the Week of Proper 28 / Ordinary 33
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Bible Encyclopedias
Ḥazaḳah
The 1901 Jewish Encyclopedia
or The term has various meanings in the Talmud; the one most cognate to the original meaning of the Hebrew root is that of "taking possession," which act constituted acquisition with regard to both movable and immovable property (see see ALIENATION AND ACQUISITION). But it is more frequently used to cover the acquisition of property by continued and undisturbed possession during a period of time prescribed by law.
Prescription.
Mere possession was not sufficient to establish a title to real property. The presumption was that "real property is always in the possession of its owner" (B. Ḳ. 95a) until evidence showed that he had sold it or had given it away. Since, however, men are not careful in preserving documentary evidence for more than three years (B. B. 29a), the Rabbis ordained that undisturbed possession for three consecutive years was sufficient to establish a claim to real estate (CONFLICT OF LAWS). In the case of houses or of other buildings the possessor was required to produce evidence of continuous occupancy, either by himself or by a tenant holding a lease from him, for three full years "from day to day"; while in the case of fields or gardens the prevailing opinion was that possession for three successive harvests of the same kind was sufficient, even when the last harvest had been gathered before the expiration of the three years (B. B. 28a, 36b; Maimonides, "Yad," To'en we-Niṭ'an, 12:1; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 141, 1, Isserles' gloss).
"Possession not based on a valid claim is not regarded" (B. B. 41a). If the possessor claimed that he had bought the land of its owner, or that it had been given to him, or that he had inherited it, possession for three years was sufficient. But if he said that he took possession of the property because there was no other claimant, possession even for many years was of no value. And if at any time during the three years the owner protested ("maḥa'ah"), either in the presence of the holder or before two witnesses, against the unlawful holding of his property, the fact of possession was of no value in establishing title to the property (B. B. 29a, 38b).
The following persons could not acquire property by prescription: (1) a building contractor; (2) a partner; (3) a steward; (4) a husband his wife's in which he had the right of usufruct; (5) a father his son's, or (6) a son his father's; (7) a guardian his ward's; (8) a minor; (9) an idiot; (10) a deaf-mute (whose property, in turn, could not be acquired by others); (11) a robber. No argument of possession could be advanced to establish a title to the property of a fugitive who had fled in fear of his life, or to property belonging to a synagogue, or to communal charitable institutions (B. B. 42a; Ṭo'en we-Niṭ'an, 13:3; Ḥoshen Mishpaṭ, 149).
With regard to movable property the presumption was that it belonged to the possessor unless it wasconclusively proved that he held it under false pretenses. Even if the owner brought evidence that the object belonged to him, the possessor was believed if he claimed that he had bought it or that he had received it as a gift, and he needed only to take the rabbinical oath ("hesset") to establish his claim (B. B. 45a; Sheb. 46b). Talmudic law distinguished, however, between objects that people are accustomed to lend or hire and objects that people are not accustomed to lend or hire; the mere claim of possession, even for many years, was not sufficient to establish a title to objects of the former class, and the owner could at any time establish a claim by producing witnesses to testify that they belonged to him; but the latter class of objects could be acquired by mere possession (B. M. 116a: Sheb. 46b; Ṭo'en we-Niṭ'an, [where a more restricted interpretation of the expression 
is given]; Ḥoshen Mishpaṭ, 133).
The maxim that anything that is in a man's possession is his did not apply to a mechanic whose occupation it was to repair the objects in question. Even if he had had an object in his possession for a long time, the owner could claim it on the ground that he had given it to him for repair (B. B. 42a, 45a, 47a; Ṭo'en we-Niṭ'an, 9:1; Ḥoshen Mishpaṭ, 134).
Cattle an Exception.
