Siman 149

There are those who do not have hazakah, such that even if they hold the property of others for several years, it does not benefit them, yet others can establish hazakah in their property. And there are those who do not establish hazakah in the property of others, nor do others establish hazakah in theirs. How so? Reuven consumed the produce of Shimon's field for the years of hazakah and claimed that it was purchased by him, and Shimon brought witnesses that the field is known to be his, and likewise brought witnesses that Reuven is known to be his partner, or his sharecropper, or his guardian, and because of this he did not protest because he is not particular with them and such is the way of the world—the field shall return to Shimon, and he shall swear a shevuat hesset that he did not sell nor give it to him. But if Shimon did not bring proof that Reuven was a partner, sharecropper, or guardian, but rather Reuven admitted on his own and said, "It is true that he is my partner, but he sold it to me," he is believed with a migo, as he could have said that he was never his partner. And this is even if the field does not have the law of division, in that it does not have the measure that will be explained in siman 171 for this one and for that one; for if it had the law of division, even without a migo, if he consumed it for the years of hazakah, he has hazakah, for certainly he would not have let him consume it alone for several years since it is possible to divide. But when it does not have the law of division, if he does not have a migo, it is always in the hazakah of both of them, for perhaps they made a division between them such that this one would consume its fruits for several years and afterwards the second would consume. And even if it has the law of division, it is specifically when he held the entire field; but if he held half of it and says that this portion reached his share, it is never a hazakah, for the second can say, "There was a condition between us that you would consume this portion for several years and I would consume the second portion, and afterwards we would switch the portions." And likewise, even if he held the whole of it and the partner pays half the tax or performs some labor in it, even though he does not consume its fruits, it is like a protest and is not a hazakah. And even if he has a migo, one must doubt if it is effective in this case.

Two partners in one land, and another came and established a chazakah in their land, even though regarding one of them he has no chazakah—such as if he was his sharecropper or his guardian, or if he was not with him in the province and was in a place where caravans are not common—nevertheless, his chazakah is effective against the second partner. And even though they did not divide the land, nevertheless, he should have protested so that this other person would not say, "I bought your portion to stand in your place with your partner." And some say that when he was not in the province, it is not a chazakah regarding the second partner, for he can say, "I thought that my partner placed you in his stead because you are in his eyes one who will not damage the land." And if he claims thus, the one who established the chazakah has no chazakah [Taz], unless the chazakah would have been effective even for the partner himself, such as if there is a law of division in the land and he consumed all of it.

A son who relies on his father's table and is considered among the members of his household, if he consumed the property of his father for the years of chazakah, and similarly a father who consumed the property of this son for the years of chazakah, they have no chazakah. When he has departed from his table, they may establish chazakah against one another, and the years of chazakah must be from the time of the departure, and they do not combine what they consumed previously [it appears to me]. And there is one who says that the law is the same for a son-in-law regarding the property of his father-in-law, and similarly a father regarding the property of the daughter, and a daughter regarding the property of the father, and similarly the son and the daughter regarding the property of their mother, and the mother regarding their property, and similarly regarding other relatives who are not meticulous with one another according to the perception of the beit din. And even a son and other relatives who do not rely on one table, nevertheless, since according to the perception of the beit din they rely on one another in the affairs of their property, they have no chazakah against one another [Taz]. And similarly brothers regarding what they inherited from their father are like partners and do not establish chazakah against one another, even if there is not one purse for all of them such that each one occupies himself individually; and regarding what they did not inherit from their father, their law is like other relatives. And if there is one purse for all of them or they eat at one table, they have no chazakah against one another. And all the more so if one brother is wealthy and one is poor and has nothing, and his wealthy brother provides for his expenses and the poor one dwells in the house of the wealthy one, that he has no chazakah in it. And if the poor one claims that he purchased it and lost his deed, the wealthy one must swear a shevuat hesset [Bach]. But the wealthy one regarding the property of the poor one does have chazakah; and even though it is possible that due to shame he did not take it from him, nevertheless, he should have made a protest [ibid.]. And a woman who claims that she lent a place in the synagogue to her son-in-law and he sat upon it, it is not a chazakah even if he does not rely on her table [Shach], for such is the way of the world that a woman is not meticulous with her son-in-law in such a case. And all the more so a son-in-law standing in the place of his father-in-law has no chazakah, and the same applies to one standing in the place of his son-in-law, for the world is not meticulous in such a case [see Tur section 37].

