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Week 106 - Monday - 3 December 2001

BAVA BATRA: CHAPTER 3: MISHNAH 1

Hazakah (presumptive title) to houses, and cisterns, and ditches, and caves, and dovecotes, and bathhouses, and olive presses, and irrigated fields, and slaves, and anything which produces continuous gain - the hazakah is three years - from day to day. For a field which is not irrigated - the hazakah is three years, and it is not from day to day. R. Yishmael says, Three months in the first and three months in the last and twelve months in the middle, thus eighteen months. R. Akiva says, A month in the first and a month in the last and twelve months in the middle, thus fourteen months. R. Yishmael stated, When is this so? With a grain-field, but with a field of trees, if he gathered his produce, gathered his olives, gathered his figs - these are three years.

Kehati

A commonly accepted principle of Halakhah is that any property is presumed to belong to the person in whose possession it is found, and it is the onus of anyone wishing to dispute that person's right to the object to bring proof to the contrary. This rule is true for movable goods (except for animals). With land, however, if a certain tract was known to belong to A and is now being farmed by B, A may claim that the land was stolen from him, and it is the onus of B to prove differently - i.e., that he either bought the land from A or received it as a gift from him. The present mishnah teaches us that even with land one can gain a hazakah by holding it unchallenged for a period of time. This presumptive title - the hazakah - based on unchallenged use supersedes any claim to the title of the land by its previous owners. This is known as the three-year hazakah, i.e., if B can bring witnesses that he has had unchallenged possession of a piece of land for three years, he acquires hazakah to the land. Then, if A challenges B's ownership on the basis of the fact that the land had commonly been known to belong to A in previous years, B may claim that he bought the land from A but has since lost the deed - and B's claim will be accepted.

The Talmud explains that the reason for the requirement of three years to establish title is that the average person saves his legal documents for no more than three years. If A comes to claim the land after more than three years have elapsed, he is told that he should have lodged a protest against B before witnesses at an earlier time. Had he done so, word would have reached B that there was a question as to his title to the land, and he would have preserved his deed to the land beyond the three years. This mishnah teaches that the time needed to acquire hazakah to possessions specified in the mishnah depends on whether the object is used on a regular basis throughout the year, or whether it is only used at specific seasons.

Hazakah to houses - The three-year hazakah, which, as we noted above, is effective in the case of houses, and cisterns, and ditches, and caves - All of which are used to store water for irrigation purposes; and dovecotes, bath-houses, olive presses, irrigated fields, and slaves, and anything which produces continuous gain - i.e., which is used on a daily basis to produce income, the hazakah is three years - from day to day - If a person holds any of the above for three full and consecutive years, he attains the hazakah to them. For a field which is not irrigated - and which produces only a single crop a year, the hazakah is three years, and is not from day to day - One does not need to hold the land for three years; three crops are sufficient to establish a hazakah. How?

R. Yishmael says: Three months in the first - The last three months of the first year, and three months in the last - and the first three months of the third year, and twelve months in the middle - of the entire second year, thus eighteen months - i.e., if a person held such a field for eighteen consecutive months, he is considered to have a three-year hazakah, for certain crops - such as barley, oats, and lentils - grow within three months, so that a person can harvest crops in three different years within a period of eighteen months.

R. Akiva says: A month in the first - The last month of the first year, and a month in the last - the first month of the third year, and twelve months in the middle - of the entire second year, thus fourteen months - If a person held the property for fourteen consecutive months, he is considered to have hazakah, because certain crops - such as vegetables or corn used for fodder - grow within a single month, so that a person can harvest crops in three different years within a period of fourteen months. As a result, this period is considered to be a three-year hazakah. R. Yishmael, on the other hand, holds that harvesting a crop of vegetables or fodder is insufficient toward a title claim, and he requires the crop to be of grains, etc. R. Yishmael stated: When is this so? - that one needs eighteen months to obtain hazakah, with a grain field - Lit., a white field, it is so called since it casts no shadow. With grain, all the crop is harvested at the same time, and there are only three crops within three years, thus eighteen months are needed, as spelled out above.

