Siman 140

Land remains in the chazakah of its owners, and it is not like movable property where the possessor is believed to say "it was purchased by me" because there is a basis for the matter—how did it come into his hand if he did not give it to him of his own will? But land, which does not move from its place, it is possible that he entered into it and worked it without the knowledge of the owner of the land. Therefore, land that is known by witnesses to belong to Reuven—that they know it was in his chazakah even one day, and even if they do not know with certainty that it is his, but rather they saw Reuven or his father using it, or there is a clear rumor that it belongs to Reuven [Sma]—and it is now in the chazakah of Shimon and he consumes the produce and says that he purchased it from Reuven, and Reuven protests and says that it is stolen in his hand, Reuven is believed and shall swear a shevuat hesset and take his own. This is unless Shimon held it properly and with a claim, as will be explained, for then Shimon swears a shevuat hesset and remains with the land. And all the more so if he has a deed of sale from Reuven, for he does not even need an oath. And if the protesters were the orphans of Reuven and they claim that Shimon held the property of their father and there is no deed in his hand but rather a proper chazakah, he is obligated to swear a severe oath while holding a sacred object. And if Shimon died and did not swear, his heirs shall swear the oath of heirs, and we do not say in this case "a person does not bequeath an oath to his sons," since the oath is not to extract but rather to maintain what is in their hand [ibid.]. And if there are no witnesses or a clear rumor for Reuven that it was his, Shimon does not need a proper chazakah and swears a shevuat hesset and remains with his own, and he is believed to say that he purchased it from Reuven by a migo that he could have said "it was never yours" [Tur]. And in siman 95 it was explained that one does not swear a Torah oath regarding lands; see there.

Some say that one who has held possession for three years does not require an oath; rather, the claimant has the ability to impose a ban upon anyone who holds his property unlawfully. However, most poskim do not hold this way. Nevertheless, there is one who says that if he held possession for three years, and the claimant has no witnesses and no clear rumor that it was his, such that the possessor has two points in his favor—his possession and the claimant's lack of evidence—he is not obligated to swear, and the claimant can only impose upon him a kabbalah [Sma]. This is the primary ruling, for if not so, it would be within the power of anyone to impose an oath upon landowners. Similarly, one who purchased land from his fellow and has a deed, and the seller claims, "You sold it back to me," if he has no evidence, the buyer is not required to swear. Likewise, if one says to his fellow, "You sold me land," and he has no deed and no witnesses and is not in possession of it, if the other responds to him, "These things never occurred," he is not obligated to swear [Shach]. But if the beit din sees that there is substance to his claim, they obligate the defendant to swear. And when the claimant has witnesses that it was his, and the possessor did not hold possession for three years but only claims that he has a deed from the claimant, and the claimant says that his deed is forged or is a deed of trust, the beit din says to him that he must verify the deed through the signatures of the witnesses, and he remains with his property without an oath. If the deed is not verified, they remove the land from his hand, and the claimant shall swear that the deed is forged or a deed of trust and takes the land.

If the possessor claimed that he has a deed showing that he sold it to him and he also has witnesses that he held possession for three years, even though the witnesses of possession alone are sufficient, nevertheless, since he says he has a deed, he must also validate the deed. Even so, it is not an impediment if it is impossible for him to validate it, such as if the witnesses signed upon it died or went to a distant land and there is no one who recognizes their signature; we rely on the witnesses of possession, and he shall swear a hesset oath that he purchased it. But if the witnesses are present, his possession will not avail him until the witnesses come and validate the deed, for one who claims he has two proofs, even though he only needs one, nevertheless they command him to clarify both; only if it is not within his power to clarify is it not an impediment. And if he retracted and said "my deed is lost," he is not believed, for we fear that since he previously said he has a deed and now says it was lost, it is likely that he found some disqualification in the deed and it is not within his power to show it. And since the possession is like testimony regarding the deed, and the deed is void, automatically the possession is also nothing. And all the more so if he brought the deed and indeed a disqualification was found in it, such as if the witnesses are relatives or disqualified or some forgery was found in it, that the possession is also voided, for the possession is nothing but proof that he had a deed, and when the deed is disqualified, what does the possession avail?