A man has no chazakah in his wife's property. A man who consumed the usufruct of his wife's property for the years of chazakah—even if he does not consume the usufruct of her property, such as where she stipulated with him that he shall not consume her usufruct and he accepted with a kinyan, and even if he has no connection to her property even after her death, such as where she stipulated with him while she was betrothed that he shall not inherit her as written in Even HaEzer siman 92, and he consumed the usufruct and even built buildings and destroyed old buildings that were standing to be demolished [it appears to me] and did everything as if it were his own—nevertheless, he has no chazakah, for a wife is not particular with her husband. Similarly, a woman has no chazakah in her husband's property even if she consumed the usufruct of his property and used them as she desired for several years, and even if he designated a field for her sustenance and she consumed other fields as well, nevertheless she has no chazakah, for a man is not particular with his wife. All this is specifically where they did not damage the body of the land, but if they dig pits, trenches, or caves in the land and the like, which ruined the land, and they did not protest one against the other, it is a chazakah, for in such a case, if it were not hers or his, they would have protested against one another. Similarly, if they demolished good buildings that were not standing to be demolished, it is a chazakah [see Sma and Bach]. Furthermore, even if he consumes the usufruct of her property, it is a chazakah when he ruined the land, for in this she would certainly have protested against him, though some disagree on this [see in the Tur]. And so it is regarding her in her husband's property [it appears to me]. Similarly, regarding the chazakah of damages, such as opening windows and the like, some say it is a chazakah, for since he does not hold a chazakah in the body of the land but only uses it occasionally, and this does not require a chazakah of three years as will be explained in siman 153, it is an immediate waiver. According to the one who holds there that even for these chazakot one requires three years, their law is like all chazakot where they do not establish a chazakah against one another. When the woman is divorced, even a doubtful divorce and he is still liable for her sustenance, they are like all other people and they have a chazakah against one another since they are separated from each other. Not only does a husband have no chazakah in his wife's property, but even another person who consumes the property of a married woman for many years has no chazakah, for one does not establish a chazakah in the property of a married woman as written in Even HaEzer siman 87, because she relies on her husband to make a protest since he consumes the usufruct and inherits her. Therefore, if he does not consume the usufruct and does not inherit her, another person has a chazakah in her property. But if the stipulation was not regarding both matters—that he consumes usufruct and does not inherit her, or inherits her and does not consume usufruct—she relies on him and there is no chazakah in her property. And there it is further explained regarding this [the Beit Shmuel disagrees on this].

Reuven who sold the produce of his field to Shimon for three years, and Levi came and consumed them those three years, it does not count as a chazakah for him, for he is not meticulous to make a machah; since he sold the produce to Shimon, he reasons that Shimon placed him into it. And if he dug in it pits, ditches, or caves, it is a chazakah as in the case of a husband [Tur]. And it is not specifically excavations, but even if he built a building in it or planted trees, for regarding a husband it is not a chazakah because he is not meticulous, but regarding another it is certainly a chazakah. And why did he not protest against him? For this does not pertain to the produce that he sold to Shimon [it appears to me]. And likewise, if he consumed the produce for three years after the conclusion of the time of Shimon's produce, he has a chazakah:

