Three Years of Chazaka on Land and the Shor Ha-Mu'ad

  • Rav Moshe Taragin



Refuah Shleima to Aaron Meir Ben Silah




Dedicated by Rabbi Barry and Shoshana Hartman in memory of
Sarah and Gustave (Sarah and Gedalya) Hartman z”l,
Cipora and Rabbi Moshe Turner z”l




Since land cannot be physically “held,” the concept of “Ha-motzi mei-chaveiro alav ha-raya” is irrelevant. Obviously, testimony of eidim or presentation of a shetar will unequivocally prove ownership, but in the absence of these elements, how can a disputed land case be decided? The mishna Bava Batra (28a) asserts that if a squatter has been benefitting for three continuous years without protest, he is awarded the land. The mishna DOES NOT, however, articulate the mechanism by which chazaka secures the land for the squatter. This chore is left for the gemara.


The gemara initially cites “Holkhei Usha” (later clarified to be R. Yochanan), who claim that a chazaka of three years can be inferred from the precedent of shor ha-mu’ad. Just as three gorings transform an animal from a tam, which pays only chatzi nezek, into a mu’ad, which pays nezek shalem, three years of residence upon or benefit from land similarly transforms the assumed ownership over land from the last known previous owner (“mara kama”) to the current squatter (“machzik”). This association between three years of chazaka and shor hamu’ad is unexpected and certainly not obvious. What common denominator exists between shor ha-mu’ad and a chazaka upon land?


Tosafot develop an interesting concept to explain this association. Three gorings prove that the true nature of the animal is violent. We can no longer assume that these events were incidental and avoidable. Since we can EXPECT the animal to continue damaging, the owner is held fully culpable if he is derelict in guarding against future damages. Just as three gorings demonstrate the NATURE of the ANIMAL (huchzak nagchan), three years demonstrate the NATURE of the previous owner as “passive” or unresponsive to the squatting (huchzak shatkan). Since he is proven to be unresponsive, he has effectively YIELDED the lands to the machzik.


Tosafot is asserting an extremely audacious claim about the ownership of land. Typically, items that are owned cannot be yielded to others through mechila. Mechila is simply a forfeiture of “rights;” it can dissolve the RIGHT to collect a debt or (as discussed in the previous shiur) or dissolve the RIGHT to prevent people from using one’s lands. Once RIGHTS have been dissolved through mechila, debts cannot be collected and an item’s non-consumptive utility cannot be denied to others. However, actual items that are owned must be transferred through a kinyan. Tosafot (to the opposition of all Rishonim) claim that land is different and evidently isn’t really owned – even by the legally recognized owner. Since land isn’t portable and endures beyond human life spans, a person who ACQUIRES it does not really OWN it ESSENTIALLY; he merely acquires RIGHTS of use and RIGHTS of preventing non-owner usage. If he is unresponsive while others squat, he has waived those rights and the land rights transfer to the squatter.


Essentially, Holkhei Usha asserted a major paradigm shift in the understanding of chazaka. We would have presumed that three years of unopposed squatting would be PROOF of purchase; if the original owner had not sold the land to the machzik at some earlier point, he would have presumably vocalized his opposition. The silence INDICATES an earlier sale (which probably included some classic form of ma’aseh kinyan). According to the present model, however, three years do not PROVE changed ownership, but rather TRIGGER it. After three years of silence, the land has been yielded (mechila) to the squatter.


Ultimately the gemara questions Holkhei Usha’s comparison with the shor ha-mu’ad. If chazaka functions in the classic manner as evidence to an earlier sale, it would only be valid if there was an accompanying ta’ana, a claim of sale. However, if three years generate an ACTUAL CHANGE of ownership, the chazaka should be independently effective even without an accompanying claim. Why, then, does the mishna (41a) unilaterally demand a claim accompanying every chazaka? If Holkhei Usha’s logic is based on mechila, the gemara’s question regarding the necessity of a ta’ana is quite valid. Indeed, the gemara’s relatively SIMPLE solution to explain the ta’ana requirement according to Usha may imply that this mechila logic was NOT their basis.


