Bava Batra 84

<big><strong>גמ׳</strong></big> אבוה דשמואל ולוי תנו שותף אין לו חזקה וכל שכן אומן שמואל תני אומן אין לו חזקה אבל שותף יש לו חזקה ואזדא שמואל לטעמיה דאמר שמואל השותפין מחזיקין זה על זה ומעידין זה על זה ונעשים שומרי שכר זה לזה

<b><i>GEMARA</i></b>. Samuel's father<span class="x" onmousemove="('comment',' Abba b. Abba. ');">¹</span> and Levi learnt [from the Mishnah] that a partner has no <i>hazakah</i>, still less a craftsman.<span class="x" onmousemove="('comment',' Because unlike the partner he never had any share in the property. Evidently therefore they omitted the word 'craftsmen' from the Mishnah (Rashb.). ');">²</span>

רמי ליה רבי אבא לרב יהודה במערתא דבי רב זכאי מי אמר שמואל שותף יש לו חזקה והאמר שמואל שותף כיורד ברשות דמי לאו למימרא דשותף אין לו חזקה לא קשיא הא דנחית לכולה הא דנחית לפלגא

Samuel, however, learnt that a craftsman has no <i>hazakah</i>, but a partner has.<span class="x" onmousemove="('comment',' Because the fact that he has been left in undisturbed possession of the whole of the joint property constitutes a presumption that the other partner has made over to him his share. ');">³</span> Samuel in this is consistent. For Samuel has said that partners have <i>hazakah</i> as against each other and can give evidence in one another's favour<span class="x" onmousemove="('comment',' Not being regarded as interested parties even where the matter in dispute is a part of the joint property. ');">⁴</span>

אמרי לה להאי גיסא ואמרי לה להאי גיסא

and can stand to one another in the relation of paid keepers [of their common property].<span class="x" onmousemove="('comment',' If some of the joint property is stolen while in possession of A, B can claim from him restitution of his share in the same way as he could claim from someone in whose charge he had placed it for a fee, A's 'fee' being constituted by B's willingness to take charge of it with the same responsibility for a similar period. ');">⁵</span> R. Abba pointed out the following contradiction to R. Judah in the [burial] cave of R. Zakkai's field: Did Samuel really say that a partner has <i>hazakah</i>? Has not Samuel said that a partner is regarded as having freedom of entry<span class="x" onmousemove="('comment',' I.e., permission from the other partner to work the whole of the joint field for his own benefit. ');">⁶</span>

רבינא אמר הא והא דנחית לכולה ולא קשיא הא דאית בה דין חלוקה הא דלית בה דין חלוקה

[into the whole of the joint property], and is not this equivalent to saying that a partner has no <i>hazakah</i> [against the other partner]?<span class="x" onmousemove="('comment',' Because this permission naturally does not mean any waiving by the other partner of his title to his share of the property. ');">⁷</span> — [He replied:] There is no contradiction. In the one case [Samuel is speaking of a partner] who takes possession of the whole [of the joint field], in the other of one who takes possession of only half of it.<span class="x" onmousemove="('comment',' Viz., the better half, and afterwards he maintains that a division has been actually effected and that this half belongs to him. ');">⁸</span>

גופא אמר שמואל שותף כיורד ברשות דמי מאי קמ"ל שותפות אין לו חזקה לימא שותף אין לו חזקה

[To the question which is which,]<span class="x" onmousemove="('comment',' I.e., which kind of partner, according to Samuel, has hazakah and which has not. ');">⁹</span> some answer one way and some the other.<span class="x" onmousemove="('comment',' Some say that by taking possession of the whole field the partner acquires hazakah, because it is not usual for the other partner to allow this, and that by taking possession of one half, even the better half, he does not acquire hazakah, because one partner will often allow the other to do this several years running. Others say that by taking possession of the whole a partner does not acquire hazakah because it is the custom of joint owners that each should occupy the whole property several years running, but by taking possession of one particular half he does acquire hazakah because the presumption is that had the field not been divided he would not have confined himself to this particular half. ');">¹⁰</span>

אמר רב נחמן אמר רבה בר אבוה לומר שנוטל בשבח המגיע לכתפים בשדה שאינה עשויה ליטע כשדה העשויה ליטע:

Rabina said: In both cases [Samuel is speaking] of a partner who takes possession of the whole [of the joint field], but still there is no contradiction, because in the one case he speaks of a field which has to be divided [if either partner demands]<span class="x" onmousemove="('comment',' I.e., a field which allows of four cubits square being assigned to each. Possession of such a field confers hazakah since, as there is room for both, one partner is not likely to allow the other to occupy the whole for several years running. ');">¹¹</span> and in the other of a field which has not to be divided [if either partner objects].<span class="x" onmousemove="('comment',' I.e., a plot too small to allow of four cubits being assigned to each partner. In this case it would be natural for each partner to work the whole plot several years running, and therefore possession of the whole does not constitute a title of ownership. ');">¹²</span>

ומעידין זה לזה

[To revert to] a previous text: 'Samuel said that a partner is regarded as having freedom to work the whole of the joint property.' What does this tell us? That a partner has no <i>hazakah</i>? Why does he not say distinctly that a partner has no <i>hazakah</i>? — R. Nahman said in the name of Rabbah b. Abbuha: [He chooses the other mode of expression] to show that the partner is entitled to a full half of the mature produce<span class="x" onmousemove="('comment',' Lit., 'improved value that reaches the shoulders,' or 'improved value that is dealt with by the carriers.' The exact meaning of the expression is obscure; it obviously refers to the improved value of trees as opposed to the improved value of land, but there is a difference of opinion as to whether all fruit trees are included, or only those that need careful tending, like vines. V. Tosaf. s.v. [H] ');">¹³</span> in a field that is not meant for plantation in the same way as he would be in a field meant for plantation.<span class="x" onmousemove="('comment',' If a man plants another man's field without the latter's permission, he is entitled to the whole of the 'mature produce that reaches the shoulders,' but only on condition that the field was meant for plantation and not for sowing. Otherwise he can recover no more than his outlay. If, however, he has the consent of the owner, he takes the whole of the produce in any case. Samuel here tells us that the partner in this respect is on the same footing as the metayer who works the field with the owner's consent. ');">¹⁴</span> Partners may give evidence in one another's favour.