Mourning and Real Estate

The custom not to eat meat or drink wine in the days leading up to the fast on the Ninth of Av has perhaps its earliest echo in a passage from the Tosefta, an early rabbinic work. At the end of a long list of tragedies, it notes that after the destruction of the Second Temple in 70 CE, “ascetics proliferated in Israel, who did not eat meat and did not drink wine.” If animals were no longer sacrificed on the altar and libations were no longer poured, how could they enjoy such things?

Rabbi Yehoshua objected, arguing that, if they deprived themselves of everything offered in the Temple, they would also have to give up bread, some kinds of fruit, and even water. Instead, he invoked a set of commemorations that allowed normal life to go on:

A person may plaster his home with plaster but leave a small amount, to commemorate Jerusalem.

A person may prepare all the needs of a banquet but leave off something small, to commemorate Jerusalem.

A woman may make herself up cosmetically but leave off something small, to commemorate Jerusalem.

For it is stated, “If I forget you, O Jerusalem, let my right hand forget; let my tongue cleave to my palate…” (Psalms 137:5–6). (Tosefta Sotah, end of chapter 15)

The Tosefta concludes with a promise that “anyone who mourns Jerusalem will merit witnessing its joy” citing Isaiah: “Rejoice with Jerusalem and be glad with her, all who love her; rejoice with joy for her, all who mourn her” (Isaiah 60:10). The very act of mourning Jerusalem is also a promise that joy will return there.

Puzzlingly, this discussion also appears in the Tosefta of Bava Batra, at the end of a long section on real estate law whose connection to leaving a bit of one’s house unplastered seems tenuous at best. The incongruity is heightened in the Babylonian Talmud, where all of the material from Tosefta Sotah is placed at the end of its third chapter, which is a dense, technical treatment of property disputes, entitlements, and regulations. The shift is jarring, and yet there is, I think, a deep thematic connection between Rabbi Yehoshua’s prescription for an everyday Jewish life that continues to register the tragedy of the destruction of the Temple and the halakhic discussions of property law which precede it.

The third chapter of Bava Batra is called Hezkat ha-batim (possession of houses), and deals with disputed ownership of real estate, presenting case after case with different kinds of claims and counterclaims, evidence, presumptions, and testimony. The cardinal legal principle of the chapter is that after three continuous years of open, exclusive possession—hazakah—of a property, its occupant is presumed to be its owner. According to a minority view, the three-year rule operates like the common law concept of adverse possession, sometimes called “squatter’s rights,” and constitutes a form of acquisition. But according to the majority view three years is merely the time beyond which the occupant no longer expected to keep documentary evidence that they hold legal title to the property. Living in a house for three years shifts the burden of proof as to who owns it, but is not itself proof of ownership.

Every hazakah must be accompanied by a ta’anah—a claim of right, a story about how the occupant came into lawful possession of the property. This can be a very simple claim, like, “You sold it to me four years ago,” but there must be a claim. “It was empty, so I moved in, and nobody said anything,” explains how I came to live in this house but it isn’t a claim of ownership. In general, however, any claim, no matter how weak or unlikely, suffices to support a hazakah, making it much harder for a claimant, even one bearing documentary evidence, to dislodge the occupant.

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This three-year rule would place an absentee owner at a major disadvantage if not for a remedy called meha’ah—a protest or contestation. An owner who cannot occupy his property because he is, for instance, imprisoned, a fugitive, abroad, or simply unable to dislodge powerful squatters, can assert his continuing ownership and contest any ownership rights of the present occupant. This prevents the occupant from securing a hazakah no matter how long he has lived there. To do so, he declares before witnesses that he has not relinquished ownership. Even if this meha’a was made far away, the Talmud says, news of it will travel—“your friend has a friend, and your friend’s friend has a friend”—and reach the occupant. Having been put on notice, the occupant—if he was, in fact, the rightful owner—would take pains to preserve the documentary proof of his ownership even after three years of occupancy. Meha’ah must be repeated at least every three years for the owner to maintain his claim.

These legal concepts—hazakah, ta’anah, meha’ah—and others form the scaffolding on which the Talmud and its commentators introduce and discuss a range of complicated and clever edge cases and their dizzying ramifications. A clue to how these concepts relate, in the eyes of the anonymous talmudic editors, to the question of mourning Jerusalem can perhaps be found at the very beginning of the chapter, where the Talmud attempts to discern why a hazakah was fixed at specifically three years.

One view is stated by Rabbi Yohanan in the name of “those who went to Usha,” the city where the few remaining rabbis convened in the aftermath of the failed Bar Kokhba revolt against Rome and the subsequent Hadrianic persecutions. The Usha sages argued for something like adverse possession (what the Romans called usucaption), and likened the three years of occupancy to an ox that has gored three times; the established pattern actually effects a change in status. These sages had just witnessed the third and most complete defeat of the Jews by the Romans, and if we view their legal argument in that light, it takes on a tragic dimension. The Roman ox had gored three times and thus taken possession of the land. The Jews who remained were mere tenants in a Roman province, with no claim of rightful ownership.

Under the majority view, however, a three-year hazakah doesn’t make for ownership; it is only a statute of limitations beyond which it is not necessary to preserve documentation of ownership. By implication, foreign invaders do not become rightful owners merely by virtue of their conquest. Indeed, Rav Yosef suggests that the majority view about the nature of hazakah was derived specifically from a real estate transaction on the eve of catastrophe. According to Rav Yosef’s calculation, the prophet Jeremiah purchased a field two years before the destruction of the First Temple and the Babylonian exile. He also encouraged others to purchase fields “in the land of Benjamin, and in the places about Jerusalem, and in the cities of Judah, and in the cities of the hill country, and in the cities of the lowland, and in the cities of the Negev,” and to hold onto their records—“buy fields for money, and subscribe the deeds, and seal them, and call witnesses” (Jeremiah 32:44)—because they would be forced off their newly purchased properties after only two years. This shows, says Rav Yosef, that it is only after three years that such documentation becomes unnecessary.

The contrast to the fatalistic sages of Usha is remarkable. The prophet Jeremiah, imprisoned in Jerusalem for predicting its capitulation to Babylon, nevertheless bought land and advised others to do so while keeping their documentation, so they could reclaim it when they returned.

But, as we have seen, documentation isn’t enough to dislodge someone who has lived in a property for three years. To keep an occupant from securing a hazakah, the rightful owner has to contest his claim to ownership with a meha’ah.

I think that this is why the editors of the Babylonian Talmud chose to bookend the halakhic discussions of Hezkat ha-batim with discussions of Jerusalem’s destruction and our commemoration of it: The Tosefta’s symbolic gestures of mourning for Jerusalem’s destruction were a sort of meha’ah, a contestation of the ownership of the current occupants and a declaration of the Jewish people’s intent to return and reclaim their city. Living in homes with unfinished plaster, celebrating with incomplete joy, and abstaining from meat and wine in the early days of Av were a recurring meha’ah, a refusal to relinquish the hope of return, thus placing occupants and occupiers on notice, and preventing them from ever establishing a hazakah.

Mourning Jerusalem, the third chapter of Bava Batra implicitly argues, is not only grief for the past but the prelude to return. And maybe it is in this sense that, as the Tosefta promised, “anyone who mourns Jerusalem will merit witnessing its joy.”