Thursday, 30 March 2017

Bava Batra 67: Inclusions and Exclusions: Buying Courtyards, Olive Presses, Bathhouses

Our daf shares three new Mishnayot regarding what is included and what is excluded when selling property.

Our first new Mishna begins a conversation about what we purchase when we buy a courtyard.  Some rabbis believe that we buy everything that is in the courtyard.  Others say that we buy only the air of the courtyard.  The Gemara walks through a number of questions.  Does this include the homes within the courtyard?  What about the stores that enter into the courtyard?  or the stores that enter into the public domain?  Or the stores that enter in both directions?  Does it matter whether sixty percent of the business is done by those who enter from the street?  Buying a courtyard requires very specific communication regarding what has been purchased; different people might very easily assume different inclusions regarding the sale of a courtyard

Our next Mishna teaches that one who sells an olive press has also sold the immovable parts of the olive press.  The seller has not sold the immovable parts of the olive press.  Assuming that we understand the workings of an olive press, the Rabbi Eliezer teaches that selling an olive press includes selling the kora, the most important working part of the olive press.  The Gemara details a number of different parts of the olive press.  The rabbis note that one must specify that the olive press and all of its parts are being sold.  Without that general statement, each individual part must be named in the contract.

A final new Mishna from today's daf tells us that the sale of bathhouses are similar.  One must specify that he is selling all parts within the bathhouse or else the floor boards, the , and the curtains are not included in the sale.  Even if the seller says that everything is included in the sale, separate negotiations are required for the wood storehouses and for the tanks of water.  The Gemara begins to walk through these exclusions and the possible inclusions in the sale of a bathhouse.

All three of these examples should help us to grasp the meanings that would be understood in an ancient context.  When you buy a house, it includes the fixtures.  But the rabbis disagree about what might be common knowledge.  More reason for specificity in contracts.

Wednesday, 29 March 2017

Bava Batra 66: Attached to the Land is Part of the Land

A hollowed out tube that sits on land is considered to be part of that land.  What about a beehive?  The rabbis discuss whether or not a beehive is like a tree which is also attached to the ground.  Would collecting honey from a beehive on Shabbat be subject to a sin-offering?  They also consider whether or not the beehive would be a source of ritual impurity.  Other cases are compared, including that of a hollowed out tube filled with collected water; that water would not be ritually pure enough to contribute to a mikvah because the tube would act as vessel, and its water would be classified as "drawn water".  

The rabbis compare this to the baker's board attached to a wall.   It was considered to be unattached to the wall, and not like 'land' - thus a baker's board was a vessel with no receptacle and susceptible to ritual impurity.  However, Rabbi Eliezer seems to believe that anything that is attached to land or attached to something else that is attached to land is not susceptible to ritual impurity. The rabbis wonder whether it might make a difference if the board were made of metal.

The rabbis note that some stringencies, like the drawn water invalidating a mikvah, were rabbinical in origin.  

The Gemara looks more deeply at the concept of movable versus permanent attachments to the ground.  Again, Rabbi Eliezer holds that anything attached to the ground holds the status of 'land'.  What about millstones, which begin as movable stones but are then placed permanently?  When rain falls on the millstones, are the seeds still valid to use or have we broken the transgression regarding water (or other liquids) coming into contact with seeds before they are processed?  Does it matter whether or not the owner was hopeful that there would be rain?  

Finally the rabbis tell a story about using one tenth of a father's property - in the form of millstones - as his daughter's dowry.  In fact, another tale teaches that even rent money could be used for one's dowry, for it is considered to be close enough to 'property' to be considered money that has come from one's land.  

Tuesday, 28 March 2017

Bava Batra 65: Buying Fixed and/or Movable Property When Purchasing a Residence

In yesterday's daf, we discussed whether a buyer requires to purchase a path to property only accessed through the seller's own property.  The rabbis consider whether people in certain relationships have chazaka to access to each other's property.  Rav Nachman quotes Shmuel, saying that brothers do not have chazaka with each other regarding their fathers' inheritances.  The rabbis consider a case example where one residence is built behind the other.  Even in this circumstance, people do not have rights of access, even when this property is received as a guest.

A new Mishna teaches that a person who sells a house is assumed to have included the sale of its door and its mortar fixed to the ground and the immovable lower millstone.  Not included are the house's key, portable mortar, the upper stone,  the oven nor the double stove.  

