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If You’ll Buy That, the Rabbi’ll Throw the Golden Gate in Free

This week’s ‘Daf Yomi’ Talmud study examines the origin of rules for real estate transactions

Adam Kirsch
February 28, 2017
Inset photo: Crystal Marie Lopez/Flickr
Inset photo: Crystal Marie Lopez/Flickr
Inset photo: Crystal Marie Lopez/Flickr
Inset photo: Crystal Marie Lopez/Flickr

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

Chapter Three of Tractate Bava Batra deals with a crucial issue in real-estate law. How does a person prove that he is the legal owner of a piece of property, such as a house or a field? In modern societies, there are government registries that keep track of deeds to property. But even now, clearing title to real estate can be a complicated process, which is why most property transactions involve the purchase of title insurance. After all, how do you know, when you buy a house from someone, that he has the right to sell it to you? What if the house was never his to begin with, and he is only squatting on the property? Or what if he previously sold it to someone else? In Talmudic times, poor record-keeping and difficulties of communication made such problems even more complicated.

In Bava Batra 28a, then, the mishna lays down a rule: If someone has occupied a house or worked a field for three consecutive years, then it is presumptively his. Even if someone else comes along with a written deed to the property and claims that he is the owner, he cannot seize it from the possessor. The possession must be continuous, “from day to day,” in the mishna’s words, in the case of any property that “constantly generates profits,” such as an irrigated field. But if the field is not irrigated, and bears fruit only when the rain falls, then the possessor only has to prove that he worked the land three harvests in a row, which might mean a total length of time less than 36 months. For instance, Rabbi Yishmael holds that if the possessor worked the land for the last three months of one calendar year, the whole of the next calendar year, and the first three months of the third calendar year, he has earned title to the land, even though he has only actually occupied it for 18 months.

Where does the term of three years come from, the Gemara asks? The property laws in Bava Batra, as we have already seen, do not come directly from the Bible; they are rabbinic ordinances meant to serve the needs of Jewish society. But there must be at least some biblical justification for the rabbis’ rules, and so the Gemara attempts to find biblical parallels to the three-year-rule.

One explanation rests on a deduction from the Book of Jerermiah, where it is related that the prophet bought a field even though he knew that the Babylonians were about to overrun Judah and exile its inhabitants. In doing so, Jeremiah demonstrated his faith that the exile would one day end, and the Jews would be restored to their land: “Men shall buy fields for money, and subscribe the deeds, and seal them,” he predicted.

And why did Jeremiah need to write a deed, the rabbis ask? It was because he knew that the Babylonian conquest was just two years away, and two years’ possession was not sufficient to establish legal title to a piece of real estate. It follows that the required period must be longer—that is, three years, as the Talmud says. This is an ingenious explanation—a little too ingenious, according to Abaye. How do we know that when Jeremiah made this statement he meant to teach a point of halakha? “Perhaps there he merely teaches us good advice,” Abaye suggests; the reference to writing a deed is in the Bible simply to show that it is sound business practice to write a deed for any property transaction. Similarly, when Jeremiah says that legal papers should be kept “in an earthen vessel, that they may continue many days,” he is not establishing a requirement, merely making a good suggestion.

If the three-year rule doesn’t come from Jeremiah, then where does it come from? Another theory holds that it is learned by analogy with the rule for goring oxen, which we read so much about in Tractate Bava Kamma. Just as an ox must gore three times before it achieves the status of “forewarned ox,” so the possessor of a piece of land must work it three times—that is, for three years—to change its status so that it belongs to him. But this too seems like a problematic explanation, and the Gemara challenges it. Part of the law about the forewarned ox is that testimony about its dangerousness must be given in the presence of its owner. If that is so, then shouldn’t a claim of ownership on a piece of land be made in the presence of the person who occupies it?

But the law doesn’t require the personal presence of the possessor for a claim to be made. Why not? The answer is that the Gemara assumes that any claim made about a person’s land will eventually reach his ears: “Your friend has a friend, and the friend of your friend has a friend,” and so eventually he will hear that his right to the land is being challenged. In American law, certain transactions are legally required to be announced in a newspaper, to make sure people hear about them; word of mouth played the same role in Talmudic society.

Finally, the rabbis resort to a pragmatic explanation for the three-year rule. According to Rava, if someone owns a piece of land and sees an interloper working it, he might take no action for one year or even two years, but “he will not waive his rights for three years.” Three years is a reasonable amount of time to allow for a person to defend his interests. But if the basis for the rule is habitual human behavior, the Gemara points out, this opens the question of whether everyone has the same habits. Abaye challenges Rava, asking about “people such as those of the bar Elyashiv household, who are particular even with regard to one who goes on the boundary of their field.”

Because this family objects even to trespassing on their property, they would surely take immediate action if someone started working their land. If they fail to take immediate action, then, does it follow that they have waived their rights? Clearly, this would be a dangerous precedent, as Abaye observes: “you have subjected your statement to the varying circumstances of each case.” It turns out to be easier to state a rule of thumb, like the three-year rule, than to give it a perfect justification. Perhaps the answer is simply that laws require clarity in order to function, and it is better to have a fixed, if arbitrary, rule than to allow things to change with every case.


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.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.

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