And so too, if a flaw in the claim is revealed, the chazakah is nothing. For example, one who gave land to another before witnesses and then returned and held it for the years of chazakah, and the recipient of the gift summoned him to beit din, and he said that the gift was an error or he claims some other claim regarding the gift, and witnesses contradict his claim—even if the giver held it for three years after the gift, and if he had claimed "I returned and purchased it from you" he would have been believed, but now that he claims a claim that witnesses contradict, he is not believed with a migo that he could have said "I returned and purchased it from you," for it is a migo in the place of witnesses. For this is a great principle: that chazakah is not a kinyan, but rather it testifies to the kinyan, and when there is a flaw in the kinyan, the chazakah is nothing.

The matter of chazakah is because it is impossible for a person to guard his deed forever; our sages, of blessed memory, said that for up to three years a person guards his deed and no longer. Therefore, less than three years is not a chazakah, and we say to him: "Bring your deed." For more than three years, he does not need to guard his deed any longer, unless the protestor made a machah that could reach the ears of the possessor, as will be explained in siman 146, for then he is obligated to guard his deed until he stands with him in beit din. And so our sages, of blessed memory, said that if three years passed and he did not make a machah, certainly he has no claim against the possessor, for up to three years there are people who are not particular when others use their property, and it will be explained in siman 143. Therefore, some say that even regarding animals there is a chazakah of three years, as written in siman 135, even though it is not the way to make a deed for animals, only because he did not protest it is a chazakah. And so too regarding land, even if he clarifies through witnesses that all his papers were burned, and if so there is no proof from the fact that he does not show the deed to the beit din, nevertheless, in less than three years it still stands in the chazakah of its first owners. After this, since he did not make a machah, he lost his chazakah. And specifically when he held a chazakah properly as will be explained; but when he did not hold it properly, it still stands in the domain of the first owner, and he did not concern himself to protest since he saw that he was not holding it properly and was not using it like a person who uses his own, it is recognizable that he does not intend to say that it is his, and why should he protest? And as long as he did not hold it properly, it is not a chazakah even when it is known that he sold him land, only that it is not known that it is this one that he held; the seller can take this land and say to him that he sold him other land worse than this, for since he did not use it properly, there is a flaw in his chazakah as has been written. Therefore, there are some of the Rishonim who wrote that a chazakah of three years is only against one who claims regarding the body of the land, but one who has in the land only a lien for a debt or a ketubah, a chazakah does not avail in this, and he can collect the debt or the ketubah from the buyer even though the buyer held it for three years. And he cannot say: "Why did you not make a machah against me?" because he can say: "I did not concern myself to protest since the land is not mine, and perhaps I will find to collect from another place" [Sma].

How is the chazakah? That he should use it and benefit from it for three years from day to day, each thing according to its benefit and its usage, in the manner that owners use their own. Therefore, regarding the chazakah of a house, he does not need to bring proof that he used all the rooms in the house; rather, if he used it in the manner of owners, he has established a chazakah in the entire house, and similarly with other things. In a house, he must bring witnesses that he lived in it or rented it to others for three consecutive years, and once he has brought witnesses to this, it is a chazakah. Even those renters can testify to this, but only in a case where they have not yet paid the rent to the holder of the chazakah and the rent is in their hands to give to whoever prevails in the law. But if they already paid the holder of the chazakah, they are like interested parties who desire to maintain him in the house, for if the house leaves his possession, they will need to pay the rent a second time to the claimant, and they would need to claim it from the holder of the chazakah, and sometimes he does not have it [Tur]. Therefore, even if they gave the rent to the holder of the chazakah, the holder of the chazakah can return it to them so that they may give it to whoever prevails in the law, and then they are not interested parties. And although there is one who disagrees even in this and holds that even this is considered like interested parties—for it can be said that because of the favor he does for them by returning the rent so that they will not need to litigate with him, they cannot be emboldened against him—the halakhah is not so [Shach], and their status is only like a friend, and a friend is fit for testimony.

