Siman 192

Regarding chazakah, how so? If one sold or gave to his fellow a house or a field, once he performed a chazakah upon the body of the land, such as plowing and sowing, or even if not upon the body of the land, such as if he made a fence around it—and even a fence of any size, if there was a benefit in this—he has acquired it. And not only that, but even if he made a breach in a pre-existing fence and it was for the benefit of the land, as will be explained, he has acquired it. And not only that, but even by locking a door he acquires it sometimes, as will be explained. And thus the sages, of blessed memory, said [Bava Batra 42a]: If he locked, fenced, or breached any amount, it is a chazakah. And likewise, when his body benefits from the land, as will be explained, he acquires it; for just as with a slave it is a chazakah when he serves his master, so too with land, when it has served his body, he acquires it. And in the opinion of the Rambam in chapter 1 of Hilkhot Mekhirah, he acquires it even by standing an animal or by spreading out fruits and the like, for since he used the land for his needs, it is a chazakah.

Every chazakah must be performed in the presence of the seller or the giver, or that he should command him to perform the chazakah, and the chazakah is effective even not in his presence. However, in his presence, even when he did not say to him to perform the chazakah, since he did not protest against him, presumably it was pleasing to him that he should acquire through this. And if he handed him the key, it is like saying to him, "Go, perform chazakah and acquire," for this is like a permit that he should perform chazakah, and therefore it is effective even not in his presence. And all the more so if he sent him a messenger or a letter that he should perform chazakah, that it is effective. But the handing over of the key itself is not a chazakah in itself to acquire through this. And even though there are some of our teachers who hold that the handing over of a key is a chazakah, the halakhah is not so, for there is no action in this. And similarly, one who sells a pit to his fellow, once he handed him its cover or the bucket with which they draw water, it is like saying to him, "Go, perform chazakah and acquire." And similarly with land, when he handed him the implements of the land, it is like "Go, perform chazakah and acquire," and the chazakah is effective even not in his presence.

A shoe (locking), how so? The Rambam, of blessed memory, wrote there: If one sold or gave him a house or a courtyard and the entrance was open, and the buyer locked the entrance and then reopened it, he has acquired it. Thus far his words. For with locking alone it is not evident that he acts for the sake of acquisition, but when he locks and opens immediately, it is evident that the locking is for the sake of the chazakah [Beit Yosef]. Many of our teachers disagree with him and hold that locking alone is sufficient. However, the locking is not merely closing the door, but rather he must lock it with a key so that no person can enter there, for this is the work of a homeowner and it is a beneficial thing so that others will not enter without his permission. One should not ask regarding this: behold, we hold that the removal of damage is not an acquisition, and therefore one who chases a lion away from the property of his fellow, this is not an acquisition—why then should locking be an acquisition? For this is not a comparison, as one who locks a door demonstrates that the house is his [the Rosh, chapter 8 of Gittin]. And some say that we require that the house be guarded even without this locking, and without this, it is only like chasing away a lion [the Ran, ibid.]. And specifically when he sells or gives to a man who had no connection to this house until now; but when he sells or gives to his wife or to his son or to his daughter's son, he has not acquired with locking alone, for since they are accustomed to the house, it is certainly their way to lock it occasionally and the chazakah is not evident, until he locks and opens immediately as the Rambam wrote [the Rosh, ibid.].

The installation of doors without locking is not a kinyan [Tosafot ibid. 53a], for there is no benefit to the land in this, and also the house remains open so that any person can enter it, and this is nothing more than one who rearranges wood and stones, as has been written in siman 275 regarding chazakah in ownerless property. And some say that he has acquired it, and even if he only made a lock for the door it is a chazakah, for it is a significant act [Rashbam]. Our teacher, the Rema, ruled according to this opinion, and it is not comparable to ownerless property, for since there is another mind that transfers it to him, there is no act more significant than this [Sma]. And some say that here too we require the closing of the door, but we do not require the closing of a lock, and a slight closing is sufficient [Taz].

