Rambam - 3 Chapters a Day

I.e., in contrast to movable property, where physical possession creates a presumption of ownership, no such presumption is established because of the possession of livestock.

I.e., witnesses must testify to this fact [Shulchan Aruch (Choshen Mishpat 135:1)].

I.e., if the defendant continues to press his claim after returning the animal, the owner must take this oath. The owner is not, however, required to take an oath before the animal is returned (Siftei Cohen 135:1).

I.e., a sh’vu’at hessel [Shulchan Aruch (loc. cit.)].

Who does not let it roam freely.

As stated in the previous halachah.

Since the person in possession of the animal is not claiming that the animal itself belongs to him, but that he is holding it in lieu of other money, he must take a severe oath. See Hilchot Malveh V’Loveh 13:3 (Maggid Mishneh).

A sh’vu’at hesset. A Scriptural oath is never taken with regard to servants. A sh’vu’at hesset may, however, be taken as stated in Chapter 5.

The amount of time necessary to establish a claim of ownership over landed property, as stated in Chapter 11, Halachah 2.

The Maggid Mishneh notes that the Rambam does not mention possession for three years (the time span that applies with regard to landed property) with regard to claims over an animal. Hence, he concludes that the Rambam does not make such a distinction, and considers the original owner as always having a claim over an animal, despite the fact that it has been in the possession of others for many years. The Tur and the Ramah (Choshen Mishpat 135:1) differ and maintain that the three-year limit applies with regard to an animal as well.
The Siftei Cohen 135:3 explains that there is no difference of opinion concerning the matter, and that even the Rambam would accept the opinion quoted by the Tur. This approach is borne out by the fact that in his Commentary on the Mishnah (Bava Batra 3:1, the source for this halachah), the Rambam speaks about the same principles applying to servants and animals, without differentiating between them.

If the defendant, however, claims that the servant strayed into his property and so he took possession of him, he must return him to his owner.

Bava Batra 36a states that this law applies even when the child is a baby. We do not say that it is possible that the child’s mother brought him to the second person’s house, and accidentally left him there.

Chapter 7, Halachah 8.

And neither has established control over it.

As stated in Chapter 15, Halachah 4, and mentioned in the continuation of this halachah, since neither claimant has more legal right than the other, the ruling is that the one who can overpower the other - in sheer physical strength - is given control over the article.

If, however, both claimants make this request of the court, the court should comply (Kessef Mishneh, in the name of Rabbenu Nissim).

We suspect that he is trying to perpetrate deceit - i.e., he has no witnesses that the ship belongs to him, but is afraid that the other claimant will overpower him. Hence, he seeks to have the article placed in the hands of the court. Thus, if the other claimant also does not have proof of ownership, he will have to negotiate a compromise with him (Sefer Me'irat Einayim 139:7).
If he did bring witnesses to support his claim, he could expropriate the ship from the other claimant even after the latter took possession. Nevertheless, there are times when it is difficult to bring a person to court. To prevent that difficulty from arising, the claimant desired to have the court take possession of the ship.

Either correctly, when requested to do so by both claimants, or in error, when only one made such a request (Kessef Mishneh, in the name of Rabbenu Nissim).

This law applies even if both claimants make this request (ibid.).

For once the property is in the possession of the court, it does not release it untiL the case is settled in a conclusive manner.

Chapter 7, Halachah 9. Although that law speaks about an instance in which both litigants had possession of a portion of the article, the same rationale applies. The oath is instituted so that one person will not try to seize possession of a colleague’s property unlawfully. The oath is required only when a division is being made, and not for the first two instances mentioned by the Rambam.

If, however, the person in possession does not claim that he acquired it, and instead states that he saw open land, so he occupied it, it is returned to its original owner after he brings witnesses that it belongs to him (Chapter 14, Halachah 12).

As stated in Chapter 5, Halachah 1, although Scriptural oaths are not taken with regard to movable property, a sh’vu’al hessel is.

