Siman 150

One who entered into a field under the law of a mashkona has no hazaka in it if it is known by witnesses, or if the matter is established and publicized to the many, that he entered into it under the law of a mashkona. And there are those who say that he never has a hazaka in it, even if it is known that the days of the mashkona were completed and he held it for three years afterward. And even though regarding a craftsman and a sharecropper, when they held it for three years after they departed from this [status] they have a hazaka, as written in siman 149, because there, even during the time of their craftsmanship and sharecropping, it is not known to us that he did not purchase it, only that we do not believe them while they are in this [status]; therefore, when they depart from this business, they have a hazaka. This is not the case with a mashkanta, where it is known to us that he did not purchase it, and therefore he never has a hazaka [Urim VeTumim]. Furthermore, there it is the way of the world that when they depart from this business, they receive the land back from them, but a mashkanta, since he is pressed for money, it is likely that he has not yet redeemed it and everything proceeds in the manner of a loan [it appears to me]. And just as a sharecropper and a craftsman, their children have a hazaka, so too the son of the lender has a hazaka when he comes with his own claim, unlike the one who disagrees on this [it appears to me]. And there are those who say that even regarding the lender himself, if he consumed its produce for three years after the days of the mashkona ended, he has a hazaka. And there is one who says that if witnesses testified that this field is a mashkona with him, and they know there were fixed years but they do not know for how many years, even if he held it for several years, he has no hazaka. But if they testified that he took it as a mashkona for such and such years, or even if he took it as a mashkona indefinitely—and an indefinite mashkanta is for a year—and he consumed its produce for three years after the conclusion of the time of the mashkona, and in an indefinite case after the year, he has a hazaka. And this is also similar to the previous opinion.

If the matter is not known clearly, but rather there is a mere rumor that this field was mortgaged to him, and he himself admits that it came into his hand through a mortgage but that he subsequently purchased it from him, it has already been explained that when the rumor emerged before three years, it is like a protest, and he is not believed to claim "it is purchased in my hand." Nevertheless, it is good advice for the mortgagor to make a protest at the end of every three years, for perhaps this one will hide the mortgage document after the rumor is forgotten and claim "it is purchased in my hand," like an incident that occurred with one who mortgaged an orchard to his fellow for ten years, and after he had consumed its fruit for three years, he said to the mortgagor: "If you sell it to me, it is well; and if not, I will hide the mortgage document and claim 'it is purchased in my hand.'"

In the case we have written, where the mortgagor was forced to sell it to the possessor, the mortgagor performed a stratagem in the matter: before he sold it to him, he gave it to his son as a gift, and then went back and made a deed of sale to the holder of the mortgage. Afterward, the entire matter became known, and the sages said that his sale is nothing, and the money that the holder of the mortgage gave to the mortgagor beyond the value of the mortgage is only like an oral loan, and the deed is nothing because it was made under duress. And since it is like an oral loan, he is believed to say "I paid," and he does not collect from purchasers. And this is specifically when the duress was from the side of the buyer, like this case; but if he performed a deception of his own will because of his own situation, not caused by the buyer, even though according to the law the sale is nothing because of the deception, nevertheless, since the deed of sale was made willingly, the money has the status of a loan with a deed [Sma]. And such is the law in any sale that was voided for any reason: the money has the status of a loan with a deed, provided only that the deed of sale was not made through a prohibition, such as interest or the like [ibid.]. And some say there is no distinction in this, and in any place where the sale is void, the money has only the status of an oral loan [Taz]. And the primary view is like the first opinion [Urim VeTumim]. And all this is when the sale was with a deed; but if it was with money or with chazakah and the sale was voided, the money has only the status of an oral loan [it appears to me]. And similarly, when the sale was with a deed and was voided by their own will, even according to the second opinion it has the status of a loan with a deed [as is implied in the Taz].