How is a fence of any amount defined? If there was a fence there and they would ascend it with ease because it was low, and he added to it any amount and completed it to ten, and now they only ascend with difficulty, he has achieved a benefit by preventing the treading of feet and has acquired it. And some say that it is not specifically that he completed it to ten tefachim, but rather any case where by means of his addition he prevents the treading of feet—for example, if there was a slope before the fence such that with a small addition it is difficult to enter into it—he has acquired it, and so it appears in the Yerushalmi, chapter 3 of Bava Batra. And similarly, if he breached any amount, he has acquired it. How so? If there was a small breach there through which they would enter with difficulty, and he widened it slightly until they now enter with ease, he has benefited the land such that the owners can enter it, and he has acquired it.

Sometimes even with a minor act it is a chazakah if there was a benefit to the land, for example, if there was water in the field and it needed water to irrigate it, and a crack was made in the fence through which the water escaped, and he took a stone and plugged the crack and thereby connected the water to the field, he has performed a benefit and acquired it. And similarly, when the field needed the water that was outside of it and the fence prevented it, and he took a stone from the fence and the water entered, he acquired it. But when the water is damaging to the field, for example, if a water channel entered it that ruins the ground, and he took a stone and opened it and the water exited from it, or if he saw a water channel coming to damage the field and he placed a stone and prevented it from damaging, he has not acquired it, for the removal of damage does not acquire, as this is only like one who chases a lion away from his fellow's property and is similar to one who returns a lost object, for it is incumbent upon everyone to save the property of his fellow; but bringing a benefit is only incumbent upon the owners, and therefore it is a kinyan.

His body benefits from the land, how so? If he spread out bedding in the house or in the field that he purchased and lay upon them, this is a kinyan. And specifically if he spread them out himself and lay upon them, for when the action is not in the body of the land, we require a significant hazakah [Tosafot ibid. 53b]. Therefore, if he lay on the ground, it is nothing, and even if he found bedding there and lay upon them, it is not a hazakah. And similarly, if he set a table himself and ate, this is a hazakah. And not only this, but even if it did not serve his body itself, but the buyer placed his vessels into the house or piled produce in it that is fit for piling, he has acquired it, for the house has served his needs. And it appears to me that this is only in a house, but in a field this is not a hazakah, for it is not designated for that, and there is a proof for this from the Yerushalmi. However, spreading produce to dry them is effective in a field, for it is the way to dry in a field. And so wrote the Rambam there: If the land was a bare rock that has neither a fence nor a breach and is not fit for sowing, the hazakah that acquires it is the spreading of produce or the standing of an animal and similar to this from the rest of the usages. Thus far his words. And similarly, if he gathered the fruit of the tree or pruned them, he has acquired it, since the land served his needs. And not only this, but even if the seller gathered a basket of fruit from this field and gave it to the buyer, the buyer has acquired it, for in this he shows that he has concluded and transferred to him the field with the fruit; and even though he was not on the land at all, nevertheless this land served him and he ate its fruit.

And all of this is the opinion of the Rambam, but there are some of our teachers who hold that one does not acquire through these chazakot, neither by the eating of fruit nor by the placing of an animal and the like, which does not benefit the land. Our teacher, the Rema, wrote that this stands to reason; and even if one spread out bedding and lay upon them, such that the land served the body, this is not a chazakah [the Gra], and it is not similar to a slave, for land is not intended for the service of the human body. And some say that regarding the service of the body, even according to this opinion it is a chazakah [Sma], and they only disagree regarding the service of one's needs and not the service of the body. However, from the language of our teacher, the Rema, in Darkei Moshe, it implies that even in the service of the body it is not a chazakah according to this opinion.

