Today’s daf continues discussing the mishnah’s claim that a husband cannot establish a chazakah, a presumption of ownership, with regard to his wife’s property. The Gemara on 50b raises a challenge to this principle from a previous statement of Rav:
But doesn’t Rav say that a married woman must protest? With regard to whom must she protest? If we say it is with regard to another (i.e. not her husband), then doesn’t Rav say that one cannot establish the presumption of ownership with regard to the property of a married woman? Rather, it must be with regard to the husband.
This is a bit tricky. Rav states that a married woman must protest the use of her land to indicate that the person using it does not have legitimate ownership. This means that if she fails to protest, the person using her land can be deemed the rightful owner. The Gemara then reasons that this requirement that she protest can’t apply to people who are not her husband, as we already have a principle that one cannot establish a chazakah with regard to a married woman’s property; she may have been relying on her husband to protest the person’s use. Therefore, Rav must be referring to her husband! And if she’s required to protest her husband’s illegitimate use of her property, that implies that in the absence of her protest he would have a chazakah. This, of course, seems to be in direct contradiction to the mishnah, which states that men cannot establish a chazakah over their wife’s property.
Rava offers an initial answer to our dilemma:
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Rava said: Actually, Rav is referring to her lodging a protest with regard to the husband, and is speaking of a case where he dug pits, ditches and caves in her property.
Rava is using a legal argument called an okimta: He is limiting the scope of a particular law to resolve a contradiction or challenge. However, it’s not immediately clear how Rava’s okimta solves our problem. Rashbam, who provides the regular commentary on most of this this tractate, explains: The mishnah, which says a husband cannot establish a chazakah with regard to his wife’s property, is referring to a case of normal usage and working. Since he has a right to the fruits of her property, use of it can’t be considered indicative of proper ownership. But Rav’s statement, which implies that a husband can establish a chazakah with regard to his wife’s property, is referring to a case where a husband dug these fixtures in her land. This is not part of the normal use of her property to which he is entitled; therefore, the assumption is that if he’s digging up her land and she fails to protest, it must be because he’s acquired it. According to this resolution, when the mishnah said a husband cannot establish a chazakah, it was only referring to instances of normal usage.
This is a classic example of how the Gemara often resolves apparent contradictions in the texts: The rabbis make the cases more granular and explain that the different halakhic conclusions stem from different material circumstances. It’s often a neat resolution, though occasionally it can raise new challenges.
Read all of Bava Batra 50 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 14, 2024. If you are interested in receiving the newsletter, sign up here.
