ḤAZAKAH (Heb. חֲזָקָה; lit. "possession," "taking possession"), a term expressing three main concepts in Jewish law: (1) a mode of acquiring ownership; (2) a means of proving ownership or rights in property; (3) a factual-legal presumption (praesumptio juris) as to the existence of a particular fact or state of affairs. In its first connotation ḥazakah creates a new legal reality, unlike the latter two cases where it is merely instrumental in proving or presuming an existing one. For ḥazakah in its connotation of possession see also *Evidence, *Ownership, *Property. For (1) see *Acquisition, Modes of.
hazakah as proof of ownership
Possession per se of immovable property (karka or mekarke'in, lit. "land," as opposed to metaltelin, "movable property") known to have belonged to another does not displace the title of the legal owner (mara kamma, "first owner") thereto, for "land is never stolen" (karka einah nigzelet; bk 95a; tj, bk 10:6, 7c) and "is always in the possession of its owner" (bm 102b). The possessor is accordingly required to prove that he acquired the property in a legally recognized way. If, however, he has held undisturbed possession in the manner of an owner for a period of three consecutive years, without protest from the previous owner, the possessor's plea that he purchased the property or received it as a gift (from the first owner or his father) and that the deed thereto has been lost, is believed. Where his possession is not accompanied by such a claim of right (she-ein immah ta'anah) but merely with the contention that "no one ever said anything to me," the ḥazakah is not established (bb 3:3). Where the property is purchased or inherited from another, the holder's mere plea (some scholars require proof on his part) that the deceased or seller held possession of the property in the manner of an owner, for even one day, will validate the occupier's ḥazakah, for "he cannot be expected to know how his father came by the property" (Rashbam, bb 41a). For this reason the court would "plead the cause" of the heir or purchaser (bb 23a), to the effect that he came by the property in a lawful manner.
In Jewish law ḥazakah is part of procedural law b 170a; for this reason the laws of ḥazakah are treated by Maimonides in hilkhot To'en ve-Nitan and not in the book on Kinyan), in contrast with the Roman law usucapio of the Twelve Tables, which is a matter of the substantive law whereby ownership is created by virtue of possession for a period of two years. The ḥazakah of Jewish law is somewhat akin to the possession in the Roman praescriptio longi temporis of the end of the second century c.e., according to which possession of property for 10 or 20 years effectively established title, if accompanied by iusta causa. There, however, possession is equally effective even if it transpires that ownership was acquired in a defective manner ab initio, in contrast with the Jewish law, where "he who possesses a field by virtue of a deed which is found to be defective, his ḥazakah is not established" (Tosef., bb 2:2; bb 32b; cf. tj, Shevu. 6:2, 37a, where a contrary opinion is expressed).
period of possession
According to some tannaim (bb 36b and bb 3:1; Tanna Kamma) ḥazakah always requires possession for a period of three full years (this period is mentioned already in the Hammurapi code, sec. 30–31). Rava, a Babylonian amora of the first half of the fourth century, explains the length of this period on the ground that it is not customary for a purchaser to preserve his title deed for longer than three years, and that thereafter the first owner is not entitled to demand production of the purchaser's deed (bb 29a). In the case of a field producing one annual crop only, the period is 18 months according to Ishmael and 14 months according to Akiva, i.e., a period sufficient for the cultivation and enjoyment of three crops; a period covering the production of three crops – even if enjoyed in one year – is sufficient, according to Ishmael, in the case of a field of diverse trees whose fruits are harvested in different seasons (bb 3:1). According to Judah, a tanna of the second century, the period of three years applies in the case of an absent (abroad, "in Spain") owner (bb 3:2), but one year suffices where both the first owner and the occupier are present in the same country (Tosef., bb 2:1; according to bb 41 a ḥazakah is immediately effective in the latter case). An analogous distinction is made in the Roman praescriptio longi temporis, between possession inter absentes (20 years) and inter praesentes (10 years). Some scholars (Gulak, Karl) are of the opinion (based on bb 3:2) that in ancient halakhah the law of ḥazakah was applicable only when both parties were in the same country; at the commencement of the amoraic period, this halakhah was interpreted as having been instituted because of "conditions of emergency" (bb 38a–b), whereby there was no means of travel between various districts within Ereẓ Israel; in times of peace, however, ḥazakah is effective even in the absence of the first owner. However, the question of the operation of hazakah between parties in different countries remained a disputed one even during the early amoraic period (tj, bb 3:3, 14a).