One who sells a field to his fellow, and the buyer entered it and sowed it or plowed it, he has acquired it, for you have no greater chazakah than this, as he performed a significant act upon the body of the land. And likewise, if there was a mound and he removed it and benefited the land thereby, or if there was a pit and he filled it and it was a benefit, it is a chazakah. And specifically a digging that benefits the land, but mere digging is not a kinyan, except in a field intended for plowing and he dug in it in the manner that one digs for plowing; even a minimal amount is a chazakah. And in a field intended to be left fallow, plowing is not effective [Netivot HaMishpat]. And likewise, when he dug a water cistern needed for the field or in a courtyard, you have no greater chazakah than this. And also in a house, if the digging is beneficial, such as to stabilize an oven and the like, it is a chazakah. And likewise, any benefit that he performed in the house, even if he fixed nails that the house needs, it is a chazakah. And this is not similar to the installation of doors, for in the installation of doors without locking, he does not add benefit, whereas nails are fit for hanging objects. The general rule of the matter: anything that he does and there is benefit in the action for the house, it is a chazakah, and the beit din must understand according to the matter. And likewise in land, when he built upon it a building fit for the placement of animals or chickens, and certainly when it is fit for human habitation, it is a chazakah. And regarding the digging of foundations for a building, the later authorities disagreed whether it is a chazakah in ownerless property, and it will be explained in siman 275; and here it appears to me that it is certainly a chazakah, since there is the intent of a grantor, he acquires by that which he prepared a foundation for the building. And when he sold or gave land and buildings are built upon the land, and he performed a chazakah in one of the buildings or in the land, he acquires everything, for they are as one thing since the buildings are fixed in this land. And regarding the fixing of mezuzot, there is reason to doubt; even though it is a great benefit to the house, for without this it is forbidden to dwell in it, nevertheless, it is possible that a matter of a mitzvah is not a chazakah. However, in the making of a parapet, it appears that it is a chazakah even though it is a mitzvah, since it is a benefit for using the roof without fear [it appears to me].

Walking is not a chazakah; even if he walked through the field across its length and its width, it is nothing, for a field is not made for walking. And that which the Holy One, Blessed be He, said to Avraham, "Arise, walk through the land in its length and in its width, for to you I will give it," He did not command him regarding walking for the sake of chazakah, but rather for his affection, that he should see the gift with his eyes, and so that it should not be considered as theft in the hands of his children [Bava Batra 100a]. But if it is made for walking, such as a path of vineyards or an orchard of ministers which are made for strolling, he acquires it through walking, for this is its manner of use. Nevertheless, there is a distinction between the acquisition of walking and an act performed on the body of the land, for with any small act he acquires the entire land, but by walking on part of it he does not acquire the entire land, only the place of his walking [see there, for from Rabbi Eliezer it is heard for the Rabbis, and examine carefully]. And regarding a path of vineyards, where the walking is intended for carrying a load of vine-branches on one's shoulder, the sages said that he acquires as much land as is needed for the loading of the burden, so that he will be able to turn with the burden to both sides without the fence hindering him if the seller should build one. And this is when there is currently no fence there; but if there is a fence there, he only acquires up to the fence, and even if he specified to him that he is selling him such-and-such land and it is beyond it, nevertheless, through his walking he only acquired up to the fence, and he only acquired enough to lift a foot and place a foot beside it, even if it does not contain enough for the loading of the burden that was explained, and outside the fence he must perform another chazakah. And some say the opposite: that if there is a fence, he acquires up to the amount of the loading of the burden that was explained, for without this it is not fit for this use, and consequently the seller must distance the fence until this measure. And if there is no fence there, he only acquires enough to lift a foot and place a foot beside it, for he will be able to carry the burden even when the land beside it is not his, since there is no fence there to hinder him; and even if the seller sows at the side of his walking, it will not hinder him from carrying the burden in the air, and only a fence the seller is unable to make. Therefore, if he specified to him that he is selling more than the walking of a foot, he must perform a chazakah on every tread of the sole of his foot [as above according to the first explanation of the Sma, which is the primary view as written by the Netivot HaMishpat].

In siman 275 it will be explained regarding ownerless property that there is a distinction between a field defined by its boundaries, where one acquires the entire field with a single digging, and one that is not defined, where one does not acquire all of it. However, in a sale, he acquires the entire field that was sold to him with a single digging even when it is not defined, if all the land is continuous without interruption [Rashbam 54a]. And the reason is that regarding ownerless property, where he acquires on his own, how could he acquire all the land with a single digging when it is not defined? But in a sale, the seller is indeed transferring to him such and such land, and automatically when he performs a chazakah on a portion of it, the chazakah extends to all of it, for everything the seller sold to him when it is continuous.

