Translation:Shulchan Aruch/Choshen Mishpat/146

Paragraph 1- An objection will void a presumption, even if the objector objected outside the presence of the possessor and even if he was in a different country, so long as there are accessible caravans between them and so long as the objection was made in front of witnesses. The objection only requires two witnesses. The witnesses may even be old and sick and unable to walk and inform the possessor because they will tell others, who will tell others, until it reaches the possessor.

Paragraph 2- An objection is only valid if done in front of two witnesses. If it was done in front of one, however, even if the objection was in front of the possessor and even if the possessor admits he objected, it would not be valid, because since the possessor can say he did not object he is believed to say he purchased the property, notwithstanding the fact that a solo witness contradicts him. There are those who disagree.

Paragraph 3- Even if the witnesses who saw the objection say they did not tell anyone about the objection, the objection would still be effective to void the presumption since he objected properly and relied on them to tell others and others to tell the possessor. Even if the objector told the witnesses when he objected not to tell the possessor, or if the witnesses themselves said we won’t tell him, the objection would be valid because they may tell others who will tell the possessor. Even if the witnesses said we will never let this objection leave our mouths, the objection would be valid because a person will unknowingly say something that he is not required to keep secret. If, however, the objector tells the witnesses that this matter should never leave your mouths, the objection would not be valid.

Paragraph 4- What is the language of an objection? The objector says in front of two witnesses, “so and so who is using my courtyard or field is a thief and I will take him to court in the future.” There are those who say that he does not have to threaten him with litigation. Similarly, if the objector says the possessor rented the property or received it as collateral and says that if the possessor makes a claim that I sold it or gave it to him I will take him to court, or any other similar language, it would be an effective objection. If, however, he says “so and so who is using my courtyard is a thief,” that would not be a valid objection because the possessor can say when he heard the objection he assumed it was simply defamation and that is why he was not careful with his document. ''The objection of the objector will only be effective if it was known that the land belonged to him. If, however, the land was given to him in secret and it was not publicized that it belonged to him, his objection would be of no effect because the possessor can say he did not concern himself with the objection since he did not know the land belonged to the objector.''

Paragraph 5- When the objector objects in front of two witnesses, they would document the objection, even if he did not tell them to do so. They should write the document using messengership language, “so and so testified for us on himself that we should write his objection.” They should not, however, write that “we heard him protest” because that would be testimony from a writing. Once the objector objects the first year, he does not have to have object every following year. There must not be a three year period between the objections, however, because if he did wait three years between objections, the objection would not be effective.

Paragraph 6- When is this true? With respect to an oral objection. If, however, the objector sold the property to a third party via document within the three-year period, he does not have to make any further objection and the possessor must retain his document indefinitely.

Paragraph 7- If the objector objected and then objected again with the same claim as the original objection, the possessor would not obtain a presumption. If it was not the same claim, the possessor would obtain a presumption.

Paragraph 8- The requirement to object at the end of every three-year period is only where the original possessor is still on the property. If, however, the original possessor sold the property, the objector does not have to object against the purchaser because this purchaser is only coming via the original possessor whom the objector already objected to.

Paragraph 9- Any possession without an accompanying claim would not create a valid presumption. How so? If the possessor consumed the fruits of a certain field for many years and the objector comes and asks him how he obtained the objector’s field and the possessor responds that he does not know who it belongs to but since nobody told him anything he went down to the field, he would not obtain a presumption because he did not claim he purchased it or received it as a gift or inheritance. Nonetheless, we would not remove the field from the possessor until the objector brings witnesses that it belongs to him. Once he brings witnesses, the possessor would return the field to him and we would take away all the fruits he consumed. We would not initially make a claim on behalf of the possessor that perhaps he had a document and misplaced it unless he makes the claim himself, in which case we would accept the claim and it would not be a case of changing one’s claim. Similarly, if one consumes the years required for a presumption on the basis of a document in his possession and the document turns out be void, the presumption would be void and the field with all its fruits would return to its original owner.