Reuven who descended into Shimon's field by way of a mashkona, and Reuven had another oral claim against Shimon which he cannot extract from him, and the days of the mashkona concluded, and he wanted to withhold the field and consume the produce to the extent of his claim that he has against Shimon and return it to him afterward, and he did not reveal this to witnesses—for if he had revealed it to them, he would not have been able to do so—but afterward it was revealed that such was his intention from the beginning [Sma]; if it is known to us that he descended into it by way of a mashkona, he is not believed even if he held it for three years, but rather he must return it immediately with all the produce he consumed from the time the days of the mashkona concluded [ibid.], since it is known to us that the days of the mashkona concluded. And if it is not known, he is believed regarding his other claim through a migo that he could have hidden the mashkona deed and claimed "it is purchased in my hand," and he must swear a shevuat hesset. And even though regarding heirs some say that a shevua is not required, as I wrote in siman 149 section 13, because there in the migo there was no claim of certainty as I wrote there. And some say that even this is specifically where he already consumed the produce to the extent of the claim he asserts, but if he comes to claim against him before he consumes the produce, he is not believed to withhold the land in his hand even though he has a migo, for land is not similar to movable property, as it always stands in the domain of the owners and it would be a migo to extract [ibid.]. However, many disagree with this and hold that he is believed even regarding the future; since he is currently holding the land, this is not a migo to extract [Shach], but rather it is a migo from money to money, and we say migo as I wrote in the rules of migo in siman 82. And if he held it for three years after the days of the mashkona concluded, according to the latter opinions in section 1 that he would be believed to say "it is purchased in my hand," it is possible that he is believed also regarding the claim through a migo of "purchased," even when it is known to us that he descended by way of a mashkona; or it is possible that his migo is weakened, as in the case of a rumor that will be explained.

And if it is not known that he descended into it as a mashkona, but rather a rumor emerged regarding this: if the rumor emerged before he held it for three years, he is not believed to claim "it is purchased in my hand," for the rumor is like a protest, and he should have been careful with his deed, as has been written in siman 149, section 12. And if the rumor emerged after he held it for three years, if he were to claim "it is purchased in my hand," he would be believed. However, if he claims "I have another claim" and wishes to withhold the land until he consumes the equivalent of his claim, he is not believed on account of this migo, for the power of the migo is weakened; since the rumor emerged that he descended as a mashkona, he does not wish to claim "it is purchased in my hand," as has been written there. And even regarding the produce that he already consumed, he is not believed, for this migo is weakened [Shach].

And just as the law is between Reuven and Shimon, so is the law between him and the heirs of Shimon, as is written there. And if Shimon the mortgagor died and Reuven came to claim against his heirs to demand another claim, if it is in a matter where he can claim "it is purchased in my hand," such as where it is not known that he descended into it via a mortgage and there is also no rumor [Sma], he is believed even regarding the produce he ate up to the amount of the claim, and also to eat the produce in the future he is believed according to the many dissenters in section 4 [it appears to me]. And if he cannot claim "it is purchased in my hand," and even if he could claim it, such as where there is only a mere rumor, nevertheless he is not believed regarding the other claim because the power of the migo was weakened, as has been explained. However, in this matter there is one who says that there is a distinction between Shimon and his heirs, for Shimon himself could have made him swear regarding the other claim that he has against him, since he could have made him swear with a certain claim even regarding the migo that "it is purchased in my hand." But against the orphans, who cannot make him swear with certainty regarding the migo, they cannot make him swear regarding the other claim either, and he takes without an oath. But there are those who disagree and hold that whatever their father was able to claim and make him swear with certainty, we claim for the orphans even with a doubtful claim if it is merely a good claim; and furthermore, we do not say a migo to be exempt from an oath [Urim VeTummim].

If he descended into it under the law of a mashkona and consumed its produce for three years, and there are no witnesses and also no rumor [Shach] that he descended into it under the law of a mashkona, and he says that he still has the right to hold it under the law of a mashkona for two more years, he is believed with a migo that it is purchased in his hand. This is so even if the lender claims, "I had a mashkona deed and it was lost," and this is not a migo to extract even according to the first opinion in section 4, since according to his claim he has already merited the land for the mashkanta. And there are those who disagree with this, for certainly if he claims "I never had a mashkona deed," he is believed with a migo; but when he admits that he had a mashkona deed, his migo is weakened, for people are careful with a mashkona deed not to lose it. Therefore, it is a legal doubt, and we do not extract from him what he has already consumed, but regarding the future he is not believed, for the burden of proof rests on the claimant [ibid.].