The Gemara suggests that this Mishna is in accordance with the opinion of Rabbi Meir: "If one sold a vineyard, he has sold all of the utensils of the vineyard".  But what about the items that are not fixed? And is a key "fixed" in a house or not?  Which parts of a home are considered to be separate entities and which are part of the house?  The rabbis look to other teachings, including a duct that connects to a mikva.  Again, we are reminded that Rabbi Eliezer believes that seller sell generously while the rabbis believe that sellers sell sparingly.

Monday, 27 March 2017

Bava Batra 64: What is Included in the Price When Buying Property? Generous and Ungenerous Sellers

We are introduced to a new Mishna after the rabbis consider whether or not a roof is considered to be part of the sale of a home.

The Mishna teaches Rabbi Akiva's suggestion: when a person sells his/her home, unless otherwise specified the sale does not include an underground pit or cistern - even if the seller sells "the depth and the height of the home".  A path through the home must be purchased by the seller to access that property.  The rabbis disagree.  Rabbi Akiva concedes that the seller need not buy a path if s/he specifies that the pit and/or cistern are included in the sale.  However, Rabbi Akiva states that one who only sells his underground property need not sell a path through his/her home to access that purchased property.  The rabbis disagree and suggest that purchasing a path is necessary in this situation.

The Gemara first considers the differences between a pit and a cistern, which may be few.  Is a pit simply a hole, while a cistern has masonry walls?  The rabbis then discuss why Rabbi Akiva's suggestions might be ridiculous to them.  Would a person believe that s/he will fly to their property? In fact, we learn, the difference between Rabbi Akiva and the rabbis is that Rabbi Akiva believes that sellers sell generously, and the rabbis believe that sellers sell sparingly.

The Gemara attempts to understand the assumptions of sellers and buyers.  They look to the sale of other properties as examples.  A dovecote, a winepress - even a field - do buyers assume that they will be able to access to their purchases included in the price?  Do buyers assume a degree of privacy when they purchase fields?  Are they opposed to anyone, including the seller, walking on the field and potentially damaging its usefulness?  

In tomorrow's daf, the rabbis continue this conversation about Rabbi Akiva and the rabbis regarding generous sellers and more careful sellers.

Sunday, 26 March 2017

Bava Batra 63: Sharing Vs. Taking a Portion; Conditions on the Sale of Property

The rabbis have agreed that if a person says that another person can share in his/her property, that assumes that each person will get half of the property.  But what does it mean if a person says that another should have a portion of his/her property? The rabbis question what this might mean in a number of differing circumstance, including having a portion of the drink in one's cup.  They agree "a portion" is generally understood to mean at least one quarter of the person's property.

The rabbis consider cases where a Levite asks an Israelite to buy his property on the condition that he - and his sons after he dies - gets the first tithe.  Or in the case that this condition holds for as long as the Israelite owns the property.  Regarding the first case, the rabbis consider the prohibition against selling something that does not yet exist.  In that second case, a broken up ownership nullifies the condition.  Another case wonders whether it is valid that a person sells a home on the condition that the upper property belongs to the seller  The rabbis discuss the difference between an upper story that exists now and one that is built later.  They mention the balcony that is not considered to be a part of the house.  

Finally the Gemara discusses the condition that stretches beyond the physical realm.  Sellers should state that they are selling their properties "from the depth of the earth up to the height of the sky".   Would that suggest that the buyer is purchasing rights to any tunnels, cisterns or pits that run under the property in question?  Certainly a person would not gain such rights.  And whether or not these words, were spoken, wouldn't one assume that s/he is purchasing from the earth toward the sky in such a purchase?

Saturday, 25 March 2017

Bava Batra 62: Fields with Multiple Boundaries

The rabbis discuss contracts that are not specific enough to know exactly which piece of land has been bought or sold by another person.  Land might be shaped like a triangle, or like a gam, a Greek gamma, and three different owners could be implicated in the transaction.  The Gemara focuses on possible scenarios in some detail. 

Next the rabbis consider contracts that name three of the four boundaries of the property for sale.  Can the fourth boundary be assumed?  They look at whether or not there is a row of trees there or  land fit for sowing nine kav.  Might these forbid or demarcate the fourth boundary? The rabbis argue about whether or not the entire field can be purchased under these questionable circumstances.  Could one purchase a half of the field?  