Paragraph 10- If a possessor comes with an inheritance claim, by saying he inherited the property from a deceased, he would not need another claim- ''the laws of a purchaser or creditor who collected real property are the same as those of an inheritor. The seller or borrower would not be believed to say the property never belonged to them''- so long as the possessor brings witnesses that the deceased lived in or used the property for at least one day, and since he consumed three years of fruits via the deceased we would allow him to retain the property. If, however, the possessor does not bring proof that the deceased lived in the property at all, the field and all its fruits would revert to the objector who has witnesses that the field belongs to him. If the possessor bring witnesses that the deceased was seen in the property, it is of no effect because he may have just come to look at it and he never acquired it. If the property in dispute was a field and the possessor brings witnesses that the deceased plowed the field, that would create a presumption that he acquired it. ''If a woman took possession of her husband’s real property after he had died and her son then took possession for three years, and the husband’s inheritors come and say the property belongs to the deceased husband and the wife’s son says that his mother received it as kesubah payment, the son would be believed with a migu that if he wanted he could have said he purchased it from them and consumed the years required for a presumption. If he did not consume the required years for a presumption, however, in which case he has no migu, even if his deceased mother had possession for three years, it would be of no effect because a woman cannot obtain a presumption on her husband’s field. This is only in the case of an inheritor or something similar. In the case of a possessor who purchased the property from the woman or where the woman sold the land publicly, however, we would give the purchaser a presumption of ownership on the land because if the land did not in fact belong to the woman, the inheritors would not have allowed the woman to sell it out in the open as if it were hers. The same applies to any similar case.''

Paragraph 11- If the objector brings witnesses that this field belongs to him, the current possessor claims he purchased the field from him and consumed the years required for a presumption and the objector responds that the possessor cannot claim he purchased the field three years ago from him because he was not in the country during that time, we would require the current possessor to bring a proof that such objector was with him in the country during the period he claims the objector sold the field to him, even if he was only there for one day, in order to show that it is possible that he sold the field to him. If he cannot bring such a proof, we would remove him from the property.

Paragraph 12- There are those who say that this only applies where the possessor mentions a specific date of the sale. If, however, he does not mention a date, he would not have to bring proof that the objector was local on the day he acquired it. Even if the objector were to say that the possessor should say what date he purchased the property, we would not force the possessor to respond. There are those who say that this is only in a time where travel was banned. If travel was not banned, however, even if the possessor were to say he purchased the land on such and such date, he would not have to bring proof that the objector was with him that date because he may have sold the land via a messenger. Paragraph 13- If the possessor consumed from a field for many years and the objector comes and asks what rights the possessor has to this field and the possessor admits and says he knows it belonged to the objector at one point but so and so, who had purchased it from you, sold it to me, and the objector says that so and so who sold it to you is a thief, because the possessor admits that it belonged to the objector and that he never purchased it from him, the field and all its fruits will revert to the objector, even if the objector does not have any witnesses that it belongs to him. The possessor would not be able to collect money from the seller because the seller can say had you not admitted that it belonged to the objector they never would have taken the property from you.

Paragraph 14- If such a possessor brings witnesses that the so and so who sold the property to him lived there, even for one day or one hour, so long as there are witnesses that the seller actually lived there but not that they merely saw him enter the property to measure it, which would be of no effect, or if the possessor says the seller purchased the field from the objector in the possessor’s presence and the seller then sold it to him, we would allow the possessor to retain the property because he has a claim accompanying the possession and had he wanted he could have claimed he purchased it directly from the objector given that he consumed the required years for a presumption. If after the possessor claimed he purchased it from so and so who told him he purchased it from the objector he then claims that original purchase was in the possessor’s presence, we would not listen to his claim. If, however, he originally said simply the seller purchased it and then he adds and says that the purchase was in his presence, we would listen to him.