And if the renters do not dwell in it now, but rather they already dwelt in it for three years and departed from it, if the challenger does not know that they dwelt in it except by their own word, even if they gave the rent to the possessor, they are not interested parties in the testimony; by the power of a migo, for if they wanted they could say "we never dwelt in it," they are believed to say "we dwelt and we paid." And there are those who disagree on this and hold that this is not a good migo, for they are afraid that the matter will become known without them—that they dwelt in it—as it is a matter that is likely to be revealed, and the challenger would claim the rent of the house from them, and therefore they want to establish it in the possession of the possessor [Shach and Taz]. Furthermore, regarding two witnesses we do not say migo [Taz]. And even though we say "if he wanted he could remain silent" as I wrote in the rules of migo, nevertheless they are also afraid to remain silent lest it become known that they dwelt in it. Furthermore, this is not a migo at all, for migo is only relevant when the beit din asks them something and they respond—one must see if they are believed in their words by power of a migo that they could have said "we knew nothing at all of this matter." But witnesses who came on their own to testify, and according to their testimony they are as interested parties in the matter and are disqualified for this testimony, how can we believe them with a migo that they would not have testified? Behold, they desire to testify, and we do not say such a migo [this is the intention of the Tur]. And even though they had the ability to testify that others dwelt in it [Beit Yosef], this they certainly fear to say so that their falsehood would not be discovered. And if the challenger knows that they dwelt in it, even according to the first opinion they are not believed. And even if the challenger does not have witnesses that they dwelt in it and they could have denied him, nevertheless, since if they denied him they would require an oath, and witnesses who require an oath are not witnesses [Shach].

Some say that the testimony of renters is only effective when they rented with a deed, which has a public profile, but if they rented without a deed, it is not effective. And even though regarding one who purchases from a possessor, when he lived there for three years it is effective even without a deed, as written in siman 144, nevertheless, regarding renters who do not come to establish possession for themselves but rather they are witnesses, and specifically two are required since there is no testimony with fewer than two, and since they require joinder, it is not effective without a deed, just as with three purchasers as will be explained there [Bach]. Furthermore, the protester can say, "I did not concern myself with protesting because I knew that the renters are upright people and would not rob me, and I did not know that they rented from this possessor since they have no deed" [Sma]. And some say that the law of renters is like the law of purchasers, and if they lived there for three years, they do not need a deed, and if three renters lived there year after year, they need a deed [Tur in the name of the Rashba]. And some say it is superior to purchasers, for even if he rented to three pairs of renters one after another, all of them without a deed join together, because since regarding renters the name of the lessor is always called upon them, it is as if the lessor himself possessed it all three years [Tur]. And specifically two renters in each year, for regarding each year two witnesses are required. And the testimony of renters is effective even if both did not live there together, but rather this one lived there the first, second, and third year, and this one lived there the fourth, fifth, and sixth year; and even six renters, one in each year, the chazakah is established for him, for we hold that testimony for monetary matters joins together, as written in siman 30, and there are two witnesses for each year of the years of chazakah and the years join together. And when this one lived there in years 1, 2, 3 and this one in 4, 5, 6, we do not require a deed even according to the second opinion we explained, since each one lived there for three years [Sma]. And regarding six renters, a deed is not required except according to the final opinion.

That which we explained, that when the renters paid the rent to the possessor they are not witnesses in the matter, this is specifically when the protestor has already come and protested against the possessor. However, before the protestor has come, the possessor can bring the renters to beit din so that they may testify that they rented from him, even after they paid their rent to him, and the beit din accepts their testimony so that there shall be no protest against the house. And they are not like those with a personal interest in the testimony since the protestor is not before us. And even though we do not accept testimony not in the presence of the litigant, nevertheless, since they are currently fit for testimony and when the protestor comes they will be disqualified, we accept it not in his presence. And it is no worse than if the witnesses were urgent to go to a province overseas, where we accept it not in the presence of the litigant, as is written in siman 28, and all the more so in a case such as this. Furthermore, since for the time being there is no protestor here, it is not relevant to say "not in the presence of the litigant," for there is no litigant here other than the possessor who brings them so that he may be calm and quiet in his purchase. And it appears to me that if a rumor went out that there is a protestor, even though he is not yet before us, we do not accept their testimony when they have paid the rent. And even if they have not paid the rent, there is reason to doubt whether we accept it not in the presence of the protestor.