What if one owns land together with a partner?  Complicated sales would not be appropriate.  Is a partner's silence about an upcoming sale enough to assume that the partner has no problem with those plans?

These discussions are directed at very real, very complex situations that might arise still today.  The rabbis were very careful to analyze and debate any concept introduced to them.  It seems as though they believed that they could control the observance of halachot over centuries.  And it worked, to a large degree.  The rabbis covered so many possibilities that we have been able to address issues that arise in real estate law (and many, many other areas) with some ease.  The underlying principles are most helpful, however.  We continue to use the rule of law that was created to address the sale of irregular fields.

Thursday, 23 March 2017

Bava Batra 60: Protrusions, PreExisting Problems, Building Codes, Demonstrating Grief about the Temple

We are introduced to two new Misnayot.  The first teaches us that one cannot create an entrance or a window that is opposite another entrance or window facing toward a courtyard.  Facing a public domain, one can be more lenient regarding opening a door or window, enlarging a door, or creating two entrances where there was only one.  The rabbis are concerned with both privacy and the possibility of concealing oneself.  

The second Mishna states that we are not to dig under the public domain to create a pit, ditch or cave.  This might be permitted if a piece of wood or other covering was strong enough to withstand the weight of a filled wagon.  One cannot build over the public domain - for example, a balcony or beam cannot extend over the public domain.  A person is permitted to move back his/her wall so that a balcony could be built out to the line between that property and the public domain.  If a building previously transgressed these terms, it is permitted to grant chazaka to the building's owner.  The Gemara tells a story of a person whose tree extends into the public domain.  This becomes a question about whether one's rights might infringe upon the rights of others.

Regarding the person who moves his wall back to extend his balcony - must that building be done immediately after moving the wall back from the property line?  This consideration is debated regarding plastering or painting the balcony or other protrusion as well. Regarding forbidden images that adorn a building, the rabbis discuss the presumption of ownership, or chazaka.  There is not a need to address and change those images if they have been present for a long time.  As an aside, we learn that people were told to dull their plaster with straw or sand so that it would not be shiny on the walls of their homes.  There is no explanation as to why shininess was shunned.

Much of these conversations are addressing the question of how much we mourn the loss of the Temple during different activities.  That balance between honouring our past and building our future is taken very seriously.  Unlike today, there is not a simple evaluation of "happy = good".  The rabbis understood the importance of contemplation, grief, and balance.

The Gemara describes other ways that we might demonstrate our loss.  We might leave a small piece of food, like a fried fish, out of our meal.  Women might refrain from cosmetic treatments over their full faces, instead they might not treat the hair in the corner of their temple like they might do otherwise.  Proofs are shared regarding the importance of the temples as a site to demarcate serious thought.  

A classic example of Jewish thought: when discussing the possibility of giving up wine or meat as a sign of mourning, we are reminded that our Sages did not wish to institute any practice that the larger community would not be capable of keeping.  Our daf ends with a discussion about ignorance versus knowledge when it comes to transgression.  The rabbis suggest that it might be better for people to unknowingly sin (for example, not circumsize a son; transgress regarding sexual relations, etc.) than to knowingly decide to transgress because the challenge is too difficult to manage. 

Wednesday, 22 March 2017

Bava Batra 59: Chazaka for Gutters, Windows, Beams and New Construction

A brief summary of today's daf with help from Revach l'Daf, The Daf Yomi Advancement Forum, and Steinsaltz:

  • When a person has a chazaka for a stone gutter overhanging one's property, one cannot build below it because construction (banging on iron could damage the stone structure)
  • If someone has chazaka on a gutter, they also have chazaka on its water, and so the water pipe could not be closed up without consent.
  • How small must a small ladder be to be exempt from chazaka?  Less than four rungs
  • Only a window that is accessible and easy to look out of without standing on anything can one create a chazaka for that window
  • A window for light always creates a chazaka.  Perhaps our Mishna referred to a window for watching one's field
  • Our Mishna teaches that beams that jut out of a wall need to be at least one handbreadth to create a chazaka
  • If a person has a beam that is jutting out by four handbreadths but is only one handbreadth wide, s/he may increase its width to four handbreadths
  • If one has a beam jutting out one handbreadth into one's neighbour's property, one may use that beam even if the neighbour protests.  As long as one cannot see into the other's property, this is permitted
  • One cannot build a new windows in one's house if it faces another due to privacy concerns
Clearly the rabbis are concerned with one's individual rights verses the rights of a community.  They are also committed to balancing the property rights of neighbours, family members, and communities.  Still an impossible job.

