Siman 141

The three years that they mentioned are from day to day; even if they were missing one day, he has not established a chazakah, and we remove him from it. In what case does this apply? To things that produce fruit throughout all the days of the year, such as houses, courtyards, pits, ditches, caves, shops, inns, bathhouses, dovecotes, and their oil presses in which they produce oil all year, and irrigated fields—which are fields that they water by hand, as it is written, "and you watered it with your foot like a vegetable garden," and they constantly sow in them in warm countries all types of vegetables throughout all the days of the year—and likewise adult slaves. But a rain-watered field which drinks rainwater, and an orchard, and likewise our oil presses in which they produce oil from flax seeds and the like, and distilleries whose work is only during the winter time—their chazakah is not from day to day. Rather, once he has consumed three harvests of one species in three years, even though three years have not been completed, these are like three years. How so? If it was a field of palms and he harvested three harvests, or a field of grapes and he gathered three vintages, or a field of olives and he gathered three olive harvests, and likewise our fields and our orchards, such as a field of apples, plums, and cherries which grow only in the summer, and he took the fruits in three consecutive summer periods, these are like three full years and he has established a chazakah. And even though it was explained in siman 140 that the reason for a chazakah of three years is because until three years a person is careful with his deed, and if so, how is he believed to say before the completion of the years that he lost his deed? However, the preservation of the deed does not depend on three years, but rather on the consumption of the fruits of the three years; for since he consumed three fruits and the owner did not protest against him, he is confident that he will not protest further, and therefore he was not careful with his deed [Nimukei Yosef]. And some say that the sages specifically said three years from day to day for everything, and even in a rain-watered field and an orchard one specifically needs three years, for until three years he is careful with his deed [Rashbam 36b, s.v. "Zu"]. Our teacher, the Rema, wrote that so it appears proper to instruct.

The three years that they mentioned must be consecutive, one after the other. However, if he held the field and sowed it for a year and left it fallow for a year and did not sow it, even if he did so for many years, he has not established a chazakah. All the more so regarding houses and other things, that if he did not hold them consecutively, it is not a chazakah, because he did not use it in the manner that a person uses his own property, and therefore the protestor was not concerned to protest. Consequently, if the custom of that place is not to sow year after year—as in our country, where they sow one year and leave it fallow one year because the land does not have the strength to give its power year after year—this is a chazakah when he held it for six years, even though the three years that he consumed are scattered, since this is how every person acts with his own property. And even if there are some people who sow year after year, nevertheless, since the majority do not do so, it is a chazakah. And if he sowed it for three consecutive years in a place where everyone does not sow year after year, there is one who says that nevertheless it is a chazakah, for all the more so the protestor should have protested so that he would not ruin the field. And there is one who says that it is not a chazakah, for the protestor can say: You yourself showed that it is not yours, for you acted like a robber to steal and consume, for if it were yours, you would not have ruined it, and I was not concerned about its ruin since I do not derive my livelihood from it and I do not work it. And if he sowed it the first year and left it fallow in the second, and afterwards sowed it for two consecutive years, and the people of the place—some leave it fallow and some sow consecutively—he has no chazakah except for the two years. And if he did not sow it for three consecutive years or three scattered years, he has no chazakah [it appears to me].

