Today we continue our discussion of chazakah, the phenomenon in which ownership is legally presumed even without written evidence. For example, as we have seen, living on and working land for three years can create a chazakah. Building on everything we’ve learned over the last two weeks, the today’s daf lists some exceptions to the rabbinic norms of presumptive ownership.
According to Rav Nahman: These members of the household of the exilarch do not establish the presumption of ownership in ours, and we do not establish the presumption of ownership in theirs.
The exilarch was the political head of the Jewish community in the Sasanian Persian Empire. Enormously wealthy and with a large household to support his projects, the exilarch is sometimes described as being in conflict with the rabbis — and his honchos even more so. In the context of significant wealth disparities and political tension, the Talmud suggests, it is better not to presume anything. If good fences make good neighbors, then good signed legal contracts make good rivals. In other words, the rabbis were not inclined to grant the exilarch and his household a chazakah.
The medieval commentator Rabbi Menachem ben Solomon HaMeiri (the Meiri, for short) takes it one step further. He suggests that the exilarch’s men were essentially strongmen who would take other people’s property without asking. Because of their power, no one felt they could complain. So, says the Meiri, even in cases in which no one disputed property occupied by the exilarch’s men, the rabbis refused to grant them presumed ownership in the absence of legal documentation. It also went the other way: Because the exilarch was wealthy and had vast quantities of land, he and his household might not readily recognize when someone had moved into one of their houses or fields and therefore not dispute it. So in that case as well, the courts did not grant presumptive ownership to the squatter.
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The Talmud then shifts its focus from those with the most power to those with the least.
Slaves: Is there presumptive ownership of them? But doesn’t Reish Lakish say: With regard to livestock, possession of them does not establish presumptive ownership.
Animals and enslaved people can and do move around autonomously. Having an animal or enslaved person on your property doesn’t necessarily mean that they belong to you, however:
Rava said: It is true that possession of them does not establish the presumption of ownership immediately, but there is presumptive ownership of them after three years.
While an enslaved person might briefly pass through a property, if they work that property for three years, the court assumes that they belong to the property’s owner. But of course, this conclusion assumes that the enslaved person is independently mobile. Rava points out that babies don’t walk and adds that, therefore, an enslaved baby rocking in a cradle is presumed to belong to the person whose property they are on.
Isn’t that obvious? No, it is necessary in a case where he has a mother. Lest you say: One should be concerned that perhaps his mother brought him there. Therefore, Rava teaches us that a mother does not forget her son.
The Gemara acknowledges that a mother will move her baby around, but reassures us that she is unlikely to accidentally leave the child in its cradle on someone else’s property. Continuing the theme we developed yesterday, Rava’s statement reminds us that the bonds of the enslaved family — love, care, memory — cross lines of ownership and property boundaries.
The Talmud’s two case studies on today’s daf teach us that presumptive ownership isn’t as simple as a certain number of years of squatting or extracting someone’s labor without payment. Instead, issues of ownership, and who is believed when they claim to own something, are always tied up in particular cultural moments and complicated power dynamics.
Read all of Bava Batra 36 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 31, 2024. If you are interested in receiving the newsletter, sign up here.
