Translation:Shulchan Aruch/Choshen Mishpat/140

Paragraph 1- Real property is presumed to belong to its owners. Meaning, if real property was known by witnesses to be in Reuven’s possession, even if they only knew it was in his possession for one day, and Shimon now comes to take possession and consume its fruits and claims he purchased it from Reuven and Reuven objects and says it is stolen, Reuven would be believed and would take a heses oath and collect what it is his, unless Shimon took possession of the field appropriately with a valid claim, in which case we would not remove the property, and Shimon would swear a heses oath and keep his property. If Reuven has no witnesses that it was his, Shimon does not need a valid presumption of ownership. Rather, he would swear and keep what is his, even if he did not take possession of it. See above at the beginning of Siman 95 that we only swear a heses oath on real property.

Paragraph 2- If a party took possession for three years, we would not have him take an oath. If the plaintiff wants to place a general cherem on anyone who takes possession of properties illegally, however, he may do so. This is another view and argues with what was written originally, that even if one takes possession appropriately and with a valid claim he would still need to swear to keep his properties. The same applies later in seif 4.

Paragraph 3- If Shimon claims that he has a document stating that Reuven sold the property to him, and Reuven says the document is a forgery or was given on trust, the document’s signatures should be verified. If the document is not verified, we would remove the field from Shimon.

Paragraph 4- If Shimon claims that he has a document stating the property was sold or given to him via the document and that he has witnesses that he had possession for three years, we would tell him to verify the document, and that if he verifies it, he can keep the property. He must go get the document to verify it. If it is impossible for him to verify, such as where the witnesses died or went overseas and no one recognizes their signatures, we would rely on the witnesses of possession and he would swear a heses oath that he purchased the field. If the witnesses are around, however, his possession will be of no effect and he must bring the witnesses.

Paragraph 5- If Shimon subsequently claims he misplaced the document, he would not be believed. Similarly, if he brings the document and it turns out to be void, his presumption of ownership would also be void.

Paragraph 6- If one gives real property to another with witnesses and subsequently takes possession of it, even if he took possession of the courtyard for three years following the gift, he would not be believed to say the gift document was a scribe’s error with a migu that he could have originally said he went ahead and repurchased the property because he is ultimately claiming the document is a scribe’s error which is in essence contradicting the witnesses, and we rule that we do no use a migu against witnesses.

Paragraph 7- How does one gain a presumption of ownership? By using the property and benefiting from it for three full years, each property according to its usual way of benefit and use. The possessor does not need to bring proof that he used every room in the house. Rather, he must have used it like an owner would generally use the entire house. One gains the presumption because since he took possession for three years and nobody objected, he is no longer careful with his document and he is believed to say the former owner sold it or gave it to him as a gift and he misplaced the document. Any time a person did not take possession of the property properly, there is no presumption of ownership, even if we know the seller sold him real property but we just don’t know if this particular property that he took possession on was the one he sold. The seller can take back this property and say he sold him a different, inferior property.

Paragraph 8- In the case of houses meant for living, the possessor must bring proof that he lived in the house or rented it out for three consecutive years. Once he brings witnesses that he lived in the home or rented it out for three consecutive years, he would obtain a presumption of ownership. If the objector claims that he knows the possessor did not live there at night, the possessor must bring witnesses that explicitly testify that he also lived there at night or neighbors who testify that they did not notice him leaving at night and that he lived there in the standard way and entered at night and left it the morning. If the objector proceeds to claim that the possessor left at night after the neighbors had gone to sleep, he would not obtain a presumption unless he were to bring witnesses that say we rented the house from him and lived there day and night. If the objector was a peddler who traveled through different cities, even if he did not claim that he is certain the possessor did not live there both day and night, we would make the claim for him. According to the Rambam, even if the objector simply said maybe the possessor did not live there day and night, the possessor would be required to bring witnesses that he lived there day and night and if the possessor was a peddler who traveled through difference cities, even if the objector did not make the claim, we would make the claim for him and tell the possessor to bring witnesses that he took possession day and night for three years. Rabeinu Tam and the Rosh disagree on all this. Rather, if the neighbors testified that the possessor lived there as the neighbors would generally know, the possessor would obtain a presumption of ownership, even if at times the neighbors would leave the city for their dealings and would not know whether the possessor remained in the home while they were out of city and just testified that they when they left the city the possessor was in the home and when they returned they found him in the home. If the possessor simply tells the witnesses to testify that he lived there day and night for three years, even if they don’t know that he lived there every day and every night but saw him there some of the days and some of the nights, his claim would be valid and the testimony would suffice if they backed up his claim. Even if the objector would claim that he is certain the possessor did not live there at night or if the possessors were peddlers who traveled through different cities, they would obtain a presumption, even if at times they left the house and did not live there for three consecutive years because it was in their possession for three years, and even if they returned for many days without living in the home. The same would apply to any other possessor that at times left the home for his dealings and when he returned he immediately would go to the house and it would be considered possession of three years. The same applies with respect to seats in shul and if witnesses testify that he sat there every time he entered the shul, he would obtain a presumption, even if at times he changed his seat because he was in mourning or he did not enter the shul, because he created the presumption in the standard way. It seems to me that this is the appropriate way to rule, notwithstanding the fact that there are those that disagree. In a place where the custom is for each person to write his name on his seat in shul, the writing has the status of a document and whoever’s name is on it owns the seat and an objector would have no rights to it.

