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Week 106 - Tuesday - 4 December 2001

BAVA BATRA: CHAPTER 3: MISHNAH 3

A hazakah which does not have a plea, is not a hazakah. How so? He said to him: What are you doing within mine? And he said to him: No person ever said anything to me - that is not a hazakah. That you sold it to me, that you gave it to me as a gift. Your father sold it to me, your father gave it to me as a gift - that is a hazakah. And what comes due to an inheritance, does not need a plea. Artisans, joint owners, sharecroppers and administrators have no hazakah. A husband has no hazakah in his wife's property, and a wife has no hazakah in her husband's property, nor the father in the son's property, nor the son in the father's property. When is this so? With one who holds possession, but with one who gives a gift, or brothers who divided, or one who takes possession of the property of a convert, if he locked or fenced or broke through the slightest amount, that is a hazakah.

Kehati

The present mishnah teaches three things. 1. A three-year hazakah can only be used as supportive evidence to the plea of an occupant that land to which his ownership is being questioned was rightfully purchased by him or received by him as a gift, but by itself it cannot give him a right to land which is not legally his. 2. A three-year hazakah can be used as evidence of a hazakah for land to which the person had no connection prior to his buying it or receiving it as a gift. If, on the other hand, the person was somehow linked to the property before buying it or receiving it as a gift, as, for example, if he had been a joint owner of the property or the son of the previous owner, the hazakah of holding the land has no relevance. 3. There is another type of hazakah, and that is hezkat hakinyan, hazakah as an act of acquisition, as found in Kidd. 1:5, "Property for which there is security may be acquired by money, deed, or hazakah," meaning that if the buyer performs an act of acquisition by hazakah, neither the buyer nor the seller is able to retract. This hazakah, which is known as a hezkat hakinyan, is effective immediately, and even in such cases where a three-year hazakah would be ineffective.

A hazakah which does not have a plea - Where the present occupant does not claim either to have bought the property or to have received it as a gift from the owner, is not a hazakah - Meaning that a claim based on a three-year hazakah would be ineffective.

How so? He said to him: - If A said to B, What are you doing within mine? - within my field; And he said to him - B replied to A, No person ever said anything to me - No person ever complained that I was working someone else's field, and I have in fact occupied it for three years, that is not a hazakah - Because he has not offered any claim as to how he acquired the field. Nor is he asked whether he might have bought the field and subsequently lost the deed, because such a claim must come from the present occupant himself, and not from outsiders (Gemara). Should, however, B who has been working the field, claim that you sold it to me, or if he claims you gave it to me as a gift - or your father sold it to me - or your father gave it to me as a gift - and I subsequently lost the deed to the field, but I have witnesses that I have occupied this land for three years, That is a hazakah - as it is accompanied by a plea. And what comes due to an inheritance - If a person has been occupying a field for three years and has witnesses that he received it as an inheritance from his father, such a case does not need a plea - He does not need to prove how his father acquired the field, for a person is not familiar with the history of how his father received his fields (Rashbam). However, he is required to bring witnesses that his father had treated the fields as his own for at least one day (Gemara).

Artisans - who have been involved in building or repairing property for a period of three years (Rambam; Yad Ramah); or, as interpreted by others, artisans to whom items were brought for repair in their workshops, and who now claim - despite the owners' protests - that they had bought the items from the owners (Rashbam; Bartenura); other commentators delete the word "artisans" from the mishnah.

The joint owners - who jointly bought a piece of property, and one of them enjoyed all the benefits of the property for three consecutive years; sharecroppers - who received the use of land in return for part of the crops, and who enjoyed all the benefits of the property for three consecutive years; and administrators - who are in charge of the property of minors; all the above have no hazakah - None of these may bring proof of ownership from the fact that they have occupied the land for three consecutive years. In the case of the artisans (according to the interpretation of Rambam and Yad Ramah), the original owner can claim he never protested as the workers were employed by him on his land.

According to Rashbam and Bartenura, the word "artisan" only refers to a person who deals with movable objects. The mishnah therefore does not refer to the three-year hazakah, but rather to a hazakah on movable objects. In the latter case, the general rule is that if one is now in possession of a movable object - even if it has only been in his possession for a short period of time, and even if there are witnesses that it belonged to someone else earlier on - the present holder is believed to own it if he claims he bought the object. The only exception to this general rule are such objects which are normally either lent or rented, where a person in possession of such an object cannot simply claim that he bought the object. The mishnah teaches that for objects not normally lent or rented, but which are sent to an artisan for repairs when necessary, the artisan cannot use hazakah to claim that his possession is evidence it belongs to him, as there are witnesses that it belonged to another person, and that person claims he brought it in for repairs. As far as joint owners are concerned, the fact that one has had full control over the land for three years does not establish a hazakah, as it is possible that the terms of the partnership were such as to divide the use of the land by years.

The Gemara explains that this mishnah refers to land that is too small to be subject to partition, but if the property is large enough to be subject to partition and one of the partners had the exclusive use of the land for three years, that is a hazakah. In the case of the sharecroppers, the original owner may claim that the agreement with the sharecroppers was such as to allow them to have all the crops for a number of consecutive years. The Gemara explains that the mishnah refers to hereditary sharecroppers, whose family members have for generations worked the land belonging to this family, and they normally take the crops for a number of years and the owners for a like number afterwards. Therefore they have no hazakah (Rashbam). Others explain that by hereditary sharecroppers, the Gemara means that this sharecropper worked for the present owner's father or family and even if it was not customary in that area for sharecroppers to receive all the crops for a number of years in a row, the fact that they did so does not grant them a hazakah, as the actual owners of the land do not object if the family sharecroppers do such a thing (Rambam); on the other hand, if an ordinary sharecropper took all the crops for three years, he does acquire a hazakah to the land. As to administrators, since they have been assigned to take care of the land, their uncontested use of it for three years does not constitute a hazakah.

