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Babylonian Talmud: Tractate Baba Bathra
Raba strongly questioned this ruling, on the ground that the seller can say, 'What I sell you is [sold in the same way as] garden crocus;1 pluck up your garden crocus and be off'? — No, said Raba; this is only the case when he is able to plead so expressly.2 Mar Kashisha the son of R. Hisda said to R. Ashi: If the seller did sell him [the tree in the same way as] a plot of garden crocus,3 what was he to do?4 — He should have lodged a protest within three years. For should you not say so,5 then in the case of the 'mortgage of Sura'6 which stipulates that 'on the termination of these [X] years this land shall be given up without payment,' if the mortgagee suppresses the bond and says that he has bought the land, would his plea indeed be valid? Have the Rabbis then made a regulation through which the mortgager is exposed to unfair loss?7 The fact is that he should protect himself by lodging a protest. So here also it is incumbent on him to lodge a protest.
MISHNAH. THERE ARE [IN ERETZ YISRAEL] THREE DISTRICTS [WHICH ARE DISTINCT FROM EACH OTHER8] IN THE MATTER OF HAZAKAH — JUDEA, TRANSJORDAN, AND GALILEE. THUS, IF THE OWNER IS IN JUDEA AND THE OCCUPIER IN GALILEE, OR THE OWNER IN GALILEE AND THE OCCUPIER IN JUDEA, THE OCCUPATION DOES NOT CONFER HAZAKAH;9 IT ONLY DOES SO IF THE OWNER IS IN THE SAME DISTRICT10 WITH THE OCCUPIER. R. JUDAH SAYS: THE PERIOD IN WHICH OCCUPATION CONFERS HAZAKAH WAS FIXED AT THREE YEARS ONLY IN ORDER THAT IT MIGHT BE POSSIBLE WHEN A MAN IS IN SPAIN11 FOR ANOTHER TO OCCUPY HIS FIELD ONE YEAR, AND FOR INFORMATION TO BE BROUGHT TO HIM [WHICH WILL ALSO TAKE] A YEAR, AND FOR HIM TO RETURN HIMSELF, [WHICH WILL TAKE] A THIRD YEAR.12
GEMARA. What is the reason of the first Tanna [on which he bases his ruling]?13 If he holds that a protest raised by the owner not in the presence of the occupier is a valid protest, then [it should be valid] even [if the owner is] in Judea and [the occupier in] Galilee.14 If, however, he holds that a protest [raised by the owner] not in the presence of the occupier is not a valid protest, then [it should be equally] invalid even if both are in Judea?15 — R. Abba b. Memel replied in the name of Rab: The first Tanna is indeed of the opinion that a protest raised [by the owner] not in the presence of the occupier is a valid protest, and our Mishnah was formulated at a time when there were hostilities between Judea and Galilee.16 Why then are Judea and Galilee particularly specified?17 — To show us
Baba Bathra 38b
that Judea and Galilee are normally reckoned to be on hostile terms.1
Rab Judah said: Rab laid down that occupation of the property of a fugitive does not confer hazakah.2 When I related this to Samuel,3 he said to me: Must then the owner [in ordinary cases] make his protest in the presence of the occupier?4 [According to Samuel then,] what did Rab mean to teach us in this ruling? That [as a rule] a protest raised not in the occupier's presence is invalid?5 But [how can this be,] seeing that Rab has laid down6 that a protest raised not in the occupier's presence is valid? — Rab [in making this latter statement] was giving the reason of the Tanna of our Mishnah, but he did not himself concur.
There is another version [of this passage, as follows:] Rab Judah said: Rab laid down that occupation of the property of a fugitive does confer hazakah. When I related this to Samuel, he said: Of course! Do you imagine the protest has to be made in the presence of the occupier? What then does Rab desire to indicate [by this ruling?] That a protest made not in the occupier's presence is valid? But surely this has been laid down by Rab already? — The truth is that this is what Rab wishes to indicate, that even if the owner made his protest in the presence of two men who are not able to report it to the occupier,7 it is still a valid protest.8 For so R. Anan reported: 'It has been expressly stated to me by Mar Samuel that if the protest is made in the presence of two men who are able to report it to the occupier, it is valid, but if of two men who are not able to report it to the occupier, it is not valid. And Rab?9 — [He goes on the principle that] "your friend has a friend and your friend's friend has a friend".'10
Raba said: The law is that it is not permissible to take possession of the property of a fugitive,11 and a protest made not in the presence of the occupier is valid. Are not these two rulings contradictory? — No; the latter relates to a fugitive on account of debt, the former to a fugitive on account of manslaughter.12
What constitutes a protest? — R. Zebid says: If the owner says, 'So-and-so is a robber,' this is no protest.13 If, however, he says: 'So-and-so is a robber who has seized my land wrongfully
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