One who was established as a gazlan regarding this field has no chazakah in this field, but in other fields he has a chazakah [Sma]. And if he was established as a gazlan for all matters, or even if only his ancestors were established as those who kill souls over monetary matters, he has no chazakah at all, even if he consumed the produce for many years and even if he dug pits in it [it appears to me], for due to their fear, people are afraid to protest against them, and it shall return to the owners. And similarly, one who holds his property has no chazakah, for it is no proof that he did not protest, as he relied on his violence, that at any time he desires he will take it. And the son of a gazlan has a chazakah when he comes with his own claim, as I wrote in siman 152, for specifically when his ancestors were established as killers of souls is the dread of their offspring also cast upon people; but regarding an ordinary gazlan, even though he is suspected of killing as well in the manner of gazlanim, nevertheless, since his reputation is not as a killer of souls, his son has a chazakah [this is how it must be according to the Rambam and the Shulchan Aruch, and examine it closely]. And if he performed complete teshuvah, he has a chazakah from this point forward, but not regarding the past for what he says he purchased during his gazlanut; and even if he says that he returned it and purchased it afterward, since he was established as a gazlan regarding this field, he never has a chazakah upon it [Tur]. And regarding that which we wrote, that if he was established as a killer of souls even his son has no chazakah, even though from the words of the Tur it does not appear so, nevertheless, since in the Rambam it is explicitly stated so, and the Tur did not explicitly write the opposite, we follow the Rambam; and similarly in the Shulchan Aruch the opinion of the Tur was not mentioned at all. And see what I wrote in siman 152.

An Akum has no chazakah in the property of a Yisrael except with a validated deed because he is violent. Therefore, an Akum who consumed for several years land that belonged to the Yisrael, or where it is clarified that it was his, his consumption is not proof, and if he did not bring a deed, the field returns to the owners without an oath. And a Yisrael who bought from an Akum land known to have belonged to a Yisrael, or where it is clarified that it was his, his law is like his, and his consumption is not proof. And the claimant does not need to swear, since he does not claim that it is known to him that the Akum took it from the claimant, it is a chazakah without a claim. But if this Yisrael claimed and said, "In my presence the Akum bought it, who sold it to me, from this claimant," or if he says that he showed me a validated deed, or even if it is not validated but he himself recognized the signatures of the witnesses [Sma], behold this possessor is believed with a heiset oath through a migo that he could say "I bought it from you and behold I consumed it the years of chazakah." Therefore, if it is known that he bought it from the Akum, he has no migo and the claimant removes it from his hand [Netivot HaMishpat]. And there are those who say that even in such a case chazakah is effective, for the possessor can say "Afterwards I bought it from you" [Sma]. And an apostate to idol worship, his law is like his, and one who comes by his power has no chazakah. And even though the claimant should have protested when it was in the hand of the Yisrael who bought from the Akum, for it can be said that the fear of the Akum was upon him even when it was in the hand of the one who bought from him, and he was afraid to protest. Therefore, if he protested one time and then was silent for three years and did not protest further, it is a chazakah, for behold he revealed his mind that he is not afraid to protest. And so too regarding a gazlan the law is thus. And all this is in a place where there is no governmental rule over the Akum who rob and seize, but any place where they can compel the Akum by the law of the kingdom, and if he comes to possess unlawfully they will remove it from him in the courts, a Yisrael who comes by his power has a chazakah.

Reuven who bought from Shimon, where Shimon bought from a non-Jew, and Shimon is not before us to clarify in what manner he bought it from the non-Jew, and Reuven also does not know, nevertheless, we plead on behalf of the buyer, and the beit din pleads on behalf of Reuven that perhaps Shimon saw a validated deed in the possession of the non-Jew, or that in his presence he took it from the Israelite, for a chazakah is effective as has been written. And just as an Israelite who comes with the power of a non-Jew is believed to say "the non-Jew took it from you in my presence," so too if a non-Jew held the land and converted, and it remained in his hand for three years afterward, and he claims "I bought it from you after I converted," he is believed. And even if he said that he bought it previously, he is believed with a migo [Levush and Taz]. And it is not similar to a robber who has no chazakah for the past as has been written in the previous section, for a robber has a status of robbery, whereas here it is not so [Taz].

