Every chazakah unaccompanied by a claim [justifying one's holding (what was once) his neighbor's] is no chazakah. How so? If he said to him: "What are you doing in what is mine?" and he answered: "No one ever said anything to me," this is not a chazakah. But if he said: "You sold it to me," You gave it to me as a gift," "Your father sold it to me," "Your father gave it to me as a gift," this is a chazakah. And what comes through inheritance, [his having held it three years as his father's inheritance, it having belonged to his father on the day of his death] requires no claim [justifying his father's holding it. However, proof is required of his father's having lived there (at least) one day.] Craftsmen, partners, tenant-farmers, and caretakers have no chazakah. [Artisans, who repair vessels, have no chazakah. If they hold the vessels of others, they cannot claim to have acquired them, even if they are not the type of vessels which are wont to be lent or rented. This, when the vessel is before us in the hand of the craftsman. But if the vessel is not before us in the hand of the craftsman, but one came and claimed that he had given the craftsman a vessel to repair and asked that it be returned, and the craftsman replied that he had it, but that the other had sold it to him, the craftsman is believed with a miggo, viz. Had he wished, he would have denied ever having received it; or he could have claimed that he had returned it. Likewise, if the craftsman claimed that the other had agreed to pay him a certain amount and the other said that it was less, if the vessel is before us in the hand of the craftsman, the owner of the vessel is believed. And if not, the craftsman is believed with an oath, even if he (the owner) had given it to him with witnesses — miggo: Had he wished, he could have said: "I returned it to you." ("partners":) If two hold land in partnership, and one of them ate all of the fruits for three years, this is no chazakah. This, when there is no law of division for the land (see 1:6); but if there is, and one of them ate for three years, it is a chazakah. ("tenant-farmers":) who go down (to get a portion) of the (produce of the ) land — a half, a third, or a fourth. If they ate all of the fruits for three years, this is not a chazakah. And this, only with the tenant-farmers of fathers' houses, who are like caretakers for the children. But others, whom the owners themselves brought down (to the land) — If they ate all of the fruits for three years, it is a chazakah.] A man has no chazakah in the property of his wife. [Even if he wrote her while she were still betrothed: "I have no rights to your property nor to its produce," in which instance he does not eat the fruits by right, and then he brought proof that he ate fruits for three years, it is not a chazakah. For women tend to allow their husbands to eat the fruits of their property, whether by right or not by right.] And a woman has no chazakah in the property of her husband. [Even if he set aside land for her sustenance and she ate fruits form other lands of her husband for three years, still, it is not a chazakah. For men tend to allow their wives to eat of their property even if they have no rights to it.] And a father has no (chazakah) in the property of his son, and a son, in the property of his father. [For they are like caretakers vis-à-vis each other.] When is this so? [that it is not a chazakah] With holding, [i.e., with one's holding under protest, his neighbor claiming it to be stolen.] But one who gives a gift [(before us and says to the receiver: "Go, take hold and acquire," etc.) All of those mentioned above in the Mishnah as not having a chazakah, when they "take hold" (of the object) they are as all receivers of gifts; they do acquire, and the giver cannot retract. And a woman who gave or sold to her husband her melog property (see Yevamoth 4:3) — when the husband "takes hold" of it, he acquires it, and she cannot say: "I was just giving pleasure to my husband." For it is only with tzon-barzel property, or with land that her husband set aside for her kethubah that we say her sale is no sale and her gift is no gift in that she can say: "I was just giving pleasure to my husband." For her husband has some connection with those lands. But with melog property with which he has no essential connection whatsoever, she cannot say: "I was just giving pleasure to my husband." Likewise, a man who sold some of his property to his wife — If the money whereby she acquired it were not "secreted with her," the sale stands; the property reverts to the woman, and the husband eats fruits. And if that money were secreted with her, the sale is void. For he can say: "I 'concocted' the sale only to 'ferret out' the money secreted with her."] ("But one who gives a gift") and brothers who divide (the inheritance), [ (each, "taking hold" of his portion, cannot retract.) ] and one who "takes hold" of the property of a proselyte, [(who died without heirs, in which instance whoever is first to take hold of his property acquires it)] — If he made somewhat of a door, or of a wall, or of a breach [in it], this is a chazakah.
