Talmud - Bava Kamma 70b בבא קמא ע׳ ב׳

Ḥalafta, he said to him the following in the course of their discussion of the halakhot of possession.

If one has been in possession of real estate for three years, this serves as proof of his claim that he is the legal owner. One who is able to prove uninterrupted possession for the necessary period is not required to produce documentary evidence of his legal title to the property. Rabbi Yoḥanan ben Nuri or father Ḥalafta asked: If one harvested and ate the produce of a field that he claims as his own the first year of the three years required for establishing possession of the land in the presence of two witnesses, and subsequently ate the produce of the second year in the presence of two other witnesses, and finally ate the produce of the third year in the presence of yet two other witnesses, what is the halakha? Can the three testimonies combine to establish full testimony that he ate the produce of three years, thereby confirming his ownership of the field?

Rabbi Ḥalafta said to Rabbi Yoḥanan ben Nuri, or vice versa: This is considered to establish presumptive ownership by the one who ate the produce. The other Sage said to him: I too say that this is so, but Rabbi Akiva disputes this matter, as Rabbi Akiva would say: The Torah requires that witnesses must testify with regard to a complete matter and not part of a matter. Since there must be testimony concerning consumption of the produce over three years, and each set of witnesses establishes only that it took place for one year, their separate testimonies do not combine. If so, the mishna is apparently not in accordance with the opinion of Rabbi Akiva.

The Gemara rejects this assertion. Abaye said: You can even say that the mishna is in accordance with the opinion of Rabbi Akiva. Doesn’t Rabbi Akiva concede that in a case where two witnesses say: So-and-so betrothed a certain woman, and two other witnesses say: Someone else subsequently engaged in sexual intercourse with that same woman, this is proof that the act of intercourse was adulterous?

The reason for this is that even though the witnesses testifying about the intercourse require the witnesses who testify about the betrothal, i.e., the testimony of the second set of witnesses is meaningless without the testimony of the first witnesses, nevertheless, since the witnesses testifying about the betrothal do not require the witnesses who testify about the intercourse, i.e., their testimony by itself establishes a halakhic status, we call the testimony of each pair a complete matter.

Here too, the same logic applies in the case of a thief who steals an animal and subsequently slaughters or sells it: Even though the witnesses who testify about the slaughter require the testimony of the witnesses about the theft in order for their testimony to have any halakhic significance, since the witnesses testifying about the theft do not require the testimony of the witnesses who testify about the slaughter, as their testimony alone establishes that person as a thief who is liable to pay the double payment, we call the testimony of each pair a complete matter.

The Gemara asks: And according to the opinion of the Rabbis, who disagree with Rabbi Akiva that the Torah stipulates that testimony must be about a matter and not half of a matter, the term “matter” (Deuteronomy 19:15) serves to exclude what? The Gemara answers: It serves to exclude a case involving testimony that a girl has reached majority, in which one witness says that he saw one hair on her lower back, and one witness says that he saw one hair on her lower abdomen. A girl is considered to have reached maturity when she has two pubic hairs. In this case, two witnesses separately testify that they have each seen one hair, and therefore each testimony is halakhically meaningless on its own. The Rabbis derive from the verse that these testimonies do not combine.

The Gemara raises a difficulty: In this case each testimony is obviously invalid, as it is half a matter and also half a testimony. Not only does each testimony refer to one hair, which is half a matter, it is submitted by one witness, which is half a testimony. Consequently, it is obvious that the girl is not considered of age in this case.

The Gemara therefore rejects this explanation. Rather, the Rabbis maintain that the term “matter” serves to exclude a case in which two witnesses say that they saw one hair on a girl’s back, and two other witnesses say that they saw one hair on her lower abdomen. In this case the testimony of either set of witnesses concerns only one hair, and therefore these witnesses are essentially saying that she is still a minor and those witnesses are saying that she is still a minor. Therefore, each testimony concerns only half of a matter.

