Siman 146

A protest nullifies the chazakah even if he protested not in the presence of the possessor, and even if he is in another country, provided that caravans are common between them, as was written in siman 143; provided that he protests in the presence of witnesses. It is sufficient if he protests in the presence of two, even if they are elderly or ill and unable to go and inform the possessor, because "your friend has a friend," and they will say the matter to others, and others to others, until the possessor hears. We do not require specifically kosher witnesses for this, for even in the presence of women, or slaves, or relatives, or those disqualified it is valid, as this is not testimony but merely a protest [it appears to me]. However, in the presence of a deaf-mute, an insane person, or a minor it is not effective, as they lack legal competence and their words are not heard at all, and a rumor will not spread through them. Even in the presence of one competent person and one deaf-mute, insane person, or minor, it is nothing [it appears to me].

There is no מחאה with fewer than two witnesses, but with one it is not a מחאה, for one does not generate a rumor. This is even if he protested in the presence of the possessor, and even if the possessor admits that he protested; for since he could have said "you did not protest against me," he is also believed to say "it is purchased in my hand," and he shall swear a שבועת היסת. And even though one witness would then have contradicted him, nevertheless it is considered a מיגו, since he would not have been liable for a שבועה דאורייתא, as there is no שבועה דאורייתא regarding land, as has been explained in siman 95. Therefore, even now that he does not contradict the witness regarding the מחאה but rather comes with a claim of purchase, we do not apply the rule of "since he cannot swear, he must pay," for we do not apply this rule regarding a rabbinic oath, as has been explained in siman 75. And there is one who disagrees regarding this and holds that even if there is no witness here at all, since he admits to the מחאה, he has lost his חזקה, for he should have been careful with his deed, and he has lost his מיגו, for in any event he should have been careful with the deed. And the first opinion holds that the possessor can say: since he did not protest in the presence of two, I thought he only intended to mock me, and therefore I was not careful with my deed [Sma].

Even if the witnesses before whom he protested say, "We did not relate the protest to any person," nevertheless it is a protest to nullify the chazakah, since he protested properly and relied upon them to tell his protest to others. For we have already explained in siman 143 that the essence of the chazakah is because the challenger did not make a protest, and since he made a protest, the chazakah of the possessor is not a chazakah without a deed. Furthermore, even if the challenger said to the witnesses before whom he protested, "Do not tell the possessor," or if the witnesses said of their own accord, "We will not tell him," it is a protest. Since he only said that they should not tell him, it implies that they may tell others, and automatically they will tell others, and others to others, until it reaches the ears of the possessor. And even if they said, "We will not let this matter leave our mouths," it is a protest, for regarding a matter that is not a person's responsibility, where the matter does not concern him and he is not warned by the interested party, he speaks before others and does not pay attention to what he said, "I will not let this matter leave my mouth." Therefore, if the challenger said to them, "This matter shall not leave your mouths," it is not a protest. And even if they transgressed and told the possessor that the challenger made a protest, since they told him that he said to them, "This shall not leave your mouths," he did not concern himself with this and was not careful with his deed [Shach]. And there is one who says that even if they did not tell him that the challenger commanded that they should not tell, it is also not a protest, since they told him a falsehood, for behold, his protest is not a protest at all since he commanded that they should not tell. But this is not clear, for while it is true that his protest is nothing, his chazakah is also nothing, for since in his opinion it was a protest, why was he not careful with his deed?

How is the wording of the מחאה? He says before two: "So-and-so who is using my house or my field is a robber, and I will sue him in a beit din." And likewise if he said to them: "It is rented in his hand" or "it is a mortgage, and if he claims against me that I sold it or gave it to him, I will sue him in a beit din," and similarly anything like this, this is a מחאה. But if he only said to them: "So-and-so who is using my courtyard or my house or my field is a robber," and did not conclude that he will sue him in a beit din, this is not a מחאה, for the one in possession says: "When I heard these words that he said, I said that his intention was only to insult me, and therefore I was not careful with my deed." And according to this opinion, the protestor must mention in what manner the one in possession holds it, whether by robbery, whether by rental, or whether by mortgage, and that he will sue him in a beit din. But some say that a lawsuit in a beit din is not an essential requirement of the מחאה; rather, once he said: "So-and-so is using my courtyard by robbery," or "So-and-so is a robber who is using my courtyard," or if he said: "It is rented in his hand" or "it is a mortgage," it is a מחאה. And that which they mentioned in the Gemara [Bava Batra 38b] regarding a lawsuit in a beit din is not an essential requirement, but rather that such is the way of people to say: "I will not remain silent and I will sue him in a beit din." And specifically when he only says: "So-and-so is a robber," this is not a מחאה, as it is merely lashon hara; but when he mentioned the matter, nothing more is necessary.