Regarding the chazakah of land, we do not require that the buyer himself perform the chazakah; rather, even if he commanded someone who is not fit for agency, such as a katan or a Cuthean, to perform it and they performed it, this is like his own performance. And even though they do not possess agency, for specifically regarding other kinyanim such as meshikhah, hagbahah, and kinyan sudar, which constitute acquisition and a kinyan, one requires a person capable of agency for this; however, regarding the chazakah of land, where the kinyan is because he improved it, what does it matter to me if a person capable of agency improved it or one who is not capable of agency? Ultimately, it was improved through him [Machaneh Ephraim in the name of the Rashdam and Imrei Binah in a responsum]. And regarding a kinyan of money, if the buyer said to the seller, "Receive from the katan or from the Cuthean such and such amount of money on my account," it is effective, for the seller is the agent of the buyer to receive his money. But if he did not say this to the seller, but rather said to the katan or to the Cuthean, "Give so-and-so money," it is nothing, for they do not possess agency [it appears to me].

An incident occurred involving one who purchased an old house on the condition of demolishing it and building a new house in its place, and they did not perform any kinyan except that the buyer went, with the knowledge of the seller, to demolish and build the house. After he demolished two walls, he cleared their place and removed the loose earth in order to build the new walls; he also brought supports to stand and support the ceiling of the house and the roof upon them so that they would not fall due to the demolition of the walls. Afterward, the buyer retracted, and the seller claimed that the buyer acquired it through chazakah by the fact that he demolished the walls and cleared the place of loose earth, for this is like the "removal of a mound" mentioned in section 9, and also by the placement of the supports it constitutes a kinyan. The buyer claimed that this is not a chazakah. The great authorities divided on this: some say the law is with the buyer and this is not a chazakah, for the placement of the supports is like "chasing away a lion," and the removal of loose earth is not similar to the removal of a mound, for that refers to attached earth and not to detached earth. Particularly according to the poskim who hold that digging foundations for a building is not a chazakah, as is written there, certainly he did not acquire it by taking the earth and by demolishing the walls for the building; rather, even those who disagree there admit in this case, for demolition on the condition of building does not improve it at the time of demolition, and on the contrary, he damages it at the time of his action. Furthermore, even according to that opinion, one must dig all the foundations [Netivot HaMishpat]. And some say that the cleaning of the loose earth is a chazakah like the removal of a mound, for we do not specifically require attached earth. And even though he himself demolished for the building and through this the loose earth increased—and why should the repair avail against the damage that he himself did?—nevertheless, since he gave him permission to demolish it, it is a chazakah through his repair [Ketzot HaChoshen in a responsa]. And it appears to me that the primary view is like this opinion, for whenever one performs any benefit in the matter, it is a chazakah. And here, the beginning of the benefit is in the demolition of the building and in the cleaning of the earth. Even according to the poskim who hold that the placement of foundations is not a chazakah, they only hold this regarding ownerless property—that he did not acquire the land because of his desire to build a building, since the building is not in the land for the time being. But regarding a seller who conveys the land to him for all his needs, in everything that he desires to do within it, and he began with this repair, it is certainly a chazakah. And the placement of supports is also not similar to "chasing away a lion," for this is only the way of a homeowner to act so, and "chasing away a lion" only applies to damage that comes on its own and not to what one does as damage himself on the condition of repairing [it appears to me].

In siman 275, several types of chazakah will be explained that depend on intent, such that if one performed them with this intent, he acquires, and if he performed them with another intent, he does not acquire. For example, one who gathers wood from a field: if his intent is to improve the land, he acquires, and if his intent is for the wood, he does not acquire. And similarly regarding one who prunes branches, one who levels the surface of the ground, and one who opens a water channel, as is written there. And this is all regarding ownerless property, but in a sale or a gift, he acquires in any case, for there is always proof that he acts with the intent to acquire. It is not necessary to state this in the presence of the seller when they are occupied with the matter of the sale or the gift, for when he acts, it is explicitly proven that he acts to acquire. And even if his intent is also for another matter, nevertheless, the primary purpose of his action is for the acquisition. And even though he does not act with the intent of the land, since it is impossible that it does not benefit the land in some small way, it is a chazakah [Tur in the name of a Gaon], for certainly his intent is to acquire, but he performs the action unlike a person who acts only for the benefit of the land. And even not in the presence of the seller, since he said to him, "Go, perform chazakah and acquire," he presumably carries out his mission. And although there are those who disagree on this and hold that there is no distinction between a sale and ownerless property in this matter, nevertheless, this opinion is more logical [ibid.].

