Continuing this chapter’s discussion of chazakah, presumption of ownership, a mishnah on today’s daf states:
Any possession that is not accompanied by a claim is not sufficient to establish the presumption of ownership. How so? If the prior owner said to the possessor: “What are you doing in my land?” And the possessor said to him in response: “I am in possession of the land because no person ever said anything to me,” — his mere use is not sufficient to establish the presumption of ownership. But if the possessor claimed: “I am in possession of the land because you sold it to me,” or “because you gave it to me as a gift,” or “because your father sold it to me,” or “because your father gave it to me as a gift,” — these are valid claims to ownership. In these cases, possession is sufficient to establish the presumption of ownership. And one who comes to claim the land based on inheritance does not need a claim explaining why his ancestors had a right to the land.
Saying you own a property because you stumbled onto it and no one ever kicked you off does not establish a chazakah. However, stating how you legitimately came to own the property, through inheritance or purchase — even though you can’t come up with written documents to support that claim — establishes the presumption. The Gemara immediately explains why this mishnah is necessary:
It is necessary for the mishnah to state this, lest you say to yourself that the man had actually purchased this land, and he had a bill of sale, but it was lost. And you might suppose that he said that he is in possession of the land because no person ever said anything to him because he thought: “If I say that the prior owner sold me this land, the court will say to me: ‘Show us your bill of sale.’ Therefore, let us say to him: ‘Perhaps you had a bill of sale, and it was lost.’” In a case such as this, one would think that it is a situation where the court should apply the verse: “Open your mouth for the mute” (Proverbs 31:8), and so the mishnah teaches us that it is not such a case.
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The Gemara posits that perhaps the person initially claimed a chazakah based solely on occupancy because they lost the deed of sale and are worried that when the court asks for it and they can’t come up with it, they’ll lose the claim. This seems a little convoluted. If you bought a property but lost the deed, why not just come clean and say so?
According to Rabbi Adin Steinsaltz, relying on Tosafot’s explanation, a person not familiar with the law might be afraid that if they claimed to have purchased the land, but had no contract to show for it, they would not only lose the claim but be thought both a liar and a thief as well. They would not necessarily realize that claiming to have lost a purchase document is stronger than claiming simply to have occupied the land without anyone objecting.
So should the court, knowing this is likely his reasoning, help him out by asking him directly about a document? The verses excerpted above read in full: “Speak up for the mute, for the rights of all the unfortunate. Speak up, judge righteously, champion the poor and the needy.” (Proverbs 31:8–9) In some cases, Jewish law requires the court to advise a litigant — the “mute” in this verse — so that they don’t make mistakes out of ignorance. But the Gemara advises that in this particular case, the presumption of “speak up for the mute” does not factor in. The Gemara concludes that the court’s intercession is unnecessary, as the possessor can just tell the court everything, including whether they lost a deed, allowing the court to retain its integrity when making the judgment.
In a time when litigants might come to court without legal representation, the court was required to balance the need to make sure claimants had the information they required without becoming so over-involved as to be accused of impartiality. In this case, we rely on the litigant to come to their own defense.
Read all of Bava Batra 41 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 5, 2024. If you are interested in receiving the newsletter, sign up here.
