Sunday, 26 February 2017

Bava Batra 35: Judges' Discretion, Penalties for Robbers, Three Years for Claims

We are considering yesterday's daf's example of a dispute over land where two people claim that land is theirs and belonged to their ancestors.  They have no witnesses.  Judgements in these circumstances are made based on all information available.  If information is missing, judges are permitted to use shudda, their discretion.  The rabbis compare this example to other examples of cases where disputes seem to be based on equal types of information from each claimant.  However, we learn from the rabbis that financial considerations change the larger question about ownership.  In our first example, only one person can claim the land - the other gets nothing.  

We then are reminded that someone who robs in a marketplace is not called a robbery  This is because we do not know whom to repay for his 'robbery'.  Rav Ashi claims that he is called a robber.  The reason not to call him a robber is only because the term 'robber' assumes that a person must pay back what he stole.  Since he cannot fully atone in this case, his crime should not be called 'robbery'.  

The Gemara transitions toward a conversation about chazaka, presumptive ownership.  The rabbis consider whether three years of daily use is required to establish chazaka.  What about the case of a basket of fruit taken from a field?  We establish a dispute by claiming that someone has transgressed - through stealing, in this case.  Perhaps the three-year limit applies to how long one has to protest.

There are different halachot for Gentiles and for Jews when it comes to property claims.  When a Jew makes a claim about having purchased property from a Gentile, it is required for him to have a document as proof, just like a Gentile would be required to have that document to win that same claim.  

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