Paragraph 9- This that the testimony of the renters saying they lived there day and night is effective is only where they still have the rental payment in their possession and are saying they will give it to whomever wins the litigation. Although the possessor has not yet received any benefit from the fruits of this house, because the renters are living in it via him, that is a considered a benefit of its fruits, even if he lent them the house for free. If the renters already paid the possessor, however, they can no longer testify because they have a stake in the testimony since they want the possessor to retain the house considering that if the possessor loses the house they will have to pay the objector another rental payment. Notwithstanding the foregoing, even if they already give the money to the possessor, the possessor may go and give the money back to them to give it to whomever is successful in the litigation, in which case they no longer have a stake in the matter. There are those who disagree.

Paragraph 10- Even if the renter already paid the possessor, if the possessor claims in court prior to the objector coming that the renters should testify in front of the court that they lived there three years, the possessor’s claim would be valid and the renters are not considered as having a stake in the matter because the objector is not present. Although we generally do not accept testimony outside the presence of a litigant, because they are now valid but if the objector were to come they would have a stake in the testimony, we would accept their testimony outside the objector’s presence.

Paragraph 11- If the renters are not currently dwelling in the home, but lived there for three years and then left, and the objector only knows they lived there on the basis of their say-so, the renters do not have a stake in the testimony, even if they already paid the possessor, because since had they wanted they could have said they never lived there, they are believed to say they lived there and paid the possessor.

Paragraph 12- There are those who say that the renters’ testimony would only be effective if they rented with a document. If they rented without a document, however, it would not be effective. There are those who say that even if the possessor rented the property to three renters, one after the other, without a document, they would still combine to create a presumption of ownership.

Paragraph 13- The renters’ testimony would even be effective if they did not live there together, but one lived there years 1, 2 and 3, and the other years 4, 5 and 6. Even six separate renters, each in a separate year, can create a presumption of ownership. There are those who say that if it is known that the objector was living in an internal room in the home and claims he passed through the external part of the home and that is why he did not object the individual possessing the outside, notwithstanding the fact that the internal room has another path and we cannot be sure if he actually went through the first path, his claim would still be valid and the possessor must bring proof that the objector did not go on the path in the external part of the home. There are those who say that the presumption would not be void in such a case unless the objector claims that when he wanted he was able to use the entire first house and the possessor was inconvenienced by me and he only had possession of the external when I did not need it.

Paragraph 14- If one dwells for three years during the day in a merchant’s store or something similar where people only dwell there during the day, he would obtain a presumption of ownership. There are those who say that he would need to live there for six years during the day. There are some who differentiate between property that was already a store, where three years is enough, and property that was a house and the possessor now turned it into a store, which would need six years of day-possession. This view seems to me to be the primary one.

Paragraph 15- If the possessor set up an animal in a set place in another’s courtyard, raised chickens, place an oven, stove or millstone or his fertilizer and used these or similar items there for three years, and claimed the owner of the courtyard gave him or sold him this area, he would obtain a presumption of ownership, whether he put up a partition or not. Even if the possessor did not have a partnership stake in a portion of the courtyard, if it is a place where people generally object to such an item or if the possessor did something else that the owner would generally object to and he did not object, the presumption of ownership would be valid on whatever he took possession of.