§ The mishna teaches: If one stole an animal and sold it on Shabbat, he pays the fourfold or fivefold payment. The Gemara asks: But isn’t it taught in a baraita that in this case he is exempt from the fourfold or fivefold payment?

Rami bar Ḥama said: When it is taught in that baraita that he is exempt, this is referring to a case where the purchaser says to the thief: Pick off a fig for yourself from my fig tree on Shabbat, and through performing this act your stolen animal shall be acquired by me. Since the act of acquisition of the animal involved the type of Shabbat desecration for which one is liable to receive the death penalty, the thief is exempt from the monetary obligations he would ordinarily incur from this act, i.e., the fourfold or fivefold payment to the animal’s prior owner. This is in accordance with the principle that one who commits two or more transgressions by means of a single act, both of which entail punishment, is exempt from the lesser punishment.

The Sages say, questioning this explanation of the baraita: But since, if the purchaser would bring a legal claim against the thief before us, to force him to deliver the animal acquired by means of picking the fig, the court would not say to the thief: Go and pay him the animal you owe him, because the thief is liable to receive the death penalty for his desecration of Shabbat, this shows that the sale is not a valid sale at all. Therefore, the baraita would not call this exchange a sale and this interpretation of the baraita cannot be correct.

Rather, Rav Pappa said: The baraita is discussing a case where the purchaser said to the thief: Throw your stolen animal from the public domain into my enclosed courtyard, and your stolen animal will thereby be acquired by me. One can acquire an item if it is placed on his property. In this case, when the thief places the animal on the purchaser’s property he moves it from the public domain into the private domain, which is a desecration of Shabbat that entails the death penalty. Consequently, he is exempt from the fourfold or fivefold payment.

The Gemara asks: If this is the correct explanation of the baraita, in accordance with whose opinion is the baraita taught? It is in accordance with the opinion of Rabbi Akiva, who says: An item in the airspace of a certain area is considered as though it were at rest in that area.

As, if the baraita is in accordance with the opinion of the Rabbis, who hold that an item in the airspace of a certain area is not considered as though it were at rest in that area, once the animal reaches the airspace of the courtyard of the purchaser’s house he has acquired it, as one can acquire items that are in the airspace of his courtyard just like those on its ground, whereas with regard to moving an item from one domain to another on Shabbat the thief is not liable for Shabbat desecration until it reaches the ground. Since the thief’s monetary liability is not simultaneous with his incurring of the death penalty, he would not be exempt from payment.

The Gemara answers: It is possible that the baraita is in accordance with the opinion of the Rabbis as well, as one can explain that it is speaking of a case in which the purchaser says to the thief: Your stolen animal shall not be acquired by me until it rests on the ground. In that case, the acquisition of the animal and the Shabbat desecration are simultaneous.

Rava said: Actually, it is possible to explain the baraita as Rami bar Ḥama did, that the animal was acquired through the picking of a fig on Shabbat. And the objection raised earlier, that this act should not be considered a sale at all, is incorrect. This can be demonstrated by the fact that the Torah prohibits one to bring as an offering an animal given as the payment to a prostitute for services rendered (Deuteronomy 23:19). And this prohibition applies even if the man in question engaged in intercourse with his own mother, which is a capital offense. But if she would bring a legal claim before us, demanding the payment of the animal that was agreed upon as her fee, would we say to him: Arise and pay her the animal? The court would not say this, as the monetary liability was incurred simultaneously with the commission of a capital crime.

Rather, one must say that even though if she brings a legal claim against him demanding the payment of the animal that was agreed upon as her fee we do not say to him: Go and pay her, nevertheless, since if he does give it to her it is considered payment to a prostitute, it cannot be used as an offering. Here too, in the case of the acquisition of the animal through picking a fig, even though with regard to payment, if the purchaser would bring a legal claim before us against the thief, seeking to force him to deliver the animal, we would not say to him: Go pay,

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

Bava Kamma 70b explores establishing land ownership through three years of witnessed possession and whether separate testimonies can combine under Rabbi Akiva's view.