A deaf-mute, a deranged person, and a minor do not have chazakah, for their consumption of the produce is not proof, since they do not have a claim so that the land should remain in their possession, as they are not of sound mind; rather, it returns to the owners. And similarly, one who holds possession of their property does not have chazakah, for his consumption of the produce is not proof, since they are not of sound mind and do not know how to make a protest. And in the property of a minor, one does not establish chazakah even if he grew up. How so? If he consumed it for some years when the owner of the land was a minor and some after he grew up, and he claimed, "You gave it to me," "You sold it to me," or "Your father sold it to me," it is nothing until he consumes it for three consecutive years after he grew up, and he is believed when he says that he purchased it from his father [see Mishneh LaMelech chapter 14 of To'en and in section 16]. And some say that even in such a case it is not a chazakah, for since he descended into his field when he was a minor, he did not know it was his so that he would protest even when he grew up and it was in the hand of the possessor for many years. And thus our teacher, the Rema, decided. And even if he claimed, "I purchased it from you after you grew up," he is not believed. And if there are no witnesses that it was in his hand while the challenger was a minor, and he could say that he purchased it from him after he grew up, he is also believed to say, "I purchased it from your father" [it appears to me]. And if the minor died and an adult inherited him and he held possession for three years in his presence, it is a chazakah, for the adult knows the property of his testator [Netivot HaMishpat].

This matter, that one does not establish a chazakah in the property of a minor, applies specifically when it is known that it belonged to his father, and even if witnesses saw him dwell in it for one day it is sufficient [Sma]. But if it is not known, it is a chazakah, and we do not require a chazakah of three years; rather, even if he is in possession of it for one day, he is believed to say that he purchased it from his mother via a migo that he could have said "it never belonged to your father." And even though it would be a migo of audacity, we say it [Shach]. And likewise, even when it is known that it belonged to his father, if he held it for three years during the lifetime of the father, and after his death his minor son comes to protest, we do not listen to him. And if the possessor needs to bring witnesses regarding his chazakah, he brings them and we accept their testimony; even though the protester is a minor and we do not accept testimony in the presence of a minor because it is like not being in the presence of the litigant, nevertheless, since this one held it properly, we accept their testimony so that he may remain in his chazakah [Tur]. And if a rumor emerges that detracts from the chazakah, such as a rumor emerging that it came into his hand by way of a mashkona—if the rumor emerged during the lifetime of the father before he held it for three years, that the mashkona was in his hand for known years and the years concluded after the death of the father, it is not a chazakah; for in his lifetime he certainly did not sell it to him since the years of the mashkona had not concluded, and after his death when the heir is a minor, he also did not purchase it from him, and automatically it is held for the heir. But if he held it for three years during the lifetime of the father before the rumor emerged, and afterwards he died, it is a chazakah even when the rumor emerged after the three years that the years of the mashkona concluded after his death [Sma], for as soon as he held it for three years before the rumor emerged, it is in his chazakah. And if the days of the mashkona concluded and he held it afterwards for three years, it will be explained in siman 150; and see in section 12.

When it is not known at all that it belonged to his father, not only is the possessor believed to say "it was purchased by me," but even if he admits and says that it belonged to his mother but that it is a mashkona in his hand, he is believed via a migo that he could have said it was never hers or "it was purchased by me." Therefore, one who possessed the property of a minor and said "they are a mashkona in my hand and I have a debt upon them of such and such," since if he wanted he could have said "they were purchased by me," he is believed, for they are not in the chazaka of this one's mother. Therefore, even if he possessed it for one day it is sufficient, and he is believed even to claim that other debts are owed to him from his mother that he did not lend upon this mashkona [ibid.], since he has a migo. And behold, he collects what he claims with an oath, and it afterwards returns to the orphans. And without an oath he does not collect, since the essence of his credibility is only because of the migo that it did not belong to his mother at all, for even the claim of "purchased" is only because of this migo since he did not possess it for three years. And if he had claimed that it was not his father's, he would have needed to swear since the son claims with certainty that it was his father's; therefore, also regarding the claim of mashkona, even though the son cannot contradict him with certainty, he does not take without an oath [Shach]. And some say that he is only believed regarding the fruits that he already ate, but regarding future fruits he is not believed because it would be a migo to extract [Sma]. And some say that he is believed even to eat future fruits [Shach] until he collects his debts, and this is not a migo to extract, since it is not known at all that it belonged to his mother except by his own word; he is believed also regarding the future, for "the mouth that forbade is the mouth that permitted," and it is superior to a migo [Netivot HaMishpat]. And regarding past fruits, if he has a migo that he did not eat them, he does not require an oath [it appears to me].

