חזקת הבתים קניה מצד ג Bava Batra 41b

We have seen that a person who has occupied a house or a piece of land uninterrupted and unchallenged for three consecutive years has a – חזקה – Chazaka. He is deemed to be the owner of the property if he claims that he purchased it from the party who is now challenging his ownership. The occupier may say to the claimant, “I purchased the house from you but I lost my document of title.” The fact that you have allowed me to occupy the land without challenging me for three years proves that I am right. The occupier has a Chazaka, which is supported by a – טענה – Ta’ana, a claim, and he wins the case.

Life, however, is not always so simple. What happens if the occupier claims that he purchased the house from a third party?

Shimon: “Excuse me, this is my house you are living in. See here the document of title. It says it belongs to me.” Or, Shimon may say, “I have witnesses that I lived in this house before you.”

Reuven: “I purchased the house from Levi and I have witnesses that can testify that Levi lived in this house before I purchased it from him.” Or, alternatively, Reuven’s response may be, “Levi purchased the house from you, Shimon, in my presence and I then purchased the house from Levi.”

Shimon: “Oh yeah? So, where’s your deed of title that proves that you purchased it from Levi?

Reuven: “I did have a deed of title but I lost it.”

Shimon: “Yeah right. Move it.”

Reuven: “No way. I’ve been living here for three years, day after day. Where were you? You know very well you sold it to Levi and that he subsequently sold it to me. That is why you allowed me to be here for three years, year after year, without saying a word. You are just taking advantage of me because I lost my document of title.Now go away and leave me alone.”

And this case winds up in court. In this situation, the Jewish court of law will rule in favor of Reuven. This is because Reuven has a Chazakah which is supported by a Ta’ana. In fact, according to certain opinions, Reuven can himself testify that Levi used to live in the house before he sold it to Reuven and he need not bring independent witnesses to prove this. The reason Reuven is believed to say that Levi used to live in the house before selling it to Reuven, without having to bring independent witnesses to this fact, is because if Reuven wanted to lie, he could have invented a better lie. He could simply have claimed that he bought the house directly from Shimon. As we have seen, that simple claim, together with the Chazakah, would have been sufficient to defeat Shimon. Therefore, we have to believe him when he tells us a more complicated story. This is referred to in Talmudic terminology as -מגו – Migu, or – מה לי לשקר- Ma Li Leshaker, which means we believe that a person is telling the truth in a situation where if he wanted to lie, he could have invented a better lie.

If, however, in the situation described above, Reuven had responded that he purchased the land from Levi and that Levi told him that Levi purchased it from Shimon, the court would rule against Reuven. In this situation, the land would be returned to Shimon and Reuven would have to sue Levi for the return of the purchase price. This is because Reuven is lacking a Ta’anah. It is not good enough just to say; “Levi told me that he purchased it from Shimon.” Reuven must go further than that. He must, somehow, corroborate the claim that the house once belonged to Levi. He must either add that Levi was seen living in the house himself before he sold it to Reuven or that Levi purchased the house from Shimon in Reuven’s presence.

There is a situation, however, in which Reuven may lose both the house and the money he paid for it, even though he lived in it for three years. This will happen if Reuven cannot corroborate the claim that the house once belonged to Levi but admits to Shimon that the house once belonged to Shimon, even though Shimon has no document or witnesses to prove it. Under these circumstances, the house is returned to Shimon and Reuven has no claim against Levi for the return of the purchase money. Levi may refuse to pay. He can say to Reuven, “You have only yourself to blame. You should never have admitted to Shimon that the house once belonged to him.”

Raphael Grunfeld received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein, ztz’’l. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, Raphael Grunfeld is the author of “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” available for purchase at www.amazon.com/dp/057816731X and “Ner Eyal: A Guide to the Laws of Shabbat and Festivals in Seder Moed” available for purchase at www.amazon.com/dp/0615118992. Questions for the author can be sent to [email protected].