Bartenura on Mishnah Bava Batra
כל חזקה שאין עמה טענה – that he will make the claim why does the person who possesses that which belongs to his fellow is not valid possession.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
Introduction
In the previous two mishnayoth we began to learn the laws of establishing ownership through possession. In mishnah three we learn what a “possessor” must say to the other person who claims ownership, in order for the “possessor” to establish ownership through possession. We also learn in mishnah three that certain people who possess land cannot claim ownership, even though they possessed for three years.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
והבא מחמת ירושה – that he held possession of it for three years through the strength of the inheritance of his father, for it was his father’s on the day of his death.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
An act of possession without which there is no claim [on the ownership of the property] is not valid possession [to establish ownership]. How is this so? If he said to him: “What are you doing on my property? And the other answered: “No one ever said anything to me”, this is not valid possession [to establish ownership]. [If he said to him]: “You sold it to me”, “You gave it to me as a gift”, “Your father sold it to me”, “Your father gave it to me as a gift”, this is valid possession [to establish ownership]. He who holds possession [for three years] due to inheritance [from the previous owner], does not need to make a claim. Section one In order for a person to claim ownership through possession he must claim that the counter claimant sold it to him. For instance Reuven comes to Shimon and claims that the land that Shimon possesses is Reuven’s. Reuven brings a deed or witnesses to prove that the land is his. We can now be sure that Reuven once owned the land and the question is does he still own the land. If Shimon says that from the time he possessed the land no one said anything to him, the land will go back to Reuven. Since Shimon does not have a logical explanation for how he received the land, he cannot keep it. If, however, Shimon were to claim that Reuven sold him the land or gave it to him as a gift, or that Reuven’s father had done so, than we can assume that the land now belongs to Shimon. Since he occupied the land for three years without Reuven protesting, we assume that Shimon received the land from Reuven or his father and lost his documentation. The one exception to this rule is the one who received his land as part of an inheritance from his father. If he can prove the land was his as inheritance he need not prove how his father received the land.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
אין צריך טענה – to prove how it came to his father’s hand. However, proof is required when the saw his father live it in one day.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
Craftsmen, partners, sharecroppers and guardians cannot establish ownership through possession. A man cannot establish ownership through possession of his wife’s property, nor may a wife establish ownership through possession of her husband’s property, nor a father of his son’s property, nor a son of his father’s property. Section two The people listed in section two by definition will use other people’s property. For instance craftsmen may come and do work on another person’s property. This is not a sign that they own the property and therefore they cannot establish ownership through possession. So too a spouse cannot claim title to his/her spouses property through possession, since husbands and wives regularly make use of each other’s property without protesting. Finally, the same is true of parents and children: they too cannot claim title to the other’s land due through possession.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
האומנים – when they repair utensils –
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
When is this so [that one needs three years to establish ownership]? When the person attempts to acquire the land through possession. But, when the property was given as a gift, or when brothers shared a piece of their inheritance, or when one claimed title by possession to the property of a convert [who died without inheritors], then if the claimant has shut in, walled up or broken down anything, this counts as securing ownership through possession. Section three We learn here that it takes three years to establish ownership, only when the property is in dispute. However, if someone gives property to another person, or brothers split the property left to them in inheritance, or a person comes to take property that has no owners, all he must do is show minimal use on the property and it belongs to him. The example of minimal uses is that he changes a part of the outside wall, by making a lock, by adding onto the fence or even by breaking the fence. In these three ways a person can establish immediate ownership and the three years are not necessary.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
They don’t have a claim of possession – If they were in possession of utensils of others, they are not able to claim that there were purchased in his hand and even if they are utensils that are not normally lent or rented out. And these words [refer] to when the utensil is found before us in the hand of the artisan. But if the utensil is not found before us in the hand of the artisan, but rather, that someone comes from the marketplace and claimed to the artisan: “I have a utensil with you that I gave you to repair. Return it to me.” And the artisan claimed: “It is true that it (i.e., the utensil) is with me, but you sold it to me,” the artisan is believed through an oath with מיגו/a legal rule according to which the deponent’s statement is accepted as true on the ground that, if he had intended to tell a lie, he might have invented one more advantageous to his case (see Talmud Bava Batra 31a). For if he wanted, he could have said “that nothing had ever taken place [between us]” or “I returned it to you.” And similarly, the artisan made the claim that is what you fixed a price with a charge for the repair.” But the other can say, “I did not make that arrangement other than for less.” If the utensil is found before us in the hand of the artisan, the owner of the utensil is believed. But if the utensil is not found before us in the hand of the artisan, the artisan is believed with an oath, and even if he transferred it to him with witnesses with the מיגו (see above) that if he had wanted, he could have said, “I had returned it to you.”
