Siman 145

Witnesses of chazaka where one testified that he consumed wheat and the second testified that he consumed barley—this is not a contradiction, because between wheat and barley when they are in their stalks, error is common. However, if one says wheat or barley and the second said legumes, they do not combine [Tur], for in this people do not err; and such is the primary ruling, and not like the one who disagrees in this [Shach]. And if one says "I did not scrutinize to see," they combine his testimony. And so too the opposite regarding wheat and barley: if this one says "I scrutinized well and it was wheat" and this one says "I scrutinized well and it was barley," their testimony is void [it appears to me, and there is proof from what is written in the rules of migo, letter 13].

If there was a contradiction between them regarding the time of the chazakah, such as when one says he consumed the first, third, and fifth years, and the other says the second, fourth, and sixth, they do not combine even if they did not explicitly contradict one another [Tur], but rather this one saw him in years 1, 3, 5 and this one saw him in years 2, 4, 6. For if it is a place where they do not let the land lie fallow, behold, not one of them testified to three consecutive years. And if it is a place where they do let the land lie fallow, it is also not a chazakah, for it is known from them that he sowed it consecutively, and it is not a chazakah according to the second opinion in siman 141, section 3; but according to the first opinion there, it is a chazakah [it appears to me]. And according to the second opinion, he must also pay for the produce of all the six years he consumed [Sma]. And even though there is only one witness regarding the produce, nevertheless, since it is not a chazakah, behold, he must swear to contradict the witness, and he does not contradict him, and he has the law of "since he cannot swear, he pays," as written in siman 75. But when they contradict one another, where this one says he consumed years 1, 3, 5 and not 2, 4, 6, and this one says 2, 4, 6 and not 1, 3, 5, it is not a chazakah, but he does not need to pay for the produce since they contradict one another. And when one says he consumed years 1, 2, 3 and the second says 4, 5, 6, if they contradict one another, it is not a chazakah and he returns the land but not the produce. And if they do not contradict one another, it is a chazakah if it is a place where they do not let the land lie fallow; and if it is a place where they do let the land lie fallow, it depends on the two opinions there. And if one says years 1, 2, 3 and the second says 3, 4, 5 or 2, 3, 4, and they contradict one another regarding one or two years but are identical in part, it is not a chazakah, and he shall pay for the produce for the years in which they do not contradict one another [it appears to me].

If two witnesses testified regarding the first year and they do not know more, and two testified regarding the second year, and two regarding the third year, it is a chazakah [Bava Batra 56b]. This is not considered "half-testimony" like the case of two hairs that was explained in siman 30, where it is not valid testimony because there they were capable of seeing the entire testimony at once; however, regarding a chazakah, it is impossible to see all three years at one time, and of necessity they must be seen separately, and therefore they join one another [Rashbam ibid.]. Furthermore, there the half-testimony is nothing, but regarding a chazakah there is substance to the witnesses of each individual year, for by their testimony alone they extract the produce he consumed if there are no witnesses for all three years [Rif and Tosafot]. Therefore, when there are witnesses for all three years, they join one another. Similarly, three brothers join together for this testimony; when each one testifies regarding one year and another person is with them who testifies regarding all three years, the chazakah is established for him. Even though relatives are disqualified from testifying together, nevertheless they join together because each year is a testimony unto itself, and only automatically is the chazakah clarified.

If he did not find witnesses except for two years, not only is it not a chazakah, but he must also return the fruits he consumed based on the witnesses. This is not a matter of wonder that the witnesses he brought for his benefit would cause him to be liable based on their words, for it is certainly so, as the witnesses do not testify that the field is his, but rather that they saw him working it and consuming its fruits. Consequently, since he did not maintain possession for the years of chazakah, it remains in the domain of the claimant, and he must return the land and the fruits. We appraise for him as one who descended without permission if he planted or built, as written in siman 375. Whether two witnesses testify regarding the years or whether one witness testifies regarding them, he must return the fruits when the claimant demands the fruits, because he is obligated in an oath to contradict the witness and he is unable to swear, for in this the witness does not contradict him, and anyone obligated in an oath who is unable to swear must pay. However, the fruits of the third year he does not need to return, for in any case: if we believe him that he consumed it, we would grant him possession of the land. And if there are no witnesses at all and he says "the field is mine and I consumed the fruits for two years," whether he must return the fruits even based on his own words, there is a dispute in this, whether we say migo that if he wanted he could have said "I did not consume," he is also believed to say "I consumed and I consumed my own," or not. And the main point is that he does not need to pay [Acharonim]. And similarly, if he brought one witness that he consumed it for three years, he returns the land and not the fruits, for if we believe the witness we would have to grant him possession of the land since he testifies regarding three years. And it goes without saying when there are no witnesses at all regarding the consumption of the fruits and the possessor says that he consumed them for three years, that he returns the land and not the fruits for this reason. And regarding the possessor himself, even when he says that he consumed it for two years, he does not need to return the fruits for the reason of migo, as has been written.