manner of exercising possession
Possession must be held "in the manner in which people normally use the particular property" (Yad, To'en ve-Nitan 11:2); it must therefore be held for an uninterrupted period, unless it is local custom to cultivate the field one year and leave it fallow the next (bb 29a). It is a requirement that the possessor not only cultivate the field, but that he also enjoy its fruits, "for the essence of hazakah is the gathering of fruit…," without which evidence of all his other activities on the land will not avail (tj, bb 3:3, 14a; bb 36b).
Protest on the part of the first owner within the period of three years interrupts the occupier's ḥazakah, because it has the effect of warning the occupier to preserve his title deed as proof of ownership. In ancient halakhah this protest (variously called עֲרָר or עַרְעָר (arar; Tosef., bb 2:4; tj, bb 3:3; bb 39b) and מְחָאָה (meḥa'ah; bb 29a, 39a et al.) by the amoraim of Ereẓ Israel and Babylonia respectively), served the procedural function of commencing litigation (analogous to the Roman litis contestatio) and was accordingly required to be made before the court. Doubt was already cast on this requirement by the amoraim of Ereẓ Israel (tj, bb 3:3), and according to the Babylonian amoraim protest requires no more than that it should be made known to the public (gillui milta le-rabbim) by the first owner, or that he make a statement before witnesses that he maintains his interest in the property (bb 39b). In the fourth century the Babylonian amoraim prescribed a formula for the protest: "Peloni is a robber who occupies my land by robbery and on the morrow I shall bring suit against him," but an unqualified statement: "Peloni is a robber" is not an effective protest (bb 38b–39a), lest the occupier plead that "he merely insulted me and therefore I did not look to my deed" (Yad, To'en 11:7). Protest before two witnesses – not necessarily in the presence of the occupier – suffices, for the fact thereof is bound to come to the occupier's notice one way or another (bb 38b, 39b; Yad, To'en 11:5).
Any reasonable explanation for the lack of protest is a bar to effective ḥazakah. For this reason ḥazakah does not operate between husband and wife or parent and child, each in respect of the other's property, for in these cases the one party is not fastidious about the other's use of the property (bb 3:3; Teshuvot ha-Rashba ha-Meyuḥsot le-ha-Ramban, no. 93). In suits between other related parties, the issue of ḥazakah is decided by the court on the merits of the evidence in each case, depending on "whether one brother relied on the other in the running of his affairs," etc. (Resp. Rashba, pt. 1, no. 950; Tur and Sh. Ar., ḤM 149:6–8). Nor is ḥazakah gained by artisans (building contractors), *partners, metayers (אריסין – tenants receiving a share of the crop; see *Hiring and Letting), and guardians (see *Apotropos; bb 3:3), for they occupy by license (reshut; bb 42b; tj, bb 3:5) and there is therefore no purpose in making protest against them. Possession will also not lead to ḥazakah when the first owner is unable to make protest, whether for lack of communication with the occupier because of emergency conditions (bb 38a–b; see above) or because the occupier came on the property by the use of force, "like those of a certain family who are prepared to commit murder for monetary gain" (bb 47a). The exilarchs ("of that time") were also barred from gaining ḥazakah because the property owners "stood in awe of them" (i.e., of making protest; Yad, To'en 13:2; bb 36a; Rashbam ad loc.; Joseph b. Samuel *Tov Elem, Teshuvot Ge'onim Kadmonim no. 48, ascribes the lack of protest to the pleasure derived by the owners from the exilarch's use of their property). Nor could others gain ḥazakah over the property of the exilarchs, for the latter did not "hasten" to protest, because they were able to take forcible possession of their property or because they were not particular, on account of their wealth, about others using their property (bb 36a and Rashbam ibid.; Ge'onim Kadmonim, no. 48; Bet ha-Beḥirah, bb 36a). A non-Jew who acquires forcible possession and a Jew who derives his title through him do not gain ḥazakah over the property of a Jew (bb 35b), though in the time of R. Joseph, in Babylonia, it was decided otherwise, for there was a "judicial system which permitted no person to exercise duress against any other person" (Beit ha-Beḥirah, bb 36a and Git. 58b).
