the land is technically owned by nobody. “The gentile relinquishes ownership of it from the moment when the money reaches his hand, while the Jew does not acquire it until the deed reaches his hand,” we read in Bava Batra 54b.
In the time after the gentile owner gives it up and before the Jewish buyer takes possession, the land exists in a legal limbo. This means that if a second Jew comes and seizes the property by making an alteration to it, it becomes legally his, and no court can force him to give it back to the original buyer. This seems like a big and problematic loophole, and the rabbis recognize it as such; we hear of several cases in which one Jew seized land from another in this manner, and the judges were helpless to rectify the situation.
Particularly problematic is the saying of Shmuel: “The property of a gentile is like a desert, and anyone who takes possession of it has acquired it.” It makes a rough kind of sense that Jewish law, which only governs Jews, would take no cognizance of the property rights of non-Jews. But this seems to defy one of Shmuel’s best-known dicta, as Abaye points out: “Did Shmuel actually say this? But doesn’t Shmuel say that the law of the kingdom is the law?” As we have seen earlier, the principle of dina d’malkhuta dina binds all Jews to follow the established laws of the jurisdictions where they live. And while Jewish law may see land sold by a gentile as ownerless, Persian or Roman law surely did not.
Indeed, the Koren Talmud’s notes show that later commentators, including Maimonides, decisively closed this Talmudic loophole. In the Rambam’s view, the saying “the property of a gentile is like a desert” was only meant to apply in places where there was no binding code of law. In a state of nature such as that imagined by Thomas Hobbes, might makes right, since there is no established authority to make laws. Anywhere there is a king (or, in our times, a state) who enforces laws, however, Jews are bound to follow them, in accordance with dina d’malkhuta dina—and this includes laws about property transactions. This is one of many moments in the Talmud in which the co-existence of Jewish law and gentile sovereignty creates a zone of ambiguity, which Jews need a great deal of tact to negotiate.