His word is accepted on the basis of the principle of miggo. Had he desired to lie, he could have claimed that the field had belonged to his family (Maggid Mishneh).

See Chapter 12, Halachah 4.

The Rambam offers a further explanation for this ruling in Halachah 4.
The Maggid Mishneh notes that there are other opinions that maintain that if the defendant benefited from the field for three years, it is not even necessary for him to take a sh’vu’al hessel. The Shulchan Aruch (Choshen Mishpal 140:1) follows the Rambam’s view.

I.e., the fact that the plaintiff has remained silent for all these years reinforces the defendant's claim.

Because wayfarers will communicate the news.

For as stated in Halachah 5, the protest need not be made in the presence of the defendant himself.

Today, with the advances that have been made in communications, it is unlikely that there would be a situation where these laws would apply.

This addition is made on the basis of the interpretation of Rav Hai Gaon cited by the Maggid Mishneh.

I.e., in the city or locale where the property in question is located.

And the field is allowed to remain in Reuven’s possession.

Our translation is based on the gloss of the Kessef Mishneh, which notes that the marketplaces (the ordinary translation of shuk) of cities are busier than those of country villages. Therefore, he suggests that the intent is the country fairs, which are not usual events and attract a large amount of commercial activity.

There are some who offer a different explanation of the same situation, explaining that the reason the owner gives is that he was so busy that he did not have time to issue a protest (Maggid Mishneh).

If, however, witnesses testify that the original owner did receive knowledge that someone else was living in his property, and yet did not protest, he forfeits his right to the land (Maggid Mishneh).

For it is not logical that a person would be in his hometown for more than 30 days and not hear about what is happening in his own courtyard.

The Kessef Mishneh, in his gloss on Chapter 12, Halachah 1, states that in certain instances, the intent is not three years, but rather three harvests.
In the present age, when most transactions involving landed property are registered in the government deed office, different rules apply, and the statements of the deed office are accepted.

Without sending a direct message to Reuven or the court where his property is located. See Halachah 7.

And thus the word will spread through gossip. In that vein, the Shulchan Aruch (Choshen Mishpat 146:1) states that even if the witnesses to the protest are old and sick and will certainly not convey the message to Reuven themselves, the protest is binding, because we can assume that it spread via word of mouth.

For since the matter will not be publicized, of what value are his statements?
The Siftei Cohen 146:3 states that even if the witnesses actually told the squatter of the owner’s protest, the protest is not significant. For since the squatter knew that the owner was hesitant about lodging a protest, he did not have to take precautions.

Since the person was not charged with keeping the matter private, ultimately his loquacity will get the better of him and he will gossip about the charge that the owner gave him.

This wording implies that he should not tell that person about the matter, but that he can tell others. And once he tells others, the information will ultimately reach the person in question.

Needless to say, the two must meet the criteria for acceptable witnesses.

There is a difference of opinion among the Rabbis with regard to the law if the owner says: “So-and-so has robbed the produce of my field.” Rabbenu Ya’akov maintains that the protest is of consequence, while Rabbenu Chanan’el differs. Although the Tur maintains that the Rambam shares Rabbenu Chanan’el’s perspective, the Beit Yosef states that there is no clear indication in the Rambam’s words of which opinion he would follow. The Shulchan Aruch (Choshen Mishpat 146:4) quotes the Rambam’s words, while the Tur and the Ramah share Rabbenu Yaakov’s view.

I.e., since the owner did not say that he was going to lodge a claim against the person in possession of the land, that person might think that he was merely disgruntled and was speaking in general, without necessarily focusing on the field in question.

The Siftei Cohen 146:4 states that the protest need not be made in front of both witnesses together. The owner can make his statement to one in one place and later repeat the matter to the other.

I.e., the protest need not be made in the presence of three men who would thus constitute a court of law.
The Shulchan Aruch (Choshen Mishpat 146:2) records a difference of opinion whether a protest made in the presence of a witness and the person in possession of the field is of consequence.