A protest is made before two, and those who hear it write the protest even though he did not command them to write, for it is a benefit for him so that the protest may be established through their writing as well if they are unable to testify. Furthermore, for the possessor, this is not a liability, for they do not harm him at all; on the contrary, if he has a deed in his hand, he will guard it when he hears the protest [Sma]. They shall write in the language of agency: "So-and-so testified before us regarding himself to write for him that he made a protest against the chazakah of so-and-so." And even though he did not command them to write, nevertheless, since he protested before them, presumably it was also his will that they write, but he was not aroused to command them to write. They should not write "we heard that he made a protest," for this is like testimony from their writing. And even though it has been explained that this is not complete testimony but merely a disclosure of the matter, and all the more so according to the approach of the Rishonim in siman 29 that written testimony is valid, nevertheless, whatever is in one's power to do so that it will be like complete testimony with total fitness is certainly proper to do. Therefore, post facto, if they wrote "we heard that he protested," they establish the protest from this writing. And although there is one who disagrees on this, nevertheless, such is the primary law [Urim VeTumim]. The witnesses of the protest join together even when he protested before each one individually [Shach].

Since he protested once before the completion of three years, he does not need to return and protest again in each and every year; he only needs to ensure that there are not three full years between one protest and another. For if three years passed after the first protest, the possessor is strengthened in his chazakah, as he can say: "Since he was silent for three years from the time of the protest, I thought that he retracted his first protest and I was no longer careful with my deed." In what case does this apply? When there was only a protest in mere speech from the challenger. But if he performed an action that is like a protest, such as if he sold it to another within three years of his chazakah, he never needs to protest again. Since he performed an action to sell it to another, the possessor must be careful with his deed until the matter is clarified in beit din. And even though the possessor is able to claim after a period of three years from his sale that he purchased it from this person to whom he sold it, nevertheless, the challenger does not need to worry about this, and the buyer truly needs to be careful in this and should inform the beit din or witnesses before the completion of three years from the time of his purchase from the challenger, or he should establish witnesses who will testify that this possessor held the land even before he purchased it from the challenger [it appears to me]. And similarly, they only required protesting at the end of every three years when that first possessor remained within it; but if the possessor sold it to another, he does not need to protest against the buyer, because this buyer only comes by power of the first possessor, and he already protested against the first. And this is specifically if he is certain regarding this buyer that he will not lie to claim that he purchased it from the challenger, or if the buyer admitted as much before witnesses; for if not so, he must protest so that the buyer does not claim that he purchased it from the challenger [Sma].

If he protested at the end of three years and returned and protested at the end of another three years: if he protested due to his first claim, his protest is a protest. But if he claims a different claim—for example, if in the first he said "it is stolen in his hand" and in the latter he said "it is a mashkanta in his hand"—his protest is void and this one stands in his chazakah, because he himself admitted that his first protest was a lie, and it is as if he did not make a protest at all. And there are those who say that this is specifically when he admitted in the latter that his first claim was a lie, but in an unspecified case we can say that previously it was stolen in the hand of the holder and afterwards he took it as a mashkanta in his hand [Ramah in the Tur]. And within the three years, even if he made several protests and changed from protest to protest, it is a protest in every case, for since he has a time of three years, he can choose for himself whichever claim he desires; and we do not say that he is established as a liar, for a person does not become a liar except by way of witnesses and not by way of himself [the Rosh]. And there are those who say that even within three years he cannot change from protest to protest [Rashbam 39b; Nimukei Yosef ibid.]. And the Rambam in chapter 11 of Toen omitted this law entirely, and I do not know why, for behold it is an explicit Baraita there [and perhaps he holds that Rava disagrees with this, since he did not say "the halacha is like the first Tanna" or "and so said Rava," but rather to exclude his Baraita, see there and examine closely].

A מחאה is only effective when it is known that the land belongs to the protestor and the matter is publicized. However, if this is not known, even if the truth is that it belongs to the protestor, it is not effective. For example, if the owner of the land gave this land as a gift to the protestor, but gave it in secret and not before witnesses, but rather with a document in his own handwriting, and it was not revealed to all that it is his, his מחאה is nothing. For the one in possession can say: I was not concerned at all by his מחאה since it was not known that the land was his, and I purchased it from the one who gave it to him, and from him I heard no מחאה, and therefore I was not careful with my document. Accordingly, when he desires that his מחאה be effective, he should bring his deed of gift to beit din and they shall verify it, and afterwards his מחאה will be effective [it appears to me]:

Even though it has been explained that the reason why there is no chazakah until three years is that we say to the possessor, "Produce your deed," for a person is careful with his deed for up to three years, and according to this we should have said that if the possessor claims, "My purchase was through money or through chazakah and not through a deed," his chazakah should be effective immediately; however, we do not find that the sages, of blessed memory, made a distinction in this. And the reason is that also the reason we explained in siman 140, that for up to three years a person is not meticulous, this too is true. Therefore, the protester does not have to make a protest before three years. And when he makes a protest and the possessor says that his purchase was through money or through chazakah, he must bring witnesses to this. And if the purchase was truly between him and the seller alone, he has caused his own loss, just as the protester loses through his protest if his acquisition is not known through witnesses as has been written; likewise, the possessor loses his chazakah if he has neither a deed nor witnesses [it appears to me].

