Introduction to Chazaka

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by R. Gidon Rothstein

Blogging R. Lichtenstein, Chezkat HaBatim, Week 1: Introduction to Chazaka

In Choref Zman of 5761 (post-Sukkot 2000-Nissan 2001), Yeshivat Har Etzion studied the third chapter of Baba Batra, known as Chezkat HaBatim. As the editors note in their introduction, the main topic of the chapter is the chazakah, the presumption of ownership, established by occupying a certain property for three years.

In the simplest case, if one person accuses another of occupying his or her house or field, the person living/squatting there can claim to have purchased it; if s/he can also prove three years’ of residence, that will suffice and no further proof of ownership or acquisition is necessary.

In the first few shiurim in the volume, RA”L takes on basic questions of that scenario: why would three years’ residence serve as proof of ownership, the nature of the residence required, and whether three consecutive years is in fact the required length to allow for such claims.

This week, we’ll review those issues fundamental to a chapter RA”L says is a particular apt example of the Gemara’s characterization of civil law as an ever-flowing fountain, one of the surest gateways to true wisdom, showing the wealth and strength of in-depth analysis of halachic concepts. He expressed trepidation that he had found his way to some truths of the matters at hand; my trepidation at accurately offering his thoughts, third-hand, is that much greater.

What Three Years Proves

The Gemara, after some discussion, ultimately bases three years on the view of Rava, that that is the amount of time people tend to hold on to their deed of purchase. After that, if the former owner denies the sale occurred, the occupant’s lack of documentation does not hurt his claim that s/he had in fact bought this property.

As RA”L notes, that only explains why lack of proof doesn’t count against the occupant—but what gives us reason to think s/he is in fact the owner? One possibility is that the three-year silence of the first owner itself indicates that the land was sold. This is the view of Rashba in a responsum, who supports his claim from, for just one example, the Gemara’s saying (Baba Batra 50b) that if the current occupant changes the land in some egregious way, digging pits, ditches, or caves, the failure of the owner to protest would immediately establish that this new person had acquired it (because owners would never stay silent at such damage being done to their fields).

R. Yehudah and Possession as Immediate Proof

That fits with the opinion of R. Yehuda in the Mishnah, 38a, that three years was an outer limit, since the owner might be on his way to a place that takes a year to get there. Realizing that he’s not coming back, people would spend a year going to tell him he needs to come back and protest the squatting, which would then take another year.

Rashbam reads that as being based on the same principle, the issue is the owner’s silence; he reads 41a’s assertion that if the occupancy occurred when the owner was in the same town, it would take effect right away.

Ramah disagreed; he understood that Gemara to be saying that if the occupancy occurred in the physical presence of the first owner, it would take effect right away. Even according to Ramah, however, the same principle seems to be in effect, that R. Yehudah held that as soon as the owner was aware of someone occupying his/her property, a failure to protest would prove the property had been sold.

Rashba’s taking that to underlie the Sages’ view as well opens two possibilities about the need for three years. They might have agreed that the owner should protest sooner than three years (although we don’t know how long), the three years only being a reflection of how long the purchaser can be expected to hold on to documentation of the sale. Or they might have disagreed, and held that owners sometimes ignore people squatting on their land, for up to three years.

The Original Owner’s Silence

While Ramban says clearly that three years is how long the purchaser holds on to documentation, implying that the silence of the owner counts against him/her earlier than that, the other rishonim speak of that being how long the original owner might stay silent. Rashba holds that it is the original owner’s silence that allows the buyer to dispose of the deed of sale, and Rabbenu Yonah (Rashba’s teacher) held the reverse, that the buyer’s right to dispose of the documents after three years obligates the original owner to protest within that time frame.

For all of them, though, the owner’s silence is what creates the presumption that the current occupant is in fact the new owner. Ritva is the one rishon RA”L cites who seems to say that the occupancy itself establishes a presumption of ownership (similar to how we establish ownership with movable property). For him, three years is solely about documentation.

RA”L suggests that one’s view of that issue will affect one’s view of the amount of time needed to establish occupancy, the level of activity on the property, and (a topic we will not have space for here) whether and how consecutive that occupancy needs to be.

Amount of Time

While property that has not particular living seasons (a primary residence, e.g.) has a three year chazakah period, fields that have a particular growing season might have a different timing of chazakah. R. Yishmael and R. Akiva disagree with each other about the particulars, but agree that as long as the occupant made use of the field for parts of three consecutive growing seasons (the end of the first season, the whole of the next year, and the beginning of next season, acting in ways that demonstrated assumption of ownership of this field and its crops), that sufficed.

They certainly seem to subscribe more to the view that the chazakah is about acting in such a way that if the field didn’t belong to that person, the true owner would come forward. Since s/he didn’t, that supports/establishes the occupant’s claim to ownership.

The Sages there required three full years, although Rav and Shmuel debated what they meant by that. According to Rav, whom Rashbam explains as having been primarily concerned with justifying the absence of a deed of sale, the Sages required three calendrical years.

Activity Required

Rashba understood Rashbam to imply that the Sages didn’t need the occupant to do anything during this time, since the time was about the loss of the deed, not about demonstrating ownership. He objected to that, saying that it’s clear in the Gemara that the occupant has to do something with the field.

RA”L suggests that Rashbam could have answered that Rav, too, required some such acts, just at a lower level of involvement than the other views. For example, R. Acha held that even if the occupant didn’t plant and harvest it for two of the three years, just weeding it and leaving it fallow, that would be enough. That might be how Rashbam saw the Sages’ view as well: since the primary focus of chazakah was how long the buyer had to retain the proof of purchase, a more minimal act of ownership sufficed.

Shmuel, on the other hand, required full participation in three growing seasons. For a biannual crop, that would mean the chazakah could be established more quickly. On the other hand, it requires more significant activity on the part of the occupier—just being a resident wouldn’t be good enough.

Always Room for a Theoretical Possibility

At the close of the shiur, RA”L notes that theoretically we could have established a double avenue to chazakah, where taking either of these paths would be enough. There is no such view, but RA”L is attached to seeing all the logical possibilities, and this would be one of them.

The fundamental question of chazakah, then, is whether it’s to justify the occupant’s lack of proof of the claim that s/he bought it, to stimulate the first owner to protest, or some mix thereof. That affects how long it has to be, whether the original owner has to have been there for some or all of it, and what kinds of acts of ownership the occupant has to perform.

From there, all sorts of issues can arise, as other shiurim in the book demonstrate. For this series, however, I’m going to move in a slightly different direction next week. More than in other volumes of RA”L’s shiurim, this one has several based on stories the Gemara tells to highlight a principle. Next week, I hope to look at a couple of those stories to see what they teach us. 

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