But with a field of trees - where there are different kinds of fruit trees, with each species ripening and picked at a different time, if he gathered his produce - This is a reference to the grape harvest (see Deut. 22:9). If he gathered - his grapes and olives - and gathered his figs - which he then dried, these are three years - The gathering of three kinds of crops - even in the same year - is considered to be a three-year hazakah. The Halakhah does not follow either R. Yishmael or R. Akiva, but rather, whether the field is an unirrigated grain field or a fruit tree field, hazakah requires three years, but not from day to day. I.e., as long as a person had three harvests of any given crop, he has a three-year hazakah (Rambam, Hil. To'en Ve'nitan 12:1).

BAVA BATRA: CHAPTER 3: MISHNAH 2

There are three lands for hazakah: Judea, Trans-Jordan, and Galilee. If one was in Judea and one held possession in Galilee, or one was in Galilee and one held possession in Judea - it is not a hazakah, unless he is with him in the region. R. Yehudah says: They said "three years" only for him to be in Spain and he holds possession for a year, and they travel a year and notify him and he comes the following year.

Kehati

After the previous mishnah dealt with a three-year hazakah, the present one teaches that a three-year hazakah is only a valid hazakah if it was clear that the original owner of the field was aware that another person was occupying his land and did not lodge a protest. Had he protested the other person's presence on the land, even if he only did so to third parties, the present occupant would have heard of the protest and would have realized that he needed to retain the sales contract for more than three years. If, however, it is obvious that any protest lodged by the original owner could not become known to the present occupant since they are living in different districts between which there are no regular caravan trains, a three-year hazakah does not aid the occupant to lay claim to the property, and if he does not retain the sales contract he loses the land.

There are three lands for hazakah - Eretz Israel is divided into three regions as regards hazakah, and even if a person occupied land for three years where the owner was in a different region during that time, as there is no steady communication by means of regular caravan trains between the regions, one cannot presume either that the original owner had heard of the other's use of the land or that the failure to hear any complaint from the owner indicates his approval of the action. Thus a three-year hazakah is invalid in such circumstances, and the present occupant, should he have bought the land legitimately, must hold onto his deed even beyond the three years. In the absence of such a deed, he cannot claim a hazakah to the land, and may forfeit it, as we saw above. The three regions are Judea, Trans-Jordan, and Galilee. If one - The original owner, was in Judea - and one held possession in Galilee, or vice versa one was in Galilee it is not a hazakah - for the reason given above; unless he is with him in the region - Only if both lived in the same region throughout the entire period is a three-year hazakah valid. This rule applies even if both lived in different cities, for the original owner had three years to protest and did not do so. Nor did the original owner have to come to the other's city to lodge a protest, for the halakhah is that a protest is valid even if not lodged in the presence of the present occupant. In such circumstances, once the three years have passed the present occupant is believed if he claims he bought the land but has since lost the title deed.

R. Yehudah says: They - The Sages who set the time period for the hazakah said three years - specify this length of time, only for him to be in Spain - To allow for a case where the original owner was in Spain, which (at the time of the Mishnah) was a year's journey from Eretz Israel, and he holds possession for a year - Where, should anyone take possession of the original owner's land for a year, during that year people would become aware that the land of the original owner, now residing in Spain, was being held by another, and they travel a year and notify him - i.e., during the second year after he left Eretz Israel, the original owner will undoubtedly be informed that another is holding his land, and he comes the following year - So that finally, in the third year, he will return and protest the occupancy. R. Yehudah differs with the First Tanna, holding that a three-year hazakah is always sufficient to establish ownership, even should the original owner and the present occupant be living in different regions of Eretz Israel. R. Yehudah's logic is that the three year limit is not due to the fact that people destroy contracts after three years, but rather because the Sages wished to allow a rightful owner the opportunity to protest illegal occupancy of his land, even if the original owner had traveled to a faraway country, such as Spain. In reality, if the original owner and the present occupant live in the same region, even a three-year occupancy is unnecessary. All that is necessary for the present occupant to establish a hazakah is for him to have lived on the land for any time at all, provided we are certain that the original owner is aware of the fact and did not lodge a protest, as it is assumed that an owner would not allow another person to enjoy the benefits of his field even for a short time without lodging a protest. The halakhah does not follow R. Yehudah.

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