But if a rumor emerged that it belongs to the orphans, according to the nature of the rumor we wrote in section 10, which is a rumor that diminishes his chazakah—and even if a rumor did not emerge that it is currently the orphans' [Urim VeTummim], but rather that it belonged to their father, and if despite this he were to claim "it never belonged to their father" he would be believed, for we do not remove him from the field based on a mere rumor; nevertheless, when he claims that he is owed debts, he is not believed with this migo, for it is not comfortable for him to claim that it never belonged to their father since there is a rumor, and it would be a great audacity [Shach]. And even if the rumor emerged after he held chazakah for three years in the presence of the orphans, he is not believed. This is not similar to section 10, for there, since the chazakah was during the father's lifetime, he would be believed to say "it is purchased in my hand," but here the chazakah is in the presence of the orphans, and one does not establish chazakah in the property of a minor, and during the father's lifetime he did not hold chazakah for three years. All of his credibility is only through a migo that it did not belong to their father at all, and it is not comfortable for him to claim so, as has been written [ibid.], unlike the one who disagrees on this. Therefore, the field and all the produce he consumed shall return to the orphans until they reach majority and he enters into litigation with them. And some say that a rumor that it belonged to their father is nothing to diminish the chazakah unless witnesses testify to this; however, if there was a rumor that it came into his hand as a mashkona from their father, such a rumor certainly diminishes the chazakah, since the rumor publicizes in what manner it came into his hand. Therefore, even though he would be believed against the rumor, nevertheless he has no migo for the reason that has been explained [Netivot HaMishpat and as is implied from the Rashbam in the sugya of Rabbah bar Sharshum]. And one should not raise a difficulty: since he is believed to claim against a rumor, why did we say in section 10 that when the rumor emerged before he held chazakah for three years during the father's lifetime he is not believed to claim "it is purchased in my hand" against the rumor? For certainly it is so, that regarding a claim of "purchased" he is not believed, for a rumor of a mashkanta is no less than a protest, and he should have been careful with his deed; but to deny the rumor and say that it was never his, he is believed, except that he has no migo because of this, as we have explained [it appears to me].

And if he consumed the years of chazakah during their father's lifetime, even though a rumor spread that it belonged to their father before he held it for the years of chazakah, if the rumor did not spread that it came into his hand through a mashkanta, he is believed to say "it is purchased in my hand," for such a rumor is not like a protest. And since he is able to say "it is purchased in my hand from their father," he is also believed to say "I have a debt against their father" [Shach]. And some say that if a rumor spread that it belonged to their father, he is not believed to say "it is purchased in my hand," for it is like a protest. And even if the rumor spread after the years of chazakah and he would have been believed to say "it is purchased in my hand," nevertheless, to claim "I have a debt" through a migo of "purchased," he is not believed, for it is not comfortable for him to claim such audacity against the rumor [Sma and Netivot HaMishpat]. And he is not believed unless no rumor spread at all, and then he is believed also regarding the debt just as he is believed regarding the claim of "purchased," and he collects it from the produce, and even from future produce even according to the first opinion in section 11. And he collects without an oath, since he is able to say "they are mine," for specifically when he did not consume the years of chazakah does he require an oath as was written there, for regarding the migo he would have required an oath as was written there; but regarding the claim of "purchased" he would not have required an oath, for they cannot contradict him with certainty, and therefore also regarding the debt he does not require an oath. But some say that since their father could have claimed a certain claim that he did not sell it to him and would have obligated him in an oath, we claim this claim on behalf of his heirs and he is obligated to swear; and it will be explained in siman 150 with the help of Heaven.