Small cattle of the kind that are left in the open and allowed to move from place to place were excluded from the principle governing title by possession in movable property, for the supposition was that they had wandered onto other premises without the knowledge of their owner. There is a difference of opinion among the later authorities as to whether three years' possession was sufficient to establish the right of property in them. Large cattle of the kind that are delivered to a shepherd and are always under his control, or infant slaves that are unable to walk, were treated like other movable property, while adult slaves were considered in the same category as immovable property, and a continuous possession of three years was sufficient to establish title to them (B. B. 36b; Ṭo'en we-Niṭ'an, 10:1,4; Ḥoshen Mishpaṭ, 135).
The Talmudic law applies the principle of ḥazaḳah also to easements or servitudes consisting in the right or privilege of using another's land without compensation. For example, if one causes one of the beams of his house to protrude into the premises of his neighbor, and the neighbor does not object immediately, the owner is regarded as having a ḥazaḳah in the servitude of his neighbor's premises as regards the beam. There are three distinct opinions among the later authorities regarding the nature of this ḥazaḳah. Some (the Geonim and Maimonides) are of the opinion that the ḥazaḳah of easement need not be accompanied by a real claim, nor need it last for three successive years as is required with movable property. Others (Jacob Tam, R. Jonah, Solomon ben Adret) hold that this case is in all respects similar to the case of immovable property, needing both a real claim and three years' possession. Others, again, adopt the compromise of Samuel ben Meïr, who regards easements as immovable property in so far as they require a real claim to title, but with the difference that they do not require three years' possession to establish the right (Maimonides, "Yad," Shekenim, 11:4; comp. "Maggid Mishneh" ad loc.; Ḥoshen Mishpaṭ, 153-155; see EASEMENT).
Presumption.
Presumptions are principles formed on a vast amount of judicial experience, by which the court is guided not only in settling the question as to which of the contending parties incurs the burden or responsibility of bringing proof of the assertions made in pleading, but also in rendering a decision in doubtful cases. Although inferior to actual evidence and entirely disregarded when refuted by it, presumption was still a potent factor in Jewish law, and exerted a great influence in the decision of civil as well as capital cases. In accordance with the prevailing tendency of the Talmud to find a basis in the Scriptures for every principle, the Rabbis attempted to derive the principle of presumption from a Biblical passage (Leviticus 14:38) in regard to the plague of leprosy in houses. After the priest had examined the plague-sore and found it to be of a certain size, he locked the house for seven days, at the conclusion of which time another examination was to be made. "Is it not possible that while he was locking the door the plague-sore diminished in size? Since, however, Scripture takes no notice of this, it must be because it presumes that the plague remained in the state in which it was first found by the priest; Scripture teaches us here the principle of presumption" (Ḥul. 10b). Of course, the validity of this principle does not depend upon this particular passage, for, in fact, some of the amoraim are dissatisfied with this mode of derivation and claim that this case by no means proves the validity of the principle. According to these, the principle of ḥazaḳah is traditional, and was handed to Moses on Sinai (comp. Tosef., Ḥul. 10b; R. Samuel Edels ad loc.).
The various kinds of presumptions found scattered throughout the Talmud may be divided as follows: (1) presumptions of physical conditions ("ḥazaḳah di-gufa"); (2) presumptions arising from the fact of possession ("ḥazaḳah di-mamona"); (3) presumptions arising from the nature of man or from certain actions and circumstances ("ḥazaḳah mi-koaḥ sebara").
- All flesh is presumed to have been cut from a living animal ("eber min ha-ḥay") and hence to be forbidden food until it has been ascertained that the animal was ritually slaughtered; hence an examination of the organs to be severed at slaughtering is necessary. After it is slaughtered it is presumed to be kasher until it is demonstrated how it became forbidden; hence no examination of the animal is necessary, except of those organs (such as the lungs) which contract a disease most readily (R. Ḥuna in Ḥul. 9a, followed by all later authorities).
- In cases involving money the prevailing principle was
("leave the money in the possession of its master"). Hence the general principle in Jewish law, that the burden of proof is on the plaintiff (B. Ḳ. 35a; B. M. 100a; Ket. 20a; et al.). This principle has far-reaching results. It was followed not only where there was not sufficientevidence to establish the truth (B. Ḳ. 46a), but also where there was contradictory evidence (Ket. 20a). If after a case has been decided in accordance with a presumption the plaintiff violently takes the object of contention from the defendant so that the presumption shall favor him, it is doubtful whether the former presumption becomes thus annihilated; and the later authorities differ as to which presumption to follow in such a case (Tosef., ib. s. 