Tuesday, 21 March 2017

Bava Batra 58: Rabbi Bena'a, Inheritance, Partial Chazaka

As we learned in yesterday's daf, Torah scholars organize their desks carefully.  Ignoramuses leave a food in the middle of their desks surrounded by dishes.  Torah scholars sleep with their sandals or shoes under their beds.  Ignoramuses sleep with a hodgepodge of items under their beds.  

We learn a number of stories about Rabbi Bena'a.  He was thought of as a wise rabbi but he was marking burial caves.  He was said to have seen Eliezer, who explained that Sarah was holding Abraham in her arms while she examined his head.   Rabbi Bena'a was permitted to enter, measure the cave, and leave again.  Then he entered Adam's burial cave.  He heard the Divine Voice telling him that he should not look at Adam, for Adam is "My image itself".  He was permitted to enter and measure the inner and outer caves.  He explained the need to measure differently if the caves were atop each other and if the caves were adjacent to each other.  

Rabbi Bena'a describes Adam's two heels as two suns.  The Gemara teaches that all people are like monkeys compared with the beauty of Sarah.  Same goes for Sarah compared with the beauty of Eve, Eve compared with the beauty of Adam, and Adam compared with the beauty of the Divine Presence.    The beauty of a number of rabbis are then compared: Rav Kahana to Rav, Rav to Rabbi Abbahu, Rabbi Abbahu to Jacob, Jacob to Adam.  

The Gemara returns to our discussion about inheritance.  A number of case examples elucidate halachot.  When a father says that he is leaving a barrel of earth to one son, a barrel of bones to another, and a barrel of wads of wool to another, Rabbi Bena'a interprets this as land, livestock and blankets.  A man overheard his wife telling her daughter to be more subtle about her sexual transgressions.  The wife says that only one son of her ten children is the son of her husband and that no one knew because of her secrecy.  The father then leaves all of his property to that one son.

Some people did not like Rabbi Bena'a's recommendations and he was jailed by the king.  Rabbi Bena'a's wife told the guards a bizarre story about drinking from a skinned and emptied servant's daughter.  Rabbi Bena'a is permitted to leave when he uses his wisdom to interpret his wife's words.

Rabbi Bena'a describes writing on the king's gate about judges.  Judges should not be held to judgement themselves.  He speaks of life and death, blood, wine and healing.  

A new Mishna tells us that chazaka is restricted when it comes to a spout pouring water over another's field,  Egyptian (portable) ladders versus Tyrian (large, permanent) ladders, and Egyptian (too small to put one's head through) windows versus Tyrian windows.

The Gemara begins by focusing on the spouts.  The rabbis determine that a spout can be moved  but only on the same side of the building.  Chazaka does not entitle one to move the spout the the other side of the building.

Monday, 20 March 2017

Bava Batra 57: Chazaka, fields, courtyards, laundry, and Torah Scholars' Clothes/Tables

Our daf begins with a case that helps the rabbis understand the different  considerations at hands when brothers, rather than others, are testifying.

We are introduced to a new Mishna.  It tells us that there are some uses of property that have the means to establish chazaka and some that do not.  
It does not establish chazaka if one:

  • stands an animal in a courtyard, 
  • place an oven, a millstone, or stove there, or
  • raises chicken in a courtyard, or places fertilizer in a courtyard
But it does establish chazaka if one:
  • constructs a permanent partition ten handbreadths high for his animal,
  • constructs a partition for his stove, oven, or millstone,
  • brings the chickens into his home, or
  • constructs an area for fertilizer that it three handbreadths high or deep
The Gemara's first question: why do we learn about chazaka through what is required regarding keeping an animal?  Ulla suggests that the laws that apply to converts who have no heirs also apply to land that is ownerless.  Rav Sheshet and others counter this assertion.  What about plowing or other activities that would establish chazaka?  What about partners who are not particular about constructing boundaries?  The rabbis discuss the practice of lenient rulings when it comes to monetary matters and more stringent rulings when considering ritual questions.

