The mishnah on Bava Batra 42, which has been under discussion for more than ten pages now, outlines circumstances in which possession or use of another’s property does not establish a chazakah, a presumption of ownership. For instance, if you are a moneylender who has taken a deposit to secure the loan, you cannot establish a chazakah on that deposit. Today’s daf continues a discussion of the final clause in our mishnah in which it appears that the very meaning of chazakah has morphed:
In a case where one person gives another a gift, or there are brothers who divided their inheritance, one takes possession of the property of a convert (who died without heirs and therefore his property is now ownerless): As soon as one locked the door of the property, or fenced it or breached its fence even a bit, this is considered a chazakah.
In this context, chazakah doesn’t simply mean presumption of ownership, as it has thus far. In this case, it means actually taking ownership. If someone gives you a gift or you inherit something, as soon as you fence it (or breach the fence that is already around it), you are the owner. Chazakah, in these cases, is a form of acquisition.
The Gemara has a strong desire for precision and measurable standards, as we see in the following discussion of what the mishnah means when it talkies about breaching a fence “even a bit”:
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And how much is the measure of a bit? It is in accordance with the statement of Shmuel, as Shmuel says: If one had previously built a fence, and now completed it to a height of ten handbreadths; or if one had previously breached a breach, and now expanded it in order that a person can enter and exit through it, this is considered taking possession.
Shmuel has helped us concretize this measure, albeit still somewhat confusingly. It’s clear that simply laying a brick or poking a hole does not affect the acquisition. Rather, one must contribute in some way that impacts the functionality or accessibility of the property. Shmuel’s statement builds on a notion seen at various points in halakhah that even if one didn’t do the entirety of a particular labor, if they did the final bit — i.e., they made it functional, or brought it to a certain minimum halakhic measurement — their action is effectual. In this case, even if there was an existing fence, if I added “a bit” and brought it to the height of ten handbreadths — a halakhically significant height — this action constitutes a chazakah.
The Gemara, however, struggles to understand the relevance of these additions:
What are the circumstances of this fence? If we say that initially one could not climb over it to enter the field, and now one still could not climb over it, what did he accomplish? And alternatively, if it was such that initially one could climb over it to enter the field, and now one could not climb over it, he has accomplished a great deal.
The Gemara employs a heikhi dami challenge, functionally translated as “what are the circumstances?” (Literally: “To what is it comparable?”) When raising a heikhi dami, the Gemara often argues that either way one views the circumstances of a particular halakhah or question, it doesn’t make sense. Here, the Gemara is focused on how one’s building has tangibly impacted the way people interact with this fence and field. If the fence already kept people out, how is raising it higher an act of chazakah? And conversely, if it hadn’t been an effective barrier but now is, why is the mishnah calling that addition a “little bit?”
One answer to the Gemara’s challenge may lie in the differing approaches Shmuel and the stam — the anonymous voice of the Gemara — are taking to this concept of chazakah as acquisition. From the fact that Shmuel specifically mentioned reaching the height of ten handbreadths, a measure that has more halakhic than physical significance, it seems that he views chazakah as any act that meaningfully changes halakhic status, even if it doesn’t change the way people physically engage with that property. The stam, on the other hand, seems to be primarily concerned with the physical functionality of the object before and after the change.
Within that framework, the Gemara answers its own challenge:
No, it is necessary to state this ruling if the height of the fence was such that initially one could climb over it with ease, and now one could climb over it only with effort.
We don’t require an absolute binary, in which the fence previously had no function and now is completely effective at keeping out intruders; rather, it can be a matter of degree. The “little bit” that constitutes an effective chazakah can be the difference between people easily entering this property and undertaking a serious effort to trespass. The Gemara raises a similar problem and poses the same answer with regard to widening a breach.
While there’s a solid logic to these resolutions, it’s a dilemma that likely arose in the first place due to a generational divide with regard to how one understands what changes in the object are necessary to affect a chazakah (in this case, an acquisition).
Read all of Bava Batra 53 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 17, 2024. If you are interested in receiving the newsletter, sign up here.
