בבא בתרא לח

בבא בתרא לח

מַתְקֵיף לַהּ רָבָא, וְלֵימָא לֵיהּ: כּוּרְכְּמָא דְרִישְׁקָא זַבֵּינִי לָךְ, עֲקוֹר כּוּרְכְּמָא דְרִישְׁקָא, וְזִיל! אֶלָּא אָמַר רָבָא: בְּבָא מֵחֲמַת טַעֲנָה.

Rava objects to this ruling that the buyer of the tree acquires the land beneath it: And let the seller say to him: I sold you only the saffron crocus, a small plant normally uprooted by the buyer and taken with him. Therefore, uproot the saffron crocus and go. Rather, Rava said: This ruling is stated with regard to one who comes to court with a specific claim that the seller had stipulated that he would acquire the land. Without this specific claim he does not acquire the land beneath the tree.

אֲמַר לֵיהּ מָר קַשִּׁישָׁא בְּרֵיהּ דְּרַב חִסְדָּא לְרַב אָשֵׁי: וְאִי כּוּרְכְּמָא דְרִישְׁקָא זַבֵּין לֵיהּ, מַאי הֲוָה לֵיהּ לְמֶעְבַּד? אִיבְּעִי לֵיהּ לְמַחוֹיֵי.

Mar Kashisha, the son of Rav Ḥisda, said to Rav Ashi: And if, in fact, the seller sold him the saffron crocus, what was there for the seller to do to prevent the buyer from claiming the land beneath the tree, as the buyer could claim that there had been an explicit stipulation that he receive it? Rav Ashi answered: He should have protested during the first three years and publicized that the land was not included in the sale.

דְּאִי לָא תֵּימָא הָכִי, הָנֵי מַשְׁכְּנָתָא דְסוּרָא – דִּכְתִב בְּהִי הָכִי: ״בְּמִישְׁלַם שְׁנַיָּא אִלֵּין, תִּיפּוֹק אַרְעָא דָּא בְּלָא כְּסַף״; אִי כָּבֵישׁ לֵיהּ לִשְׁטַר מַשְׁכַּנְתָּא, וְאָמַר: ״לְקוּחָה הִיא בְּיָדִי״ – הָכִי נָמֵי דִּמְהֵימַן?! מְיתַקְּנִי רַבָּנַן מִילְּתָא דְּאָתֵי בַּהּ לִידֵי פְסֵידָא? אֶלָּא אִיבְּעִי לֵיהּ לְמַחוֹיֵי; הָכָא נָמֵי, אִיבְּעִי לֵיהּ לְמַחוֹיֵי,

The assumption that lodging a protest would be effective must be correct, since if you do not say so, then in the case of these mortgages according to the custom in Sura, a city in Babylonia, the debtor will not have a way to prevent the creditor from keeping his land. As in mortgages of that type it is written like this: At the completion of these years this land will be released to its prior owner without any need for the prior owner to give money. If the creditor were to hide the mortgage document in his possession and say: This land is purchased and that is why it is in my possession, here is it also the case that he would be deemed credible? That cannot be, as is it reasonable that the Sages would institute a matter, such as this type of arrangement, that people can be led by it to suffer a loss? Rather, in the case of the mortgage the debtor should have protested, and by not protesting, he causes his own loss. Here too, in the case of the tree, the owner should have protested.

מַתְנִי׳ שָׁלֹשׁ אֲרָצוֹת לַחֲזָקָה – יְהוּדָה, וְעֵבֶר הַיַּרְדֵּן, וְהַגָּלִיל. הָיָה בִּיהוּדָה וְהֶחֱזִיק בַּגָּלִיל, בַּגָּלִיל וְהֶחֱזִיק בִּיהוּדָה – אֵינָהּ חֲזָקָה, עַד שֶׁיְּהֵא עִמּוֹ בִּמְדִינָה אַחַת. אָמַר רַבִּי יְהוּדָה: לֹא אָמְרוּ שָׁלֹשׁ שָׁנִים, אֶלָּא כְּדֵי שֶׁיְּהֵא בְּאַסְפַּמְיָא – וְיַחְזִיק שָׁנָה, יֵלְכוּ וְיוֹדִיעוּהוּ שָׁנָה, וְיָבֹא לְשָׁנָה אַחֶרֶת.