The rabbis then question the use of fields and courtyards.  Their example is very informative.  They suggest that Jewish women must be permitted to do laundry within a shared courtyard, for Jewish women will not be degraded by doing laundry in the fields.  Further, they speak about halachot based on men who might stare at women with their feet in the water while they do their laundry.  I hope that we have the opportunity to learn more about the task of laundering clothing in ancient Israel.

Finally, the rabbis discuss the manner in which a Torah scholar should be adorned and seated.  His garments should cover his flesh. His garment should be long enough so that a handbreadth of another garment should be visible beneath it.  The table of a Torah scholar is debated: which two thirds of the table shall be covered with a cloth?  Which part of the table should be uncovered, leaving place for dishes and vegetables, There is a ring on the table, used to hang it when not in use.  One must be careful not to use the table when a child or assistant is present because s/he might overturn or bump into the table.  Or perhaps we are speaking about day and night.  In this case, the ring is visible during the day and it will not prove to be a hindrance.  

Bava Batra 56: Partial Transgressions, Partial Testimony

In their continued conversation about how different boundaries might affect acquisition, the Gemara notes that a person carrying a fig from a private to a public domain on Shabbat would be exempt if s/he walked into two different public domains.  However if s/he walked into the same public domain twice, s/he is liable.

And how are boundaries similar when they are used to demarcate areas permitted on Shabbat or regarding gittin, bills of divorce?  When can a beam or a karmelit (undesignated domain) count as a proper boundary?  What about places that have no formal boundaries?  Is a line of trees* enough to demonstrate the end of one's property and the beginning of another's?  

Rav Yehuda quotes Rav as saying that Joshua used sea squills to determine the boundaries of Eretz Yisrael as described in the Torah.  Joshua is said to have included small settlements close to the town’s borders.  These borders were critically important to know who was obligated in tithing.  The rabbis argue about which lands (and the homes of which peoples) are included and excluded in from these boundaries and related halachot.

After many days working to understand our last Mishna, we are introduced to a new one.  It teaches us more about conspiring witnesses:
  •            If two witnesses claim that they saw proof of chazaka as one was working and profiting from the land for three years, and they were found to be conspiring, they owe the true owner the cost of the land in dispute.
  •           This follows Deuteronomy (19:19) where we learn that what was conspired to be doe to one should be done to the conspirators.
  •           If three different pairs of witnesses claim to have seen a person profit from the land, one pair per year for three years, and they are found to be conspiring, the cost of the land is split among them. 
  •           If three brothers each testify that he was profiting from the land, one brother each year, and each brother was joined by another independent witness, the court can decide between two options: if their testimony is considered to be together, then they are conspiring witnesses. If their testimony is deemed to be independent, then their words stand.

Rabbi Akiva and others argue that half of an argument, half of a testimony – anything less than fully testimony – is not adequate to use as an argument in court.  The rabbis use the example of locating two pubic hairs on a girl as part of her identification as a young woman and not a child.   If one found one pubic hair on her genitals and one on her back, should that be acceptable?  Do two different witnesses witness each hair?  Is this question about a complete or half of a matter?  Or about complete or half of a testimony? 

*sea squills, with large root balls above ground level.

Saturday, 18 March 2017

Bava Batra 55: The Effects of Boundaries on Chazaka, Pe'a, and Shabbat

In their discussions about different ways that different people might be permitted to acquire property from another, we first learn about the use of a hoe.  Can a person acquire an entire field based on striking the land just one time with a hoe?  This is discussed the case of a Gentile's land that is bought by a Jew and then is possessed by a second Jew.  The second Jew does not lose possession of the land.

The rabbis then consider Persian law, which allows possession of another's land based on chazaka only after forty years of possession.  The implications of this practice on tax law and inheritance is considered.   Inheritance changes based on the behaviour and actions of fathers and sons.  

The Gemara notes that boundaries are created for different purposes and can serve different functioning.  A barrier created to demarcate the barrier between a field belonging to a convert without heirs and another field or a sea squill (a specific tree with a large round root ball that dries out in the summer) does not block access to pe'a.  Pe'a refers to the corners of fields left unharvested to serve the needs of the poor and strangers.  Pe'a must be given separately if a field is crossed by:
  • a stream
  • a canal
  • a public road more than 16 cubits wide
  • a private road more than 4 cubits wide
  • a public trail
  • a permanent private trail (one that is used in all seasons)
The Gemara asks to compare these with the demarcations of boundaries that inform the transmission of tuma, ritual impurity.  As taught in Teruma, the rabbis note that they disagree about whether or not ritual impurity is transferred outside of a private domain.  

