Yerushalmi Bava Batra 3:5 ירושלמי בבא בתרא ג׳:ה׳

MISHNAH: Partners⁷¹If a property was bought by partners and one partner used the property for himself during three years, this still does not establish a claim of ownership. and sharecroppers⁷²The sharecropper is supposed to work the land. Even if he takes in the entire crop and stores it in his barn it is no proof of ownership since possibly he pays the landlord from the proceeds of the sale of some of the crop. have no claim of undisturbed possession. A husband has no claim of undisturbed possession in his wife’s property⁷³Since it is his duty to take care of her property and he is entitled to its produce, his activities cannot establish a claim of ownership., nor a wife in her husband’s property⁷⁴Since the husband is obligated to feed his wife, it would be legal for him to give her one of his fields to work on and live off its yield; but her taking care of the property and collecting all its yield cannot establish a claim of ownership., nor a father in his son’s property⁷⁵If the son inherited property from his maternal grandfather, the father is obligated to take care of it without acquiring property rights., nor the son in his father’s property⁷⁶If he takes care of his aging father’s property.. When has this been said? For one who claims undisturbed possession. But if one is given a gift, or brothers distributed the estate, one takes possession of a convert’s property⁷⁷Who died without leaving a will or legal heirs., when he locked, fenced in, or made any breach that is a legal form of taking in possession⁷⁸This חֲזָקָה has a completely different meaning from the one presupposed in the preceding Mishnaiot. It describes the act of taking possession after acquiring ownership, as described in Qiddušin, Halakhah 1:5. This can be any act only the proprietor would perform, not a visitor..

HALAKHAH: “Partners and sharecroppers,” etc. “A partner.” Samuel said, “partner” is not mentioned here⁷⁹A different treatment of the same statement is in the Babli, 42b. Samuel deletes mention of partners from the Mishnah.. Does the partner not have a claim to undisturbed possession⁸⁰This is the version of L. E: שׁוּתָף יֵשׁ לוֹ חֲזָקָה The partner has a claim to undisturbed possession.? Did not Samuel say that the partner who went and planted, planted with permission⁸¹If a partner took possession, worked the property and reaped all its yield, one has to assume that there was an agreement between the partners to split the property. Therefore, if another partner disputes the existence of such an agreement after three years of undisturned possession, he is a claimant and the burden of proof is on him.? When you say, the partner who went and planted, planted with permission, if he⁸²The other partner, who can make an appearance and take part of the yield. was there. When you say, the partner has no claim of undisturbed possession, if he⁸³If the other partner did not live at that place, the presumption is that the partners also bought property at the other place where the other partner takes all the yield, but no presumption is created of sole proprietorship at either place. Any partner who claims dissolution of the partnership has to bring proof. was not there. What does he include in his stead⁸⁴Since the Mishnah states “and sharecroppers,” it is clear that some word must precede the statement.? Artisans⁸⁵This is part of the Mishnah in the Babli and the independent Mishnah mss. and robbers⁸⁶The extortionist who claims that the former owner handed over the property to avoid being murdered may be truthful but the argument is not heard in court. Babli 47a. have no claim of undisturbed possession. ⁸⁷Tosephta 2:6, Babli 45b.“If somebody saw his slave at an artisan’s, or his garments at the washer’s, and told him, give me my slave, give me my garments, but he answered him, you gave him to me as a gift; you sold him to me; this is no claim of undisturbed possession⁸⁸The artisan, while in possession, is the claimant who has to bring proof since usually he is not the owner of what he is working on. As S. Lieberman explains, if the owner decided to sell a young slave it was customary to send him to be an apprentice in order to increase his value; also vessels and garments to be sold may be given to be refurbished to increase their value.. You told me to sell him⁸⁹The teacher who trained the slave then should find a buyer; this was customary.; you instructed⁹⁰A third person who can testify to the fact. to give him to me as a gift, this is a claim of undisturbed possession⁹¹The former owner is the claimant who has to bring proof..”

“Sharecroppers.” Rav Huna said, a permanent sharecropper⁹²He is no sharecropper in the modern sense but rather a tenant farmer in perpetuity, usually paying his rent in kind. It was stated earlier (Note 51) that the proof of ownership of agricultural land is the storing of its yield. In this paragraph, a “claim of undisturbed possession” would be testimony that for three consecutive years the farmer collected all the harvest and stored it in his own barn without separating the landlord’s portion before storage., but a temporary sharecropper⁹³Who has a contract renewable periodically. Since in this case it is unlikely that the landlord’s share should not be delivered promptly, three years on non-delivery create a presumption of ownership; Babli 47a. has a claim of undisturbed possession. Rebbi Joḥanan and Rebbi Simeon ben Laqish both teach that even a temporary sharecropper has no claim of undisturbed possession, for we may say that he⁹⁴The landlord. is satisfied with him and let him⁹⁵The sharecropper’s son. have it. There, they say that a sharecropper has no claim of undisturbed possession but a sharecropper’s son has a claim of undisturbed possession⁹⁶In the interpretation of Maimonides, Ṭo‘en weniṭ‘an 14:2, this refers only to the case that the son claims to have bought the property. But if he claims that the father bought it and he inherited, the burden of proof is on him and he cannot claim undisturbed possession since the father could not have claimed it.; Rebbi Joḥanan and Rebbi Simeon ben Laqish say, neither a sharecropper nor a sharecropper’s son have a claim of undisturbed possession, for we may say that he⁹⁴The landlord. was satisfied with his father and let the son have it. As Rebbi Joḥanan said, a sharecropper who engaged another sharecropper has no claim of undisturbed possession since it is common for sharecroppers to engage sub-sharecroppers⁹⁷The same statement is found in the Babli, 46a..

In truth, should a man supervising his wife’s properties have a claim of undisturbed possession, since usually husbands supervise their wife’s properties? “A husband has no claim of undisturbed possession in his wife’s property” during her lifetime. But after her death he has a claim of undisturbed possession⁹⁸Based on his right of inheritance.. “Nor a wife in her husband’s property” during his lifetime. But after his death she has a claim of undisturbed possession⁹⁹If she claims the property as her ketubah.. “Nor a son in the father’s property” during his lifetime. But after the father’s death he has a claim of undisturbed possession¹⁰⁰As his part of the father’s estate.. “Nor the father in his son’s property” during his lifetime. But after the son’s death he has a claim of undisturbed possession¹⁰¹If the son died without children and the father is his heir..

Rav said, if he lowered it below ten [handbreadths] or increased above ten¹⁰²This refers to the last sentence of the Mishnah. A person taking possession of land he bought in the opinion of Rav must take some legally important action. A fence is legally a separation only if it is at least ten handbreadths high. Samuel holds that the kind of action is irrelevant as long as it is of the kind only a proprietor would take. In the Babli, 53a, the attributions are switched.. Samuel said, even if he made a breach at a place where a breach was irrelevant or a fence where a fence was irrelevant, it is legally taking possession.

¹⁰⁶This refers to the last sentence of Mishnah 5 und proves that actually taking possession is necessary in addition to acquiring ownership. As we have stated: If somebody sells a field to another but the buyer was lazy and did not enter into possession when the seller went and legally took possession, the taking possession invalidates the sale or the gift.