Based upon this concern, the Ramban asserts a very different logic to explain the efficacy of chazaka of three years according to Holkhei Usha. This logic assumes a very distinct premise about the process of an animal becoming a shor mu’ad. In previous shiurim (Bava Kama 22, 23, 23), we noted that three events of goring do not merely demonstrate the aggressive tendencies of the animal, thereby requiring the owner to be more careful and obligating him toward full payments in situations in which he was not. Rather, the formal and procedural requirements of becoming a shor m’uad indicate that the animal must undergo a status change vital toward the increased payment scale. Without actually changing the halakhic STATUS of the animal (a process that necessitates beit din and several other procedural factors), full payments cannot be collected. Hence, shor ha-mu’ad serves as paradigm for items whose status changes after three iterative events. Holkhei Usha reasoned that after three years of enjoyed and unprotected utility, the status of the land would ALSO change. The land was “known” to belong to the mara kama, the last known owner, but the squatter resided there and benefitted for three years. Perhaps this process empowers him as the new muchzak, who will triumph in litigation in the absence of hard evidence. Perhaps the three year process alters the MUCHZAK STATUS of the land.


Unlike portable items, whose muchzak status is determined solely by physical possession, muchzak status of land cannot be so easy determined. One approach would be to deny the existence of such a status and to claim that mara kama will also triumph unless and until hard evidence can be supplied. However, Holkhei Usha may have developed a new theory: eating the “fruits of land” for three uncontested years converts the squatter into the new possessor of the land, the new muchzak. In litigation, he will be leveraged as the (new) default victor in cases without hard proof – based upon the principle of ha-motzi mei-chaveiro alav ha-raya! This new paradigm was derived by comparing the STATUS CHANGE rendered by three gorings to the STATUS CHANGE rendered by three years of chazaka.


This logic would naturally prompt the gemara’s question to Holkhei Usha. If the actual three years of benefit alter the status of the land and establish the machzik as the new default muchzak, why is a ta’ana required in the case of chazaka on land? The squatter triumphs not because we believe that he ACTUALLY purchased the land, but rather because he enjoys the leveraged status of muchzak. He therefore should not have to lodge any claim.


However, unlike Tosafot’s logic, the Ramban’s logic for Holkhei Usha is flexible enough to explain the need for a ta’ana in this case. The Ramban’s logic for Holkei Usha can both explain the question of the gemara but also explain the need for a ta’ana. Perhaps Holkehi Usha maintained that mere utility and benefit ALONE does not alter the status of land and establish a new muchzak. Instead, they demand TWO factors in establishing the machzik as the new muchzak – three years of utility AS WELL AS a legal claim to defend that status. Since the status of land is abstract, the title of muchzak cannot be assigned based purely on “presence;” the combination of presence and a legal assertion create the status of muchzak. Lack of a ta’ana would cripple the chazaka, since the squatter would never attain the status of muchzak. This seems to be the Ramban’s actual explanation of Holkhei Usha’s reply to the gemara’s question.


Alternatively, the lack of a claim may represent a DEFECT in the legal position of the machzik, known as “re’uta.” Since he is not BELEIVED to have purchased the land but wins the case based on his newfound STATUS as muchzak, he must present a robust posture in court. If he cannot explain how he arrived at the land (that is, he cannot lodge a claim of purchase), his overall profile is downgraded and he cannot triumph based purely on his established muchzak status. At that stage, he would require actual evidence, which he does not possess. This approach is adopted by the Chiddushei Ha-Ran, who more or less resembles the Ramban in his explanation of Holkhei Usha.


The differences between the Ramban and the Ran are significant, but they are less important than their commonality. According to the Ramban, the absence of a claim erodes the muchzak status that three years of utility achieved. In contrast, according to the Ran, the squatter is still considered a muchzak, but he cannot triumph through his muchzak status alone since his overall legal profile is flawed. The common denominator is that the muchzak status attained through three years of chazaka may, at some level, require a ta’ana. Holkhei Usha’s reply defending the need for a ta’ana makes sense according to the logic attributed to them by the Ramban. It is harder to justify the need for a ta’ana according to the logic attributed to them by Tosafot.