The Ramah (Choshen Mishpat 146:5) notes that testimony must be delivered verbally, and a legal record is not sufficient. Hence, he states that the witnesses must write that the owner charged them to act as his agents in protesting the sale.

Or in any of the first three years (Sefer Me’irat Einayim 146:12).

If, after protesting originally, the owner sold the field to another person, neither the owner nor that other person have to issue another protest (Maggid Mishneh in his gloss on Chapter 15, Halachah 7).

For since the person in possession of the field did not hear a protest for three years, he no longer felt it necessary to safeguard his deed of acquisition (Sefer Me’irat Einayim 146:13).

The Tur and the Shulchan Aruch (Choshen Mishpat 142:1) quote the Rashbam’s interpretation of Bava Batra 35b. Sefer Me’irat Einayim 142:1 states, however, that there is no difference in law between the two approaches.

For this indicates the owner’s acceptance of Reuven’s ownership, as the Rambam continues to explain.

This applies even though he did not have a claim of three year’s ownership (Maggid Mishneh).

In Halachah 2. If, however, he protests after three years, the protest is of no consequence. Therefore, if he sold him the produce for three years or more, he must lodge a protest within those three years to protect his rights [Shulchan Aruch (Choshen Mishpat 142:1); see also Halachah 7].

Chapter 10, Halachah 4.

Harvested only during a specific period each year.

The difference between the two categories delineated by the Rambam can be explained as follows. With regard to the first category, the property produces benefit at all times, and it requires attention at all times. Hence, the three years are counted from day to day. The second type of property produces benefit only at certain times, and hence requires attention only at certain times. Once the harvest of the land is completed, the owner will not return there. Hence, after the third harvest is completed, we consider the three years to have been concluded.
The Kessef Mishneh notes that, as stated in Chapter 11, Halachah 5, the rationale for the three-year period is that a person will maintain possession of his deed of acquisition for that long. He explains, however, that in these situations, the person will maintain possession of his deed for only this limited time.

Trees have to be spaced out. Otherwise, as they grow, their roots spread and they require more nurture, two [or more] trees will be competing for the same water and nurture from the soil. Ultimately, one - or both - of them will dry and die.

The Rashbam and the Tur differ with the Rambam and maintain that Shmuel (Bava Batra 36b), who speaks about three harvests, is not seeking to minimize the three-year requirement. Instead, his intent is that even if the person maintains possession for three years, he does not establish a claim of ownership until he also collects three harvests. According to that interpretation, even for these types of fields, we are speaking about a three-year period. The Shulchan Aruch (Choshen Mishpat 141:1) quotes the Rambam’s view, while the Ramah cites that of the Tur.

For it is unnecessary for him to dwell there himself. It is just as real a manifestation of ownership for him to rent the property out to someone else as to dwell there himself.

Even though the owner’s claim is not definite - i.e., he does not state that he knows that the person in possession did not live there at night - that person is required to bring witnesses who substantiate his claim (Maggid Mishneh).
The Shulchan Aruch (Choshen Mishpat 140:8) mentions the Rambam’s opinion. He does, however, appear to favor the opinion of the Rashbam, who rules that witnesses are required only when the original owner issues a definite claim that the person in possession did not dwell in the property at night.
The Siftei Cohen 140:7 states that the Rambam’s words cannot be understood simply, that the owner states: “Maybe you did not dwell there at night?” For if that was a valid claim, the judges would also have to advance it on behalf of the owner even when he did not advance it himself. Instead, the Siftei Cohen explains, the owner is saying: “I came to the property several times during the night and did not find anyone there.” If the person in possession claims that on these particular occasions he was away, he must bring witnesses to substantiate his claim.

For if the person in possession did not dwell there at all times, it is possible that when the owner came, he was not there.

If, however, he does not make such a demand, the court does not make such a demand on his behalf. Note the contrast to the following halachah.

I.e., witnesses who substantiate their claim.

