Kinyan Chazakah

Bava Batra (4:4) | Yisrael Bankier | 11 years ago

The term chazakah has different meaning depending on the halachic context in which it is used. In the fourth perek this term predominately refers to the possession (or presumption of possession) of land. For example, we learnt that if someone claims he purchased land and has occupied it for a three year period (without protest) he no longer needs to supply documentary proof of ownership. The fourth Mishnah however discusses another form of chazakah which refers to one of the methods of kinyan (acquisition). Probing a debate in the Rishonim surrounding this Mishnah will help us better understand this form of kinyan.

The Mishnah states as follows:

When do we say that [a person must occupy the property for three years]? This is when he is trying to machzik [in face of protest]. However if he is receiving a gift, or brothers are dividing inheritance or [one is attempting to acquire] the property of a [deceased] convert, he can [either] lock, build a fence or make a small breach and he has [acquired it immediately] through a chazakah.

The Mishnah provides three different examples of how one can acquire land with a chazakah – “locking” or building or breaching a fence. What is meant by “locking”?

The Rashbam maintains that this refers to the installation of a lock. In a similar vein the Bartenura maintains this refers to the construction of a door. Merely locking the door is insufficient; a physical change to the property is required. The Tosfot however argue that the Mishnah is understood literally and a chazakah is performed by the simple act of locking the door. What is behind this debate?

Rav Moshe Taragin explains that this debate reflects the two different ways to understand how a chazakah forms a kinyan in contrast to the use of money or a contract.

One way is to view a chazakah in much the same way as meshicha (draw an object towards oneself) or hagbahah (raising an object) affects a kinyan for movable items. There, ownership is asserted by one taking physical control over the object. When it comes to land, chazakah as a demonstration of one exerting his physical control is a slightly more complex task when compared to movable objects. Accordingly, this demonstration requires the person to affect a physical change to the property. The Rashbam therefore requires the actually installation of a lock as apposed to a momentary act.

Alternatively, one may understand that a chazakah on land (as apposed to the kinyanim that apply to moveable objects) is merely an attempt to publicly declare status of the field. As such the Tosfot maintain that a symbolic act that demonstrates ownership would suffice. Consequently the simple act of locking the door to the property would effect a chazakah.

Therefore a debate about our Mishnah has revealed two ways for us to understand a kinyan chazakah. The kinyan is either formed through a demonstration of control by affecting a physical change to the property or it is a symbolic act the demonstrates ownership.

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