Babylonian Talmud

Rodkinson 1918 — source 13, scan section 36

with interruption, he comes to teach us that it is not so. Said R. Hamma : R. Huna admits that in places where it is usual to let the fields rest one year, the three years are considered hazakah, although there is interruption. Is this not self-evident? The case was when he had his field in dt. pagus, where some let it rest while others did not : lest one say that the plaintiff might claim, " If it were yours, you would not make any interruption," he comes to teach us that the defendant might claim, " It was more agreeable for me this way, because after it rests a year it brings more produce." But does not our Mishna apply hazakah to houses to which testimony could be given for occupying in the day-time, but not in the night-time ? (Hence a hazakah is con- sidered even when there is no testimony that it was not inter- rupted.) Said Abayi : Who testifies as to the occupancy of houses ? Neighbors. And neighbors are aware of the nights as well as of the days. Rabha said : The Mishna means when two witnesses came and testified : " We have rented the house from the defendant,, and lived in it three years, day and night." Said R. Jimir to R. Ashi : Are the witnesses not interested in it ; for if they would not so testify, they would be told to pay their rent to the plaintiff ? Answered he : " Ignorant judges would give such a decision. May it not be the case that the witnesses hold the rent of the house, asking, To whom shall we pay?" Said Mar Zutra : Nevertheless, if the plaintiff requires that the defendants should bring two witnesses who should testify that they lived in the house three years, day and night, the court must listen to him. And Mar Zutra admits, if the plaintiff was a traveller who had travelled in large cities with his stock that although he does not require the testimony for day and night, the court may claim it for him. And R. Huna admits, 86 THE BABYLONIAN TALMUD. that in stores like those of Mehusa, which are usually occupied in the daytime only, three years is considered a hazakah. Rami and R. Uqba, the sons of Hamma, bought a female slave jointly : one kept her the first, third, and fifth years, and the other the second, fourth, and sixth. And thereafter a claim was made concerning this slave. And they came before Rabha. Said he to them : Why did you do so— to the end that neither of you should be able to claim hazakah ? As it is not a hazakah for each of you, so it is not considered a hazakah for the whole world. This, however, applies because there was no written agreement between you that she should serve you in such a manner. But if such had been written, it might be regarded the same as if it were made public, and no claim is to be considered. Rabha said : If one has used a whole field the years of hazakah, except a quarter of a saah, he acquires title to the whole field ex- cept to that which he has not used. Said R. Huna to R. Joshua : It is so if this piece was also fit for sowing. If, however, it was not fit for that, title is acquired to it also, with the field. R. Bibi b. Abayi opposed : According to your theory, how should one make a hazakah on rocky ground, if not by putting cattle or drying fruit there? The same ought to be done with that which was not fit for sowing ; and because he has not done so, title is not acquired. There was one who said to his neighbor : " What are you doing in this house?" to which he answered: "I bought it from you and have occupied it the years of hazakah." Said the plaintiff : " I used to live in the front rooms, passing through yours, and therefore I did not care to protest." And when the case came before R. Na'hman, he said to the defendant : Go and bring evi- dence that you have occupied the whole house alone. Said Rabha to him : Does not the law dictate that it is for the plaintiff to bring evidence ? The follov/ing case, however, contradicts both R. Na'hman and Rabha. It once happened that one said to his neighbor : " I sell you all the properties which formerly belonged to Bar Sisin." There was, however, another estate which also bore the name of Bar Sisin estate, and the buyer wanted to take possession of it; but the seller claimed that this had never belonged to Bar Sisin, and that it was only so called. And when the case came before R. Na'hman, he decided that it belonged to the buyer ; and Rabha said to him : Does not the law dictate that it is for the plaintiff to bring evidence ? Hence the decision of this case contradicts TRACT BABA BATHRA (LAST GATE). 87 the former entirely ? Nay ; in the former case the plaintiff was the owner of the house, and in the latter case the buyer was the plaintiff. Hence Rabha did not change his decision. And con- cerning R. Na'hman, he also did not contradict himself; but merely because it was named Bar Sisin, he held that it was for- merly owned by Bar Sisin, and it was for the claimant, who said it was not so, to bring evidence. And this case is similar to a case where one wants to deny hazakah with a note. Would it not be said to him : Bring evidence that the note is a right one, and then only you can have this? There was one who asked his neighbor^ " What are you doing in this house ? " and he said, " I bought it from you, and I have occupied it the years of hazakah." But the owner claimed that he was always out of the city and was not aware that he had been occupying this house, and therefore no protest was made. The defendant, however, stated he had witnesses to the fact that thirty days each year the owner used to be in the city, to which the plaintiff again answered : " These thirty days I was always busy in the market, and I never thought about my house." When the case came before Rabha, he decided that the owner of the house was to be trusted. There was another who asked his neighbor, " What are you doing on my estate?" to which he answered, " I bought it from so and so, who told me that he bought it from you." Then he said : " You admit, however, that the estate was mine and that you have not bought it from me. Then go (and see the man you bought it from). /, however, have nothing to do with you." And Rabha decided that the plaintiff's claim was in accordance with the law. There was another who answered to the same question as above : " I bought it from so and so, and occupied it the years of hazakah." But the owner answered : " That man is known as a robber." The defendant, however, claimed that he had wit- nesses that at the time he bought it he took the owner's advice. To which the plaintiff answered : " It is true I advised you to buy it, because it would be easier for me to take it away from you than from the robber." Upon which, Rabha decided that