Chazaka (Part 2)

  • Rav Moshe Taragin

Having discussed the basic outline of kinyan chazaka, we might pay attention to several subsidiary factors which might be influenced by the manner in which we understand this kinyan.

 

     Assuming that kinyan chazaka does not facilitate control or dominance over the land, but merely demonstrates the status of the new owner, would any demonstrative act suffice?  The gemara in Bava Batra (100a) cites the position of Rebbi Eliezer that 'hiluch' - merely encircling the land one wishes to purchase - is an effective act of kinyan.  Evidently, Rebbi Eliezer defined kinyan chazaka as purely demonstrative and discerned within the mere act of walking enough of a ba'alut exhibition.  The Chakhamim argue and reject the process of walking as a ma'aseh kinyan.  Conceivably, they might have defined kinyan chazaka as some dominance over the land which only can evolve from a direct change to the land proper.  Alternatively, they might have agreed in principle with Rebbi Eliezer that chazaka is merely an attempt to display the new ownership.  Merely walking around the land, however, is not sufficient to display this ownership.  In theory, an act which does display ownership – even if it fails to process an internal change to the field - is considered kinyan chazaka.

 

     The gemara (Bava Batra 54a) cites a debate between Rav and Shmuel regarding the amount of land which can be acquired by executing a limited act of chazaka.  Generally, an act of chazaka relates to an entire unit, all of which is transferred through the chazaka.  By locking the door, a person affects the entire courtyard, just as by breaking the wall he impacts upon the entire area.  What would happen if he plowed a small part of a large tract of land?  How much of that land would he actually acquire?  Shmuel adopts the extreme position that he acquires only the actual land which he plowed.  Quite possibly, Shmuel defined chazaka as achieving dominance over the land; hence, the only land which is changed, controlled and consequently acquired is the land which was actually plowed. 

 

Rav argues and claims that the person acquires the entire tract of land.  What would Rav claim, the gemara continues, about land which is not bounded or delimited by boundaries?  How much of this land would be acquired if only a minor part was plowed? The gemara issues an ambiguous response: "as far as the plow animals walk and repeat themselves."  Tosafot and the Rashbam differ as to the explanation of the gemara's response.  According to Tosafot, by digging/plowing the purchaser acquires the equivalent of one plowing unit.  Evidently, there was a specific portion of land (telem) which was plowed at once and thus considered a quantifiable unit.  By starting the plowing process, the lokei'ach (buyer) has begun to affect a tract of land reflecting that size and thereby acquires it in its entirety.  Tosafot's position again makes logical sense.  Chazaka establishes presence by affecting the land, and a kinyan chazaka can transfer the amount of land which was affected by the act of chazaka - no more and no less. 

 

The Rashbam adopts a different view: if the lokei'ach were to plow two rows along the entire length of the 'field,' he would acquire the entire field (widthwise) correspondent to the two vertical rows which he plowed.  Keep in mind that this gemara refers to huge, unbounded tracts of land.  According to the Rashbam, Rav allows these large areas to be acquired by simply walking up and down their length and plowing two rows along their length while walking.  This position might recall the previously rejected view of Rebbi Eliezer.  Indeed, chazaka attempts not to dominate through structural change, but to display newly acquired ownership.  This display can apply to oversized fields.  Rebbi Eliezer adopted an extreme stance, that the land can be acquired (and ba'alut displayed) by merely walking without formally establishing actual boundaries.  Rav was not willing to accept this radical approach.  But as long as while he is walking the purchaser outlines the boundaries by plowing, he acquires all the land which stretches from the area he plowed.

 

 

A second question which might stem from viewing chazaka as a public display of ba'alut concerns the act of eating some of the field's fruits.  Would this constitute a chazaka? The gemara in Bava Batra (54a) cites an episode in which a woman settled an orchard for thirteen years by eating the fruits.  Subsequently, someone came and actually plowed the land with intent to acquire it through kinyan chazaka.  Mar Ukva surprisingly ruled in favor of the latter individual.  The Rashbam infers from this gemara that eating fruit is not considered chazaka.  As chazaka must directly relate to the land itself and the manner in which it was altered, eating fruit does constitute a halakhic chazaka.  The Rambam (hilkhot mekhira 1:15) argues, viewing eating fruits as a valid form of chazaka.  He explains the episode as relating to the special circumstances of an ownerless field which cannot be acquired by eating fruits.  The Kessef Mishna explains that according to the Rambam, chazaka is merely an attempt to demonstrate the new status of the lokei'ach. Therefore, any act characteristic of the an owner will accomplish that task and constitute a chazaka.  He bases this position on an issue addressed in the previous shiur: the definition of the chazaka known as na'al (literally, 'locking').  Though the mishna in Bava Batra (42a) mentions na'al as a form of chazaka, it doesn't clarify the terms of na'al.  Tosafot interpret na'al as merely locking the door, while the Rashbam requires the installation of a lock.  Since the Rambam agrees with Tosafot's definition of na'al, the Kessef mishna extrapolates the validity of merely eating fruits.  Chazaka does not require the control over the actual land through structural change; merely locking a door thus suffices for chazaka.  The new owner must merely place his status on public display, something which is equally accomplished by eating fruits.