Talmud - Bava Batra 29a בבא בתרא כ״ט א׳

Because if you do not say so, then when he states: “Build houses, and dwell in them, and plant gardens, and eat the fruit of them” (Jeremiah 29:5), what halakhic statement was he saying? Rather, he teaches us good advice, and here too he teaches us good advice. The Gemara comments: Know that this was mere advice, as it is written: “And put them in an earthen vessel; that they may continue many days” (Jeremiah 32:14). This is obviously good advice to preserve the items properly, and is not a halakhic statement. Therefore, this is not a proof that the presumption of ownership cannot be established in under three years.

Rather, Rava said a different reason: A person who sees another profiting from his field might waive his rights during the first year, and he might waive his rights for two years, but he will not waive his rights for three years. Therefore, if one does not lodge a protest by the end of the third year, it is tantamount to a concession that the land is not his.

Abaye said to him: If that is so, when it becomes clear that the land is in fact owned by another and it is returned to its owner, it should be returned, save for the produce that the possessor consumed during the first two years, as the owner waived his rights to it. Why did Rav Naḥman say: The land is returned and the produce is returned?

Rather, Rava said a different reason: A person is not particular the first year to lodge a protest, and he is not particular for two years, even though he does not waive his rights to the produce. He is particular to lodge a protest when he sees another profiting from his field for three years. Therefore, if one does not lodge a protest by the end of the third year, it is tantamount to a concession that the land is not his.

Abaye said to him: If that is so, for people such as those of the bar Elyashiv household, who are particular even with regard to one who goes on the boundary of their field, here too, will you say that presumptive ownership is established immediately, as soon as one makes use of their property without their lodging a protest? And if you would say that is indeed the halakha, if so, you have subjected your statement to the varying circumstances of each case, as there will be a different length of time needed to establish the presumption of ownership depending on who the prior owner is. This is untenable.

Rather, Rava said a different reason: A person is careful with his document detailing his purchase of land for the first year after the purchase, and he is also careful for two and three years. For more time than that, he is not careful and might discard the document if no one has lodged a protest concerning his possession of the land. Therefore, the Sages ruled that after three years have passed, he can prove his ownership by means of presumptive ownership.

Abaye said to him: If that is so, a protest that is lodged not in his presence should not be a valid protest, and if three years pass with no protest in his presence, presumptive ownership should be established even if there was a protest lodged before other people. This is because the one possessing the land can say to the claimant: If you had protested in my presence, I would have been careful with my document and would not have discarded it.

The Gemara explains that this claim would not be accepted, because the claimant can say to him: Your friend has a friend, and your friend’s friend has a friend, and the assumption is that word of the protest reached you.

§ Rav Huna says: The three years that the Sages said are required to establish the presumption of ownership is referring to when he worked and profited from the field in consecutive years. The Gemara asks: What is Rav Huna teaching us with this statement? We learned this in the mishna: Their presumption of ownership is established by use for a duration of three years from day to day. The Gemara answers: Lest you say that the phrase: From day to day, serves to exclude partial years and to teach that each of the three years must be full, and actually even scattered, i.e., non-consecutive, years are sufficient, therefore, Rav Huna teaches us that the years must be consecutive.

Rav Ḥama says: And Rav Huna concedes with regard to locations where they leave fields [bagei] to lie fallow by planting in alternate years, that the three years combine despite not being consecutive, as that is the manner in which owners profit from the land.

The Gemara asks: Isn’t it obvious that this is the halakha? The Gemara answers: No, it is necessary to state this with regard to locations where there are some people who leave the fields to lie fallow and there are some people who do not leave the fields to lie fallow, and this man left the field to lie fallow. Lest you say that the claimant can say to him: If it is so that the land is yours, you should have sown it, therefore, Rav Ḥama teaches us that the possessor can say to the claimant: I am not able to hire someone to guard one parcel of land within an entire field, and I acted like those who own other land in this location and let the field lie fallow.

And alternatively, the possessor can say to the claimant: In this manner of farming it is beneficial for me to farm, because the land produces more later, and I do not wish to plant year after year and weaken the soil.

The Gemara clarifies Rav Huna’s statement that the presumption of ownership can be established only by consecutive use. We learned in the mishna about the presumptive ownership of houses. But with regard to the use of houses, where the witnesses attesting to its use know who uses the house only in the day, but they do not know who uses the house in the night, how then can one establish the presumption of ownership in the case of a house? The possessor’s use is not consecutive, as it is continually interrupted by the nights.

Abaye said: Who testifies about houses? Neighbors, and neighbors know who is inside in the day and in the night.

Rava said that there is another scenario in which one can bring witnesses with regard to the use of a house. This is such as when two people come and say: We rented the house from him and we lived in it for three years, in the day and in the night. This testimony substantiates that the house was used under the authority of the one who is attempting to prove that he has established the presumption of ownership.

Rav Yeimar said to Rav Ashi: How can their testimony be relied upon? These witnesses are biased in their testimony, because if they do not say this testimony, that they rented the house from the possessor for three consecutive years, we say to them: Go and give payment for the rental of the house to that one who is claiming ownership, as the one you paid has not established that he is the true owner.

Rav Ashi said to him: Low-level judges rule this way. In other words, only a court composed of ignorant judges would accept the testimony of the renters of the house in a case where they are biased in their testimony. Nevertheless, Rava’s scenario is still possible, as, are we not dealing with a case where they are holding the money for the payment for the rental of the house, and they are saying to the court: To whom shall we give it? Therefore, they are not biased in their testimony, because they will pay the same amount, regardless of who the actual owner is.

The Gemara quotes a related statement. Mar Zutra said: And if the claimant claims and says: Let two witnesses come to testify for the possessor that he lived in the house three years in the day and in the night, his claim is a legitimate claim.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bava Batra 29a explores why three years establishes land ownership by usucaption, debating protest versus waiver of rights to property and produce.