Bava Basra Daf 41
- חזקה שאין עמה טענה אינה חזקה
The next Mishnah states: כל חזקה שאין עמה טענה – any chazakah without a claim explaining his ownership, אינה חזקה – is not a valid chazakah. The Mishnah illustrates: if the former owner asks the מחזיק, “What are you doing in my property?” and he replied: שלא אמר לי אדם דבר מעולם – “Because no one ever said anything to me,” the chazakah is invalid and he must leave. However, if he replied: שמכרת לי – “I am here because you sold it to me,” שנתת לי במתנה – or “because you gave it to me as a gift,” or he says, “your father sold it to me,” or “your father gifted it to me,” it is a valid chazakah. The Mishnah concludes: והבא משום ירושה – one who comes into a property through inheritance and used the property for three years אינו צריך טענה – does not require a claim as to how his father came to own the land.
- Two witnesses in conflict over an amount owed – ex. accidently annexing some of neighbor’s land
A flood destroyed the boundary between Rav Kahana’s property and his neighbor’s, and he mistakenly rebuilt the fence inside his neighbor’s property. Two witnesses testified before Rav Yehudah, one saying he had annexed two rows of the neighbor’s land, and the other saying he annexed three rows. Rav Yehudah told Rav Kahana to return two rows of land, since both witnesses agreed on that amount. Rav Kahana protested that this ruling followed the minority opinion of Rebbe Shimon ben Elazar, that Beis Shammai and Beis Hillel agree regarding contradictory testimony of two pairs of witnesses, one testifying the defendant owes one hundred zuz and the other saying he owes two hundred, שיש בכלל מאתים מנה – that included in testimony about two hundred is testimony about one hundred, and he can collect that amount which all witnesses agreed on. He said they argued only about a single pair of conflicting witnesses, where Beis Shammai says: נחלקה עדותן – their testimony is divided (i.e., contradictory, and invalid), and Beis Hillel says the testimony is accepted regarding the agreed amount. Rav Kahana protested that he would bring a letter from Eretz Yisroel that the halachah does not follow Rebbe Shimon ben Elazar, and all agree that a single pair of contradictory witnesses is invalid!? Rav Yehudah responded that when he produces such a letter, he would retract.
- דר בה חד יומא – Bringing proof former owner lived in property for at least one day
A person lived in an upper story in Kashta for four years, and when the first owner challenged him, he responded, “I bought it from Ploni who, I thought, bought it from you.” Rebbe Chiya told the מחזיק, “If you have witnesses who can testify דדר בה איהו דזבנת מיניה ואפי' חד יומא – that the person from whom you bought it lived there, even for one day, I will award you the property,” but not without such testimony. Since the מחזיק has no proof or personal knowledge that his seller owned the property, his chazakah is considered without a valid claim. After providing some support indicating that the seller owned it, through testimony that he lived there (even for a day), then Beis Din can claim on this buyer’s behalf that the seller had bought it (like the case of inheritance in the Mishnah). Although Rav asked Rebbe Chiya that a man occasionally buys a property and sells it that night, without ever living in it, Rebbe Chiya held some proof must be provided. Still, he held that if the מחזיק said: קמאי דידי זבנה מינך – “He bought it from you in front of me,” he is believed, since he could have claimed he bought the property himself from the owner.