If he plowed it year after year and did not sow it at all, even if he did so for several years, it is nothing; for since he did not derive benefit from it, it is not a chazakah. And similarly, if he opened water channels in it, plowed it, and leveled it after the plowing, since he did not eat its fruit, it is not a chazakah, for why should he have protested since he did not derive benefit from it? On the contrary, he improved the field. And even if he sowed it but did not profit from it at all—such as if he sowed a kor and gathered from it no more than a kor—this is not a chazakah, as he did not derive benefit from it. But if he profited from the grain itself, only that he spent expenses on it from elsewhere, such as taxes and the like, even though he did not profit thereby, this does not nullify the chazakah, for even the owners of a field sometimes do so, spending expenses from the side because their own grain is dear to them, as he sees a blessing in what he sowed. And similarly, if he plowed it and sowed it after the plowing, they count the three years for him from the time of the plowing, since he acted in the manner of owners. And there are those who disagree on this and hold that they only count from the time of sowing, but most of the poskim agreed with the first opinion [Tur]. And all this is when they saw him bringing in the produce, but when they did not see him bringing in the produce, even if they saw him plowing, reaping, binding sheaves, winnowing, and selecting, it is not a chazakah, for the essence of the chazakah is only in the gathering of the produce [ibid.]. And similarly, if a person built up the ruin of his fellow for three years, as long as he did not enter it, it is not a chazakah. And even if he built for a year and dwelt in it for two years, they do not count the year of building toward the years of chazakah. And even though in a field they count the year of plowing according to most poskim, this is because in all fields one is forced to plow before sowing, but in houses they only count from the time he dwelt in it. And similarly, if he improved the field with several improvements, it is not a chazakah when he did not sow it, since benefit did not reach the one holding it through these labors. And similarly, if he sowed it without plowing, some say it is not a chazakah, since he did not act in the manner of owners.

If the place he took possession of was a rock or flint that is not fit for sowing, he must derive benefit from it in a manner fit for such land, such as spreading out fruits there or standing animals there and the like. And if he did not derive benefit from it during that entire time in a manner fit to derive benefit from it, he has not established a chazakah. And land fit for sowing, one does not have a chazakah through spreading fruits or standing animals, but rather through sowing, for a field owner does not spread fruits in a place fit for sowing [as is implied in Bava Batra 29b; see there]. And even if he sowed the entire field and left a portion that he did not sow, he has established a chazakah in all of it except for that portion which he did not acquire, since he did not derive benefit from the portion. And even if that portion was a rock or flint, he should have spread fruits there and the like. In what case does this apply? When that portion was a significant place that is fit to be called by the name of a field, such as a place that holds a beit rova, where they could sow a rova of a kav of grain. But if it was less than a beit rova, it is nullified as part of the field and he acquires it even if it was fit for sowing.

A field that is surrounded by a fence, and this one who took possession of it came and sowed it outside of the fence and derived benefit there, even though he consumed its produce year after year, he has not established a chazaka. For in a place that is not guarded, the owners are not particular about this. And the same law applies to anyone who sows in a place that is not guarded, where wild animals are common, it is not a chazaka. However, if he also sowed inside the fence, he has acquired even what is outside the fence, since he sowed it or performed another use therein, and even if what is outside the fence has the dimensions of a field. But if he did not perform any use therein, he has not acquired it [it appears to me].

If the nature of the tree is to always shed its fruits before one gathers them, even if they now remained on the tree until they grew to their full requirement, it is not a chazakah. For since its nature is to always shed the fruits, they are not good fruits, as for the most part they are not fully ripened, and he was not particular about them and did not concern himself with protesting; for it is not a chazakah unless they are fruits that one gathers by hand. But with fruits that grow on the tree in their usual manner and a person gathers them, even if they do not produce fruit except once every three years—such as a species of white figs called benot shuach—and even though they are not so good, it is a chazakah. And not only that, but there are those who say that if he began the years of chazakah in the first year that they blossomed, and he locked and fenced for the three years and repaired the needs of the trees and ate the fruits in the third year, it is a chazakah, since it is the way of people to act thus. But fruits that fall from the trees on their own have no importance at all, and he did not concern himself with making a protest.

