Bava Batra, Chapter Three, Mishnah Three

 

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.

 

Mishnah Three

1)                     An act of possession without which there is no claim [on the ownership of the property] is not valid possession [to establish ownership].

a)                                           How is this so?

b)                                          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].

c)                                           [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].

d)                                          He who holds possession [for three years] due to inheritance [from the previous owner], does not need to make a claim.

2)                     Craftsmen, partners, sharecroppers and guardians cannot establish ownership through possession.

a)                                           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.

3)                     When is this so [that one needs three years to establish ownership]?

a)                                           When the person attempts to acquire the land through possession.

b)                                          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.

 

Explanation

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.

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.

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.

 

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