plurality of occupiers and successive owners
Ḥazakah may be gained through someone occupying on behalf of the person claiming ḥazakah, as in the case of the tenant to whom the claimant lets the dwelling (bb 29a); and possession by one partner on behalf of another is similarly effective if each of them has occupied the property for part of the three-year period, provided that this partnership arrangement between them was publicly known (bb 29b; Beit ha-Beḥirah, bb 29b; Yad, To'en 12:5 – "since they are partners, they are as one"). The required period for ḥazakah is cumulative both as against successive "first owners" and in favor of successive possessors, who respectively derive title from their predecessors (Tosef., bb 2:7–8). At the commencement of the amoraic period, Rav determined that the combined period for which possession was held by both the seller and the purchaser would only be cumulative in the case of a sale by deed, as in this manner the matter would become public and the "first owner" aware that a cumulative ḥazakah was challenging his ownership.
aspects of hazakah in post-talmudic times
Aspects of ḥazakah were discussed by the posekim against the prevailing social and communal background. One matter discussed was the application of ḥazakah to a permanent seating place in the synagogue, which became an asset capable of being alienated and inherited (Sh. Ar., Ḥm 162:7; Rema and Pitḥei Teshuvah ad loc.). Some of the scholars recognized the application of ḥazakah thereto (Meir ha-Levi Abulafia and others), but stress was laid on the difficulty of establishing uninterrupted synagogue attendance at all appointed services for three years – a requirement for effective ḥazakah (Shitah Mekubbeẓet and Nov. Ritba to bb 29b). Some scholars excused absence on account of illness or mourning (Beit ha-Beḥirahbb 29a) and even occasional absence for pressing business reasons (Responsa Rashba pt. 1, no. 943; Tur, Ḥm 140:16; Beit ha-Beḥirahbb 29a differs), and the latter view prevailed (Beit YosefḤm 141:2; Rema Ḥm 140:8). On the other hand, ḥazakah was generally not recognized as extending to public and communal property such as consecrated property, talmud torahs, charitable institutions, and the like, for "who shall make protest?" (Rashba, pt. 1 no. 642), and when recognized, ḥazakah was held to be effective only under special circumstances and in respect of property in the care of appointed officials or seven representative citizens (Tur and Sh. Ar., Ḥm 149 end).
Many of the discussions of this period centered on relationships between Jews of different social status and between Jews and their gentile neighbors. The talmudic halakhah precluding others from gaining ḥazakah of the property of exilarchs and vice versa was discussed by Solomon b. Abraham *Adret and *Asher b. Jehiel in relation to the property of Jews who held official positions and exercised authority. Both decided that the cases were not analogous, for the exilarchs functioned as "quasi-royalty" and "… in these generations a Jew who should find favor with the king does not impose such awe…" as would deter the owner of property from protesting (Resp. Rosh 18:17; Resp. Rashba, pt. 1, no. 941; Tur, Ḥm 149:13; SmaḤm 149, no. 18; Siftei KohenḤm 149, n. 12). The question of ḥazakah in relation to a non-Jew or a Jew deriving title through him was frequently treated and the decision made dependent on the prevailing attitude of the central government toward the particular Jewish community: "In a case where the Jew can bring the non-Jew before the court of the land, a Jew deriving title through a non-Jew has ḥazakah" (Ravyah, quoted in Mordekhaibb 3:553; Rah quoted in the Nov. Ritba, bb 35 and see Ha-Ittur's dissenting opinion; cf. also Tur and Sh. Ar., Ḥm 149:14 and 236:9; bb 55a and commentators ad loc.). Some of the halakhot of ḥzakah relating to immovable property were applied also in the matter of Ḥezkat ha-Yishuv ("the right of domicile").