MISHNA: There are three independent lands in Eretz Yisrael with regard to establishing presumptive ownership: Judea, and Transjordan, and the Galilee. If the prior owner of the field was in Judea and another took possession of his field in the Galilee, or if he was in the Galilee and another took possession of his field in Judea, the possessor does not establish presumptive ownership until the one possessing the field will be with the prior owner in one province. Rabbi Yehuda says: The Sages said that establishing presumptive ownership requires three years only in order that if the owner will be in Spain [Aspamya], and another possesses his field for a year, people will go and inform the owner by the end of the next year, and the owner will come back in the following year and take the possessor to court.

גְּמָ׳ מַאי קָסָבַר תַּנָּא קַמָּא? אִי קָסָבַר מֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה, אֲפִילּוּ יְהוּדָה וְגָלִיל נָמֵי! אִי קָסָבַר מֶחָאָה שֶׁלֹּא בְּפָנָיו לָא הָוְיָא מֶחָאָה, אֲפִילּוּ יְהוּדָה וִיהוּדָה נָמֵי לָא!

GEMARA: What does the first tanna hold in ruling that the prior owner and the field need be in the same province in order for the possessor to establish presumptive ownership? If he holds that a protest that is lodged not in the presence of the one possessing the field is a valid protest, even in the case where one is in Judea and one is in the Galilee, the protest should be valid as well. If he holds that a protest lodged not in his presence is not a valid protest, even in the case where one is in Judea and the other one is in Judea, the protest should not be valid as well.

אָמַר רַבִּי אַבָּא בַּר מֶמֶל אָמַר רַב, לְעוֹלָם קָסָבַר: מֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה, וּמִשְׁנָתֵינוּ – בִּשְׁעַת חֵירוּם שָׁנוּ. וּמַאי שְׁנָא יְהוּדָה וְגָלִיל דְּנָקֵיט?

Rabbi Abba bar Memel says that Rav says: Actually, the tanna holds that a protest lodged not in his presence is a valid protest, and the Sages taught our mishna with regard to a period of crisis, when travel is perilous and information cannot be transmitted between Judea and the Galilee. Therefore, although no word of a protest was received, the possessor does not establish presumptive ownership of the field. The Gemara asks: But if it is due only to the exigent circumstances that word of the protest does not reach the one possessing the field, what is different about Judea and the Galilee that the tanna cited? Ostensibly, even within one of the three lands, if travel and communications are restricted the same halakha would apply.

הָא קָא מַשְׁמַע לַן –

The Gemara answers: The tanna, by citing specifically a case where each is located in a different land, teaches us this:

דִּסְתַם יְהוּדָה וּגְלִיל, כִּשְׁעַת חֵירוּם דָּמוּ.

That an ordinary situation with regard to travel between Judea and the Galilee is tantamount to a period of crisis.

אָמַר רַב יְהוּדָה אָמַר רַב: אֵין מַחֲזִיקִין בְּנִכְסֵי בוֹרֵחַ. כִּי אַמְרִיתַהּ קַמֵּיהּ דִּשְׁמוּאֵל, אָמַר לִי: וְכִי לִמְחוֹת בְּפָנָיו הוּא צָרִיךְ?!

§ Rav Yehuda says that Rav says: One cannot establish the presumption of ownership with regard to the property of one who is fleeing, as he is unable to lodge a protest. Rav Yehuda reports: When I said this ruling before Shmuel, he disagreed and said to me: But does the owner actually have to protest in the presence of the possessor? Since that is not the case, and he can lodge a protest wherever he is, one can establish the presumption of ownership with regard to the property of one who is fleeing.

וְרַב – מַאי קָא מַשְׁמַע לַן? מֶחָאָה שֶׁלֹּא בְּפָנָיו לָא הָוְיָא מֶחָאָה?! וְהָאָמַר רַב: מֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה! רַב – טַעְמָא דְּתַנָּא דִידַן קָמְפָרֵשׁ, וְלֵיהּ לָא סְבִירָא לֵיהּ.

The Gemara asks: And Rav, who ruled that one cannot establish the presumption of ownership with regard to the property of one who is fleeing, what is he teaching us, that a protest that is lodged not in his presence is not a valid protest? But doesn’t Rav say: A protest that is lodged not in his presence is a valid protest? The Gemara answers: Rav was explaining the reason of the tanna of our mishna, but he himself does not hold accordingly. Rav holds, in accordance with the opinion of Rabbi Yehuda, that the protest is valid.