If he consumed the grain as fodder, while it had not yet grown a third of its growth, and they harvest it for animals, it is not a hazakah. This is specifically when he harvested it and it will not grow further once it has become a stalk; however, if he harvested it in its youth and it will grow further, and he harvested it as grain in its completion, it is a hazakah [Tur]. We calculate the time of the hazakah from the beginning of the growth, for such is the way to do so. And if the people of that place were accustomed to sow for fodder because they had many animals and the price of fodder was dear to them, this is a hazakah, since he acted according to the custom of that place; and even if he himself has no animals, he sells it for money. Likewise, if it came into his hand while it was still fodder, such as in the month of Sivan, and he consumed the grain of this summer, and likewise in the second summer and in the third summer, and at the completion of the three years in Sivan he consumed the fodder, this is a hazakah. And even though he rushed to consume it while it was still fodder and did not wait until the completion of its growth, nevertheless, since the three years were completed, he should have protested, and since he did not protest, he lost [Sma]. And even according to the latter opinion in section 1, that we require three full years, we do not say that we require all the grain that he prepared at the end of the third year even if it extends into the fourth; and certainly according to the first opinion there, his hazakah is completed at the beginning of the third year when the grain has grown and he consumed it, as there are three crops. And some say further that even if he only consumed the fodder of the first year when he took possession of the field, and afterwards he consumed two complete crops in two years, and at the completion of the third he also consumed the fodder that was there at that time, it is a hazakah; for even though the consumption of the first fodder is not in the calculation, nevertheless the fodder of the last one counts toward the calculation since the three years were then completed and he consumed what was there then [Taz]. And the main point is according to the first opinion.

Even if he consumed it in a forbidden manner, such as if he transgressed and sowed in the Sabbatical year in the Land of Israel, or sowed kilayim there, or consumed orlah, this is a valid chazakah, for in any event the protestor should have protested. And there are those who disagree and hold that it is not a chazakah, for he did not concern himself with protesting that which he did in a forbidden manner, and he did not establish a chazakah in the way that people establish a chazakah, unless he consumed the vine-trimmings or the like in a manner that does not involve a prohibition. And from this we have learned that even if the one holding the property is a wicked person, since he is not known as a robber, he has a chazakah; for even according to the second opinion, they invalidated the chazakah only because this is not considered "consumption," and not because he is a transgressor. For one who is a mumar regarding one matter is not a mumar regarding other matters, except for one who is a mumar for idolatry or for desecrating the Shabbat publicly, or one who acts provocatively even regarding one transgression, or if he is a Sadducee, or a min, or an apikores, for his law is like that of a mumar for the entire Torah.

In siman 216 it will be explained that one who sells one or two trees, the buyer does not have land; but if he sold three trees, he has land according to the need of the trees. Nevertheless, one who consumes all the fruit of a tree for three years and claims against the owner of the tree, "You sold me this tree and its land," he has the land in the thickness of the tree down to the abyss. Therefore, one who sells a single tree or two trees to his fellow must protest against him within every three years so that he does not establish a chazakah in the land. And if he established a chazakah in three trees, he has land according to the need of the trees even when he claims, "You sold to me without specification." Therefore, if he sold him three trees explicitly without land, he must of necessity make a protest constantly regarding the trees so that he does not establish a chazakah in them, or he must receive a document from the buyer that he has no land. The measure of land belonging to the trees will be explained there. And if he established a chazakah in an orchard where trees are planted throughout the entire field, the land belongs to the trees, and when he established a chazakah in the trees, he acquired all the land when the trees are planted in a proper arrangement; but if they are not planted in a proper arrangement, he only acquires the land necessary for the trees, as I have written there.