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
והשותפים – they have property held jointly and one of them consumed all the produce for three years, it is not considered a presumption of possession. And these words are when the land does not have the law of division. But if the property has the law of division, and one of them consumed for three years, that is considered possession.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
והאריסים – he goes down into the land for one half, for one-third or for one-fourth, and consumed all the produce for three years, it is not considered presumption of possession. And especially with regard to hereditary land-tenants for he is like an אפוטרופוס/a guardian for the son but the tenant farmer who was brought down by the owner of the land himself and he consumed all the produce for three years, he does have presumption of possession.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
ואין לאיש חזקה בנכסי אשתו – and even if he wrote to her while she was still his betrothed an unequivocal judgment: “I have nothing with regard to your property, nor the fruits of it, for now, he does not consume its produce from the law, and afterwards brought a proof that he ate produce for three years, that is not considered presumption of possession, for it was the manner of the wife to allow her husband that he can consume the fruits of her property, whether by law or not by law.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
ואין לאשה חזקה בנכסי בעלה – and even if he designated for her land for her food and she consumed produce from another land belonging to her husband for thee years, even so, this is not a presumption of possession, for it is manner of a man to allow his wife that she may consume from his property, even with something that she does not have authority.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
ולא לאב בנכסי הבן [ולא לבן וכו'] – Because they are like guardians one for the other.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
במה דברים אמורים – that they are not a presumption of possession.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
במחזיק – when he is possessing something where there is a protest/evidence of illegitimacy or disqualification (see Talmud Bava Batra 31b), for his fellow makes the claim that what is in your hand was stolen.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
אבל הנותן מתנה – in our presence and stated to the recipient: “this gift is for you, take possession and acquire it.” All of these [things] that are stated above in our Mishnah lack presumption of possession, when they took possession like others who received a gift and acquired it, that the giver cannot retract. But the woman who gave or had sold to her husband her usufruct (i.e., that which belongs to the wife’s estate that the husband can use without responsibility for loss or deterioration), and when he took possession of it, the husband acquired it, and she cannot say: “I gave pleasure/gratification to my husband,” and specifically for mort-main (i.e., the wife’s estate is held by her husband, which, the case of her death or divorce, he must restore in specie, being responsible for all his landed property for loss or deterioration), or property that her husband designated for her in the Jewish marriage contract, we say that her sale is not a sale, and her gift [to someone] is not a gift, because she can claim: ‘I did it give my husband pleasure,” because her husband has an attachment to them. But her usufruct, which her husband, in principle, has no attachment to them, she cannot say: “I gave pleasure/gratification to my husband. But similarly, the man who sold to his wife from his property, if the monies that the wife purchased them are not that property, they are not hidden/preserved with her. The sale goes is established, and those properties belong to the woman and the husband can eat the produce, and if those monies were hidden with her, the sale is void, for he can say, “[it was done] to reveal monies that were hidden/preserved with her. I stated that I am selling to her.”
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
והאחין שחלקו – and each one held possession of his portion and they cannot retract.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
והמחזיק בנכסי הגר – [the convert] who died and he no inheritors. And whomever comes first to take possession of his properties, takes possession.