The Ramah quotes the opinion of Rabbenu Tam and Rabbenu Asher, that such exact testimony is not necessary. As long as witnesses testify that the person in possession or his tenant lived in the property in an ordinary manner, they need not state - or know - that he was there every day and every night.

The Ra’avad interprets this as referring to a situation where the tenants have already paid their rent. Hence, they have a vested interest in their testimony. For if the property were returned to the original owner, they would owe the rent to him. Even if they could recover the rent from the person in possession at the present time, that would take time and effort. According to his view, if, by contrast, they come to court with the rent in the hands and tell the court: “Give the rent to whoever it is due,” their testimony is accepted.
The Lechem Mishneh offers a different interpretation, stating that the problem is that the witnesses are testifying about themselves. That is not acceptable.
The Maggid Mishneh agrees with the Lee hem Mishneh ‘s interpretation of the Rambam’s position, but brings support for the Ra’avad’s position from Hilchot Edut 15:5, where the Rambam rules:
With regard to a tenant: If he brings the rent and says: “Let this be given to whoever is awarded ownership of the field,” he may testify. If, however, he already gave the rent to the owner of the field, he may not testify.
The Lechem Mishneh, however, differentiates between that situation and the situation described in our halachah. In Hilchot Edut, the witnesses are not testifying about what they did. They are testifying about the ownership of the field. Hence, as long as they have no vested interest, their testimony is acceptable. In our halachah, by contrast, they are testifying about their own actions. Hence, even if they have no vested interest, their testimony is not acceptable. The Shulchan Aruch (Choshen Mishpat 140:9) follows the Ra’avad’s view.

For we assume that the traveling salesman did not dwell there the entire time. Hence, it is possible that when the owner came to investigate he did not find anyone using his property, and hence he did not protest (Sefer Me'irat Einayim 140:9).

In contrast to the previous halachah, where the person himself must demand such clarification.

The Shulchan Aruch (Choshen Mishpat 140:8) quotes the Rambam’s view. In this context as well, the Ramah quotes the view of Rabbenu Tam, who rules more leniently. He maintains that if the person in possession was a traveling salesman, we do not require that he had continually dwelled there day and not. Instead, the witnesses must testify that he dwelled there as is the custom of traveling salesman.
The rationale for this opinion is that since he dwelled there as traveling salesmen do, for a three-year period, word of this must have reached the owner. If he did not protest, he must suffer the consequences.

That the person must manifest possession both during the day and at night.

The fact that he did not use the store at night is not significant.

The Ra’avad differs with the Rambam maintaining that the leniency granted with regard to stores is not that generous. It is true that there is no obligation to remain there at night. Nevertheless, for that reason, the time required to establish a claim of ownership is doubled, and the person must use the store for six years. The Shulchan Aruch (Choshen Mishpat 140:14) quotes the Rambam’s view, while the Tur and the Ramah mention the Ra’avad’s perspective.

I.e., even if he gathered three harvests from the fields. If he left it fallow in the interim, he does not establish a claim of ownership.

In this way, the land’s fertility is not sapped, and its vitality and productivity are restored from year to year.

The Maggid Mishneh explains that the intent is not that the person will be able to establish a claim of possession in three years. Instead, he must hold the land for three harvests - i.e., a minimum of five years (sowing it the first, third, and fifth years).

A deed of sale, like any other legal document, becomes public knowledge and, hence, as explained in the previous halachah, is considered to have come to the original owner's attention. If he fails to act on it, he must suffer the consequences.

There was no reason to associate the three individuals together. Since each one departed after the year, it was unnecessary to take the trouble of issuing a protest against him.

Who inherited the property from his father after his death.

For the estate is considered to be a continuous entity, and the son takes the place of his father. A will is not necessary, for it is public knowledge that the son is assuming his father’s position (Sefer Me’irat Einayim 144:3).
The Maggid Mishneh states that this law applies regardless of whether the son who inherits the property is a minor or past the age of majority. Although Chapter 13, Halachah 2, states that a minor cannot establish a claim of ownership, that statement applies when the minor comes on his own initiative. In this instance, however, the minor is coming as an extension of his father’s estate. Hence, just as his father could have established a claim of ownership; so, too, can the minor.