Paragraph 15- If the seller litigated with the objector before selling the property to the possessor and the seller was found exempt because the objector had no witnesses stating the property belonged to him, even if after the seller sold the property to this possessor the objector objected and the possessor admitted on the say-so of the seller, who said it belonged to the objector and he purchased it from him, that it belonged to the objector, the possessor would not lose out by virtue of the admission since the seller who sold to him left the court with a ruling in his favor. Paragraph 16- If the possessor brings witnesses that the seller lived in the property for a day and the objector subsequently brings witnesses that the possessor tried acquiring the property directly from the objector and claims that had the possessor acquired the property from such so and so as he claims why would he try acquiring it from me, the objector’s claim would not be valid because the possessor can say he tried appeasing you will a little money just to avoid any of your claims. If the possessor himself does not make such a claim, however, we would not make it for him.

Paragraph 17- If the possessor does not bring proof that the seller lived in the property for a day and the objector claims that the seller stole the property, or even if the possessor brings witnesses attesting that the seller lived there for a day but the objector has witnesses that the seller has been established as a thief on this field and a thief cannot obtain a presumption, and the possessor brings witnesses attesting that he consulted with the objector as to whether he should purchase the property and the objector advised him to purchase it, and the possessor claims that had the property actually been stolen why would the objector advise him to purchase it, the possessor’s claim would be invalid because the objector can say it was easier to deal with the possessor and remove him from the property than it would be to remove the thief from the property. If, however, the objector denies ever advising the possessor purchase the field, and the possessor brings witness attesting that he did in fact advise the possessor, we would find against the objector.

Paragraph 18- If the possessor brings witnesses attesting that the objector told them to purchase the field for him from the seller, the possessor would not have a valid argument that had it belonged to the possessor why would he want to purchase it, because a person may pay off potential litigation. ''If one purchased one piece of real property twice and the seller makes a claim on the money of the second sale and claims that he went back and purchased the property from the buyer which is why the buyer purchased it a second time, he would be believed. If the seller does not make such a claim, the buyer must clarify why he purchased the same property twice. If he claims he made a mistake, he would be believed. If he says he knew what he was doing and purchased it two times, the seller would be in the right because the buyer was certainly giving the money as a gift.''

Paragraph 19- If the possessor claims he purchased the property from so and so, he consumed the years required to obtain a presumption and he has witnesses that the seller lived on the property for a day and the objector responds that he has a verified document in his possession stating that such so and so sold me the property four years ago today and that his acquisition preceded that of the possessor and the possessor responds that when he said he consumed the required years for a presumption he did not mean just three years but actually a lot more than that and that his acquisition actually preceded that of the objector, the possessor’s claims is valid because a person can refer to many years as “the years required to obtain a presumption.” Thus, if the possessor were to bring witnesses that he consumed seven years, which means he consumed the required years prior to the objector acquiring the field, we would allow him to retain the property. If, however, he consumed less than seven years, we would remove the field from him because there is no greater objection considering that he sold the property with a document before the years of presumption concluded and the possessor should have been careful to retain the document indefinitely. If the seller did not make a document for him but just sold it with witnesses, there would be no chatter and the sale would not count as an objection and the possessor would only need three years.

Paragraph 20- When is this true? Where the possessor first simply said he consumed the required years to obtain a presumption. If, however, he explicitly said three years and then the objector produces the document from four years ago, even if the possessor were to bring witnesses that he consumed seven years it would be of no effect. There are those who say the foregoing rule would apply even where he said he consumed three years and he can later claim he meant many years since he did not say “three years, and no more.”

Paragraph 21- If the claims were made in a way where the possessor knew before he made his claim that the objector has a document against him and the possessor now claims that he purchased the property one day before the objector did, he would be believed with a migu that he could have said he bought it from the objector.