Contrary to the rule in the case of immovable property, "movables" are in the ḥazakah of the person having the physical possession thereof even if the plaintiff brings witnesses that the movables are known to belong to him, and the former's plea that he acquired them according to law is accepted (Yad, To'en 8:1; Tur, Ḥm 133:1; source of the rule: bb 3:3; Tosef., bb 2:6; only "the launderer has no ḥazakah"), except when the chattels are known to be stolen property (bk 68b, 94b; Sh. Ar., Ḥm 354:2). The authorities were in dispute on the requirement of a plea of right on the part of the possessor in the case of movables (Shitah Mekubbeẓetbb 28b). Ḥazakah of movables isgained forthwith, possession for a period of two or three days and sometimes even one hour – depending upon the subject matter – being sufficient (bb 36a and Rabbenu Gershom ad loc.; also Rashbam bb 42a). However, not every tefisah ("taking of possession," "seizure") establishes valid ḥazakah, thus "… if they saw him hiding articles under his garments and he came out and said 'these are mine' he is not believed," unless there is a reasonable explanation for this type of behavior, as in the case of articles which are habitually concealed and the like (Shevu. 46a–b).
The rule excluding the operation of ḥazakah as between "first owners" and possessors standing in a special relationship toward each other (see above) applies also to movables, e.g., in the case of the artisan, the bailee, etc. (bb 3:3; Tosef., bb 2:5–6). Similarly it does not operate in respect of "articles which are made to be given on loan or hire" (Shevu. 46a–b), where the first owner may account for the fact that movables of this type are found in the hands of the possessor on these grounds. On the other hand, the first owner's claim that these movables were stolen from him is not believed, for this is an admission that they were not lent and "we do not presume a man to be a thief" (Shevu. 46b; Rosh and Ran ad loc.). Most commentators include in the category of "articles which are made to be given on loan or hire," all chattels "which are likelyto be lent by their owners" (Rif and Ran to Shevu. 46b). According to this view, only chattels which their owners fear may be damaged, such as certain types of books (Rashi to Shevu. 46b), or those which are particularly valuable, such as articles of silver and gold (Terumat ha-Deshen, no. 335), are not to be considered as made to be given on loan or hire. This view is opposed by Maimonides, who holds that such a view in effect invalidates in respect of most movables – the principle that a thing must be considered to be the property of the person in whose possession it is found. Maimonides distinguishes between articles which are "likely to be given on loan or hire" – in which category he places all movables – and things which are "made to be given on loan or hire," defined by him as articles which in a particular locality are specifically made with a view to their being borrowed or hired for a fee and not for sale or home use, such as "large copper kettles for cooking at celebrations," ḥazakah being included in the latter case only (Yad, To'en 8:9); other articles may also come within the latter category but only where their owner has witnesses to prove that he has constantly lent or hired them out and that he holds them for such purpose (To'en 8:9 and 10 and Rabad's stricture thereon).
special categories of movables
In the case of slaves, a period of three years is required for effective ḥazakah (bb 3:1). Animals (livestock) were apparently deemed to be like other movables in the tannaitic period, i.e., ḥazakah was effective immediately; this may be deduced from the existence of a special ruling precluding shepherds from acquiring ḥazakah, as in the case of the artisan and bailee (Tosef., bb 2:5). At the commencement of the amoraic period, Simeon b. Lakish determined that the normal rule of ḥazakah did not apply in respect of livestock (bb 36a), for they "stray from place to place" (tj, bb 3:1, 13d) and therefore "the fact of detaining it under his hand does not constitute proof, for it went of its own accord into his reshut" (i.e., domain; Yad, To'en 10:1). Differing opinions were expressed with regard to establishing ḥazakah in respect of chattels not falling within the normal rule, e.g., articles made to be given on loan or hire and livestock; some of the posekim expressed the opinion that in these cases ḥazakah is never established; others held that it is established after a period of three years; and some held that there is no fixed period for effective ḥzakah, the court having the discretion to decide the matter in each case (Yad Ramahbb 36a; Rashbam bb 36a; Nov. Ritba bb 36a; Nov. Rashba bb 46a; Tur, Ḥm 133:10 and 138:1–2; Resp. Maharam of Rothenburg, ed. Prague, no. 180).