Any chazakah that is not accompanied by a claim is not a chazakah. How so? Behold, one who consumed the produce of this field for several years, and the claimant came and said to him, "From where do you have this field?" and he replied to him, "I do not know whose it is, and since no one said anything to me, I descended into it"—this is not a chazakah, for behold, he does not claim that he purchased it, nor that he inherited it, nor that they gave it to him. Nevertheless, they do not remove it from his hand until this claimant brings witnesses or proof that it is his, for any property in a person's hand is not removed from his hand until it is clarified that it belongs to others [Darkhei Moshe]. For it is true that it does not belong to the possessor, but perhaps it also does not belong to the claimant and it is hefker, and the possessor acquired it. And if the claimant brought witnesses or proof, the field returns to him, and they remove from him all the produce that he consumed, and there is no need for an oath [Beit Yosef], since the possessor admits that he has no connection to it. And if the possessor retracted and claimed, "I had a deed and it was lost, and the reason I did not claim so initially was because I feared lest the claimant say to me, 'Show me the deed,'" they listen to him, and this is not a case of "claiming and retracting a claim," for in such a case he may retract and claim since this does not contradict his first claim [Rashbam 41a], since he explains his words. However, the beit din does not open with words for the possessor initially to say to him, "Perhaps you had a deed and it was lost," until he claims it of his own accord, for the beit din must not open by teaching a claim. And similarly, one who consumes the years of chazakah by virtue of having a deed in his hand, and the deed is found to be void due to some disqualification, his chazakah is void, and the field and its produce return to the owners.

One who comes by way of inheritance, who claims "I inherited it from my predecessor," does not require any other claim, except that he must bring proof that his predecessor dwelt in it or made use of it even one day. And since he consumed its produce for three years by way of his predecessor, we establish it in his hand, for we view the three years that he held it as if his predecessor held it, and we claim on behalf of the heir that his predecessor purchased it from this person. And the same law applies if his predecessor held it for three years, even if this person did not make use of it at all; since it is clarified that he is the heir and his predecessor consumed its produce for three years, the heir does not need to know in what manner it came into the hand of his predecessor, and we claim on his behalf that the predecessor purchased it from this challenger. But if he did not bring proof that his predecessor dwelt in it or made use of it at all, the field and its produce shall return to the challenger who has witnesses or proof that it is his. And even if the possessor brought witnesses that his predecessor was seen in the house, since they did not see him dwell in it, this is nothing, for perhaps he came only to visit it and did not purchase it. And if it was a field and he brought witnesses that his predecessor plowed it, this is considered a chazakah that he purchased it, for one who is not the owner of the field would not perform plowing. And so too, if it is known that this house or this field was held for some time as belonging to the predecessor, it is also a chazakah, for we do not specifically require that he dwell or work it, but rather that it be held as his. And it has already been explained in siman 144 that the time of the heir and the predecessor combine for the three years of chazakah. And so too, a purchaser does not require a claim other than proof that he purchased it from so-and-so, and that this so-and-so dwelt in it one day, and we count the three years that he held it as if the seller dwelt in it, and we claim on behalf of the purchaser that this person who sold it to him purchased it from the challenger. And the purchaser does not need to know in what manner it came into the hand of the one who sold it to him, just as with an heir. And so too, a creditor who collected land for his debt from the debtor, and a challenge emerged regarding the land, his law is like that of an heir; and since he brought proof that the debtor dwelt in it one day or made use of it, and he held it for three years, we claim on his behalf that his debtor purchased it from the challenger. And even if the seller or the debtor says now that the land was not theirs, they are not believed to abrogate the power of the purchaser or the lender. But before collection, he is believed to say that the land is not his when it is known that it belonged to another, and he is believed to say that it is rented in his hand from the other even if he held it for many years [Urim VeTumim]. And so too, we claim on behalf of a renter for the sake of the lessor when the lessor is not here, just as we claim for a purchaser and for an heir; and although there is one who disagrees on this, nevertheless, this is the primary ruling in halacha [Netivot HaMishpat].

A woman who held possession of her husband's land after his death, and a woman has no chazakah in her husband's property as written in siman 149, and afterwards her son, who is not the son of this husband, held possession for three years, and the husband's heirs came and said that this land belongs to the husband, and her son says that it fell to his mother for her ketubah—the son is believed with a migo, for if he wanted, he could have said "I purchased it from you" and he has consumed the years of chazakah. However, if he did not consume the years of chazakah such that he has no migo, even though his predecessor held possession for three years, it is nothing, for a woman has no chazakah in her husband's property. And that which we claim on behalf of an heir is specifically if the predecessor would have been believed in his chazakah if he had claimed "I purchased it from the challenger," but in a case where the predecessor himself would not have been believed, the power of the heir is no better than his predecessor. And so too with all those explained for whom we claim, such as a buyer or a creditor: if the seller or the borrower was among those who have no chazakah, such as a partner or a sharecropper, we do not claim for them either, unless they themselves held possession for the years of chazakah and they claim that they know clearly that the seller or borrower purchased it from the challenger, for then they are believed with a migo, as has been written. But when they have no migo, such as when the challenger has witnesses that they come through the power of the seller or borrower, and similarly the son comes through the power of his mother, they have no chazakah even if they held possession for the years of chazakah. And that which we said, that an heir who has no migo his chazakah is not a chazakah, this is specifically an heir and the like. But if the woman sold the land publicly and someone purchased it from her, we establish the land in the chazakah of the buyer when the woman held possession for the years of chazakah. And even though a woman has no chazakah in her husband's property, nevertheless, if the lands did not belong to the woman, the heirs would not have allowed the woman to sell publicly, and specifically when she held possession for the years of chazakah [Urim VeTumim]. And it appears to me that one should not learn from this law for other people who have no chazakah; specifically regarding a woman against heirs do we say that in such a case her chazakah is a chazakah regarding establishing the land in the hand of the buyer, because her power is weak and the power of the heirs is strong. But "give us what is ours and do not add to it" to learn from this for other matters. And so one of the great Acharonim agreed to this, though he arrived at the distinction for another reason [Netivot HaMishpat]. And although the wording of our teacher, the Rema, who wrote "and so too anything similar to this" is difficult, nevertheless it appears that such is the primary ruling in law.