If a possessor took hold of it during the father's lifetime, even if he held it for three years, but at the time of the father's death we saw the land held in the father's possession, but the father had not held it for three years after taking it from the hand of the possessor and died and left a minor son, and the previous possessor claims that it was in the father's hand through robbery since he did not hold it for the years of chazakah and no deed was found for this land, nevertheless, we establish it for the time being in the possession of the minor. We do not accept the testimony of the possessor to take hold of it now since the son is a minor and it was found in his father's possession at the time of his death. After the minor grows up, if the possessor brings witnesses that he held it for three years properly during the father's lifetime without protest from the father, if it was known that the land always belonged to the father and the son does not find proof that the possessor sold it to the father after his years of chazakah, then they remove it from the hand of the son and give it to the possessor, for even from the father they would have removed it from him in such a case. But if it remained in the father's hand for three years, or part of three in his hand and the completion of the three in his son's hand after he grew up, they never remove it from the hand of the son. However, that which was in the son's hand while he was a minor does not combine to complete the three years of chazakah of his father. Many disagree on this and hold that what was in the son's hand combines for the years of chazakah even when he is a minor; specifically when the entirety of the years of chazakah were in the son's hand in his minority is it not a chazakah, but in combination with the father they combine [Urim VeTummim], for the protestor should have made a protest. And if the father consumed two years and died and left a minor son a year before his majority or more, and the son consumed it in his minority and also a year after he grew up, they combine even according to the first opinion, even though the years are not consecutive, for nevertheless he should have made a protest [ibid.]. And when the protestor brought witnesses that he made a protest before three years were completed, even if the father held it for three years, this is not a chazakah and they remove it from the hand of the son when he has no proof that his father bought it from the possessor [it appears to me].

One who held a chazakah for the years of chazakah in the land of orphans and claims that the apitropos sold it to him and his deed was lost, some say this is a valid chazakah, for an apitropos has the power to sell for the needs of the orphans and stands in the place of their father; and since the apitropos did not protest, it remains in his chazakah. And some disagree, for anyone who purchases from an apitropos must be careful with his deed, as he knows that the land is not his and the apitropos is only like a messenger, and the orphans should not lose out because their messenger did not make a protest, and they can say, "I sent you to improve and not to damage." And our teacher, the Rema, ruled accordingly. And if he held it for three years after the orphans grew up, it is a valid chazakah even according to the "some say" in section 9, for if not so, one who purchases from an apitropos would need to guard his deed forever, and no one would be found who wants to purchase the property of orphans, and you have no greater locking of the door before orphans than this [it appears to me]. And some say that according to the first opinion, if the apitropos contradicts the one holding the land and says that he did not sell it to him, and he is not believed according to this opinion, he must pay the orphans for the fact that he did not make a protest, for you have no greater negligent person or damager than this [Urim VeTummim]. And some disagree [Netivot HaMishpat] because for negligence one is exempt regarding lands, and this is negligence and not like damaging with one's hands. However, according to the ruling of our teacher, the Rema, there is no practical difference in this law.

There is one who says that if one purchased land from a minor, and the land was his own and not inherited from his father, and after he reached majority he remained silent and did not protest, he has acquired the land [Ktzot HaChoshen]. He brought a proof for this, and although the proof is not decisive, this law is dependent on the dispute of the Rambam with his teachers in the twenty-ninth chapter of Hilkhot Mekhirah, halakhah 17. In siman 235 it will be explained, with the help of Heaven, according to the opinion of the Rambam, and according to this there is a complete proof for this law; but according to the opinion of his teachers, this is not an acquisition, and even if he held it for three years it is nothing [it appears to me].

