Today’s daf contains a new mishnah that introduces geographical limitations on chazakah (presumptive ownership):
There are three independent provinces in the land of Israel with regard to establishing chazakah: Judea, 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 is with the prior owner in one province.
While the opening mishnah of our chapter stated the three-year rule without qualification, this mishnah asserts that the practice is only effective if both the prior owner and current possessor are within the same geographical province. So long as they’re in separate provinces, seemingly no length of years working the land can establish presumptive ownership.
The Gemara presents a difficulty:
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What does the first tanna (early rabbi) hold? 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.
The Gemara suggests this geographical limitation on chazakah is related to the question of whether one must make a legal protest in the presence of the other party, or whether it’s effective even in their absence. But if this were truly what’s at stake, it’s not clear why the tanna of our mishnah would make the particular distinction of these geographical provinces. If the tanna holds an effective protest doesn’t require the other party’s presence, then regardless of how far apart the two parties are, the chazakah should be valid! And if it does require their presence, even if the two are in the same city, the chazakah should be ineffective.
Before we look at the Gemara’s resolution, there are two dynamics worth pointing out. One is that this is a classic form of challenge raised by the Gemara when interpreting a mishnah. Given the Gemara’s assumption that the mishnah is deeply intentional, there must always be a reason the mishnah made the particular distinction it did. The Gemara will frequently attempt to map those distinctions onto halakhic disputes that were later concretized, and point out that these halakhic disputes are inadequate to explain the dispute or distinction contained within our mishnah.
The second thing worth noting is that the Gemara’s challenge here highlights a basic assumption underlying chazakah: The whole notion of presumptive ownership works because we assume that were the person illegitimately possessing this land, the legitimate owner would have protested at some point. For that assumption to work, it must be a situation where the legitimate owner could have launched an effective protest.
Returning to our discussion, the amoraim (later rabbis) resolve the challenge:
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 mishnah with regard to a period of crisis.
While the tanna of the mishnah generally believes that an effective protest can be launched even in the absence of the other party, we still require a situation where the protest could be then communicated to the other party. In a time of crisis, where travel is far less possible, the original owner living in Judea could protest and the possessor in the Galilee wouldn’t receive word; therefore they might unwittingly make the false claim that they’d worked the land for three years without any protest from the original owner. Alternately, the original owner might never receive word that someone was working their land to begin with!
This is a compelling explanation, but it produces another problem in interpreting the mishnah’s particular examples:
But if this is only true during periods of crisis, what is different about Judea and the Galilee that the tanna cited?
Why give the specific example of these three provinces? The tanna could have simply taught the general principle that during a period of crisis anywhere, during which communication between areas is difficult, chazakah simply doesn’t work; this would seemingly apply in lands besides Israel, and potentially even within provinces, where traveling even short distances could pose a difficulty.
The Gemara replies:
The tanna teaches us that an ordinary situation with regard to travel between Judea and the Galilee is tantamount to a period of crisis.
The Gemara concludes that this principle does in fact apply to any location, and perhaps even within areas as small as provinces; by giving these examples, the tanna merely taught that communication between these provinces is so difficult even under normal circumstances that chazakah is ineffective even in the absence of crisis, since we can’t assume word will have traveled.
Read all of Bava Batra 38 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 2, 2024. If you are interested in receiving the newsletter, sign up here.