One who sells to his fellow ten fields in ten provinces, once he has performed a chazakah in one of them, he has acquired all of them. For just as with a chazakah of any size one acquires the entire field, there is no difference between one field and scattered fields, as the foundation of the earth is one. And since there is another mind that transfers ownership to him, he presumably performed the chazakah with the intent for all of them, and also the seller presumably transferred them to him thus. And even if one was high and the other was a deep valley and their usage is not equal, nevertheless, they are all lands. In what case is this said? When he gave the seller the money for all of them, for then presumably their intent was for all of them. But if he did not give the money for all of them, he only acquires corresponding to his money, unless the seller said to him explicitly that he should acquire against all of them; and corresponding to his money he acquires even if the seller is coming and going for the money [Sma]. And the same applies to ten houses; and houses and fields have the same law, for everything attached to the ground is considered as one with the ground, even though they are in separate places. And some say that when he did not give the money for all of them, he does not acquire even in one field except for the distance that a pair of oxen goes at the time of plowing and returns, as I wrote in siman 275. And when the field is larger than this measure, it is like two fields, and he does not acquire with one chazakah until he gives all the money [Sma]. And from the Tur it is implied like the first opinion.

Since there is a distinction between whether he gave the payment for all of them or did not give the payment for all of them, therefore, if it was all as a gift, he acquires all of them. And some disagree on this, for on the contrary, since he does not give payment, it is presumed that the intent of the giver is that the choice should remain in his hand. Therefore, if the giver specified to him that he should acquire everything with this chazakah, he acquires them; and if not, he only acquires the field in which he performed the chazakah. And regarding rental, everyone agrees that he acquires everything with one chazakah even if he gave nothing, for rental is only paid at the end, and certainly the renter and the lessor agreed that he should acquire everything. And all the more so if he gave money, even a portion of the money, that he acquires everything [Sma]. And some say that rental is similar to a gift and only acquires corresponding to his money according to the "some disagree" [the Gra]. And if some of them were by sale, and some as a gift, and some by rental, since he performed a chazakah in one of them, he acquires all of them; however, regarding the money, each one is according to its law. And in one who seizes it for his debt, it is certain that he acquires everything with one chazakah since he has already received his money [Netivot HaMishpat].

Chazakah acquires without money and without a deed in any case where he does not go in and out for the money, and even in a place where they are accustomed to write a deed, because he performed an action upon the body of the land [Ran, first chapter of Kiddushin]. And if he stipulated that he should not acquire without a deed, everything follows his stipulation. And so too, in a place where the custom is not to acquire without a deed, he does not acquire through chazakah. And so too, when the custom is to confirm it in the courts for the strengthening of the matter, he does not acquire without this.

If one sold him a place in the beit knesset, it is a chazakah when he sits in the place at the time of prayer, since its usage is such [Taz]. And the chazakah of a bathhouse is when he bathed in it, and the chazakah of an oven is when he baked in it, and a straw-house, a wood-house, and a cattle-house is when he brought straw or wood or an animal into it, for each and every thing, the chazakah is according to its usage. And all the more so when one sold a house and he lived in it for one hour in the manner of a dwelling, that it is a chazakah. And there are those who say that regarding the rental of a house, it is a chazakah even if he only brought household vessels into it, and even if he removed these vessels, he can bring others in their place. But regarding the matter of it being like his courtyard to acquire a found object or a purchase, such that it should be entirely like his for the duration of the rental, he requires a complete chazakah [Netivot HaMishpat].