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Shabbat Parashat Naso 5774

P'ninat Mishpat: The Right to Rent in 16th Century Turkey

(based around Shut Maharit, Choshen Mishpat 25)

[One of the challenges of learning actual cases that occurred hundreds of years ago is that the situation was often based on circumstances that were common at the time, which are not discussed in the gemara and are not common in our times/places. Such is our case. In the gemara, chazaka on land refers to one who inhabited the property for quite some time and claims that he bought it from the previous owner. Apparently, the chazaka in this teshuva is the right to use a non-Jew’s store in a Jewish area in exchange for rent, with the Jewish community generally able to decide who has the right to do so. The right is not necessarily paid for; its possessor just has to pay rent to the non-Jew.]

 

Reuven has written testimony that he has the chazaka on a certain store. Some time later, Shimon took action on behalf of a set of orphans, who had documentation that they had the chazaka based on their father’s chazaka 30 years previously and had Reuven evicted from the store. Reuven claims that since 10 years passed in which the orphans’ family did not occupy the store, they lost their chazaka.

 

There are guidelines regarding one who has abandoned his chazaka agreed upon by all the rabbis of Salonika of previous generations and signed in the Salonika Book of Takanot by Rabbi Yosef Ibn Lev and his colleagues. [The Mahari Ibn Lev was a dayan in Salonika, then part of Turkey, before moving to Istanbul]. The cutoff of ten years is for one who has witnesses that he left his chazaka under difficult circumstances (e.g., some form of improper coercion). Under those circumstances, he loses the chazaka only if the store was totally unoccupied during that time. The time is significantly shorter if one does not have proof that he was forced out, and it is possible that he decided himself to leave or was unable to pay the rent. If he is present in the city, he loses the chazaka after three months. If he is out of the country, he loses it after three years. During that time, he can either prove that he was improperly removed or announce publicly that he did not relinquish his chazaka.  

These guidelines follow the general lines of halacha. It is proper to give the original possessor of the rights the benefit of the doubt even though it was in a non-Jew’s hands for years because the logic and rules of chazaka do not apply when a non-Jew is squatting (Bava Batra 35b – the original Jewish owners are often intimidated into not protesting against non-Jews). However, in a case where the machzik has no claims of ownership but of the right to continue renting the store, the chazaka cannot continue indefinitely without his presence.

If the orphans’ father, who had the chazaka at some point, were alive, he would have to bring proof that he was improperly forced out of the store, which the orphans have not been able to find. Sometimes, we make claims on behalf of orphans because they are not aware of their father’s affairs (see Bava Batra 52a). However, that is only in situations where there are indications that they have rights and are missing the knowledge to make claims. However, in this case, we have no indication that the father was forced out, and he would not be believed to make that claim without proof. While there are cases where we credit orphans with claims the father would not have been believed with, that is only to not keep things from being taken from them, not to extract property from others.
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