ḤAZAKAH AS A LEGAL-FACTUAL PRESUMPTION
This occurs in a number of forms:
(1) A legal presumption of the continued existence of a once-ascertained state of affairs, until the contrary be proved – "an object is presumed to possess its usual status" (Nid. 2a), e.g., that the flesh of an animal is presumed to be forbidden as having been cut from a living animal until it is ascertained that it was ritually slaughtered; once slaughtered, the animal's flesh is presumed to be permitted unless the manner in which it became terefah becomes known (Hul. 9a); that the husband is alive at the time that the bill of divorce is handed to the wife, even though he was old or ill when the agent or shali'aḥ left him (Git. 3:3); similarly the presumptions of normal health and fitness, referred to variously as ḥzkat ha-guf (Ket. 75b), ḥezkat bari (Kid. 79b; bb 153b), and ḥzkat kashrut (bb 31b).
(2) A legal presumption of the existence of a fixed and accepted custom or of the psychological nature of man, such as the following: that an agent fulfills his mandate (Er. 31b); that a woman does not have the impudence to declare (falsely) in her husband's presence that he has divorced her (Yev. 116a) and she is therefore believed; that a debtor does not settle his debt before due date, therefore his plea (without proof) that he repaid the debt before due date is not believed (bb 5a–b); that a *ḥaver does not allow anything which is untithed to leave his hands and therefore if he dies leaving a silo full of produce, this is presumed to have been tithed (Pes. 9a); that no man affixes his signature to a document unless he knows the contents thereof, and he cannot therefore plead that he did not read or understand its contents (pdr 1:293–5).
(3) Legal presumptions permitting a conclusion of fact to be inferred from particular surrounding circumstances. Presumptions of this kind were relied upon even in cases of capital punishment, as if the conclusion had been proved by the evidence of witnesses: "we flog … stone and burn on the strength of presumption" (Kid. 80, and examples there quoted), "even where there is no testimony on the matter" (Rashi ad loc.). Similarly, in certain circumstances a woman reputed to be married to a particular man was held to be his wife (Yad, Issurei Bi'ah, 1:21, as per tj, Kid. 4:10).
Support for the validity of the latter presumptions was found in the law of the Torah that the penalty for "one who curses or smites his father" is death: "how do we know for sure that he is his father? Only by way of presumption" (Yad and tj, loc. cit.; in Ḥul 11b, the aforesaid halakhah concerning "one who smites his father" serves as a basis for deduction of the *majority rule).
in the middle ages and early modern times
Hazakah was one of the main normative concepts of Jewish economic and social life. In the course of time it was applied to the most varied rights and objects: e.g., right of settlement in a given community, rights over a certain clientele, as well as rights to seats in a synagogue, and the right to exercise certain honorific functions at religious services.
Since it fitted into the structure and spirit of the guilds and civic economy and social morality, ḥazakah developed and proliferated. Based in principle on talmudic law (see above), its widening application came through communal authorities enacting new *takkanot to meet new circumstances (see *Arenda, Councils of the *Lands, Ḥerem *ha-Yishuv, *Ma'arufyah, and *Poland-Lithuania). For that reason it was mainly the lay leaders of the communal administration (kahal), not the rabbi, who passed final judgment on the protection of tenancy and other acquired rights. The dispensation of hazakah ultimately rested upon the goodwill of the community and its leaders. As a result, practices varied in different communities, from town to town, and certainly from country to country. The prohibition on settling in a community without permission (ḥrem ha-yishuv) was the source of one of the main forms of ḥzakah. Ḥazakah proper generally applied to tenant protection, whereby no Jew was permitted to rent from a gentile owner a house occupied by another Jewish tenant without the latter's consent, a right the latter usually acquired after three years of occupancy. The purpose of the prohibition was to prevent raising the rents of old or new tenants. An ordinance attributed to Gershom b. *Judah stated that the house of a gentile from which a Jew had been evicted might not be leased by another Jew for an entire year. Even houses owned by Jews were included in similar decisions by the conference of Candia in 1238 and by some halakhists. At a meeting of elders in Ferrara in 1554 it was resolved:
Whereas there are some who infringe the takkanah of R. Gershom, which forbids any Jew from ousting another Jew from a house rented from a Christian landlord, and whereas such offenders claim that when the landlord sells his house the Jewish tenant thereby also loses his ḥazakah, we therefore decree that though the Christian owner sell his house, the right of the Jewish tenant to retain possession is unchanged; any Jew who ousts him is disobeying the takkanah of R. Gershom and also this takkanah, now newly enacted."