If the claimant brought witnesses that this field is his, and the possessor claims, "I purchased it from you and I have consumed its produce for the years of chazakah," and the claimant argued and said, "How can you say that you purchased it from me three years ago today, when at that time I was not in the city?"—we require this possessor to bring proof that this claimant was with him in the city at the time he says he sold it to him, even for one day, so that it would be possible for him to sell. And if he did not bring proof, we remove him, for land stands in the chazakah of its original owners, and it is upon the possessor to bring proof, as the claimant's argument is a sound argument. And so is the matter common, that a person is not in his city, as was written in siman 143, section 3. And there is one who says that this requirement to bring proof is specifically when the possessor mentions to him the time that he sold it to him, such as when he says, "on such-and-such a day" or "such-and-such a month," for then he must bring proof that the claimant was here even one day of this time. But if he does not mention the time, but rather says, "I bought it from you before three years," he does not need to bring proof that he was here on the day he bought it. And even if the claimant says, "Say on which day you bought it," we do not require him to do so, for he can say, "I do not remember at what time the purchase occurred." And some say further that even when the possessor mentioned the time he bought it from him, he does not need to bring proof that he was here, for perhaps he sold it to him through a messenger. And even if he said, "I bought it from you yourself and not through a messenger," he is believed with a migo that he could have said he sold it through a messenger, unless it was then, before the three years at the time he says he bought it, a time of emergency when caravans were not common; for then he must bring proof. And even when he says he sold it through a messenger, he must bring proof who the messenger was, since at that time it was not the way of people to come here [see Sma, subsection 27]. But without this, he does not need to bring proof.

Behold, if one consumed the produce of this field for many years and a challenger came and said, "What are you doing with this field?" and he admitted to him and said, "I have known from before that it was yours, but so-and-so sold it to me and he told me that he purchased it from you," or "presumably he purchased it from you," and the challenger said to him, "So-and-so who sold it to you is a robber"—since the possessor admitted that it is known to him that it belonged to the challenger from before, and he did not purchase it from him, and also regarding whether the seller purchased it he does not know personally, the field shall return with all the produce to the challenger. And even if the challenger has no witnesses at all that it was his, since he himself admits it to him; for we do not say "we plead on behalf of the buyer" except when there are witnesses that the seller dwelt in it for one day, or even if the possessor were to say that he saw him dwell in it for one day [Shach], then we would view the years of chazakah that this one dwelt by his power as if he himself dwelt in it and we plead on his behalf. And likewise, if it was not known to the possessor that it belonged to the challenger except by the word of the seller, we would plead on his behalf, since it is not known to him that "it is yours" except by the word of the seller, and the seller, after all, says that he bought it from you [ibid.]. But since he himself knows that it was his, and that which the seller purchased from him is not known to him with certainty, a doubt of "perhaps he purchased it from him" does not come and remove from a certainty that it was his. And he has nothing with which to hold onto the land, for it is a chazakah that is not accompanied by a claim. And the possessor remains bald from here and from there, for also from the seller he cannot collect his money, as he will say to him: "You, with your many words, ruined it; and why did you have to say to him that it was known to you that it was his? You should not have answered him anything except 'I bought it from so-and-so,' and since he has no witnesses that it was his, he would not have been able to remove it from you."

Therefore, if this possessor brought witnesses that the person who sold it to him occupied it for even one day, or if he says that he himself saw him occupying it for one day [ibid.], or if he said to him: "In my presence he purchased it from you and afterwards sold it to me," we establish it in his hand, for it is a chazakah with a claim; for had he wanted, he could have claimed "I purchased it from you," since he has the years of chazakah. And even if the challenger has witnesses that it was his, we claim on behalf of the buyer. And some say further that in such a case where the challenger does not have witnesses that it was his, even if he did not possess it for the years of chazakah, we do not remove it from him when he claims "In my presence he purchased it from you," for since the entire strength of the challenger is only due to the admission of the possessor, and he says that he saw that the seller purchased it from him, he is believed with a migo that he could have said "It was never yours" or "I purchased it from you" [ibid.]. And it has already been explained in section 11 that this is specifically when they saw him dwelling in it or occupying the field for even one day; but if they only saw him entering them, this is nothing, or to measure them is also nothing, for perhaps he entered to see it or to measure it and did not acquire it.