As explained in the previous halachah.

This also is speaking about an instance where the son inherited the property from his father. In this instance, however, the son must be past the age of majority, for as stated in Chapter 14, Halachah 7, a claim of ownership cannot be established with regard to the property of a minor. In contrast to the previous halachah, the fact that the first year(s) began while the father was alive is not significant, because a minor is not expected - or able - to take responsibility for his financial affairs until he comes of age (Maggid Mishneh).

Here, also, the son is considered to be an extension of his father. Hence, it is not necessary to wait three years while the field is in the possession of the son.

For they are all considered to be an extension of the same authority.

I.e., he made an agreement to sell all the fields he inherited from his father, without specifying their boundaries or location.

Since the field was not singled out as a discrete entity, the person in possession can claim: “I purchased this field from your father. I would never have thought that you would consider including it in the sale. Therefore, I did not maintain possession of my deed of purchase.”

The Maggid Mishneh notes that in contrast to Halachot 6 and 7, in this instance the Rambam does not mention that the transaction was recorded in a deed of sale. The rationale is that a protest issued in the presence of two witnesses is binding, even if it was not recorded in a legal document. Hence, if the sale was conducted in the presence of witnesses, it would serve as an effective protest even if it was not recorded in a deed of sale.
In his Kessef Mishneh, Rav Yosef Karo takes issue with the Maggid Mishneh’s conclusion and cites Chapter 15, Halachah 7, as proof that a legal document is required. In his Shulchan Aruch (Choshen Mishpat 144:4), he quotes both views.

This is speaking about an instance where the squatter plowed the field as well. Nevertheless, merely performing work on a field is not sufficient to establish a claim of ownership.

Our translation is based on the interpretation of Rav Hai Gaon as quoted by the Rashba in his Commentary on Bava Batra 36b. There are other interpretations of these terms, as stated in Sefer Me’irat Einayim 141:9.

Although in this instance he performed a greater amount of work, since he did not derive benefit, he is not considered to have manifested his ownership.

The Ramah (Choshen Mishpat 141:6) emphasizes that if the harvest itself was sufficient to bring a profit, but the person in possession only broke even on his investment because of taxes or other such factors, he does establish a claim of ownership.

To use as fodder for his animals.

The rationale is that the owner sees that the squatter harvested the field early. The owner can conclude that he did this out of fear; the squatter did not leave the crops to fully mature out of dread that the owner might discover that he was using his field. Since the owner saw that the squatter was obviously not secure in his possession, he did not feel compelled to issue a protest.

Since in this region this is an ordinary way of benefiting from the field, the rationale explained previously does not apply.

The first three years of a tree's growth, when one is forbidden to benefit from its produce. (See Leviticus 19:23.)

During the Sabbatical year, the produce of a field is free for everyone to take. The owner has no greater claim over it than a passerby. Hence, ordinarily, partaking of the produce during that year cannot establish a claim of ownership. Nevertheless, if the person in possession reaps the produce, stores it for himself and partakes of it in violation of the laws of the Sabbatical year, although he transgresses, he establishes a claim of ownership.

As stated in Leviticus 19:19, it is forbidden to grow two different species of crops in the same field.

The fact that it was forbidden for the person to derive benefit from the produce does not detract from the fact that he in fact did so. The owner obviously saw that the person derived benefit. Hence, he should have issued a protest to protect his interests.
The Rambam’s statements are based on Bava Batra 36b. There is, however, another version of that source, which states that a claim of ownership is not established unless the squatter benefited from the twigs, which were not forbidden. Although the Shulchan Aruch (Choshen Mishpat 141:11) quotes the Rambam’s view, the Ra’avad, the Tur, and the Ramah follow the other opinion.

See Hilchot Mechirah 1:15, which states that these are activities that show that a person has manifested his ownership over such properties.