A husband has no hazakah in his wife's property - If a husband assumed the usufruct of his wife's property, even if he had given a written undertaking while she was still an arusah (betrothed) that he would not have the use of her property, or enjoy its usufruct, so that he was in fact not entitled to it, the fact that he used the property for three years without his wife contesting the use does not allow him to claim that he bought the property from his wife, as the presumption is that even with a pre-condition, a wife does not mind her husband's unlawful use of her property; and a wife has no hazakah in her husband's property - If a woman had undisturbed use of one of her husband's fields - and even if he had set aside another field to provide her with her needs - she cannot claim after three years that her uncontested use of the property indicates that she bought it from her husband, for the presumption is that a husband, also, does not mind his wife's use of his property; nor the father in the son's property - A father who uses his son's property for three years does not acquire a hazakah in it, nor the son in the father's property - The Gemara explains that this refers to a case where they run a joint household, and therefore neither would protest the other's use of his property.

When is this so? - that one needs three years to establish a hazakah on land, and houses, etc., but those listed in this mishnah do not establish a hazakah even after three years, With one who holds possession - Where A is in possession of B's property and B claims it was stolen. A counterclaims that he bought the land from B but lost the deed to the land. In such a case, a three-year hazakah is considered to support A's claim. Yet, as seen in this chapter, such a claim is not always accepted, but with one who gives a gift - to his friend in the presence of others and asks him to perform an act of acquisition, or brothers who divided - an inheritance between themselves, and each wishes to take possession of his own part, or one who takes possession of the property of a convert - who died without any heirs, where the property becomes ownerless and the first person to take it acquires it; in all three of the above cases,

If he locked - I.e., either installed a door on the property or repaired a lock on it, so that it can be locked, or fenced - or put up a fence around it, or broke through - the fence to gain access to the grounds (Rashbam), the slightest amount - Even if there was already a door and he merely put the finishing touches to it, or if he completed an already existing fence or broke through an already existing hole to make an entrance, such an act of completion (Gemara) is a hazakah - i.e., is a hezkat kinyan, a hazakah of acquisition, where by his action the person immediately gains ownership to the property. In the case of someone giving a gift to another or brothers dividing up an inheritance, once such an action has been taken the parties cannot retract, for the hazakah was made with the approval of the other party. Similarly, in the case of a convert dying without heirs, once a person has taken any of the above actions, he acquires it and no other person can now acquire the property. The same rule applies if a person buys property from another he acquires it by means of a hazakah, for the Mishnah teaches (Kidd. 1:5): Property for which there is security may be acquired by money, deed, or hazakah.

The reason the present mishnah singles out an acquisition by hazakah is to teach us that a person may acquire property even without paying money to receive it, and this is all the more so when money changes hands. Others explain that the present mishnah does not refer to a case where the acquisition is made through the transfer of money, as a seller generally will not permit a buyer to make an act of hazakah until he has been paid (Shitah Mekubetzet).

BAVA BATRA: CHAPTER 3: MISHNAH 4

If two testified that he ate it for three years, and they were found to be zomemim - they pay him the entire amount. Two on the first, and two on the second, and two on the third - we divide it between them. Three brothers and another joins with them - these are three testimonies, and they are one testimony with respect to conspiracy.

Kehati

The Mishnah mentions in a number of places the rule of witnesses who are considered zomemim - witnesses whose testimony is impugned by others who claim the original witnesses were with them elsewhere at the time they claimed to have been present at a certain act. The Torah (Deut. 19:19) decrees the penalty for zomemim: "You shall do to him as he plotted to do to his brother." Thus, if such false witnesses conspired to have a man put to death, that is their penalty; if they attempted to have a person flogged, they face that punishment; and if they tried to force a person to pay money which by rights he did not need to pay, they are required to pay the sum they conspired to deprive him of. In the latter case, each single witness must pay a part of the total due the person they attempted to wrong. The details of zomemim are spelled out in the first chapter of Makkot. The present mishnah deals with witnesses who testified that a person had occupied a certain property for three years and the witnesses were subsequently shown to be zomemim.

If two testified that he ate it for three years - If two witnesses testified that the present occupant of a field had been there for three years, and they were found to be zomemim - i.e., other witnesses came and testified that during those three years the original witnesses had been with them in a different place, they pay him the entire amount - The zomemim must pay the actual owner of the field the amount they were trying to deprive him of, in addition to the fact that the field is taken away from its present occupant.

Two on the first - If two witnesses testified that the present occupant of a field had occupied it for the first year, and two on the second - and two other witnesses testified that the person had occupied it during the second year, and two on the third - And a third set testified that he had occupied the land for the third year, and the three sets then be found to be zomemim, we divide it between them - Each set of witnesses must pay the actual owner of the field one third of its value.

If there are Three brothers - each of whom testifies about a different year's occupancy of a field, and another - who is not a relative, joins with them - i.e., he joins each brother individually, so as to provide a set of two witnesses for each of the three years, these are three testimonies - Close relatives (such as brothers) cannot join together to form a pair of witnesses. In this case, however, each brother testified about a different time period, therefore - with the addition of the outsider - they form three valid sets of testimony.

And they are one testimony with respect to conspiracy - On the other hand, as far as the law of zomemim with respect to the field is concerned, they are all considered as a single set of witnesses and if they are impugned by other witnesses, each set must pay only one third of the cost of the field, and not the entire cost by itself. In such a case, each brother will have to pay one-sixth of the value, while the outsider will have to pay three-sixths, or a half of the total value of the field nor do they become zomemim until all are proved to have conspired (see Mak. 1:7).

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