Regarding Shabbat, the halachot might be different.  It is argued that boundaries do not create barriers between fields concerning the halachot of Shabbat, including eiruvin.  Eiruvin are the boundaries within which one is permitted to carry and do perform other specific actions that are restricted on Shabbat.  It is also argued that one might carry a half of a fig back and forth across a boundary on Shabbat, for example, without noticing what one has done.  In this case, one might be exempt.

Thursday, 16 March 2017

Bava Batra 53: Acquiring Property - Specific Cases

In their ongoing discussion about acquisition, Rav questions how one should acquire a gift.  Is it required for the giver to say out loud that the receiver should acquire the gift?    One who is giving a gift might very well give generously, which would assume acquisition even without clear spoken statements to that effect. 

Returning to the question of possession via breaching a fence, the Gemara questions how much is considered to be a bit" when breaching the fence 'a bit'.  If a person had previously built a fence and is now completing it to ten handbreadths tall, and had previously breached a weakness in the fence, possession can be embellished after widening the hole enough for a a person to step through the fence. 

But the rabbis ask further questions: does effort play into our estimation of the fence? Does it matter how much was changed about the fence?  What if a person placed a stone to help to serve certain perspectives and then removed it for the same reasons has one established possession?  Some examples include placing a stone that stops a flood or removing a stone to enhance the flow of water to another's field. The rabbis consider this to be analogous to "one who chases away a lion from another's property."

The Gemara questions whether or not one takes possession of a field in order to acquire it when there are two fields sharing one boundary.  What is the intention - to acquire both fields? Do we believe that each filed stands alone, or are they both attached to the boundary?  And what if one takes possession of the boundary in an effort to acquire both fields?  The Gemara leaves this question unresolved.

The rabbis extend this question to that of two homes, one inner and one outer, within one courtyard.  If the intention is to acquire both houses by acquiring the outer house, the person must understand that the homes are considered to be separate. 

If a convert has a palace and no heirs, a person can acquire that home by putting doors on the house.  Similarly one acquires the property of a convert without heirs if he applies plaster and even just one tile on his home.  Does the tile have to be at the entrance of the house, where it is easily seen? 

Rav Amram share wisdom from a baraita: One who spreads out mattresses on the property of a convert who died without heirs has acquired it.  This is used to explain that a Caananite slave is acquired through taking possession: when the slave places one's shoe for him, or unties his shoe for him, or carries his garments after him to the bathhouse, or undresses him, or bathes him, annoints him, scrubs the oil off of him, dresses him, lifts, him, one acquires the slave.  Thus taking possession should not be greater than other forms of acquisition.  

Wednesday, 15 March 2017

Bava Batra 52: Claiming Possession - Inheritance, Dispute, Presence

Our last Mishna taught us that women, slaves, or children should not be permitted to provide deposits.  In all of these cases, the money is likely not their own.  If one did accept a deposit from a woman, it must be returned to her or to her husband if she died.  Same for a slave - the deposit is returned to the slave or, if he has died, his master.  If one accepts a deposit from a minor, it must be put into a safe investment.  If the minor dies, the investment is returned to the minor's heirs.  

In any of these cases, these people might have said on their deathbeds that their deposits belonged to the person whom was designated.  However, the bailee is to ignore their explanations as if they are not competent and the bailee explains their explanations.  The rabbis suggest that a proper investment for a minor comes is the purchase of a Torah scroll or a date palm, from which the minor will consume dates.

A father cannot establish chazaka for his son, nor can a son establish chazaka for his father.  The rabbis argue about whether or not this is still the case when the father and son have grown and are separated.   Perhaps we should listen to the baraita which teaches that a son who is separated from his father's finances and a wife who became divorced are like all other people regarding establishing chazaka.  

The rabbis turn to a case where one brother was doing business in the house after the death of their father, and there were documents showing his name as the owner of the property and as a lender.  He claimed that the documents were proof that these were his inheritance, but Rav suggested that he must bring proof of ownership.  Shmuel said that his brothers must bring proof that the money/property belonged to their common father and should be divided equally.

