Babylonian Talmud: Tractate Baba Bathra

Folio 47a

In regard to a go-between,¹  some say that he may testify [on behalf of the borrower] and some say that he may not. Those who say that he may testify regard him as being on the same footing as a surety, whereas those who say that he may not [consider] that he prefers fields of both qualities²  to be in the hands of the borrower, so that the creditor can have the choice of seizing from either.³

R. Johanan said: A craftsman has no hazakah, but the son of a craftsman has hazakah.⁴  A metayer has no hazakah, but the son of a metayer has hazakah. Neither a robber nor the son of a robber has hazakah, but the grandson of a robber has hazakah. How are we to interpret this? If [we suppose that] they base their title [solely] on [the possession of] their father, then the son of a craftsman and the son of a metayer should also not have hazakah.⁵  If again they do not base their title on [the possession of] their fathers [but on claims of their own].⁶  then the son of a robber should also [have hazakah]? — [They do base their title on the possession of their fathers], and our rule applies to the case where witnesses declare: The claimant admitted to him [the father] in our presence [that he had sold the land to him].⁷  In the case of the others [the son of the craftsman and the metayer and the grandson of the robber] the presumption is that they are telling the truth, but in the case of the son of the robber, even though he [the claimant] admits [he sold it to [the father] we do not believe him, on the ground put forward by R. Kahana, that if he did not admit this, the other would hand him and his ass over to the town prefect.⁸

Raba said: There are occasions when even the grandson of a robber also has no hazakah, as for instance when he bases his title on the possession of his grandfather. What sort of man is meant here by 'robber'? — R. Johanan said: One, for instance, who is generally presumed to have obtained the field under consideration by robbery.⁹  R. Hisda said: Those like the people of a certain family we know who do not shrink from committing murder to extort money.¹⁰

Our Rabbis taught: A craftsman has no hazakah, but if he abandons his trade he has hazakah.¹¹  A metayer has no hazakah, but if he ceases to be a metayer he has hazakah. A son who leaves [his father's roof]¹²  and a woman when divorced are on the same footing as strangers [in relation to the father or husband].¹³  [Why mention this?] It is true that for specifying the rule about the son who leaves his father's roof I can find a reason, since I might think that [we presume the father] to have tacitly consented [to his occupying the land],¹⁴  but now I know that this is not so. But that the divorced woman [becomes a stranger to her former husband]¹⁵  is surely self-evident? — No. The rule is required

1. [H] lit., 'receiver': a man who receives money from a lender to convey to a borrower on condition that the lender may recover from either at his option. The 'areb (surety), on the other hand becomes liable only if the borrower has failed to pay.
2. I.e., both medium and inferior quality. The rule was that a creditor was entitled to recover from land of medium quality (v. B.K. 7b).
3. If the borrower's medium-quality land is claimed and he loses his case, then the creditor will certainly come on to the go-between for his money, whereas if he keeps his land the creditor still has the choice of distraining either on him or on the go-between. Hence the go-between has an interest in the borrower keeping his land, and therefore must not testify on his behalf.
4. If the father dies and he inherits him.
5. Because their title is no better than their father's.
6. E.g., if they plead. 'I bought it from the claimant.'
7. Tosaf. points out that in such a case there is no need of hazakah, and therefore reads, 'where they (the various sons) declare: In our presence etc.
8. The officer who imposed compulsory service or socage on the inhabitants.
9. And therefore he can have no hazakah in this field, but he may have it in other fields.
10. Hence people are afraid to protest against their occupation of their fields, and the occupation therefore confers no hazakah.
11. I.e., in articles which were entrusted to him while he was still a craftsman, if he keeps them for an unusual length of time.
12. E.g., to marry.
13. V. Supra p. 281 where it is laid down that a father has no hazakah in the property of his son nor a husband in the property of his wife, and vice versa.
14. And therefore he made no protest, but this does not constitute any hazakah for the son.
15. Since they presumably are hostile to each other, and therefore are not likely to have allowed their land to be occupied by the other without protest.

to define the position of the woman who is both divorced and not divorced,¹  on account of the dictum of R. Zera, who said in the name of R. Jeremiah b. Abba, who had it from Samuel, that wherever a woman was described by the Sages as being divorced and yet not divorced, the husband is still responsible for her maintenance.²

R. Nahman said: Huna has informed me that if any one of the classes [mentioned above]³  brings a proof [that his title to the field is valid].⁴  we accept the proof and confirm their title to the land.⁵  If, however, a robber adduces proof.⁶  we do not accept it and we do not confirm his title to the land. What has he [R. Huna] told us [in this latter clause]? We already know as much from the following Mishnah: 'If a man buys a field from the sicaricon⁷  and then buys it again⁸  from the original owner, the purchase is void.' — R. Huna meant to dispute the opinion of Rab, who said [in reference to this statement:] 'This rule was only meant to apply in such a case where the original owner merely said to the purchaser. Go and occupy the field and become the owner; but if he gave him a written deed, then the purchaser acquires ownership.'⁹  He [R. Huna] therefore tells us that the right opinion is that of Samuel, who said that even [if the original owner gives the purchaser] a written deed, [the latter does not acquire ownership: he] only [does so] if the original owner gives him a lien on the rest of his property.¹⁰

R. Bibi quoted R. Nahman as adding to the statement [which he had made in the name of R. Huna]: Though the robber has no title to the land [which he has forcibly taken], he has a title to the money [which he may have given in consideration of it].¹¹  And this is only the case if witnesses testify: We saw him counting out the money [to the original owner]. but if they merely testify: We heard the original owner admit to him [that he had received money], the robber cannot recover it, for the reason given by R. Kahana, that if he had not made this admission to him the other would have handed him and his ass over to the town prefect.¹²

R. Huna said: if a man consents to sell something through fear of physical violence¹³  the sale is valid. Why so? Because whenever a man sells, it is under compulsion.¹⁴  and even so his sale is valid. But should we not differentiate internal from external compulsion? — [We must] therefore [give another reason], as it has been taught:

1. E.g., one to whom the husband has thrown a get, and it is not certain whether it landed nearer to her or to him. v. Git. 74a.
2. We might think, therefore, but for the ruling above, that she can have no hazakah in her husband's property, as any land she may occupy was assigned to her for her maintenance.
3. Viz., a craftsman, a metayer, and all the others who are specified as having no hazakah.
4. A deed of sale or witnesses to the sale.
5. This is an obvious statement, only made to lead up to what follows.
6. E.g.. witnesses who testify that he bought the land or that the original owner admitted as much, but not that he handed over the money.
7. Commonly taken to be a corruption of sicarii, non-Jewish brigands who infested Palestine after the war of Bar Cochba; more probably. however (v. Jast., s.v. [H]) a corruption of [G], the Imperial fiscus established in Palestine at that time. The Rabbis ordained that purchases of land from that source were null and void. V. Git. 55.
8. I.e., obtains from him a deed of transfer, without, however, paying him money. Git. 55b.
9. Because this shows apparently that the original owner acquiesces in the transfer and is not acting merely out of fear of the sicarius. R. Huna, however, declares the sale void even if the robber produces a deed.
10. Because only then can we be sure that he acquiesces in the transfer.
11. I.e., if the robber has given the owner money in payment of the field, when the latter recovers the field he must refund the money.
12. The admission therefore is presumably false.
13. Lit., 'If they hang him and he sells.'
14. By shortage of money.