Babylonian Talmud

Rodkinson 1918 — source 13, scan section 40

claim hazakah, as the owner may say, " I did not protest because I could not have made use of it anyhow, for the wild beasts would have consumed the produce." If one of the years of hazakah happened to be a year of ar/a, it is not to be considered. And so, also, we have learned in the following Boraitha : If one of the years was a Sabbatic or an ar/a year, or one has sown it with Kilaim, it must not be considered. R. Joseph said : If in the hazakah years he harvested the stalks while yet unripe, it is not to be considered (because he has not occupied it as usual). Said Rabha : But if this was around the city of Mehusa it is to be considered, because all the farmers, on account of their cattle, are in the habit of doing so. R. Na'hman said : To land which is full of pits and cannot be worked up properly the law of haza- kah does not apply, because the owner may claim, " As it was of no use to me, I did not protest." The same is the case with such fields as return no more than was sown in them. And also in the case of exilarchs, to an estate which is bought from them, or which they buy, the law of hazakah does not apply, because they 96 THE BABYLONIAN TALMUD. are mighty, and no one would dare to protest against them ; and, also, they themselves do not care to protest. ''Slaves.'* Does the law of hazakah apply to slaves? Did not Resh Lakish say : To every living creature the law of hazakah does not apply ? Said Rabha : He means to say it does not apply before three years {i.e., one cannot claim that he bought it as he may do with other personal property for which no evidence is needed when found in his possession), but after three years it does. And Rabha said again : If this slave was an infant lying in his cradle, the law of hazakah applies immediately. Is this not self-evident ? He means even in case it has a mother ; and lest orie say that it is to be feared that its mother left it there, it comes to teach us that this is not to be feared, because usually a mother does not forget her child. There were goats that consumed peeled barley in the city of Nahardea, and the owner of the barley caught them and would not return them until the value of the barley was paid. And his claim was of considerable amount, and the father of Samuel de- cided that he might claim the value of all the goats, as if he were to claim that he bought them he ought to be trusted, seeing that they were found in his possession. But did not Resh Lakish say that the law of hazakah does not apply to living creatures ? Why did the father of Samuel decide (Middle Gate, pp. 306 seq.) that he could collect the whole value of the goats? (See there.) With goats it is different, as they are usually transferred to the shepherd. But do not goats go in the morning and evening without the shepherd? In the city of Nahardea thieves were fre- quently found, and the shepherds used to deliver the cattle into the hands of their owners. " Three months tJi the first year,'' etc. Shall we assume that the point of difference between R. Ishmael and R. Aqiba is that one holds ploughing is a hazakah {i.e., if one ploughs a field and the owner does not protest, it is supposed that he bought it from him). And one holds that it is? But how can you bear in mind that R. Aqiba holds ploughing to be a hazakah, when he means a whole month in two hazakah years? Is one day not sufficient for ploughing? Therefore we must say that, according to all, ploughing is not considered a hazakah, and the point of their dif- ference is ripe and unripe fruits. According to R. Ishmael, the hazakah applies only to ripe fruits, and according to R. Aqiba also to unripe ones. The rabbis taught : Ploughing is not a hazakah. According TRACT BABA BATHRA (LAST GATE). 97 to others, it is. Who are the others? Said R. Hisda : It is R. Aha of the following Boraitha. If one has ploughed it one year and sown it two, or vice versa, it is not a hazakah. R. Aha, however, says it is. Said R. Ashi : I have questioned all the great men of this generation, and they have told me that ploughing is a hazakah. Said R. Bibi to R. Na'hman : The reason of him who holds that ploughing is a hazakah is because that usually one would not keep silent if a stranger came and ploughed his land. And the reason of him who holds that ploughing is not a hazakah, is because the owner might think : " I can derive bene- fit from every furrow he makes with the plough on my land, so I will protest afterwards." The inhabitants of the city of Pumnahara sent a message to R. Na'hman b. R. Hisda thus : Let the master teach us if plough- ing is a hazakah or not. And he answered: R. Aha and all the great men of this generation have decided that ploughing is a hazakah. Said R. Na'hman b. Itz'hak : It was too much of him to assert, " All the great men." Are not Rabh and Samuel in Babylon, and R. Ishmael and R. Aqiba in Palestine, who hold that ploughing is not a hazakah ? R. Ishmael and R. Aqiba we hear saying so in our Mishna, but where did Rabh and Samuel say so ? As R. Jehudah said in the name of Rabh : R. Ishmael and R. Aqiba were a minority of the sages, but the majority of the sages held that a hazakah is three years from date to date. And this was certainly to exclude ploughing. And concerning Samuel, said also R. Jehudah in his name : This was the opinion of R. Ishmael and R. Aqiba only ; but all the other sages held that the hazakah does not apply unless one has harvested, gathered the vintage, and pressed olives, each of them three times. What is the difference between Rabh and Samuel — as, according to both, three years are needed ? Said Abayi : A young tree which bears fruit on the average three times in less than three years, accord- ing to Samuel it is a hazakah, and according to Rabh it must be from date to date. " Said R. Ishmael . . . a field for grain" etc. Said Abayi : From R. Ishmael's decision, that three harvestings suffice to con- stitute hazakah, we can understand the opinion of the rabbis opposing him : If the field contains thirty trees, each ten of which take up a space where a saah of grain can be sown, and the de- fendant has used ten the first year, ten the second, and ten the third, it is a hazakah, although three years have not yet elapsed 7 98 THE BABYLONIAN TALMUD. (as he has consumed in each year what was ripe). And this is to be inferred from R. Ishmael's statement that each performance of the three articles is counted as if it were done thrice, to con- stitute a hazakah. The same is the case with the thirty trees : the consuming of each ten is counted with the consuming of the others, and therefore it constitutes a hazakah. But this is only