; comp. B. M. 6b; ShaK in "Teḳafo Kohen").
Kinds of Presumption.
- Many of the presumptions established by the Talmud are based on an analysis of the human mind, and find their chief support in the nature of man (Ket. 75b). It was presumed that no woman would have the audacity to declare in her husband's presence that she was divorced from him, if she were not (Ket. 22b; Ned. 91a). No man was presumed to have paid his debt before it was due (B. B. 5a). No one would be so shameless as to deny a debt in the presence of his creditor (B. M. 3a; B. Ḳ. 107a; et al.). The agent was presumed to fulfil his commission ('Er. 31a). The master was presumed to have paid the day-laborer at the end of his day's work (B. M. 112b). No man was presumed to permit himself to be robbed without a struggle (Yoma 85a; Sanh. 72a). It was presumed that the scholar would not issue any deed unless it had been correctly executed (Pes. 9a). A house was presumed to have been examined for leaven on the fourteenth of Nisan, and one hiring a house on that day need not examine it again (Pes. 4a). A presumption was often established through the repetition of an incident a number of times. The most notable instance of this kind is that of the Goring Ox, which was regarded as a vicious animal ("mu'ad") after it had committed the offense three times (B. Ḳ. 23b). It was not permitted to marry a woman who had been twice divorced on account of barrenness, for she was presumed to be a barren woman (Yeb. 64a), nor a woman whose two husbands died a natural death, for she was presumed to be a murderous ("ḳaṭlanit") woman (Niddah 64a). Parents, two of whose children died at circumcision, need not circumcise their other children, for the presumption was established that their children could not stand the pain of circumcision ('Er. 97a). R. Simeon ben Gamaliel is of the opinion that a presumption may be established only after an incident has occurred three times (Yeb. 64b; comp. ib. 65a, Tosef., s. "We-Shor" and "Niset"; Asheri, 6:14, where it is argued that Rabbi's ruling, as is shown by his decision in the case of the goring ox, does not differ from that of R. Simeon ben Gamaliel in so far as monetary cases are concerned).No definite rule was laid down by the Rabbis for guidance in cases where presumptions collide, that is, where each party has some presumption in his favor. In such cases it is for the court to decide which of the two is the more important. A bought an object from B, but had not paid the money; A desired to return the object to B on the ground that he had found a defect in it which, he claimed, was in it before it was delivered to him. A had the presumption of possession (of the money), B the presumption that the defect was created while the object was in the possession of him on whose premises it was found: the decision was in favor of B (Ket. 76a; Maimonides, "Yad," Mekirah, 20:14; Ḥoshen Mishpaṭ, 124; comp. B. B. 92a). In all such cases the court had to decide as to which of the presumptions was stronger, and render its decision accordingly.The influence of presumptions in Jewish law extended even to capital cases, and punishment was frequently inflicted on that basis. Man and wife and children living together and treating one another as such are legally considered as one family, and illicit relationships between them would be punished with death on the strength of the presumption, even though the kinship could not be proved by legal evidence (Ḳid. 80a). In regard to the presumption that a man would not offer a false argument when, if he were willing to lie, he could produce a better one, see Jus Gazaka; Miggo.
- Hamburger, R. B. T.;
- Frankel, Der Gerichtliche Beweis, Berlin, 1846;
- Goitein, Kesef Nibḥar, Lemberg, 1895;
- Bloch, Das Besitzrecht, Budapest, 1897;
- Freudenthal, in Monatsschrift, 1854-64.
These files are public domain.
Singer, Isidore, Ph.D, Projector and Managing Editor. Entry for 'Ḥazaḳah'. 1901 The Jewish Encyclopedia. https://www.studylight.org/encyclopedias/eng/tje/a/aazaa3ah.html. 1901.