Paragraph 22- If two individuals were disputing a field and each one says it belongs to him and neither has proof or each one brings witnesses attesting that it belongs to him or his ancestors or each one brings witnesses attesting he consumed the years required to obtain a presumption and both sets of witnesses testified on the same time-frame and one of the parties took possession before the other, the field would remain with him. If neither party took possession, we would leave the field to the stronger party and whomever can overpower the other can go down to the field and the other party would be considered the party trying to remove the field and would have the burden of proof. If a third party came and grabbed it from them and went down to the field, we would remove him from the field.

Paragraph 23- If one party brings witnesses that it belonged to his ancestors and that he consumed the years required for a presumption and thus the field should be [See Sma] in his possession, and the other party brings witnesses that he consumed those same years to obtain a presumption, the testimony on the presumption is disputed testimony and we would give the field to the party that brought witnesses that it belongs to his ancestor and we would allowed him to go down the field. If the second party subsequently also brings witnesses that the field belonged to his ancestors, resulting in this testimony also being disputed, the court would go ahead and remove the first party from field and leave the field in the hands of both of them and whomever can overpower the other would go down to the field. If the field was originally in one of the party’s possession, we would return it to him as it was originally.

Paragraph 24- If each party says the property belong to his ancestors and one party brings witnesses that it always belonged to his ancestors and the other brings witnesses that he consumed the years required for a presumption, the property would revert to the party that brought witnesses that it belonged to his ancestors and the other party must return the fruits he consumed, even if there are no witnesses that he consumed the fruits and we only know he did by virtue of his admission, because the party has not made a bona-fide claim and the consumption was no proof because any possession without an accompanying claim against the original owner is of no effect. ''If, however, the witnesses simply said the property belonged to such party’s ancestors but did not testify that such ancestors did not sell the property and it’s possible to explain the possessor’s claim of it belonged to his ancestors to mean that his ancestors purchased it from the other party, we would listen to the possessor. If, however, the possessor first claims it always belonged to his ancestor, he cannot go back and reclaim. If the objector says the property belonged to his ancestors and the possessor says it belonged to his ancestors, which would imply that it did not belong to the objector’s ancestors, we would not make the claim for him unless he explicitly clarifies his claim. Nevertheless, if the possessor has witnesses that his ancestors lived there one day, even if he does not clarify his claim we would clarify for him. If the possessor responds that the property did indeed belong to the objector’s ancestors but that the objector sold the property to him and the reason he originally said it belonged to his ancestors just meant that he has a connection to the property because it is his and thus it is as if it belonged to his ancestors, or if he says it belonged to his ancestors who purchased it from the objector’s ancestors, it would be a valid claim because he provided justification to his original words, and we would allow him to keep the field. This applies only where he made the claim in front of court. If, however, he left court and subsequently made the claim we would not listen to him because we are concerned others taught him to make a false claim. If the possessor originally said it belongs to his ancestors and not the objector’s, we would not listen to such a subsequent claim, even while still in the presence of the court. When is it true that he cannot make a claim and then change his claim? Where the original claim was made in court. That which was claimed outside court, however, can be retracted and he can make a new claim in court. There are those who say even if he said outside court it belonged to his ancestors and not the objector’s, he can still claim in court it belongs to his ancestors, who purchased it from the objector’s. There are those who disagree in such a case.''

Paragraph 25- If the objector brought witnesses that a field belonged to him, the possessor claims that he purchased it from him and he produces a verified document, the objector claims it is a forgery and the document-holder confesses and says it is indeed a forgery but I had a valid document and misplaced it so I took this document in order to intimidate the objector into truthfully admitting he sold me the field, because had he wanted he could have stood by his document considering it was verified, he would be believed, we would not take away the field and he would take a heses oath. If a possessor took possession for the required years to obtain a presumption and the objector brings proof that the sale was void, the possessor would still obtain a presumption because he may have later purchased the field from the objectors and also a writing like this would not void a sale until the parties made a bona-fide kinyan to have the objector reacquire the field.