Rav Huna bar Avin declared that any person established to be the owner possesses all items that are typically lent or rented. But Rav Chisda argues that proof of one's rights should be brought by the brothers to address the possibility that one brother might have removed money from the pot.  Rabba teaches that proof comes in the form of a document ratified by the document that holds one's name.  An example is shared: a woman who is in the same circumstance as the many in our previous paragraph - she is doing business from the home after her husband's death and she finds bills of sale and other documents with her name on them suggesting that she is the owner.  She then claims them as her inheritance from the house of her father or from her father from the house of her grandmother.  It is her responsibility to bring proof of her ownership.  

What about taking possession of property according to three years of benefiting from the land?  We are again told about the brother who was managing family finances after his father had died, and he found bills of sale and documents with his name on them as an owner and a lender.  The brother might have said that the money and property are my inheritance from my maternal grandfather who is not related to the other brothers.  Rav suggests he requires proof of ownership.  Shumel says that the brothers must bring proof.  Rav Pappa says that we cannot claim on behalf of orphans anything that their father could not claim for them.  He removed a pair of scissors for cutting garments and a book of aggada from orphans without requires proof of ownership, and he would rule similarly with all things that are normally lent.

Rav Huna bar Avin send a ruling saying that one who says he owns items that are typically lent, he is not deemed credible.  Rav Chisda says that Rav taught his ruling intending that one should not divide his property, but when this is done, one brother might remove money to pay for food, which would damage his accumulation of property.  In this case, Rabba says that proof takes the form of witness testimony.  Rav Sheshet says that proof requires a court's ratification of the document.  

The rabbis discuss what should happen when the inheritance claimed is indirect and not automatic.  Who should have to bring proof in these cases?  The Gemara suggests that the Misshna is incomplete and that it is teaching that possession that is accompanied by a disputed claim is settled if one can claim chazaka based on three years of ownership.  Possession not accompanied by a claim, because there is no argument, or one has been given a gift, or brothers who have divided their property, or where one possesses the property of a confer who has died - in these cases, the propriety is acquired without having to establish chazaka.

Our daf ends with a conversation about whether or not a person takes possession of the property by locking the door of the property, fencing in ti, or breaching it's fence even a bit.  Rava believe that this means that if the act is performed in the seller's presence, the seller need not say to min, Go, take possession and thereby acquire the property!  The seller already knows what is happening.

Tuesday, 14 March 2017

Bava Batra 51: Gifts and Looking for Concealed Money

The rabbis continue to discuss situations in which a woman can establish chazaka, presumptive ownership, regarding her husband's property.  Is enjoying her sustenance based on his property enough to cancel out any future claim to ownership?  Could her husband have designated a different piece of land as the property that will guarantee her sustenance in the future?  Could he be tricking her into revealing a hidden property that she herself owns?  If a field was given to her as a gift, the rabbis agree that he is not doing so to expose her concealed money.   We are reminded of Kiddushin 26(a) which teaches that Property that serves as a guarantee can be acquired through giving money, a document, or by taking possession of it.  Can only one of these serve as proof of acquisition?

The Gemara argues that if one borrowed money from his slave and then freed him or if one borrowed money from his wife and then divorced her, they have no claim and repayment is not necessary.  Is this because one wished to expose hidden money?  The rabbis argue both sides of this question.  

We are told about Rav Huna bar Avin who sent a ruling to the study hall saying that when one sells a filed to his wife, she has acquired it, and her husband will enjoy its profits as long as they are married.  Rabbi Abba and Rabbi Abbahu said that we can assume that the husband wanted to give this land to his wife as a gift.  Proverbs (22:7) teaches that the rich rule over the poor, and the borrower is servant to the lender..  This suggests that this husband did so in order to enhance her power.  

The rabbis argue whether a husband gives his wife a field as a gift and then is permitted to enjoy the benefits of the land.  We are told that Rav Chisda was in accordance with Rabbi Elazar and did not allow a husband to enjoy the profits of a field he sold to his wife.  Rabban Ukva and Rabban Nechemya, the son's of Rav's daughters, challenged Rav Chisda.  He responded: But I am acting in accordance with the opinion of a lesser sage like others.  Perhaps, the rabbis discuss, a woman who acquires the field with cancelled money does not acquire the field while others do.  

