Is Macha'ah a Manner of Launching the Litigation Process?

  • Rav Moshe Taragin



By Rav Moshe Taragin



In memory of our beloved father and grandfather
Mr. Berel Weiner (Dov Ber ben Aharon z"l).  
May the learning of these shiurim provide an aliya for his neshama.

Steven Weiner, Lisa Wise, Michael & Joshua



Shiur #18: Is Macha'ah a Manner of Launching the Litigation Process?


In previous shiurim, we explored different methods toward understanding the function of macha’ah, the protest registered by the mara kama (or last known owner) to preserve his title in the face of the squatter who has been residing on the disputed land for the past three years. One intriguing option suggests that the mara kama must personally assail the INTEGRITY of the machzik, rendering him a GAZLAN and not a legal owner. The macha’ah is targeted toward the machzik and quite possibly must be lodged either in his presence, or at least in a manner which approximates that experience.


A different possible function for macha’ah emerges from an interesting gemara in Bava Batra (38b-39a), which cites the syntax of a macha’ah. The simple reading of the gemara implies that the mara kama must announce his intention to initiate LEGAL PROCEEDINGS against the current squatter. He must declare that “tomorrow” (in the future), I plan to litigate in court. Could the purpose of macha’ah be to symbolically start legal proceedings so that the title of the land is “frozen” and remains in possession of the last known owner until further hard evidence can be produced? Interestingly, the Rashbam cites a debate as to whether this language including plans to start litigation is actually necessary. This debate may indeed revolve around the question of how to understand macha'ah. Assuming macha'ah overrides the impact of the chazaka by symbolically starting the litigation process, this language would be crucial.


An interesting halakha cited by the gemara (39b) may reinforce this sense that macha'ah launches litigation. The gemara assumes that macha'ah must be reinforced every three years. If the macha'ah is disregarded, the chazaka of the squatter triumphs. What would happen if the BASIS for the macha'ah were changed? For example, the first protest claimed that the land was stolen, while the subsequent one suggested that the land was willfully delivered to the current squatter to consume the fruits. Either way, the squatter does not own the land and his chazaka should be ineffective. Yet the gemara claims that in a case of "ireir ve-chazar ve-ireir" – in which the basis for the macha'ah is altered – the macha'ah fails. On the surface, this halakha appears odd. By repeatedly opposing the chazaka of the squatter, the mara kama should defeat his chazaka regardless of the altered basis of the macha'ah.


Some (for example, the Rashba) claim that the macha'ah fails since the changing macha'ah raises suspicions. The entire chazaka/macha'a process is speculative to begin with. A concrete shetar would unambiguously prove ownership. In the absence of a shetar, the chazaka can IMPLY ownership and macha'ah can prevent that implication. If the macha'ah ITSELF proceeds suspiciously, however, the ownership is awarded to the LEAST suspicious litigant. By altering the basis of his macha’ah the mara kama raises suspicions and weakens his legal position.


However, a different explanation of this disqualification of altered macha'ah may be that a macha'ah launches litigation. All litigation requires providing a basis for the legal claim. If the original litigation were asserted based on alleged THEFT of the land and the subsequent macha'ah were based upon a different claim, these two would represent entirely DIFFERENT macha'ot. As stated earlier, a macha'ah must be reinforced or reasserted within a three year expiry period. If macha'ah operates by the mara kama merely expressing his ownership over the land, the ACTUAL PROTEST would be significant and the LEGAL BASIS as to WHY the land does not belong to the squatter would be irrelevant. Common protests with dissimilar legal basis would still be regarded as identical mach'aot, which, if repeated within three years, should defeat the squatter. By viewing macha'ah as a launch to the legal proceeding, however, the legal basis of the macha'ah becomes crucial. If the basis for the macha'ah is different, each macha’ah is considered independent and the original macha'ah expires.


If indeed the macha'ah's function is to launch litigation against the squatter, a second question emerges – how must this launch occur? Is it sufficient to merely state intention to indict the squatter? After all, ownership of land is more abstract than ownership of portable items. By registering intent to litigate, the last known owner is reinforcing HIS OWNERSHIP in the legal arena. Merely announcing intent may not be sufficient to assert ownership. Perhaps in addition to announcing intent, the mara kama must actually BEGIN proceedings and BEGIN to generate evidence for any future litigation. This second approach may explain the appearance of an interesting phrase regarding the mechanics of macha'ah: the word EIDUT, or TESTIMONY. Thus far, we have speculated that macha'ah declares opposition (as opposed to silence, which may indicate a prior sale), designates the squatter as a gazlan (see shiur, or announces intent to litigate. The term “eidut,” the concept of testimony, would be unsuitable for a standard macha'ah. Yet the gemara in Bava Batra (39b) cites a machloket as to whether macha'ah should be declared in front of two or three people. At one stage, the gemara claims that the need for two listeners of the macha'ah is because they are considered "sahaduta,” the Aramaic word for “eidim,” witnesses. If we take this term seriously, it appears that the macha’ah doesn’t merely announce realities about the land; it designates ACTUAL WITNESSES for future litigation. Even though these witnesses/listeners may not attend litigation, the very act of designating potential witnesses constitutes the start of litigation, which repels the impact of chazaka.


In fact, when the Rashbam (39a) explains the need to include the phrase, "I plan on indicting the squatter" in the base macha'ah, he employs the term of eidut. He quotes Rabbenu Chananel, who states that if the macha'ah is lodged without this conclusion, the macha'ah fails, since it is not considered “conveying testimony.” Evidently, Rabbenu Chananel viewed macha'ah as generating ACTUAL testimony, and not just symbolically beginning the litigation process.


This understanding of “sahaduta” and the explanation of macha'ah as designating potential witnesses may help us to better appreciate the position of Shmuel (Bava Batra 38b), who argued that if the macha'ah were registered in front of people who are physically incapable of travel to the location of the land, the macha'ah fails. As discussed in previous shiurim, this position seems odd, since the network communication should assure conveyance of the macha'ah, despite the handicap of the listeners. Perhaps a macha'ah must designate listeners as potential eidim. As long as they are capable of traveling, the designation is considered eidim-labeling and the litigation has begun. If they are incapable of travel, the macha’ah cannot be viewed as an act of designating eidim and the legal process hasn’t been launched.