MISHNAH. A PRESUMPTIVE TITLE1 TO HOUSES, PITS, DITCHES AND CAVES, DOVECOTES, BATHS, OLIVE PRESSES, IRRIGATED FIELDS, SLAVES, AND ANYTHING WHICH IS CONTINUALLY PRODUCING2 IS CONFERRED BY THREE YEARS [UNCHALLENGED POSSESSION]3 FROM DAY TO DAY.4 A PRESUMPTIVE TITLE TO A NON-IRRIGATED FIELD IS CONFERRED BY THREE YEARS' POSSESSION NOT RECKONED FROM DAY TO DAY.5 R. ISHMAEL SAYS: IT IS SUFFICIENT TO HAVE THREE MONTHS IN THE FIRST YEAR, THREE MONTHS IN THE LAST AND TWELVE IN THE MIDDLE,6 MAKING EIGHTEEN MONTHS IN ALL. R. AKIBA SAYS: ALL THAT IS REQUIRED IS A MONTH IN THE FIRST, A MONTH IN THE LAST, AND TWELVE MONTHS IN THE MIDDLE, MAKING FOURTEEN MONTHS IN ALL.7 R. ISHMAEL SAYS: THIS REFERS ONLY TO A CORNFIELD,8 BUT IN A FIELD PLANTED WITH TREES,9 IF A MAN HARVESTS HIS GRAPES, GATHERS IN HIS OLIVES, AND CULLS HIS FIGS, THIS COUNTS AS THREE YEARS.10
GEMARA. R. Johanan said: I have heard those who attended at Usha11 reasoning thus: Whence do we derive the rule that a presumptive title is acquired in three years?12 — From the 'goring ox'.13 Just as in the case of the' goring ox', after goring three times14 it passes out of the denomination15 of Tam16 into that of Mu'ad,17 so after a man has cropped18 a field for three years it passes [entirely] out of the possession of the seller and is established in the possession of the buyer.19 It may be objected to this that just as in the case of the goring ox its master does not become liable20 till the fourth goring, so here the property should not become the fixed possession of the holder21 till the end of the fourth year? — How can you compare the two cases.22 There, as soon as the ox has gored three times, it is regarded as Mu'ad,
Baba Bathra 28b
but until it has gored the fourth time there is no reason why the owner should pay, whereas here, as soon as the use of it has been enjoyed for three years, the property becomes the fixed possession of the holder.
Now if this is correct1 [that the law of hazakah is derived from the law of the ox], it would follow that three years' possession would confer a legal title even without a plea [of justification].2 Why then have we learnt3 that possession without a plea of justification does not confer a legal title? — The reason why [we confirm the holder in possession when he pleads justification] is because it is possible that his plea is truthful.4 But if he himself advances no plea, shall we put in a plea for him?5
R. 'Awira brought a strong objection against this analogy [between the field and the ox]. On this principle, he said, a protest made not in the presence of the holder should not be valid,6 after the analogy of the Mu'ad ox; for just as in the case of the Mu'ad ox [the warning] must be given in the presence of the owner, so here the protest should be made in the presence of the holder? — There [in the case of the ox] Scripture says, And it hath been testified to his owner';7 here [in the case of property] 'your friend has a friend, and the friend of your friend has a friend.'8
Now [suppose we accept the ruling] according to R. Meir, who said: 'If there was an interval between the gorings the owner is liable, all the more so then if they followed closely on one another.'9 [On the analogy of this], if a man gathered three crops on one day, as for instance figs [in three stages of ripeness]. this should constitute presumptive right, [should it not]?10 — No; the action must be strictly analogous to the case of the Mu'ad ox. Just as in the case of the Mu'ad ox at the time when the first goring took place there was as yet no second goring, so here at the time when the first fruit is plucked the second must not yet be in existence. But suppose he gathered11 three crops in three days, as of a caperbush,12 should not that confer presumptive right? — In this case also the [second] fruit exists already [when he gathers the first crop] and it merely goes on ripening. But suppose he gathered three crops in thirty days, as of clover13 — should not this confer presumptive right? How exactly do you mean? That it is cropped as it grows? Then this is merely partial eating14 [and not the full eating required to confer presumptive right]. But suppose then that he consumed three crops in three months, as of clover,15 should not this confer presumptive right? — Who is meant by the 'Rabbis who attended Usha'? — R. Ishmael;16 and this actually would be the view of R. Ishmael, as we have learnt: R. ISHMAEL SAYS: THIS REFERS ONLY TO A CORNFIELD, BUT IN A FIELD PLANTED WITH TREES, IF A MAN HARVESTS HIS GRAPES, GATHERS IN HIS OLIVES, AND HARVESTS HIS FIGS, THIS COUNTS AS THREE YEARS.
And whence do the Rabbis17 derive the rule [that three years possession confers presumptive right]? — R. Joseph said: They derive it from the Scriptural verse, Men shall buy fields for money and subscribe the deeds and seal them.18 For there the prophet is speaking in the tenth year [of Zedekiah]19 and he warns the people [that they will go into captivity] in the eleventh.20 Said Abaye to him: perhaps he was merely giving a piece of good advice?
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