Is Macha'ah an Attempt to Impugn the Machzik?
By Rav Moshe Taragin
Shiur #17: Is Macha'ah an Attempt to Impugn the Machzik?
In the previous shiur, we addressed an interesting model toward understanding macha'ah, the protest lodged by the mara kama that can scuttle the attempts of a land squatter to claim ownership. If the mara kama is silent, we can assume that he already sold the land; if he protests, we have no indication of sale and the last previous owner retains ownership. Accordingly, the use of land by the squatter does not ACCOMPLISH any halakhic change; it merely serves as provocation to gauge the potential response of the mara kama. If he protests in the face of this provocation, we can assume that he is the current owner of the land. If he is silent, we can assume he has already sold it to the squatter.
However, many gemarot indicate that the use of land by the squatter actually changes the halakhic status of the land and renders the squatter a new possessor of the land. His use is not intended merely to provoke a response from the mara kama, but rather to establish himself as a muchzak upon the land. In this view, the protest of the mara kama is not merely intended to shatter the silence and subvert any possible proof of sale based on silence. Instead, the protest must - in some way - reverse the impact of the three years of use on the part of the machzik. How does macha'ah reverse the halakhic effects of the machzik's presence upon the land?
One approach suggests that the macha'ah attempts to render the machzik into a gazlan - a thief. The machzik attempts to define himself as the new owner of the land because of his utility of it. The macha'ah assails his personality by announcing that he is in fact squatting upon owned land and is a considered a gazlan. Once he is defined as a gazlan, his efforts to establish ownership through utility have been rendered worthless and the original mara kama retains ownership.
This approach is reflected by the gemara in Bava Batra (38b) that provides the suggested syntax of macha'ah. R. Zevid claims that the language should announce that the squatter "is a gazlan who is stealing the fruits of the land " This suggests that the primary purpose of macha'ah is to classify the squatter as a thief. Interestingly, both the Rosh and Rabbenu Yona claim that this harsh personal assault is not necessary and the assertion that the person is a gazlan is not needed to validate the macha'ah.
A second possible proof that macha'ah is not intended merely to shatter silence and lodge a protest, but rather to personally assail the character of the machzik by accusing him of theft, can be gleaned from a gemara in Bava Batra (39a) that draws an interesting analogy between macha'ah and lashon hara. Most Rishonim assume that the analogy is very indirect just as the spread of macha'ah is based on a communication network, in a similar manner, gossip that has already spread through THAT communication network is no longer considered lashon hara, since it is already public knowledge. However, Rabbenu Gershom claims that the gemara is not merely creating an analogy between macha'ah and lashon hara. Lodging macha'ah is considered lashon hara and therefore must be lodged in the presence of three people. If fewer than three hear the macha'ah, others will be hesitant to spread the news of it, as it is forbidden lashon hara, and the communication network will break down. By assailing the personality of the machzik in front of three listeners, the mara kama has converted this information into public knowledge that should be freely disseminated without worry of violating the prohibition of lashon hara. By defining a macha'ah as halakhic lashon hara and engineering the halakhot to accommodate the rules of lashon hara, Rabbenu Gershom is clearly viewing macha'ah as a PERSONAL ASSAULT against the machzik. If it were merely a statement pronounced about the land and the rightful owner, it should not be considered lashon hara. Evidently, the machaah attacks the integrity of the machzik himself.
This approach to macha'ah may also explain an interesting gemara (Bava Batra 40a) that requires two attendant witnesses for every macha'ah. Under most circumstances, witnesses are forensic; they provide the highest form of evidence and it is therefore highly encouraged to secure their presence. However, there are certain activities, such as the execution of gittin and kiddushin, that require attending witnesses eidei kiyum and are invalid without these witnesses, even if all parties agree to the facts. Typically, monetary matters do not require eidei kiyum, even though the status of an object or land's ownership is shifting; eidei kiyum are required when personal status is affected (marriage and divorce). Yet the gemara in Bava Batra (40a) suggests that macha'ah must be performed in front of at least two witnesses, and without their attendance the macha'ah is invalid. Some Rishonim take this gemara non-literally, but others read it quite literally a machaah must be performed in the presence of two eidei kiyum. Presumably, these Rishonim would equate machaah to other halakhic actions that change personal status. Accordingly, the machaah does not address the ownership status of the land, but rather the status of the PERSON squatting on the land. The machaah alters his identity from potential owner to GAZLAN. Since the machaah affects his identity, two attendant witnesses are necessary.
This approach to machaah may explain the need to pronounce machaah in the LITERAL presence of the squatter. As stated in previous shiurim, the gemara is quite comfortable validating a machaah she-lo be-fanav, a protest lodged in the absence of the squatter, since the communication network of friends (chavra chavra it lei) assures conveyance of this information to the machzik. At one initial stage, the gemara does require DIRECT protest IN THE PRESENCE of the machzik (see Bava Batra 28b) but this position was rejected; the communication network is reliable enough to account for an absentee machaah. How and in what capacity does this network function? If machaah merely provides information about the alleged sale, the network is required to convey this information indirectly to the machzik, in part to afford him an opportunity to retain whatever documents and evidence he possesses. If the machaah ACTUALLY TARGETS THE IDENTITY OF THE MACHZIK, the communication network may have to transfer the information person to person through the mechanism of shelichut so that the final people who communicate directly with the machzik can PRONOUNCE HIM A GAZLAN IN HIS PRESENCE. Actual contact between the mara kama who lodges the protest and the machzik is not necessary simply because each link in the communication network is effectively a shaliach to pronounce him a GAZLAN. If the machaah were lodged in a fashion that would not accommodate shlichut, however, perhaps the absentee machaah would be invalid. This may help explain an unusual position of R. Zevid (Bava Batra 39a). As noted in the previous shiur, R. Zevid does not permit machaah qualified by a request not to convey the information to the machzik. In that shiur, we questioned why this qualification is flawed; after all, the communication network assures the information flow! Perhaps R. Zevid DOES accept this communication network, but he considers its participants to be a series of agents transferring this personal accusation so that the ultimate listeners who approach the machzik can designate him a gazlan. If the mara kama SPECIFICALLY REQUESTS that the information NOT be spoken to the machzik, this process of pronouncing him a gazlan through shaliach designates cannot function.