וְאִיכָּא דְּאָמְרִי, אָמַר רַב יְהוּדָה אָמַר רַב: מַחֲזִיקִים בְּנִכְסֵי בוֹרֵחַ. כִּי אַמְרִיתַהּ קַמֵּיהּ דִּשְׁמוּאֵל, אֲמַר לִי: פְּשִׁיטָא! וְכִי לִמְחוֹת בְּפָנָיו הוּא צָרִיךְ?!

And there are those who say a different version of the previous discussion: Rav Yehuda says that Rav says: One can establish the presumption of ownership with regard to the property of one who is fleeing. Rav Yehuda reports: When I said this ruling before Shmuel, he said to me: Isn’t that obvious? But does the owner actually have to protest in the presence of the possessor?

וְרַב – מַאי קָא מַשְׁמַע לַן? מֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה?! וְהָא אַמְרַהּ רַב חֲדָא זִימְנָא! אֶלָּא הָא קָא מַשְׁמַע לַן – דַּאֲפִילּוּ מִיחָה בִּפְנֵי שְׁנַיִם שֶׁאֵין יְכוֹלִין לוֹמַר לוֹ, הָוְיָא מֶחָאָה –

The Gemara asks: And Rav, who ruled that one can establish the presumption of ownership with regard to the property of one who is fleeing, what is he teaching us, that a protest that is lodged not in his presence is a valid protest? But Rav already said this halakha one time, and he would not need to repeat it. Rather, Rav teaches us this: That even if the owner protested in the presence of two witnesses who are personally unable to tell the possessor about the protest, it is nevertheless a valid protest.

דְּאָמַר רַב עָנָן: לְדִידִי מִפָּרְשָׁא לִי מִינֵּיהּ דְּמָר שְׁמוּאֵל: מִיחָה בִּפְנֵי שְׁנֵי בְּנֵי אָדָם שֶׁיְּכוֹלִים לוֹמַר לוֹ – הָוְיָא מֶחָאָה, מִיחָה בִּפְנֵי שְׁנֵי בְּנֵי אָדָם שֶׁאֵין יְכוֹלִין לוֹמַר לוֹ – לָא הָוְיָא מֶחָאָה. וְרַב – חַבְרָךְ חַבְרָא אִית לֵיהּ, וְחַבְרָא דְחַבְרָךְ חַבְרָא אִית לֵיהּ.

The Gemara explains: As Rav Anan said: This was explained to me personally by Shmuel himself: If the owner protested in the presence of two people who are able to personally tell the possessor, it is a valid protest, but if the owner protested in the presence of two people who are unable to personally tell the possessor, it is not a valid protest. And why does Rav hold that it is a valid protest? Because your friend who heard the protest has a friend to whom he tells about the protest, and your friend’s friend has a friend to whom he tells about the protest, and so forth. Therefore, word of the protest will reach the possessor.

אָמַר רָבָא, הִלְכְתָא: אֵין מַחְזִיקִין בְּנִכְסֵי בוֹרֵחַ, וּמֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה. תַּרְתֵּי?! לָא קַשְׁיָא; כָּאן בּוֹרֵחַ מֵחֲמַת מָמוֹן, כָּאן בּוֹרֵחַ מֵחֲמַת מְרָדִין.

Rava says: The halakha is that one cannot establish the presumption of ownership with regard to the property of one who is fleeing, and a protest that is lodged not in a possessor’s presence is a valid protest. The Gemara asks: How can he say these two statements that contradict each other? The Gemara answers: This is not difficult. Here, the second statement, is referring to a case where he is fleeing due to monetary difficulties. In such a case, he is able to ensure that the protest reaches the possessor, while there, the first statement, is referring to a case where he is fleeing due to a charge of killing [meradin]. In such a case, he is unable to publicize his protest out of fear of revealing his whereabouts.

הֵיכִי דָּמֵי מֶחָאָה? אָמַר רַב זְבִיד: ״פְּלָנְיָא גַּזְלָנָא הוּא״ – לָא הָוְיָא מֶחָאָה. ״פְּלָנְיָא גַּזְלָנָא הוּא, דְּנָקֵיט לַהּ לְאַרְעַאי בְּגַזְלָנוּתָא,

§ The Gemara presents a series of disputes with regard to what is considered a valid protest. What manner of statement constitutes a protest? Rav Zevid said: If the owner says in general terms: So-and-so is a robber, it is not a valid protest, but if he says: So-and-so is a robber as he is holding my land through robbery,