On today’s daf, we begin a new chapter that introduces the notion of chazakah, or presumptive ownership:
With regard to the presumptive ownership of houses, pits, ditches, caves, dovecotes, bathhouses, olive presses, irrigated fields and slaves, and all similar property that continually generates profits: their presumptive ownership (is established by working and profiting from them) for three years from day to day.
Sometimes, there is a dispute about who owns a field or dovecote. In these cases, presumptive ownership — which derives from regular use of the property over the course of three years — can help settle the matter. Rashbam (at this point in the tractate commenting in place of his grandfather Rashi) clarifies that this presumption only works if it’s accompanied by an explanation of how one acquired the property. For example: If someone claims a field is theirs, and I respond by proving that I’ve worked it continuously for three years and, in addition, claim that they sold it to me but I lost the document, then I am believed — even in the absence of a deed of sale. The presumption is that if this property weren’t really mine, I wouldn’t have been allowed to work it and benefit from its produce for this long.
Not all properties, however, are worked continuously. The mishnah continues:
With regard to a non-irrigated field (i.e., one that is watered by rain), its presumption of ownership is established in three years, but not from day to day.
Fields that rely on seasonal rain generally lie fallow for parts of the year. It doesn’t make sense, therefore, to make someone prove that they’ve worked it daily for three years, since it is generally worked only in certain months.
Of course, this ambiguity cries out for quantification. Rabbi Akiva and Rabbi Yishmael dispute exactly how we calculate “three years, but not from day to day”:
Rabbi Yishmael says: Three months of possession in the first year, three months of possession in the last year, and 12 months of possession in the middle, which are 18 months.
Rabbi Akiva says: A month of possession in the first year, and a month of possession in the last year, and 12 months of possession in the middle, which are 14 months.
Though they disagree on the details, both rabbis believe a combination of non-consecutive but significant usage over the course of three years constitutes a presumptive claim to non-irrigated fields.
Rabbi Yishmael makes a caveat to his statement:
Rabbi Yishmael said: In what case is this statement said? It is said with regard to a white field (i.e., a grain field). But with regard to a field of trees, once he gathered his produce, and then harvested his olives, and then gathered his figs, these three harvests are the equivalent of three years.
The standard for an orchard differs from that of a grain field. According to Rabbi Yishmael, once one has harvested three types of produce from an orchard, this is considered equivalent to three years of work and benefit.
This opening mishnah gives us a good preview of how the chapter will unfold: Not only does it introduce us to the idea of chazakah as a means of proving one’s claim to property, but it acknowledges that what sort of actions constitute presumptive ownership can vary dramatically depending on the property in question. Given that different properties have different normative usages, we have to take into account each case’s particular material realities to determine the appropriate ruling.
Read all of Bava Batra 28 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 23, 2024. If you are interested in receiving the newsletter, sign up here.