If after the possessor claimed, "I bought it from so-and-so who told me that he bought it from you," or that he presumably bought it from you, he then retracted and claimed, "He bought it from you in my presence," we do not listen to him. For in such a case, he may not retract and claim, and he has no explanation as to why he did not say so previously. However, if at the beginning he said, "I bought it from so-and-so" without elaboration, and then added and said, "He bought it from you in my presence," we listen to him, for this is not a retraction of what he said but rather an addition, as the first phrasing also bears this meaning. In such a case, he may retract and claim as has been written in siman 80. And this is specifically if he said so before he exited the beit din, but once he has exited the beit din, we do not listen to him in any manner [Sma], for since he did not claim this while standing in the beit din, they certainly instructed him to claim this, as has been written there. And there are those who say that specifically when he said at the beginning, "I bought it from so-and-so who bought it from you," he can afterwards add and say, "What I said, that he bought it from you, is known to me because he bought it in my presence." But if at the beginning he only said, "I bought it from so-and-so," he cannot add further, for it is like a complete retraction; for if it were so, why did he not say it previously, as this is the essence of his merit? And as for him being believed through a migo that he could have said so previously, we do not say a migo retroactively [Shach].

If the seller stood in judgment with the claimant before he sold it to the possessor, and was exonerated from him in judgment with the claim "it was yours and I purchased it from you"—for he is believed through a migo that "it was never yours" when the claimant has no witnesses that it was his, as I have written—even though after he sold it to this possessor, this claimant challenged the possessor and he admitted to him that it was his, he has not lost by this. Since his seller already emerged vindicated from beit din, he has all the rights of the seller; for since he emerged vindicated then, it is as if it is known to us that it belongs to the seller. And even though from the wording of the Tur and the Shulchan Aruch in section 15 it implies somewhat that specifically when the admission of the possessor that it was his is based on the seller who told him so, but if he knows so himself the law is not so, it is not necessarily so, and they merely took the common case. For since the reason is because the seller emerged from beit din vindicated and he has his rights, what does it matter to me if he knows via the seller or knows on his own? Furthermore, it appears to me that even if afterwards, while it was in the hand of the possessor, the claimant brought witnesses that it was his—in which case the seller would not have won in judgment—nevertheless, since he emerged from beit din vindicated, it is as if it is known to us that it belongs to the seller [however, this depends on the dispute of whether a case is settled or a case returns, and reflect on this].

If the possessor brought witnesses that the seller lived in it for one day, and afterwards the challenger brought witnesses that the possessor wanted to buy it from him, and the challenger claims: "If you had bought it from so-and-so as you say, why did you want to buy it from me?"—it is not a valid claim, for he may say: "I wanted to appease you with a small amount of money in order to remove your grievance," as a person is prone to "buy his judgment." And if the possessor did not claim this argument, we do not claim it for him, for it is not so common that a person would expend money for the sake of the litigation that his fellow has against him when he knows that justice is with him; therefore, if he does not answer this response himself, his chazakah is voided. However, for the heirs of the possessor, when the challenger brings witnesses that their benefactor wanted to buy it from him, the beit din claims this argument on their behalf, for it is a general rule that anything the benefactor could have claimed, the beit din claims on behalf of his heirs [Netivot HaMishpat], since even so, it is not called an uncommon claim.

If the possessor did not bring witnesses that the seller resided in it for one day, and the claimant argues that the seller stole it from him, or even when there are witnesses that the seller resided in it but the claimant has witnesses that the seller was established as a robber regarding this field or this house—and a robber has no presumption of ownership, as written in siman 149—and the possessor brought witnesses that he consulted with the claimant as to whether he should take it and he advised him to buy it, and the possessor argues: "If it were stolen from you, why did you advise me to buy it?"—it is not a valid claim, for the claimant may say: "It is easier for me to recover it from your hand than to recover it from the hand of the robber, and therefore I wanted you to buy it so that I could recover it from your hand easily." And it is not similar to what will be explained in siman 147, that if the claimant was one of the witnesses to the deed, his claim is void, for there, since he performed an act that indicates his admission that it belongs to the seller, his act cannot be dismissed because of the reason that the second person is easier for him. Therefore, if he was a broker between them, his claim is also void, as this is an act; but mere speech, saying to him "buy it," it is possible that he said so because of this reason [Sma]. Nevertheless, he violated "before a blind person do not put a stumbling block" and "cursed is he who misleads a blind person on the road," for he gave him advice to cause him to stumble and saves himself through his fellow's money [ibid.]. However, his claim is not void. And some say further that in this case, even if the claimant did not argue this claim that the second person is easier for him, we argue it on his behalf [ibid.], and we attribute his failure to argue it to the fact that he is ashamed to say this thing—that he wanted to cause his fellow to stumble [Urim VeTumim]. And one should not say: "How can we argue on his behalf an improper claim?" for in any event he is not an upright man, either because he claims without cause or because he advised him in order to cause him to stumble; and since according to the law his claim is a valid claim and we have a reason for his advice, we argue on his behalf. And it is not similar to the previous section where he wanted to expend money. And all this is when the claimant admits that he advised him to buy it; but if he denies it and says "I never advised you to buy it," and this one brings witnesses that he did advise him, we find the claimant liable and establish it in the hand of the possessor. And although one could say that he is ashamed to say this or that he forgot about it, nevertheless, since in any case he is now contradicted by witnesses, his claim is void, even if he retracts and admits and gives an excuse as to why he did not say so previously. And one of the great authorities wrote that this is specifically when the claimant only said to him "buy the field for it is good," but if he said to him "buy the field for it belongs to the seller," and the buyer said to him "see that I am relying upon you," the claimant is liable in any event because of the law of indirect damage (garmi), like one who shows a dinar to a moneychanger in siman 306. And it appears to me that even if the buyer did not say to him "I am relying upon you," since he said to him that it belongs to the seller, he is not believed to say afterward "it was mine," for he admitted that it belongs to the seller. And if it were because he wanted this one to buy it for the reason that it is easier for him to recover it from him, it would have been sufficient for him to say "buy it for it is good," and why did he have to instruct that it belongs to the seller? [And so it appears in Ketubot 109a; see there].