In Italy this law, which was recognized by the authorities, was called jus gazaga or casaca. The Lithuanian Council of the communities adopted a rule in 1623 that a house owned by a gentile and rented to a Jew who had a ḥazakah on it might be sold to another Jew by permission of the head of the bet din. The buyer thereby also acquired the ḥazakah. However, if he did not move into the house himself, he had to grant the tenant priority in occupying the house. The same ordinance was made to apply to a store in the market-place which was also governed by the three-year ḥzakah rule; in this case the buyer had to recompense the tenant for his ḥzakah costs. Although few ḥzakah records remain for Polish Jewry in the days when its council functioned, the communal law was enforced in Poland also. The practice was particularly prevalent in countries where Jews could not own lands, or were restricted to crowded ghettos or voluntarily inhabited Jewish quarters. The rule was a necessity to prevent exorbitant rent. In Spain, where Jews could own land, the ḥzakah, or praescription, applied to ownership of land as well as to rentals. Since ḥzakah was an important property right, it was negotiable, testable, and used as a dowry. The kahal made it an importantsource of income.
In Russia ḥzakah persisted long after the abolition of the kahal in 1844. The leaders of the Minsk community sold possession of a gentile's store to a Jew and bound every future kahal to protect this man's right to the acquired option on the property. The same enforcement of acquired rights was practiced with equal stringency within the Jewish community: merchants were shielded against outside competition; there were rules against the importation of meat and wine and many other protectionist regulations; artisans could acquire a form of ḥazakah on a customer, ma'arufyah, whereby no other craftsman was permitted to do work for him; a person could acquire rights to a seat in the synagogue, to a Torah Scroll, or to ornaments loaned to the congregation for its use. The term ḥazakah also applied to tenure of communal workers. In Moravia a law was passed that a rabbi who refused to appear in court to be tried, or engaged in trade, could lose his tenure and be dismissed.
Ḥazakah as a Legal-Factual Presumption
The second category mentioned above – i.e., reliance on the presumed nature and behavior of human beings – also includes another form of legal presumption, pertaining to a will written by a person in a life-threatening situations. The context may either be that of a shekhiv me-ra (a person presumed to be dying), or that of a healthy person who regards himself as being in a life-threatening situation. In both cases the assumption is that the will reflects the testator's full and binding intention. Moreover, in the case of a deathbed will (i.e., the will of a shekhiv mera) the will is valid even without a kinyan, because we assume that, due to the unique circumstances of its making, it reflected the person's final decision (Maimonides, Yad, Zekhiyah u-Matanah 8.2, 4, 24, 26.)
In an Israeli Supreme Court decision in the Koenig case (fh 80/40 Koenig v. Cohen, 36(3) pd 701), Justice Menachem Elon held that this halakhic rule should determine the interpretation of Section 23 of the Succession Law, 5725 – 1964. Section 23 utilizes the term shekhiv me-ra. Justice Elon ruled that the use of this talmudic term indicates its origin in Jewish law regarding a deathbed will, and hence the applicability of the Jewish law to such a case. The decision in the Koenig case related to a case in which a woman left a will on a piece of paper without a date or signature just before she killed herself. The justices disputed the legal validity of the will, and Justice Elon contended that the will should be seen as a deathbed will and therefore valid, notwithstanding its deficiencies and flaws, on the basis of the aforementioned legal presumption. (ibid, pp. 733–738.; cf. *Acquisition, *Succession)
Another legal presumption is that "a son does not dishonor his father" (Resp. Zikhron Yehudah § 92; R. Judah b. R. Asher [Asheri]). In the Hager case the Supreme Court based its ruling on this presumption (ca 1482/92 Hager v. Hager judgment 47(2) 793; per Justice Elon, p. 806). The case concerned a disagreement between the widow and the parents of the deceased. The widow had unilaterally erected a tombstone on the grave. The parents applied to the Court, requesting it to order that the engraving on the tombstone be changed, inter alia, because it did not include the names of the deceased's parents. On the basis of the aforementioned legal presumption the Court ruled in the parents' favor, determining that the deceased would not have wished to distress his parents by omitting their names from his tombstone.
[Menachem Elon (2nd ed.)]
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