Before ending today's daf, the rabbis consider another baraita: One may not accept deposits from women, from slaves or from children.  A deposit from a woman should be returned because the money might not be hers to spend.  Further, if the woman died, her deposit must be returned to the husband or to the slave who lent her the money.  If the slave died, he must return the money to his master.  

Today's daf takes notice of the power dynamic inherent in the giving of gifts and lending of money.  Money lending can be used for more than financial gain - it can be used to establish, maintain, or remove social power.  

Monday, 13 March 2017

Bava Batra 50: Usufruct Property and Protest

The Gemara attempts to differentiate the current assertion - that a woman can void the sale of her field even if she previously consented in certain situations - from other rulings that suggest that such a sale is always valid.  There are a number of statements describing the use of usufruct property, the property that belongs to a woman because she brought it into her marriage.   

Other comparisons are introduced as well.  For example, one might sell his Canaanite slave with the condition that the sale will serve the seller for thirty days before the transfer.   In this case, for those thirty days the slave benefits the seller with his work but actually belongs to the buyer.  Rabbi Meir had held that ownership of profits is like ownership of the item itself.  Rabbi Yehuda suggests that the second owner already owns the slave because he is not "his money".  Rabbi Yosei claims that both sellers have ownership.  Rabbi Elazar argues that neither owner has true ownership.  

Our Mishna had taught that a man does not have the ability to establish chazaka regarding his wife's property.  Rav questions whether or not a married woman must protest in a case where her husband tries to sell her property.  However, it is different to protest one's husband's desires.  Perhaps this is a case where the husband already dug pits, ditches and caves in her property, behaving in a way that establishes his ownership already.  Is chazaka valid when it is based on damage to another's property?   Only if there is no immediate protest by the owner.  

Rav Yosef suggests that when a woman protests against a man who is not her husband; this man had profited from her field for almost enough time to establish chazaka before and then after her husband's death. This is an example of a migo, for he could have said that he bought the field from her and possessed it for three years.  He also could have said that her husband sold the field to him.

Bava Batra 49: A Woman's Right to Void a Sale of Property

The rabbis reaffirm that written documents are valued over the spoken word: a document can weaken the spoken word, but the spoken word cannot weaken a document.  If a person signs a moda’a, a document of trust, thinking that it was a promissory note, they are not deemed credible because signing inappropriately is bearing false testimony.  In fact, s/he is held liable for causing any financial loss that resulted from that testimony.  To admit that one has done this is self-incriminating.

Our Mishna had taught that men are not permitted to have chazaka over their wives’ properties; neither is a wife able to establish chazaka over her husband’s property.  The Gemara suggests that this is obvious.  He is permitted to benefit from the profits of her property while the are married but has no claim on the land itself.  But the rabbis teach this because he might have written that he has no legal rights to her property.   He is not to assume that this does not prove that he owns the land, even if she permits him to benefit from use of her property.  One who states that they have no rights to property has no legal standing.  But was the husband’s promise made when they were betrothed but not married?  He could affect his rights after they are married. 

The Gemara turns to the issue of inheritance.  Can one predetermine that s/he will not receive an inheritance that should come in the future?   The rabbis agree that one can prevent possession of property that is not yet his/hers in accordance with Rava.  Rava states that one can refuse something that was intended to benefit him/her.

The example provided is when a woman tells her husband that she will not be sustained by him and that she will keep the profits from her own work.  Similarly, a husband can deny his rights to the profits from his wife’s property.  In any case, he does not establish chazaka regarding presumptive ownership of his wife’s property. 

What if a man provides proof that his wife agreed to sell him her property?   She might step forward and say, “I did it, but I did it only to please my husband and not because I wished to do so.”  This would be similar to a situation that was discussed in Masechet Gittin (55) where a person might buy a husband’s land and the wife purchases the land back with payment of her ketubah.  If he purchased the land back again intending to use it after the death of her husband or their divorce, his purchase is void.   Again, the wife could say that she signed a document validating the sale, but only to please her husband. 

Our daf ends with a condition: there are only three types of fields that are affected by this halacha.  One is a field that the husband wrote about in her ketubah stating that it would serve as payment of her marriage contract.  Another is a field that was specified in the same way but in front of witnesses rather than in her ketubah.  Finally, one is a field that she brought with her into the marriage as guaranteed property.  For any of these properties, a woman can say that she agreed to their sale only in order to please her husband.  The purchases will be considered void.