To separate that portion of the courtyard from the courtyard as a whole.

I.e., if he used it three years, he establishes a claim of ownership even if he did not erect a partition. Conversely, if he did not use it for three years, even if he did erect a partition, the partition is not significant and the land is returned to its original owner.
In his gloss on Hilchot Sh’chenim 5:5, the Maggid Mishneh notes the contrasts between the laws stated there and those of this halachah. He explains that the differences are that there, the question involves merely the use of the courtyard, while here, the question involves the ownership of the courtyard.
Sefer Me’irat Einayim 140:22 also notes that in Hilchot Sh’chenim, the Rambam also mentions a courtyard in which the claimant owns a share. In such a courtyard, the use of a portion of the courtyard does not establish a claim of ownership. For both partners have the right to use the courtyard. If, however, one erects a partition, he establishes a claim of ownership. Moreover, that claim is established immediately, and there is no need to wait three years.

We do not say that since it is a small portion, it is insignificant and becomes his together with the remainder of the field. If, however, the portion of the field that was not used is smaller than a portion of land fit to sow a quarter of a kav of grain, the exception no longer applies and it is considered to be part of the larger field [Shulchan Aruch (Choshen Mishpat 141:14)].

That was not fit to be sown.

I.e., both the land and the trees.

The term used by the Rambam literally means “picking figs.” The commentaries explain, however, that the same laws apply with regard to other species of fruit.

Needless to say, he also receives the land under the trees. Thus if the trees dry out, the owner of the land cannot tell the owner of the trees: “Uproot your trees and depart” (Sefer Me’irat Einayim 141:31).
Note the comparison to the laws stated in Hilchot Mechirah 24:8-9 and the explanations offered by the Maggid Mishneh. Sefer Me’irat Einayim 141:30 notes that the Tur and the Ramah (Choshen Mishpat 216:13) differ with the Rambam’s ruling in Hilchot Mechirah. The Tur mentions this position with regard to this law as well, stating that the owner of the trees has no claim over the ownership of the land, only the right to plant new trees if the old ones die. Although the Ramah does not mention those objections in his gloss on this law [Shulchan Aruch (Choshen Mishpat 141:19)], Sefer Me’irat Einayim infers that he would differ in this instance as well.

I.e., even one tree, although it would be uncommon for such a sale to be made.

Ordinarily, a person who purchases two trees - and surely one - is not given the right to the land (Hilchot Mechirah 24:6). Nevertheless, in this instance, since the person explicitly claims that the land was sold to him, and he has used it for three years, he is considered to have established a claim of ownership (Maggid Mishneh).

Hence, if the tree dies, the claimant has the right to plant another in its place.

Hence, if the claimant had merely rented the land, the owner should protect his own interests by issuing a protest before the three years were completed [Tur; Shulchan Aruch (Choshen Mishpat 141:20)].

Generally, it is appropriate to have ten trees grow in an area large enough to sow a se’ah of grain (Tosafot, Bava Batra 36b). The Ramah (Choshen Mishpat 141:17) mentions several opinions concerning the laws that apply if the trees are planted more densely together.

Otherwise, he would not have established over the entire field.

In such a situation, since:
a) he benefited from a substantial number of the trees in the property, and
b) there were no other trees from which he did not benefit, he establishes a claim of ownership with regard to the field as a whole.

We assume that the reason that he did not derive benefit from all the trees is that he did not own them and sought to conceal his activity from the owner. Conversely, we assume that the owner did not protest because the squatter did not manifest his ownership over the entire field.

The term used by the Rambam is also used for taking spoils of war. It implies that the people seized the produce in a disorderly fashion.

And they were not accessible to anyone else (Meiri).

For ultimately, he was the only one who benefited from the property.
The Ra’avad follows a different interpretation of Bava Batra 42a, the source for this halachah, and hence does not accept the Rambam’s ruling. The Shulchan Aruch (Choshen Mishpat 141:17) quotes the Rambam’s view without emendation.