Among the folk wisdom circulating on the internet is a list colloquially known as “toddler property laws.” These statutes include, “If I like it, it’s mine,” “If I can take it from you, it’s mine,” and, “If it’s in my hand, it’s mine.” While the quintessential toddler may believe these and many other dubious conditions establish a chazakah (presumption of ownership), a mishnah on today’s daf says otherwise:
Craftsmen, business partners, sharecroppers, and stewards do not have presumption of ownership. A man does not have presumption of ownership with regard to his wife’s property, and a wife does not have presumption of ownership with regard to her husband’s property. A father does not have presumption of ownership with regard to a son’s property, and a son does not have presumption of ownership with regard to a father’s property.
People with whom we are close, personally or financially, may have occasion to temporarily take possession of our stuff. That doesn’t mean, states the mishnah, they automatically become presumed owners. Business partners and sharecroppers don’t own land just because they are temporarily occupying it, and neither do parents, children and spouses. Similarly, hired workers, such as a tailor who has temporary possession of your dress in order to hem it or a mechanic who has your car in his garage to investigate a suspicious noise, can’t claim ownership of those items simply because they have possession of them.
This seems obvious — the kind of mistake only a toddler would make. Why would we even need this mishnah? The Gemara focuses on the question of business partners and asks whether one can in fact claim to own a shared property in its entirety. Turns out, this is a difficult question:
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Shmuel’s father and Levi taught: “A partner does not have presumption of ownership of property in his possession, and all the more so, this inability applies to a craftsman as well.”
But Shmuel teaches: “A craftsman does not have presumption of ownership of property in his possession, but a partner does have presumption of ownership.” And Shmuel follows his line of reasoning, saying: “Partners establish the presumption of ownership with regard to the property of each other, and they testify for each other and become paid caretakers of their joint property with regard to each other.”
Shmuel’s father and Levi agree with the mishnah that partners who jointly hold property can’t legitimately claim ownership over one another’s portions, even when they temporarily have possession. This ruling seems to take the mishnah — that partners do not have a chazakah for the other’s property — at face value. But Shmuel disagrees and says that in a partnership there is a high level of interdependence: Partners do have a chazakah over one another’s portions, as a result of the partnership itself.
So, which view wins out? Do partners have a chazakah over one another’s shares in the business? The Talmud doesn’t decide, but Maimonides, writing in the 12th century, states, “When property is known to belong to the partnership, it is assumed that both partners have a share in its ownership throughout the entire duration of the partnership. This applies even though the property was located in the domain of only one of the partners … and the property is assumed to belong to both partners unless one of them brings proof otherwise.” (Mishneh Torah, Agents and Partners 5:8)
In a business partnership, property can be individuated, because although generally it is jointly owned, the possibility exists for one of the partners to bring proof that part of it belongs only to them. Toddler property laws, though they often work for the under-five set, remain the province of children. Adults need greater standing to establish a chazakah.
Read all of Bava Batra 42 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 6, 2024. If you are interested in receiving the newsletter, sign up here.