A sharecropper: if he was a sharecropper for the father of the owner of the field or for the members of his family, he does not have a chazakah in his fields. Since he is a sharecropper of ancestral houses who never departs from their fields, the owners do not protest against him and they allow him to consume the produce for several years, and afterwards the owners consume. However, if this sharecropper is one who first became a sharecropper under him, and if they were not satisfied with one another they would depart from one another—since he consumed all of it for the years of chazakah, we establish it in his hand, and we say to the owners: how did he consume year after year and you did not protest against him? For this is not the way of the world. And if this sharecropper is known and established to this man for many years, and it is known that they were satisfied with one another, he does not have a chazakah [as is implied from the Sma]. But the owners establish a chazakah in the property of sharecroppers, even with sharecroppers of ancestral houses, for the sharecropper is established to work in the fields of the owners and not the owners in the field of the sharecropper; and since he did not protest, he certainly sold it to him. And likewise, a sharecropper who retired from his craft and consumed it for three years thereafter has established a chazakah, even if he was a sharecropper of ancestral houses.

We say in the Gemara [46a]: A sharecropper of ancestral houses who brought down sharecroppers under him has a chazakah, but if he divided it among sharecroppers, he does not have a chazakah. And the difference is: if he brought them down under him and he does not work with them, the sharecropper has a chazakah, for if he had not sold it to him, he would not have allowed him to bring others down under him and remain silent for three years. But if he divided the fields among the sharecroppers and he himself works with each one, he does not have a chazakah, for in such a case the owner of the field is not particular [Rashbam]. And the Rambam explains that the difference is between the sharecroppers who were already there, for even if the sharecropper divided for each one his portion to work in it alone, the owner of the fields is not particular. And even though the sharecropper can say, "How did you allow me to divide your fields?" the protestor can say, "I made you an overseer over the sharecroppers," and we claim this argument on his behalf [Kesef Mishneh from the wording of the Rambam]. But if he brought down new sharecroppers, he has a chazakah, for in such a case, if he had not sold it to him, he would have protested against him.

Artisans who were building on land or repairing it for many years do not have a chazakah. Even if it is not known that he entered it in the capacity of an artisan, but rather it is known that he is an artisan, he has no chazakah [Netivot HaMishpat]. This is specifically when it is the way of that craft to dwell within the house or to eat the produce of the field, for if not so, the eating of the produce is not related to his craft. If they retired from their craft, if they ate of it for three years afterward, they have a chazakah. And the owners establish a chazakah in the property of artisans even during the time of their craft, as I wrote regarding a sharecropper. And even at the time that the artisan eats from the field of the owners and he has no chazakah, nevertheless, the owners have a chazakah in his property, and the artisan cannot say: "I gave him my field so that he would eat its produce as long as I engage in my craft in his field and eat his produce" [it appears to me].

Apotropsim do not have a chazakah, whether he was an apotropos over this field or over other properties, whether a beit din appointed him or the father of the orphans, and even if he is an apotropos without appointment but rather the orphans relied upon him and he oversees their affairs, and whether he is an apotropos over the body of the land or over the produce emerging from it [Tur]. And even if the orphans grew up and left him to consume for several years, he has no chazakah. And it is not specifically an apotropos of orphans, but even if a person appointed an apotropos in his house over expenditures and income, since he uses it with the permission of the owners, he has no chazakah. And according to this, all people hired in the affairs of others have no chazakah in the property of the owners. However, some say that an apotropos and all these have no chazakah only in a field over which he is appointed, but in other fields they have a chazakah, for since he has no authority in them, he is like any other person. And the owners establish a chazakah in the property of the apotropsim and those hired in their properties. And apotropsim and those hired who passed from their appointment and consumed for three years after they passed, it is a chazakah, as I have written regarding a sharecropper and a craftsman.

One who holds possession of an endowment for the poor, or of a beit knesset, or of other perpetual estates belonging to a mitzvah association such as Talmud Torah, Bikkur Cholim, and the like, has no chazakah even if he held possession for many years. For there is no proof from the fact that they did not protest against him, as "a pot of partners" is such that each one relies on his fellow. Furthermore, each one imagines that he is acting for the sake of the tzedakah and not for himself. And if there are treasurers appointed over the acts of tzedakah and the treasurers have a portion in this, then since the possessor has a chazakah in the portion of the treasurers, he has a chazakah in all of it. But if they have no portion, it is not a chazakah, and the poor and the endowment shall not lose out because the treasurer did not make a protest. However, the endowment and the tzedakah have a chazakah in the property of others, for the owners should have protested. Similarly, regarding one who holds possession of communal property, some say it is not a chazakah, for it is "a pot of partners" [Shach]. And likewise, if they held possession of the property of others, they have no chazakah, as people are afraid to protest against them. But our teacher, the Rema, decided that their law is like an endowment: that others do not establish a chazakah in their property, but they establish a chazakah in the property of others [ibid.].

