This Week's Article

Chazaka without a Taana

Bava Batra (3:3) | Yisrael Bankier | a day ago

The third perek discusses a chazaka in property. In other words, if someone is witnessed using a property for a period of three years and his presence was not contested by the previous owner, he is believed if he claims that he purchased the property, even without holding any contract of sale. In the past we discussed this basis of this law in detail (volume 16, issue 15).

The third Mishnah, however teaches, that a chazaka without any taana, is not considered a chazaka. In other words, for a chazaka to have a legal force, the person occupying that property must claim that he purchased it from the previous owner. His presence alone is not enough. The example the Mishnah brings is if the person who has been on the land for there years is challenged, he simply responds that no one told him not to be there, then he would not have a chazaka.

The Gemara (41a) notes that fact that a chazaka must be supported with a claim of ownership appears obvious. The Gemara however explains that one might have thought that, even without a supporting claim, that the person may have indeed purchased the property. However, he subsequently lost the contract. He kept silent, because he may have thought that if he said that he purchased the land, then the contract would be requested as proof. Not being able to present the contract, he would think that his position would be worse and support the claim that the land was stolen. That is why he was silent. Therefore, one might have thought we must follow the directive "open your mouth for the mute" (Mishlei 31:8). In other words, we assist this individual to organise his legal claim, assuming he is incapable of doing so. It was therefore necessary for the Mishnah to teach that this is not the case and the chazakah has no force.

That said we need to probe a little deeper to understand what the issues is with a chazakah that lacks a taana.

The Chazon Yechezkel (Hashmatot U'miluim Le'Chidushim 2:1) explains that there are potentially two ways to understand the importance of a taana. The first is that the taana adds a positive force to the chazaka, strengthening it. The Chazon Yechezkel however maintains that this is not the explanation. Instead, the chazaka on its own has sufficient force to provide legal ownership. If however, the person occupying the land does not claim the he purchased the land from the previous owner or that it was gifted to him, then it detracts from the chazaka, weakening it. The chazaka loses its force if the individual does not know why he has a legal claim to the land. Is there a difference between these two understandings?

The Chazon Yechezkel, explains that the following case supports the second understanding. We find that if someone inherited land he need not have a definite claim for him to have a chazaka. The Rashbam explains that the heir is not versed in his father's assets. Consequently, there is no expectation that the son should know how his father came into possession of that land. Recall that according to the second understanding the chazaka on its own has sufficient legal force. Considering that there is no expectation that the heir has detailed knowledge of the origins of the estate, this lack of knowledge does not detract from the chazaka. If however one would understand that the taana is required to give the chazaka force, it would be difficult to understand how the heirs could claim a chazaka without a clear taana.

The Chazon Yechezel continues, that the Gemara explains that the reason why the chazaka works for an heir is because we provide the claim for him -- toanim leyoresh. When the Rambam brings this halacha (To'en Venitan 14:12) he brings the law wihthout the above justification brought in the Gemara. The Chazon Yechkel answers, as we explained above, that this because an heir does not need a claim. The chazaka alone has sufficient legal force, and their inability to provide a taana, does not weaken it.

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