Chazaka Upon Tashmimishin

  • Rav Moshe Taragin


Regarding portable items (metaltalin), possession is 9/10 of the law. Disputed ownership is typically awarded to the one possessing the item; the principle of “ha-motzi mei-chavero alav ha-ra’aya” establishes the possessor as the leveraged party in all disputes. Unless the plaintiff (tovei'a) can muster actual evidence, the case is awarded almost by default to the Nitva, the one who maintains physical possession over the disputed item.


Litigations involving land are not solved as simply. Land cannot be HELD or physically possessed. Even if one of the litigants is physically standing on the land under dispute, that presence has no halakhic import. Obviously, producing witnesses or a contract of sale (shetar) will yield victory, but in the absence of this evidence, who should be awarded disputed land?


The third perek of Bava Batra describes a mechanism known as “chezkat gimmel shanim,” whereby a person who has benefitted for three straight years from land without legal protest can be assumed to have purchased or otherwise legally acquired the land. The three-year period of “owner-like” usage without any complaint INDICATES that his claim to have purchased the land is indeed accurate.


Presumably, a chazaka for utility of land (tashmishin) works in a similar fashion. If someone enjoys utility for an uninterrupted period, he is assumed to have purchased that utility.


            According to this approach, a chazaka for utility of land is based on the fact that his utility PROVES PURCHASE and is fundamentally similar to a chazaka on land; but the sources indicate that a chazaka of tashmishin actually operates differently. The mishna (Bava Batra 41a) asserts that ANY chazaka that is not accompanied by an assertive claim (ta’ana) is not operational. Chazaka PROVES acquisition only if a CLAIM for acquisition has been lodged. Accordingly, we would anticipate that even a chazaka for tashmishim requires the lodging of a ta'ana. However, most of the mishnayot in the end of the third perek of Bava Batra, which address chazaka of tashmishin, do not stipulate the need for a ta'ana. In addition, the gemara in Bava Batra 23a, discussing a potential chazaka of tashmishin (which is ultimately disqualified) depicts a scenario without a ta’ana, as does the gemara in Bava Batra 6a (a case that IS ratified). These gemarot indicate that unlike a chazaka that PROVES purchase of land and must be accompanied by a ta’ana, chazaka about utility of land does not require a ta’ana and presumably does not merely provide PROOF of purchase. In fact, the Ramban cites the position of the Geonim, who explicitly claim that chazaka upon tashmishin does not require a claim. How, then, does a chazaka upon tashmishin of land operate?


The Ramban (in his Milchamot comments to Bava Batra 6a) asserts that land-based utilities can be “acquired” through the process of mechila. If the owner of the land witnessed the utilities being enjoyed (for a duration of time) and did not protest, he has effectively YIELDED them to the recipient. This is a novel concept because typically, an item which is legally owned must be transferred through an act of kinyan; it cannot simply be “waived” to another. The classic scenario of “waiving” occurs when something tangible is not OWNED but a person merely POSSESSES RIGHTS that can be employed against another. Those RIGHTS can be waived, even if significant value will be affected. For example, a creditor can waive his rights to collect a loan because he really doesn’t own anything. We would have assumed that the owner of land actually OWNS the utilities of that item as well, and must therefore transfer them through an appropriate kinyan. The Ramban’s theory asserts otherwise. Although the actual land or wall is tangible, owned, and transferable only through kinyan, the ABSTRACT (and recyclable) utilities are not really owned. Instead, the owner of the land or wall possesses rights to use it and prevent others from doing so. Through direct mechila – or even assumed mechila (inferred from sustained silence in the face of provocation) – the utilities can be enjoyed by another. Tosafot (23a) assert a similar logic of mechila to explain the mechanism of chazaka upon tashmishin.


This logic would obviate the need for an accompanying ta’ana. Actual land must be transferred through classic kinyan. Sustained chazaka of land merely proves the past occurrence of an act of kinyan, and it can only verify that claim if ACCOMPANIED by a claim. Chazaka upon tashmishin, however, is not merely evidence of a professed sale; it actually generates a “transfer” of ability to the “user.” His sustained and unopposed use constitutes mechila on the part of the owner, which dynamically empowers the beneficiary with rights of utility. Of course, under such circumstances, no claim is necessary.


The Ketzot (153:3) develops a different logic to explain chazaka upon tashmishin, assuming, as the Geonim did, that it does not require an accompanying claim. Land can be acquired through three different methods – money (kesef), contracts (shetar), and chazaka (symbolically remodeling the land). How would one ACQUIRE utilities of lands or walls? The scenario of chazaka upon tashmishin concerns a person who unilaterally began using land and did not meet with opposition. The chazaka helps to determine whether the beneficiary actually purchased these rights (or according to the Ramban had them “waived” to him)? Presumably, the act of kinyan by which these rights can acquired would be a standard ma’aseh chazaka (kesef, shetar or chazaka) performed upon the land but stipulating that only utilities are being transferred and not the actual land.


The Ketzot claims that utilities can be transferred by a different means of kinyan (which is not suitable in actual land transfers) – by beginning to USE the utilities, an act of kinyan has been performed. If two parties choose to enact a kinyan upon utilities, the purchaser (instead of kesef or shetar) may commence utility as a symbolic trigger/kinyan to transfer the “legal ownership” of those utilities. By extension, chazaka or continued and unopposed use of utilities does not PROVE a prior purchase, BUT ITSELF ENTAILS a ma’aseh kinyan upon those utilities. Even though the previous owner of the land did not explicitly authorize a kinyan, by remaining silent during the unilateral use, he has effectively authorized the transfer. The benefit from utilities entails a kinyan upon those utilities.


It is then obvious that a chazaka upon tashmishin – meant not to prove prior purchase but to constitute an ACTUAL purchase – does not require an accompanying claim. The reason that classic chazaka upon land requires a claim is that it (presumably) entails a proof of prior purchase, which by its very definition is useless unless a claim of purchase is launched. By contrast, according to the Ketzot, sustained tashmishin is a NEW kinyan upon those very utilities, which actually transfers ownership upon the utilities.