Even if he did not rent out the house for payment but rather lent it for free, it is also a chazaka for the lender. For even though the holder has not yet benefited from the produce of the house, nevertheless, since they lived in it by his power, this is the benefit of its produce, and he is called the holder of the house. However, in this case, other witnesses are required to testify, for they themselves are not witnesses at all, as it is obvious that they are interested parties in the matter; for if the claimant wins, he will surely demand rent from them. And it appears to me that even if there is no claimant here yet, we do not accept their own testimony, for since they lived there for free, they are somewhat like litigants in the matter.

Even though we explained in section 6 that when he brought witnesses that he used it for three consecutive years in the manner that owners use their own it is a chazakah, nevertheless, if the claimant claims, "I know that he dwelt there only by day and not by nights, and therefore I did not concern myself to protest because I saw that he was not possessing it as his own," his claim is a valid claim. The possessor must bring witnesses who will testify explicitly also regarding the nights, for since the house is in the chazakah of the claimant, anything he claims against the possessor, even a weak claim, the possessor must clarify. And the possessor has the ability to clarify this by means of neighbors who will testify that they did not sense him leaving at night, but rather "we saw him according to the way of the world, that he entered in the evening and left in the morning," and it is impossible that if he were leaving at night his neighbors would not sense him. And even so, if the claimant adds to claim, "I saw him leave the house at nights after the neighbors slept," it is not a chazakah unless the neighbors testify explicitly that they know he dwelt there all the nights in their entirety, or he brings witnesses who say, "we rented the house from him and we dwelt in it days and nights," and in a manner that they are fit for testimony according to what has been explained. And all this is when the claimant claims such claims, but we do not claim for him when he does not claim for himself. However, for orphans or not in his presence, even beit din claims on behalf of the claimant the claim of the nights, but not the claim that he left every night after the neighbors slept, for that is a matter that is not common at all [Netivot HaMishpat]. And so too, if the claimant was of the people whose work is not in the city, and so too if he was a peddler who goes around in the towns and the like, even though he did not claim "it is clear to me that he did not dwell in it days and nights," we claim for him. And also the claim that perhaps he left in the middle of the night, for we fear that he watched for the time the claimant came to his house so that he would not find him there [Taz]. And according to the Rambam, even if the claimant only claimed a claim of "perhaps," saying that he came several times to his house and did not find that he dwelt in it, and "perhaps because he left from there at nights," and even though it is possible that he left then for his business, nevertheless "I did not concern myself to protest" [Shach], his claim is a valid claim and he must bring witnesses that he dwelt in it day and night. And even if the claimant's work is in the city, and so too if the possessor was of the people whose work is not in the city, like a peddler who goes around in the towns, or that the renters were of the peddlers who go around in the towns, even though the claimant did not claim, we claim for him and say to the possessor: "Bring witnesses that you possessed, or those who rented from you, by day and by night for three years." However, this is not relevant except when the possessor is alone, and so too his renters; but when there are members of the household with them, such as his wife and his children, this claim is nullified, for even if he is not in his house always, his household members remain there [it appears to me].