If the possessor brought witnesses that the challenger told him to purchase it for him from the seller, it is not a valid claim to say to him, "If it is yours, why did you want to buy it?" For a person is prone to buy his legal rights, as he does not want to stand in dispute and waives his own property, as in section 18. And in this case as well, specifically when he claimed so, but we do not claim on his behalf, as has been written there [Sma, subsection 37].

Regarding that which we have said, that a person is prone to buy his legal rights, he cannot claim the money even if it was clarified that he truly bought his legal rights—such as this challenger who purchased it from the seller and afterwards clarified that it was his own, and the money he gave was given for nothing. For on the contrary, since a person is prone to buy his legal rights, certainly his intention was not to claim his money back. And the seller can say either that he went back and purchased it from him and sold it to him afterwards, or that he gave it to him as a gift. And so the Rashba, of blessed memory, ruled regarding one who purchased a single piece of land two times and claims the second payment from the seller: if the seller claims that he went back and purchased it from the buyer and went back and sold it to him, he is believed, for since he performed an act with his purchase, it is complete proof that he went back and sold it to him. And if the seller does not claim thus, but rather claims, "You gave it to me as a gift," if the seller has a migo—in that he could have said, "You did not purchase from me two times," because there are no witnesses to the matter—he is believed to say that he gave them to him as a gift. And if there are witnesses to this, the buyer must clarify why he purchased it two times; if he said that he erred, or if he clarifies that he was under duress and was forced to this, he is believed and he returns the second payment to him [it appears to me]. And if he said that he knew and was not under duress, the law is with the seller, for certainly he gave it to him as a gift, and it is like one who betroths his sister, where we established in Even HaEzer siman 50 that the money is a gift. And even though in siman 373 it will be explained regarding one who purchased a stolen field that the money is a deposit and not a gift, here we are witnesses that he would not have given a deposit to this seller, since he has the ability to say that he went back and purchased it from him or some other claim; even though he is not believed, nevertheless he would not deposit with him. This is not the case in siman 373, where it can be said that for the moment his desire was to do a favor for the victim of the robbery and to remove the field from the hand of the robber, and therefore he gave him the money, and his intention was as a deposit, for usually a person does not give gifts; but here, who forced him to this? [And the difficulty of the Shach and Urim VeTumim and Netivot HaMishpat is settled]. And even though it will be explained in siman 354 that when one purchased an object from a notorious thief, the thief does not need to return the money and they are a gift—and why do we not say also that his desire was to do a favor for the victim of the theft to return his object to him and his intention was as a deposit? For with movable property, they do not have such importance that we should say this reasoning, as others can be purchased in their place; and furthermore, he would not trust a notorious thief to deposit with him [it appears to me]. And it is similar to what is written in siman 220 regarding one who sold a pair, that the money is a gift, and in siman 232 regarding one who found a surplus in money, see there [see Bava Batra 78a, Tosafot d.h. Avel].

The possessor claimed, "I bought it from so-and-so and I held it for the years of chazakah," and he has witnesses that the seller lived in it for one day, or the challenger admits that it belonged to the seller but responds to him, "Behold, I have in my hand a validated deed that this same so-and-so sold it to me four years from today, and my purchase preceded your purchase," and the possessor then claimed, "The years of chazakah that I mentioned were not for three years alone; rather, I have held it for many years since I bought it and I preceded you"—the claim of the possessor is a valid claim, and this is not considered "retracting and claiming" because a person refers to many years as "years of chazakah." Therefore, if the possessor brought witnesses that he consumed its produce for seven years, and consumed it for the years of chazakah before this challenger bought it, we establish it in his hand. But if he consumed its produce for less than three years before the challenger bought it, we remove it from his hand, for you have no greater protest than this—that he sold it with a deed prior to three years of his chazakah, and he should have been careful with his deed, as I wrote in siman 144. And if he bought it without a deed, he must bring witnesses that he bought it earlier. And as for why the possessor is not believed to say "my purchase preceded your purchase" with a migo that he could have said "I bought it from you"—and according to this, it would have been enough for him to bring witnesses for only three years—it is because this is not a good migo, for he is afraid to say that he took it from him, as he did not know that this challenger has a deed from the seller. And even though a deed has a "voice," nevertheless it is not known that he sold it to this person [Shach]. Therefore, if it was clarified that he knew of the challenger's deed, a chazakah of three years is sufficient for him. Likewise, if he did not make a deed for the challenger but rather sold it to him with witnesses, this does not have a "voice" and is not considered like a protest, and a chazakah of three years is sufficient for him, provided that these three years began before the challenger's purchase even by one day [Sma].

