Babylonian Talmud: Tractate Baba Bathra

Folio 33a

other money besides.¹  When I had had the use of the land for the number of years covered by the mortgage, I said to myself: If I restore the land to the orphans and then tell them that I have still a claim on their father for more money, [I shall have to comply with] the rule of the Rabbis that 'anyone who claims to recover from orphans must support his claim with an oath.' I will therefore keep back the mortgage bond and continue to use the land to the extent of the money still owing to me; for since, if I were to say that I had bought the land, my plea would be accepted,²  I shall certainly be believed when I say that they owe me money. Said Abaye to him: You could not plead that you have bought the land, because common report says that it belongs to the orphans.³  Go therefore and restore it to them, and when they become of age⁴  claim your debt from them in court.

A relative of R. Idi b. Abin died, leaving a date tree. [R. Idi and another man disputed its possession] R. Idi saying, 'I am the nearer relative,' whilst the other man said, 'I am the nearer relative;' [and the other man seized the tree]. Eventually, however, he admitted that R. Idi was a nearer relative, and R. Hisda assigned to him the tree. He [R. Idi] then claimed: 'Let him return me the produce which he has consumed from the time he seized it.' Said R. Hisda: 'So this is the man⁵  who is said to be a great authority! On what ground do you base⁶  [your ownership]? On this man s admission. But he has been saying till now that he was the nearer relative.'⁷  Abaye and Rab did not concur in R. Hisda's decision;

1. For which no land had been mortgaged to him.
2. Because he had had unchallenged occupation for more than three years.
3. And this is equivalent to a protest, in which case no right can be proved save through a deed of sale.
4. I.e., thirteen years old.
5. Referring to R. Idi.
6. Lit., 'on whom'.
7. And therefore he is in effect making you a gift of the tree, though you cannot claim it by law. Hence you cannot claim the produce, if he does not choose to give you that also.

they held that the man's admission covered the produce as well as the tree.¹

[A case arose] in which one said, ['The land belonged] to my father,' and another said 'To my father,' but while the one brought witnesses to prove that it had belonged to his father [up to the time of his death], the other brought witnesses to prove that he had had the use of it for the period of hazakah.²  [When the case came before] R. Hisda, he said: What motive has he [who occupies it] to tell a falsehood? If he likes he can say, 'I bought it from you and have had the use of it for the period of hazakah.'³  Abaye and Raba, however, did not concur in this judgment of R. Hisda, on the ground that we do not advance the plea 'What motive had he to tell a falsehood' when it conflicts with direct evidence.

A certain man said to another, 'What are you doing on this land?' He replied, 'I bought it from you and have had the use of It for the period of hazakah.' He then went and brought witnesses to prove that he had had the use of it for two years [but could not find witnesses for the third]. R. Nahman thereupon decided that he should restore both the land and the produce. R. Zebid said: If he had pleaded, 'I was working⁴  the land for the produce only [as a metayer],' his plea would have been accepted.⁵  For has not Rab Judah laid down that if a man takes a pruning knife and rope In his hand and says, 'I am going to gather the dates from the tree of so-and-so who has sold them to me,' his word is accepted, because a man would not take the liberty of gathering the dates from a tree which did not belong to him? So here, a man would not take the liberty to consume produce that did not belong to him. But might not the same be said of the land also?⁶ — If he [the occupier] claims the land, we say to him: Show us your deed of sale. Cannot we then say the same in the case of the produce also? — Written agreements are not usually made in regard to produce.

A certain man said to another, 'What right have you on this land?' He replied, 'I bought it from you and I have had the use of it for the period of hazakah;' and he brought one witness to prove that he had had the use of it for three years. The Rabbis of the court of Abaye⁷  propounded the opinion that this case was parallel to that of the bar of metal⁸  [which was decided] by R. Abbah. [What happened was] that a certain man seized a bar of metal from another, and the latter brought the case before R. Ammi, before whom R. Abbah was sitting at the time. He brought one witness to prove that the man had snatched the article from him. 'Yes,' said the other, 'I did snatch, but it was my own property that I snatched.' R. Ammi thereupon said:

1. Lit., 'Since he admitted, he admitted.' The above is the interpretation of this passage given by Rashb., and though satisfactory in itself it does a certain amount of violence to the original. Tosaf. therefore reads, instead of 'he admitted that R. Idi was a nearer relative', simply 'he admitted', i.e., he gave way, allowing R. Idi to keep the tree, though he did not formally admit that he was the nearer relative. We then translate lower down: 'Through whose word (do you become owner of the tree)? Through this man's etc:' and in the last sentence, 'Since he gave way (in regard to the tree), he must give way (in regard to the produce).' R. Han. reads, instead of 'he admitted etc.', 'R. Idi brought witnesses to prove that he was the relative' (or, alternatively, 'the nearer relative'). In that case we translate the last sentence, 'Abaye and Raba held … that since he admitted (that he consumed the produce), he must abide by the admission (and pay for it).'
2. I.e., not less than three years.
3. And therefore we believe him when he says that it belonged to his father.
4. Lit., 'l went down to.'
5. And he would not have had to restore the produce as well as the land.
6. I.e., that if the occupier pleads, 'I bought it from the claimant', his word should be accepted, because he would not take the liberty of occupying it otherwise.
7. Lit., 'the Rabbis sitting before Abaye.'
8. Presumably silver or gold.