Weekly DAFootnotes Bava Batra 37-43 Issue #40 15-21 Iyar 5762 / April 27 – May 3, 2002 By Rabbi Mendel Weinbach, Dean, Ohr Somayach Institutions ===================================== NEW! Don't miss the new book by Rav Mendel Weinbach "The Weekly Daf" on Daf Yomi by Targum/Feldheim ===================================== Sponsored by Kof-K www.kof-k.com | info@kof-k.com ===================================== PROTEST OF THE FLEER A major subject of this, the third perek of our mesechta is the concept of "chazakah". If someone purchased a property and made use of it for three consecutive years without its original owner making any protest, he is able to successfully defend his claim of purchase against a challenge from the original owner despite his inability to prove documentation. This is based on the assumption that had there been no sale the original owner would have made a protest against this squatter. His lack of documentation is therefore attributed to the fact that buyers do not hold on to documents of purchase for more than three years. What if the person making the claim against the squatter had fled from his land for any reason — do we still maintain that the "chazakah" of the squatter is valid proof of purchase because of the lack of protest or do we consider the particular situation of the owner in flight as the rationale for his silence? Although in our gemara there is a consensus on this point that the chazakah is a valid one because the owner who fled was capable of registering his protest wherever he was in the presence of witnesses, there is a dispute on this issue in the Jerusalem Talmud cited by Rashbam. In support of the position of the Sage Shmuel that a chazakah in the property of one who fled is valid, Rabbi Nachman calls attention to what happened with the Shunamite woman whose son the Prophet Elisha had restored to life. Upon the prophet's advice she had left her home for seven years and fled to the land of the Philistines to escape the famine which Hashem had inflicted upon Eretz Yisrael. At the end of that period she returned to find that her home and field had been occupied by others. She appealed to the king who appointed one of his officers to repossess these properties for her. (Melachim II 8:1-6) The fact that she did not take her case to court rather than appeal for royal intervention is proof that had the squatters claimed that they purchased the property on the basis of their chazakah, the court would have ruled in their favor because her ability to protest where she was made this a valid chazakah. Bava Batra 38b ===================================== WHEN TO OPEN YOUR MOUTH "Open your mouth on behalf of one who cannot speak." (Mishlei 31:8) Acting as an advocate for one whom circumstances prevent him from properly pleading his case is an additional responsibility of the judge in a court administering Torah law. This is applied by our Sages in regard to claiming on behalf of a creditor that he had a "prosbol" document which allows him to collect a debt even after the passing of the Shmitah Sabbatical year which cancels all debts (Mesechta Gittin 37b) and to defending a feeble-minded woman in her right to collect her ketubah from a husband who is divorcing her with a claim of adultery (Mesechta Ketubot 36a). In our own mesechta we find this principle applied to the court pleading on behalf of someone who purchased or inherited a property and is challenged by another who claims that the property belongs to him or belonged to his father, and produces witnesses to substantiate this claim. If the defendant can produce witnesses that the one he purchased or inherited the property from was in physical possession of it for three years, he will be awarded the property. Despite the fact that his lack of knowledge renders him unable to claim that the seller or father from whom he received the field actually purchased the field from the original owner, it is the court's duty to make this claim for him and to substantiate it with the fact that the purchaser was in possession of the property three years without protest. There is a limit, however, to a judge opening his mouth on behalf of a defendant. If someone challenges another who is squatting on his field for three years and the squatter's response is that no one ever protested his presence, the squatter loses his claim to ownership because he never made a claim that he purchased it. Although there might have been grounds for the court to consider that this person really did purchase the property but is afraid (in his ignorance of the law which awards him the field without documentation on such a claim backed by three years' possession) to make such a claim because he will be asked to provide documentation which he has lost, we do not intercede on his behalf because he should have been able to make the claim himself. Bava Batra 41a ===================================== If you like this e-mail please share it with a friend. ===================================== To subscribe to this list please e-mail DafYomi-subscribe@ohr.edu To unsubscribe e-mail DafYomi-unsubscribe@ohr.edu Weekly DAFootnotes is now available as part of the Ohr Somayach Interactive AvantGo channel! See www.ohr.edu for details. ===================================== (C) 2002 Ohr Somayach International - All rights reserved.