All of this is the approach of the Rambam in the twelfth chapter of To'en and the Rashbam [at the beginning of the third chapter of Bava Batra]. However, Rabbenu Tam and the Rosh there disagree with all of this; rather, as long as witnesses or neighbors testified that he dwelt there according to the custom that people are accustomed to knowing—even though the neighbors sometimes went out from the city for their business and did not know if the possessor remained in the house while they were not in the city, but they testify that when they left the city they left him in the house and when they came they found him in the house—it is a chazakah. And if the possessor said to the neighbors, "Testify for me generally that I dwelt in it for three years with a chazakah of days and nights," even though they do not know that he dwelt in it all the days and all the nights, but rather they saw that he dwelt in it some days and some nights whenever they saw, his claim is a claim and their testimony is sufficient if they testify according to his words. And even if the challenger claims, "I am certain that he did not dwell in it during the nights," for the general rule of the matter is that the neighbors or the witnesses [Shach] do not need to testify about all the days and all the nights, and it is enough when they say that at all times they were in the house they saw the possessor exiting and entering his house by day and by night, even though we did not see every day, for this is among the impossibilities to clarify. However, if the possessor did not claim that the witnesses or neighbors should come and testify for me generally as I wrote, and also the neighbors do not testify so of their own accord, the beit din does not claim on his behalf since the challenger claims with certainty that he did not dwell in it during the nights [Sma]. And even if the witnesses or the neighbors were peddlers who travel around the towns, who are not in their homes for many days, nevertheless their testimony is effective that at all times they were in their homes they saw him exiting and entering this house. And on the contrary, if they were peddlers it is even better, for the beit din claims for him on his behalf because regarding peddlers we fear that they will not claim so of their own accord because they believe their testimony will not be effective [ibid.]. And there are those who cast doubt on the testimony of peddlers [Urim VeTummim]. And so too if the renters dwelling in the house were peddlers, even though they went out many times for their business and did not dwell there for three consecutive years, nevertheless since it was for three years in their possession and at all times they came to the city they dwelt only in this house, it is a chazakah. And the same applies to any other possessor who went out sometimes from the house after his business and immediately when he came he would return to the house, it is called a chazakah of three years. And our teacher, the Rema, decided in favor of this opinion, and so ruled the great Acharonim, although there are those who disagree on the matter.

Therefore, regarding the chazakah of seats in a beit knesset, if witnesses testify that he sat in this place every time he entered the beit knesset, even though sometimes he did not come to the beit knesset at all or he changed his place due to mourning, it is a chazakah since he acted with his chazakah according to the custom of the world. This is even according to the opinion of the Rambam and the Rashbam, for it is impossible for there to be a chazakah in a beit knesset in any other manner [it appears to me]. Our teacher, the Rema, wrote that regarding seats in a beit knesset where the custom is that everyone writes his name upon it, it is like a deed, and anyone whose name is upon it, it is his, and the challenger has nothing in it. Thus far his words. This is specifically in places where they are not particular that everyone sit in his specific designated place, but rather they sit once in this place and once in that place, and the sign of the chazakah of the place is only by the writing of his name on the place. However, when they are particular for everyone to sit only in his place at the time of prayer, the writing is not proof when he did not sit in that place; on the contrary, his chazakah is weakened since he did not sit upon it [Urim VeTumim]. And if the one holding the chazakah was not in the city for the three years, certainly the writing is proof [it appears to me].

Some say that if the challenger also lived in this house, even if his dwelling was separate in inner rooms and the possessor lived in the outer ones, if the challenger always passed through the outer rooms, the possessor has no chazakah in the outer rooms. And even though it is possible that he sold him the outer rooms on the condition that he would have a right of way through them, nevertheless, it is upon the possessor to clarify his chazakah so that there is no doubt when there is a challenge against it [Taz]. And even if there are rooms on the side that he did not pass through, nevertheless, since the possessor claims that he held chazakah in all the outer rooms, and since the challenger passed through one room, it is like a protest and more than a protest, since he never held chazakah alone, and it nullifies the entire chazakah [Netivot HaMishpat]. Therefore, if it was known that the challenger lived in the inner room of the house and claims that he would pass through the outer house, and therefore he did not protest against the possessor in the outer house, even though the inner room has another way out that is not through the outer room and we do not know at all if he passed through the outer one, nevertheless, his claim is a valid claim, and the possessor must bring proof that he did not pass through the outer one. And some say that passing through it does not nullify the chazakah unless he also used them occasionally [Rashbam]. And some say further that even passing through with usage does not nullify the chazakah unless the challenger claims, "When I wanted, I would use the entire outer house and you had to move aside for me, and you only held chazakah in the outer house when it was not needed by me." And in this, even if he held chazakah in the inner rooms, since the challenger claims that he occasionally used them and the possessor was moved aside for him, the possessor must clarify his chazakah.

