Translation:Shulchan Aruch/Choshen Mishpat/149
Paragraph 1- If Reuven consumed the required years of presumption of Shimon’s field and claims he purchased the field, and Shimon brings witnesses attesting that it is known that the field belongs to Shimon and he also brings witnesses attesting that it is known that Reuven is Shimon’s partner, sharecropper or appointed guardian, which is why Shimon never objected, the field would revert to Shimon and Shimon would take a heses oath that he did not sell it or gift it. If Shimon did not bring proof that Reuven was a partner or sharecropper, however, and Reuven admitted on his own that he was a partner but says Shimon sold him the field, Reuven would be believed with a migu that he could have said he was never his partner. If two individuals are partners in one piece of real property, and a third party comes and takes possession of the field, even if it were a case where he would not obtain a presumption against one of the partners, such as where he was his sharecropper or guardian or the partner was not in the country at the time, the possession would still be effective to obtain a presumption against the second partner for his portion.
Paragraph 2- In the case of a field that belongs to two partners and does not have the legal status of a field meant to be divided, even if one of them were to consume the fruits for many years, the field would still be presumed to belong to both of them. If the field does have the legal status of a field meant to be divided and one partner consumed many years, such partner would obtain a sole presumption. If the partner only took possession of half the field, however, and said this is my portion, he would not obtain a presumption. Similarly, even if the partner were to possess the entire field, but the other partner paid half the taxes, the payment would qualify as an objection and the partner would not obtain a presumption.
Paragraph 3- If a son who is supported by his father and is considered part of the household consumed the required years to obtain a presumption of his father’s property, or if the father consumed the required years of this property the son is supported by, they would not obtain a presumption.
Paragraph 4- If the son stops being supported, the father and son can obtain a presumption against each other.
Paragraph 5- There are those who say that the same applies with respect to a son-in-law obtaining a presumption on his father-in-law’s property.
Paragraph 6- A father obtaining a presumption in his daughter’s properties, and a daughter or son obtaining a presumption in their mother’s properties, have the same rules as a son obtaining a presumption in his father’s property and a father obtaining a presumption in his son’s property. The same applies to any relatives that the judges observe are not strict with each other.
Paragraph 7- If brothers each eat on the same table and all share one purse, there are those that say they cannot obtain a presumption on each other.
Paragraph 8- If one brother is wealthy and the other is poor and the wealthy brother spends on behalf of the poor one, and the poor brother lives in a house owned by his brother, he will not obtain a presumption. If a woman lent her son-in-law a seat in shul, and the son-in-law sat there, he would not obtain a presumption because it is standard practice to lend from one to the other.
Paragraph 9- If a man consumed the required years to obtain a presumption on his wife’s property, even if he made a condition with her that he would have no rights to her fruits, and even if he made a condition while she was an arusah that he would not inherit her, and he subsequently consumed, built, destroyed and did whatever he did, or if a woman consumed the fruits of her husband’s property and used them as she wanted for many years, even if a specific field was set aside for her support and she consumed from other fields, their consumption would not be any proof. This is only where the possessor did not destroy the actual land. If, however, he dug any type of pit or something similar in the land in a way that ruins the property, and the woman did not object, the husband will obtain a presumption. Similarly when it comes to a presumption on causing damage, such as opening windows or something similar, there are those that say that one would obtain a presumption.
Paragraph 10- If a woman was divorced, she has the status of any other person, even if it was an uncertain divorce. A widow cannot obtain a presumption against the orphans so long as she is receiving food.
Paragraph 11- One cannot obtain a presumption against a married woman, as is explained in Tur Even Haezer Siman 87.
Paragraph 12- If Reuven sold his field to Shimon for three years, and Levi consumed the fruits those three years, Levi would not obtain a presumption.
Paragraph 13- If one was established as a thief on this field, or if his ancestors were established as murderers for monetary reasons, he would not be able to obtain a presumption, even if he consumed the field for many years, and the field would revert to its original owner. Similarly, if one takes possession of such individual’s properties, such possession would not be proof to anything.
Paragraph 14- If a gentile consumed property that was known to belong to a Jew for many years, his consumption would not be proof of anything. If the gentile cannot bring a document, the field would revert to its original owner without any oath.
Paragraph 15- If a Jew purchased property that was known to belong to a Jew from a gentile, the purchaser would have the same status as the gentile and his consumption would not function as a proof. If a second Jew purchased from the Jew who purchased from the gentile, because we make claims on behalf of a purchaser, we would make a claim for the second Jew that perhaps the first Jew saw a document in the gentile’s possession or that the gentile purchased the property from the Jew in his presence, in which case possession would be effective as will be explained below. In any situation where one has the power to force a gentile in their court system and the gentile illegally takes possession of a Jew’s property, a Jew that comes via the gentile would be able to obtain a presumption. An apostate to idol worship has the status of a gentile and one who comes via such apostate would not be able to obtain a presumption. This is all where the objector never objects to the party taking possession. If he objected and was then silent for three years, however, the possessor would obtain a presumption because the Jew has indicated that he is not afraid of objecting.
Paragraph 16- If the Jew who comes via the gentile claims that the gentile purchased the sold land from the Jewish objector in his presence, he would be believed with an oath because he could have said he purchased it from the Jew and he consumed the required years.
Paragraph 17- If a gentile took possession of property, subsequently converted and kept the property for three years following the conversion and claims he purchased the property after he converted, he would be believed.
Paragraph 18- The consumption of a deaf-mute, fool or minor would not be proof of anything because they have no claim that would allow them to keep the property. Rather, the property would return to its original owners. Similarly, if one takes possession of their property, the consumption would not be proof of anything.