When he returns the land and the fruits, the claimant shall swear a shevuat hesset that he did not sell and did not give him anything. And in all those cases where he returns the land but not the fruits, the claimant shall swear and the land shall return to him, and the possessor shall swear that he does not owe him anything from the fruits that he consumed and he shall be exempt. However, he shall not swear that he sold it to him, so that they do not explicitly contradict one another in the oath [Sma], and there is nothing that would compel us to this.

Anyone who is obligated to return the produce he consumed, if they were not known and the beit din is unable to estimate them—such as the fruit of a tree that is not known—since there is no certain claim here that he consumed such and such, he shall pay what he admits to, and they impose a kabbalah upon anyone who consumed more and does not pay. And if he claims with certainty that he consumed such and such, the possessor shall swear a shevuat hesset. And anyone who returns land from his possession, if he rented it to another while he possessed it and the renter is available, they extract the rental fees from him a second time and give them to the owner of the land, and he in turn sues the one who rented to him a thing that was not his and took rent from him through theft. And even if the time has already passed, nevertheless, since the matter is known, he must pay the owners.

When there are no witnesses to the three years, we command the possessor to return the land to the claimant, even when the claimant says that he consumed its produce for three years or more. And one should not wonder: is it not so that the admission of a litigant is like a hundred witnesses, and let his admission be as if witnesses testified to three years, and why should we remove it from the possessor when the claimant did not make a protest? For the reason is because the claimant merits via a migo, for he could have said that he did not consume its produce for three years. And even though he desires to also extract the produce, nevertheless regarding the land it is a good migo, and regarding the produce he knows that through his own words he will not extract it. And this is not a migo to extract, for land remains in the possession of its owners [Urim VeTumim]. Furthermore, in every place where we say the admission of a litigant is like a hundred witnesses, this refers to a complete admission; but this one who admitted that he consumed its produce for three years, on the contrary, said that he consumed it through robbery. And that which we establish in the possession of the possessor when there are witnesses to three years is a mere estimation, and behold, if witnesses were to testify that he consumed its produce for three years and it is stolen in his hand, we would remove it from him, and behold the claimant also claims so. Furthermore, we have already explained in siman 143 that the chazakah is not by virtue of the three years, for he still has nothing with which to merit, and the essence of the chazakah is because he did not protest against him; and since there are no witnesses here, the claimant can say: I did not need to protest since I knew that he has no witnesses for all three years, and consequently the chazakah is nothing [it appears to me]. Therefore, even when the possessor swears regarding the produce as I wrote in section 5, he must swear regarding all the years that he owes him nothing, for his consumption is not a chazakah.

One should be in doubt regarding three groups of witnesses for the three years, if there is a contradiction in one of the groups testifying about one year, where one says wheat and one says barley, whether it is not a contradicted testimony. And even though in section 1 it was explained that this is not a contradicted testimony, that is because they testify about all three years and there is no practical difference in this regarding the chazakah, they are not precise between wheat and barley; but when they testify about one year, and based on their testimony alone the possessor is obligated to pay for the produce, it is as if they came to obligate him for what he ate, and it is like one saying he owes him wheat and one saying he owes him barley, which is contradicted [Urim VeTummim]. However, in truth this is not a contradicted testimony [Netivot HaMishpat], for the witnesses do not come to obligate him but rather to testify that it is his, only that according to the law it is not effective when there are no witnesses for the three years; and since in any case there are now three groups for all three years, it returns to being as if they themselves are testifying about all three years [it appears to me].