From what has been explained, we have learned that if Reuven and Shimon dwell in one house for many years, and Reuven has a chazakah of his ancestors in the house or a bill of sale, Shimon is unable to claim that they are partners in the house based on the proof that both of them dwell in it, for this is no chazakah at all unless Shimon has specific rooms that he uses alone and Reuven has no right of passage over him even in one of them. However, if Reuven also does not have a clarified chazakah, the house is in the chazakah of both of them, and similarly regarding other types of chazakah.

Our teachers wrote in the Shulchan Aruch: The shops of merchants and the like, in which they do not dwell except by day, since he held them for three years by day, this is a chazakah. And some say that we require that he held them for six years by day. Thus far their words. And they are not similar to peddlers or traders who leave the house at various times, and nevertheless it is a chazakah in three years, for there the time of their absence is not known or fixed, which is not the case with shops, where the time of their absence at night is known [Tur]. And it is not similar to seats in a beit knesset, where their chazakah is only during the time of prayer and three years is sufficient, for there no other use is relevant, and this is the consumption of their fruits for three years; which is not the case with shops, for the name "room" is upon it and it is fit to dwell in day and night, and therefore he must complete it also for the nights [Sma]. And some distinguish that if it was already a shop, a chazakah of three years is sufficient, but if it was previously a house and he made it into a shop, he must hold it for six years by day, for since if he had not made it a shop they would have dwelt in it day and night, he must complete it also for the nights [ibid.]. Our teacher, the Rema, decided according to this opinion. And know that our shops, which are only made to sit in them with merchandise and not to dwell in them, according to all opinions three years is sufficient, as with seats in a beit knesset. And the poskim are dealing with shops that are in houses, in which they also dwell if they wish [and if you examine closely, the poskim do not disagree on the law, but only in the explanation of the Gemara; see Tosafot Bava Batra 29b, s.v. "u-modeh," and examine closely].

Our teachers, the authors of the Shulchan Aruch, wrote: If one was stationing an animal in a specific place in the courtyard of his fellow, or was raising chickens there, or stationing there an oven, a stove, or a mill, or if he placed his fertilizer there—whether he erected a partition there or did not erect one—if he made use of these things and the like for three years and claimed against the owner of the courtyard, saying, "You gave me this place" or "You sold it to me," this is a chazakah. And even if he had a portion in the courtyard in partnership, if it is a place where it is their way to be particular about this, or if they did other things that it is the way to be particular about and they were not particular with him, it is a chazakah for that which he held. Thus far their words. And the explanation of the matters is that in the courtyard of his fellow, there is no difference between a partition and merely stationing, and we require a chazakah of three years with a claim; without this, it is not effective even if he made a partition, for we say he stationed it by way of a loan for a period of time, since the one holding it wants to hold the body of the land forever for this use, and therefore we require chazakah and a claim. But in a courtyard of partners, it is the opposite: when he erected a partition, it is a chazakah immediately, for it is the way of partners to be particular about a partition, and since he remained silent, he certainly waived his rights. And there is no need for a claim that he purchased it from him or that he gave it to him as a gift, for behold, he is not coming for the body of the land but only for the use, and with silence it is a waiver immediately. And if the partner also claims regarding the body of the land that he purchased it absolutely from his partner, he certainly requires three years and a claim, in the manner that will be explained in siman 149. And if even in the courtyard of his fellow he does not claim regarding the body of the land but only regarding the use and based on a claim of waiver, whether he requires three years is subject to a dispute of the poskim, and it will be explained in siman 153 [Sma]. And the chazakot practiced by virtue of enactment will be explained in siman 156 and at the end of siman 175 with the help of Heaven.