Paragraph 19- One cannot obtain a presumption on a minor’s property, even if he became an adult. How so? If the possessor consumed a year or two in the minor’s presence and then after the minor became an adult, he claims the minor sold it or gave it to him, the claim would be of no effect until the possessor consumed three consecutive years after the owner became an adult. There are those who say that even in such a case he would not obtain a presumption because when the possessor went down to the field while the owner was a minor, the minor did not know that it was his and that he should object. This seems to me to be the primary ruling.
Paragraph 20- This that one cannot obtain a presumption on a minor’s property is only where it was known that the property belonged to the minor’s father. If it was not known, however, the possessor would obtain a presumption with a migu that the possessor could claim it never belonged to the minor’s father. If the possessor had possession for three years while the father was alive, and after the father died his minor son comes to object, we would not listen to his objection. If the possessor needs to bring witnesses that he had possession, he can bring witnesses and we would accept the testimony, even though the objector is a minor. If a rumor emerged that weakens the presumption, such as a rumor that the possessor received the property as collateral, and the rumor emerged in the father’s lifetime before the possessor had possession for three years, where the collateral was in his possession for a known amount of years and the yeas of collateral concluded after the father had died, the possessor would not obtain a presumption. If he had possession for three years while the father was alive before the rumor emerged, however, he would obtain a presumption.
Paragraph 21- If someone had possession of minors’ property and claims it is collateral and the minors owe him such and such debt, because had he wanted he could have claimed he purchased the property, he is believed, given that this property was not established as belonging to the minors’ father. Thus, the possessor can collect from the profits of the property and the property would go back to the orphans. If a rumor emerged that it belonged to the orphans in a way that we just wrote, however, the possessor would not be believed because one cannot take possession on a minor’s property. The field and all the fruits he consumed would revert to the orphans until they become adults and he can litigate with them then.
Paragraph 22- If the possessor consumed the required amount in the orphans’ father’s lifetime, because the possessor can say he purchased the field he can say he has a debt against their father and he can collect the debt from the fruits and can collect without an oath because he could have said the property was his.
Paragraph 23- If the possessor had possession for three years in the father’s lifetime and when the father died the property was in the father’s possession but not for three years since its removal from the original possessor, and the father died and was survived by a minor son, we would leave the field in the minor’s possession. We would not accept the original possessor’s testimony to allow him to take possession because the son is a minor and the property was in his father’s possession at the time of his death. Once the minor becomes an adult, the original possessor can bring witnesses. If the witnesses testify that he took appropriate possession for three years while the father was alive, we would remove the field from the minor and give it to the original possessor. If, however, the field remained in the father’s possession for three years or if for some of the three years it was in the father’s possession and the three years completed in the son’s possession after he became an adult, we would not remove the property from the son. The period the property was in the son’s possession while he was a minor, however, would not combine with the father’s time of possession to create the three years.
Paragraph 24- If one took possession the required years on orphans’ field and claims the orphans’ guardian sold the field to him and he misplaced the document, there are those who say that he would obtain a presumption. There are those that disagree and they appear correct to me.
Paragraph 25- If one is a sharecropper to the father of the field-owner or to another member of his family, he would not be able to obtain a presumption because since he is the family-sharecropper the owner would not object to his presence. If the sharecropper became sharecropper anew, however, we would allow him to retain the field and we would tell the owners how could you let him consume year after year without objecting? The owners, however, can obtain a presumption against the sharecropper.
Paragraph 26- If the family-sharecropper brought down other sharecroppers under him, he would obtain a presumption because a person does not allow other sharecropper on his property and remain silent. If, however, he divvied out to other sharecroppers he would not obtain a presumption because he may have been appointed to oversee the sharecroppers.
Paragraph 27- If a sharecropper was no longer employed and he consumed three years after his employment was terminated, he would obtain a presumption.
Paragraph 28- If craftsmen were building on land or repairing property for many years they would not obtain a presumption. If their engagement was terminated and they consumed for three years following the termination, the would be able to obtain a presumption. The owners can obtain a presumption against the craftsmen.
Paragraph 29- Guardians cannot obtain a presumption of ownership, whether they are guardians on this specific field or on other properties, although some say a guardian could obtain a presumption on other fields that he has no right to, whether the guardian was appointed by the court, the orphans’ father and the orphans became adults and kept him on as guardian or person appointed him guardians for all his personal transactions. Because the guardians use the property with permission, they cannot obtain a presumption. The owners can, however, obtain a presumption against the guardians.
Paragraph 30- If the appointed guardians were removed from their appointment, and consumed three years after their removal, they would obtain a presumption.
Paragraph 31- If one takes possession of property consecrated for the poor or a shul, he would not obtain a presumption. If there were treasurers appointed on the property, he would be able to obtain a presumption. This is only true where the treasurer has a share of the consecrated property. Otherwise, the possessor cannot obtain a presumption because the poor should not lose out just because the treasurer who had no stake in the property did not object. If someone takes possession of property belonging to the public, there are some who say he would not obtain a presumption. The same would apply if the public took possession of others’ properties. It seems to me that the rules of the public should be the same as consecrated property. If an individual owns a Torah and the congregation would always read from his Torah and they had another Torah while they were reading from his Torah, it is considered set and they cannot change. If they did not have another Torah, it would not be considered set. If a person is established to do a mitzvah, such as rolling the Torah or using his Torah, and an unavoidable incident occurred and the congregation gave the mitzvah to someone else, once the incident has passed, the first person would get his mitzvah back. If, however, he gave it to someone else without any unavoidable incident, he will have lost his rights to it. If a shul was in a house for a long time, it is forbidden to change. If Reuven and Shimon inherited from their father the right that no person can build a shul without their permission, they cannot sell their right to anyone else because the right was given to them and not to anyone else. A person cannot sell any position of authority.