Just as there is a chazakah for property, so too there is a chazakah for mitzvot. For example, an individual who has a sefer Torah and established a chazakah that the congregation always reads from his sefer Torah has acquired his chazakah, and they may not read from another as long as his sefer Torah is kosher and good for reading. This is specifically when the congregation had another sefer Torah at that time, and nevertheless they read from his; this constitutes a chazakah. However, when they did not have another sefer Torah, it is not called a chazakah, for they did so out of necessity and not because they granted him a chazakah in this, unless there are witnesses that they granted him a chazakah then. Nevertheless, even if he does not have a chazakah according to the law when they did not have another, since he has acquired the mitzvah, it is not taken from him entirely. There was already such an incident in the times of the earlier ones, and they ruled that they should read two Shabbatot from the sefer Torah of the community and the third Shabbat from his sefer Torah. Similarly, a person who held a chazakah in a mitzvah such as gelilah of the sefer Torah, or taking out the sefer Torah and returning it to the aron kodesh and the like, and an unavoidable accident occurred such that he cannot perform the mitzvah and the congregation gave the mitzvah to another—when the first person's accident passes, he returns to his mitzvah, for an accident does not cancel a chazakah. But if he gave the mitzvah to another without an accident, his chazakah is canceled even by one time. However, if his giving it to another was by way of honoring him, he has not lost his chazakah; on the contrary, his power in his chazakah is enhanced, as he honors others as well. All this applies to a chazakah that is accompanied by a claim, such as if he says that the congregation gave him this mitzvah forever; but if he took hold of it himself without the consent of the congregation, there is nothing in his chazakah [Acharonim]. And a house that was a place of prayer for many days should not be changed to another house for the sake of the ways of peace, for it is no less than an eruv, where one places the eruv in an old house for the sake of the ways of peace, as is written in Orach Chaim siman 366. Furthermore, they might suspect him and the members of his household that because they are not proper, they changed their place [Magen Avraham siman 153]. And specifically to another house one should not move it, but if they built a permanent beit knesset, there is neither suspicion nor dispute in this, and also chazakah does not apply to this, for such is the way of the world: when they build a permanent beit knesset, they do not pray in the house of an individual. On the contrary, it is an obligation to do so, as it is known that through the multiplication of individual minyanim, it causes destruction in the city. And Reuven and Shimon who inherited from their father a right that no person has the power to build a beit knesset without their permission, or other rights of mitzvot that they inherited from their father, cannot sell their power to others, for the permission was given to them and not to another. Also, the one who holds the chazakah himself does not have the ability to sell the right of the mitzvah to another, for this is not subject to sale as it is like a thing that has no substance. Similarly, any type of appointment cannot be sold for this reason. Furthermore, when the congregation gave him this right, they gave it to him for himself and not to sell to others. And even to bequeath this to his sons is not by way of inheritance of an estate, but rather that the Torah commanded us that when the son fills the place of his fathers, he stands in his place. And so we learned in Torat Kohanim regarding the Kohen Gadol, that his sons precede any person when they fill the place of their fathers, and if not, another shall come and serve in his stead. And a chazakah in a matter of a mitzvah, whether for free or for a fee, is a chazakah. And even if another wants to add money, he does not have the ability to remove his mitzvah from him, for if not so, what kind of chazakah is it? Behold, the poskim compared this to a chazakah of property. And that which is written in the name of Rabbi Yehuda HeChasid, that when they add to tzedakah they precede, is not according to the law but rather from the trait of piety, for it is proper to do so beyond the letter of the law [it appears to me]. And a person should not quarrel over a matter of a chazakah of a mitzvah, and great is peace.