And how is the order? It was explained in the Rambam, chapter 3 of Shemittah, regarding the difference in Shevi'it between a grain field and an orchard field, that an orchard field is defined as when three mature trees are planted in every beit seah, and they are scattered throughout the beit seah, and there is a distance from one tree to another so that cattle can pass with their implements for the sake of the labor of the trees. And if the trees are young, which are still called saplings, there must be ten per beit seah, and they must be scattered throughout the beit seah. And if they are arranged in one row or surrounded like a crown, this is not an orchard field. And the measure of a beit seah is fifty cubits by fifty cubits. And the sages estimated this measure because this is the measure of the trees' nourishment from the ground when planted according to what has been explained. Therefore, if one established a chazakah in an orchard field planted according to this measure, he has acquired all the land. But if there are planted fewer than ten per beit seah, or mature trees fewer than three per beit seah, he has acquired only the land necessary for them, as this is not an orchard field. And if there are planted more than three mature trees or more than ten saplings per beit seah that are planted densely, even if they are planted within less than four cubits of one another, if he only ate all the trees, it is a chazakah and he has acquired all the land. And although there are those who disagree on this [Rashbam], nevertheless, such is the principle for the law, for regarding chazakah we do not care that they are dense, as he can uproot the extra ones from between them. And all this is when he ate all the trees, but if he did not eat all the trees, there is another law in this. How so? An orchard field that had thirty trees in three seahs, from a planting of ten per beit seah, and he ate ten in the first year, ten in the second year, and ten in the third, and of the ten he ate in each year, he ate three from this beit seah, three from the second beit seah, and three from the third, and the three in each beit seah were also scattered [Tur], he has acquired all the land that is in the three seahs along with all the trees. And specifically when the rest of the trees did not produce fruit, such as white figs that produce every three years, and the ten he ate in the first year had already budded two years prior, and those of the second budded a year prior, and those of the third budded in the first year of the chazakah. But if the rest of the trees produced fruit and he did not eat them, he has not established a chazakah except in what he ate, if he ate from one of the batei seah for three consecutive years. But if he did not eat except as has been explained, he must pay even for the fruit he ate, as written in siman 145 [Shach]. And some say that this is specifically when he himself ate some of the fruit and the public plundered the rest of the fruit, for since he allowed the plundering, it is evident that they are not his and this is not a chazakah. But if he left their fruit upon them, since he ate a tree from here and a tree from there from the entire field, he has established a chazakah in the entire field even though he did not gather all their fruit. And some disagree on this, that if they only produced fruit and he did not eat them, he has no chazakah [Tur]. And even if the rest of the trees did not produce fruit, this is specifically when they are planted ten per beit seah, but if they are planted in less than this measure and he ate them scattered, he has not established a chazakah in the land except for what is necessary for the trees. And some say that the same applies if they were planted more than ten per beit seah, since he did not eat all the trees, even though they did not produce fruit, this is not a chazakah for all the land but only for the land necessary for them. And some say that in such a case it is a chazakah unless a tree is not four cubits distant from its fellow, for then they are as if uprooted when he did not eat from all the trees, as I have written. And similarly with mature trees planted three per beit seah, and there were nine trees in the three seahs, and he ate one from a seah per year, and in the three years he ate three from the three seahs, this is not a chazakah at all even though the rest did not produce fruit. and it is not similar to thirty saplings, for even though in the essence of the matter three mature trees are equal to ten saplings, nevertheless, since he only ate one tree each year, it is not a chazakah. And such is the law in a single beit seah for all the matters that have been explained. And although some say that also with three mature trees the law in all matters is like ten saplings, we do not rule accordingly, and thus the Rosh, of blessed memory, decided.

As has been explained, just as when one established a chazakah in the trees he has acquired all the land, so too if he established a chazakah in the land he has acquired the trees. And if one established a chazakah in the trees and consumed their fruits, and another established a chazakah in the land and sowed it and consumed its produce, and each one claims "it is all mine and I purchased the land and the trees," the one who established a chazakah in the trees and consumed them for three years has the trees and the land necessary for them, which is the space of the fruit-gatherer and his basket outside of each and every tree, as was written in siman 216. And the one who established a chazakah in the land has the rest of the land; see there in siman 216.

The chazakah of three years, if one year was a leap year, one must maintain possession also during the intercalary month, for in every place where a year is mentioned, the intercalation is also included; and there is no distinction whether they knew that the year would be intercalated or not.