Chazaka

Bava Batra (3:1) | Yisrael Bankier | 6 years ago

The third perek of Bava Batra opens by introducing the concept of a chazaka in property. The Bartunera explains that if one was witnessed using a property for three years, and the previous known owner has not contested his presence, he is believed if he claims that he purchased the property; even without any supporting documentation. The Bartenura explains that one is only careful to retain their contracts for three years. Furthermore, we tell the previous owner, that if the field was indeed stolen, he should have objected to the presence of the other party within the first three years. We shall try to understand this logic.

The Gemara probes the basis of a chazaka. The Bartenura cited *Rava'*s conclusion that one is only careful to look after their contracts for three years. While Rava's reason explains why the current occupant cannot present proof of his acquisition, where do we find support that he owns the property? Furthermore, the second answer that the Bartenura brings (that the previous owner should have objected during that time) was Rava's first answer that was rejected by Abaye. Abaye argues that when considering a property of a certain family who are sensitive if another simply walked through their field, a chazaka should be established after the first uncontested use. This however is not the case. Why then does the Bartunera cite this answer as well?

The Rashba explains, that the two answers of Rava work together. In other words, because the original owner was silent during the first three years, it appears as though he was waiting until the purchaser misplaced the contract of sale in order to contest the ownership of the land. To be clear, the first answer of Rava is insufficient – the lack of objection alone is not a proof of ownership. It is more that since the objection was delayed until a time where one is no longer careful to keep the contract, the claim is questionable.

The Rashba continues that by explaining that the three-year limit is not arbitrary. It once again relates to the first answer. Initially, the purchaser will be careful to store the contract safely in case the sale is contested. It is only once he has lived there in peace for three years, that he will no longer feel he needs to look after the contract. This explains why the time required to establish a chazaka can vary with how the field is used. For example, a field that is planted then left fallow in alternating years, requires six years for a chazaka. He explains that it would take that amount of time for the new owner to feel comfortable that his presence will not be contested.

The Ritva however argues that Rava's first answer (that the original owner did not contents the occupants use) should really be enough. He explains that this should be similar to the law that one possessing a movable object is proof of ownership. However, since land is generally purchased with contracts, the fact the current occupant does not have one when questioned within the first three years, weakens his claim of ownership. He likens this to a case of a women who claims she was just divorced but does not have a get.

The Ketzot HaChoshen (140:2) however reasons that this law is a takanat Chachamim – rabbinic decree. In other words, since the Chachamim realised that most people do not look after their documents for more than three years, they implemented a time limit for one to protest the presence of another in their property. Otherwise, if one could protest beyond this time, it would have a devastating impacting on genuine sales.

The Ketzot HaChoshen cites the Nimukei Yosef (14a) in support of his position: "for more than [three years], one is not careful since they think that the original owner will not protest… and this is according to the general understanding, which is why the Chachamim instituted three years. Furthermore, the Ketzot cites the Rambam who explains, "since [the original owner] did not object [in the first three years he] loses out." The Ketzot argues that if the reason was like the Ramban (who maintains that same position as the Ritva above) the language of "losing out" does not fit. Recall that the Ritva understands that the occupant has a valid claim from the outset. Instead, it is more appropriate when dealing with a rabbinically instituted time limit that expired on the original owner. (See the Ketzot for a fuller discussion including the opinion of the Tosfot.)

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