In what case are these things said? When he initially said "years of chazakah" without specification. However, if he specified three years and afterwards the protestor produced the deed of four years, even if the possessor brought witnesses that he held it for seven years, it is nothing. For the admission of his mouth when he said "three years," which implies and no more, invalidates the witnesses, and he cannot go back and claim when he contradicts his initial words [ibid.]. And there are those who disagree with this and hold that the law is the same if he said "I consumed it for three years," that he can go back and claim that his intention was for many years, since he did not say "and no more." And he can provide a good justification, for since he did not know of the protestor's deed, he did not need to say more than three years, as a person only says what is necessary.

If the claims were regarding a matter that became known to the possessor before he stated his claim—that the challenger has a deed against him—if the possessor claimed, "Now, before he sold it to you, he sold it to me for one day," he is believed via a migo that if he wanted, he could have said, "I bought it from you." And even though this would be a migo of audacity, we say it in such a case [Shach]. And even though he only has witnesses for three years and no more, he is believed to say that he bought it earlier and its sale to the challenger was unlawful [ibid.]. And there is one who says that if there are witnesses that he consumed the produce even before the challenger bought it, he has lost his migo, for how could he say "I bought it from you," and why did he consume it beforehand? And if he says that he entered it for the produce, behold, he has no chazakah at all [Urim VeTumim]. And if there are witnesses that after he sold it to the challenger, the seller lived in it even one day, the possessor is believed that his purchase was prior via a migo that if he wanted, he could have claimed that the seller went back and bought it from the challenger [Shach] and sold it to him; and he only needs witnesses for three years.

Two who were contesting a field, this one says "it is mine" and this one says "it is mine," and neither of them has proof, or each one brought witnesses that it is his or his ancestors', or each one brought witnesses that he consumed the years of chazakah and the years that these testified are the same years that those testified, in a manner that the witnesses contradict one another—for if it were not so, the law would be to give it to the one who held it in the latter years [Sma]—if one of them was previously holding it, it remains in his hand for the time being, and he shall swear a shevuat hesset that it is his. And if neither of them was holding it, kol d'alim gevar, and beit din does not attend to this, but rather they say to them that they are leaving it in their hands and whoever prevails over his fellow shall take it. And the reason for this law was explained in siman 139. And if a third party comes and overpowers both of them and descends into it, they remove him from it since he has no claim. And even if he also says "it is mine," if the two brought proof, even though their witnesses contradict one another, nevertheless the third party has no proof and they extract it from him. And if they also have no proof and he says "it is mine," they do not extract it from his hand [ibid.], and whichever of the two desires may administer a shevuat hesset to this third party.

If one party brought witnesses that the field belonged to his ancestors and that he consumed its produce for the years of chazakah, and the other party brought witnesses that he consumed its produce for the years of chazakah—these same years that the first witnesses mention—and it turns out that the testimony of chazakah is contradicted, we establish it in the hand of this one for whom they testified that it belonged to his ancestors and we place him into it. Even though regarding the testimony of chazakah they contradict one another, nevertheless, in that which they are not contradicted we believe them, since we do not know which group testified falsely, as is written in siman 31 that two groups of witnesses who contradict one another are each valid for other testimony. Therefore, even in this testimony itself, in that which they are not contradicted, we accept their testimony. And if afterward the second party also returned and brought witnesses that it belonged to his ancestors, and it turns out that in this too they contradict one another, the beit din returns and removes even the first party—if the beit din had sufficient time to place him in it beforehand—and they leave it in the domain of both of them, and whoever prevails shall merit it for the time being and shall swear a shevuat hesset. And if it was initially in the hand of one of them, they return it to his hand as before. And one should not ask according to this: why, when the beit din placed him in it initially, do they remove it from his hand? For certainly it is so, that anything the beit din did and it was found afterward that according to what was revealed of the matter the law is not so, we do not concern ourselves with the degradation of the beit din, and we establish the matter as it was before this, and its law returns to "whoever is stronger prevails."

One says "it belonged to my ancestors" and the other says "it belonged to my ancestors." This one brought witnesses that it belonged to his ancestors, and that one brought witnesses that he ate from it the years of chazakah. It shall return to the one who brought witnesses that it belonged to his ancestors, and he shall return the produce that he ate, even if there are no witnesses that he ate them except by his own word; for behold, he claimed nothing, and his eating is not proof, as he does not claim that he purchased the field from him or from his ancestors, but rather says that it belonged to his ancestors, and in this he was contradicted by the witnesses. It is thus a chazakah without a claim, and his chazakah is nothing. He is not believed regarding the produce with a migo of "I did not eat," for it is a migo in the place of witnesses who contradict the essence of his claim. And if this possessor retracted and said, "Indeed, it belonged to your ancestors and you sold it to me, and that which I claimed initially that it belonged to my ancestors was to say that I rely upon it as if it were my ancestors'," or if he says "it belonged to my ancestors who purchased it from your ancestors," or if he says "it belonged to my ancestors who purchased it from you," and he has witnesses that his ancestors lived in it for one day—but regarding "it belonged to my ancestors who purchased it from your ancestors," he does not need witnesses that his ancestors lived in it for one day [Sma], since the protestor cannot claim with certainty that his ancestors did not sell it to this one's ancestors for a short time and afterwards purchased it back—and if he claims all this, he is not like one who retracts and claims anew, and behold this is a valid claim, for he gave an explanation for his initial words, and we establish it in his hand. And specifically when he claims so while still before the beit din, but if he left the beit din and returned and claimed so, we do not listen to him, for we fear perhaps they taught him to claim a falsehood, for why did he not claim so while he was before the beit din? And also the beit din does not claim this on his behalf. And if he claimed at the beginning and said to him "it belonged to my ancestors and not to your ancestors," we do not listen to him regarding these other claims even while he is still before the beit din. And all that I have written is the system of the Rambam, of blessed memory, in the fifteenth chapter of To'en.

