Siman 143

It has already been explained in siman 140 that the reason for a chazakah of three years is because the Sages, of blessed memory, said that a person is careful with his deed for up to three years. Therefore, before three years, even if the protestor did not make a protest, and even if he held possession in the presence of the protestor when they were both in one city, it is not a chazakah. This is because we say to the possessor: "Produce your deed." And even if he clarifies that all his papers were burned, there is no chazakah in less than three years, because there are people who do not object when others use their property for up to three years. However, after three years, even if the protestor was in a distant place, since he did not make a protest, he has lost his claim. Even if he was in another country, provided that caravans are common from the place of the possessor to the place where the protestor is, for if he had protested, it would have reached the ears of the possessor, as "your friend has a friend," and he would have been careful with his deed. But if there was war and disruption of the roads between this place and that place, it is not a chazakah, for what benefit would the protest provide since it would not reach the ears of the possessor? Similarly, in a place where one must protest and he made a protest, even if it became clearly known that the protest did not reach the ears of the possessor, nevertheless, it is not a chazakah. And even though [one might ask] what was the possessor to do, for behold, three years passed and the protest did not reach his ears? And similarly, when the protestor was in a place where a protest would not be effective, and he [the possessor] did not know of this so that he would be careful with his deed, why should he not remain in his chazakah since a person is not careful with his deed for more than three years? However, the essence of the matter is this: the chazakah is not completed merely by the fact that it was in his hand for three years and it is impossible for him to be careful with his deed, for this alone is not sufficient to establish the land in his hand. Since the land stands in the chazakah of its owners, the protestor, by what means shall this possessor merit it without proof? Therefore, if the protestor was able to protest and did not protest, this itself is complete proof for the chazakah of the possessor, and he did not preserve the deed after three years. But when he was in a place where a protest is not effective, or he protested and it did not reach the ears of the possessor, granted that we find no fault in the lack of preservation of the deed by the possessor since three years passed, but in any case, he has no proof by which to merit the land [see Ramban, chapter 3 of Bava Batra, and Ketzot HaChoshen siman 140].

When the claimant was in a place where a protest is not effective, even if there are witnesses that the claimant came on a market day to the place of the possessor and stayed here thirty days, and even if the thirty days were at the end of the three years in a manner that if he does not protest now there will be no more time to protest, nevertheless it is not a chazakah. This is because the claimant can say that all those thirty days that I was here, I was busy in the market and did not know that you were possessing my house. This applies specifically when this claimant had another house in that city where he would lodge when he came for the market day, and therefore he can say that all the years I was at a distance where caravans are not common, the possession did not reach my ears; for just as it is possible that a protest would not reach the ears of the possessor, so too the possession did not reach the ears of the claimant. And when I was here for the market day and lodged in the other house, I was busy and did not know of the possession at all. And all the more so if it was a chazakah of a field, for it is certainly probable that he did not know at all [Rashbam 30a, s.v. Amar Lei and the Rosh ibid.; and what the Tosafot wrote on 38a, s.v. Mechaah, their intention is that it is possible that the possession is heard]. However, there is one who says that this rule of market preoccupation applies only to the markets of villages where the people are busy in their markets, but in the markets of cities and metropolises there is no claim of preoccupation at all, for there the world is spacious and they are not so crowded, and the preoccupation is not so great that he would not become aware of the possession. And this is specifically when he was here at the end of the three years; but if he was at their beginning or in their middle and did not protest, it is not a chazakah, because the claimant can say that when I was here I did not concern myself with protesting because I still had time until the completion of the three years, and afterwards I was settled at a distance where caravans are not common and I was unable to return. And our teacher, the Rema, wrote likewise, that everything follows the end of the three years: that if he was at their beginning in a place where he cannot protest and at the end in a place where he can protest, it is a chazakah; and if he was at their beginning in a place where he can protest and went to a place where he cannot protest, it is not a chazakah, for regarding the fact that he did not protest at the beginning, it can be said that he relied on protesting at the end and returning, but it did not happen for him. Thus far his words.

All these matters are only stated when it is known that the protestor was not in a province where caravans frequently travel from one to the other. However, if it is not known, we do not listen to him regarding what he said—that he was not here—and the possessor does not even need an oath [Taz] until the protestor clarifies this with witnesses. For since this person held possession peacefully for three years, and the possession is heard of from afar, it is upon him to clarify that he was in a place where the protest could not be heard; and if not so, it is a deficient claim and he must bring proof. But when the possessor says, "I purchased it from you here on such-and-such a day at such-and-such an hour," and the protestor says, "I was not here at all on that day," it is upon the possessor to bring proof, and it will be explained in siman 146, section 13, because this is a plausible claim to say that he was in another place, and such is the way of people. But to say that he was in a place so distant that the protest is not heard is a deficient claim [it appears to me, and it is well, so that the Tur and Shulchan Aruch do not contradict what was written in siman 146, section 11; and see Tumim].

If the challenger fled due to a danger to life, one does not establish a chazaka in his properties, even if he fled to a nearby place, because he is afraid to make a protest so that his location will not become known and they will pursue him. However, if he fled due to a monetary matter, one establishes a chazaka in his properties, for he is not so afraid. And likewise, there is one who says that one does not establish a chazaka in the properties of captives, nor in the properties of "retushim," and these are people who left their place and went to distant lands due to hardship [it appears to me], and no man knows where they are; nor in the properties of shoteh-fools. For in all of these, a protest is not applicable, and they do not know who is holding their property, for their suffering is great, and for the most part they are at a great distance where the chazaka is not heard. And everything is according to the assessment of the beit din, and all the more so now that the speed of travel in the world has increased, they must understand well a place where the chazaka and the protest are heard and a place where they are not heard.