But the Tur ruled in this case of "this one says it belonged to my ancestors" and "this one says it belonged to my ancestors," and one brought witnesses that it belonged to his ancestors and the second brought witnesses of chazaka: if the witnesses only testified generally that it belonged to his ancestors and did not testify that they did not sell it, if it is possible to interpret the words of the holder who said "it belonged to my ancestors" that his intention could be that his ancestors purchased it—such as where the holder claimed "I inherited it from my ancestors"—we listen to the holder; and even if he did not claim so, we claim on his behalf [Sma]. But if he claimed initially that it belonged to his ancestors forever, he cannot retract and claim, and even he himself can no longer say that his ancestors purchased it, since he contradicts his initial words. And if the holder did not use the language "I inherited from my ancestors," but rather when the challenger said "it belonged to my ancestors" he responded "it belonged to my ancestors," we do not claim on his behalf that his intention was that they bought it from the ancestors of this [challenger], for the flow of his language implies that it always belonged to his ancestors; however, he can clarify his words in this manner. Nevertheless, if he had witnesses that his ancestors dwelt in it for one day, even though he did not claim to clarify his words so, we claim for him. And if the witnesses brought by the challenger said that it belonged to his ancestors forever and they did not sell it, even if the holder brought witnesses of chazaka, we remove the land and the produce from him as I wrote previously. And if the holder retracted and said, "It is true that it belonged to your ancestors, but you sold it to me, and as for what I claimed that it belonged to my ancestors, I intended that I rely upon it as if it were of my ancestors," we listen to him when he said so while still in beit din, and as I wrote previously.

That which we have said, that he cannot retract and plead a claim that entirely contradicts the first claim, in what case does this apply? When he pleaded the first claim before a beit din. However, what he said outside of a beit din, he may retract and plead in a beit din, even that which entirely contradicts what he spoke outside of a beit din, for such is the way of people, not to reveal their claims except in a beit din. And there is one who says that certainly to clarify his words he has the ability, even in a matter where if he had said so in a beit din and had gone outside and returned to the beit din we would not accept his words, as has been explained in section 27; and in this case, if he spoke previously outside of a beit din, he may come to the beit din and clarify his words. But if he said outside of a beit din explicitly before witnesses, "This field belonged to my ancestors and not to your ancestors," he cannot say in a beit din, "It belonged to my ancestors who purchased it from your ancestors," for it is like one who admits before witnesses that he owes a maneh to his fellow, where he cannot retract. And the first opinion holds that in matters of disputes and claims, there is no admission at all outside of a beit din.

If the claimant brought witnesses that this is his field, and the one within it claims, "I bought it from you and here is my deed," and he produced a validated deed or a deed that he is able to validate [Tur], and the claimant claimed that it is forged, and if the holder of the deed had remained silent it would not have been possible to clarify the forgery and the witnesses would have validated it in their estimation because it is their handwriting as the forgery was not recognizable at all, but he himself admitted and said that it is forged, but "I had another valid deed and it was lost from me, and I took this one in its place in order to threaten the claimant so that he would admit the truth to me"—he is believed and the land is not removed from his hand. And he shall swear a shevuat hesset that it is his, because he is believed with a migo that had he wanted, he would not have admitted that it is forged since it is validated or possible to validate. And even if he did not hold it for three years, since we consider it as if he has a deed [Sma]. And even though regarding a deed of a loan one does not extract money in such a case, as written in siman 83, that is to extract, but to maintain what is in his hand as here, where he is the muhzak in the land, we maintain him based on this migo. And since he merited because of his possession of it, therefore if the claimant seized it and took possession of the land, or even if the judge placed the claimant in the land, we do not remove it from him [Shach], unless he held it for the years of hazakah [it appears to me].

One who held a chazakah for the years of chazakah, and the protestor brought proof that the sale was nullified—for example, that he found it written in the city ledger that this sale was nullified or the like—nevertheless, it is a valid chazakah, for perhaps he subsequently returned and purchased it from him. Furthermore, even if it is known that he did not purchase it subsequently, such a writing does not nullify the sale until he returns and acquires it from him with a complete kinyan, such as by selling it or giving it, as I wrote in siman 243; and a mere removal of words is not effective in this, and even a mechilah is not effective in this, as I wrote there.