think we should get started. We're going to be talking about חזקת הבתים, and I think to this time to start more with a general approach to the whole concept of חזקת הבתים. What's חזקת הבתים? We all know already it's a chazakah of a house, a house or a field or any קרקע, anything that's real estate. You're able to have a chazakah for three years. Not to confuse this chazakah with the chazakah of a kinyan. This is just I'm just saying it as an introduction. We know that in order to be קונה, in order to acquire land, you can do it through one of the three ways: כסף, שטר, וחזקה. Either by giving money, then you acquire the land that you're buying, or if you write a shtar and you give it, you acquire the land, or if you make a chazakah on the land. That chazakah is just one thing. All you do is you make a little fence around the land that you bought, that you're buying, or you make a little door, נועל, גודר, ופורץ, and you make a chazakah, and then it becomes yours. We're not dealing here with that type of chazakah. We're not dealing with a chazakah that is an act of acquisition, of a kinyan. This is not what we're talking about. We're talking here about a chazakah which is a proof. When a person has a house or a שדה, a field, and he doesn't have a document to prove that he bought it, and a person comes along and says, \"This house is mine,\" and that person who says that obviously has witnesses or proof that it used to be his, he comes and says, \"It's my house. Here I have a proof that 25 years ago I bought this house, and you're sitting in my house.\" And the guy answers, \"What do you mean? I bought it from you.\" What should he normally do? You bought it? Prove it. So, he would have to show a document that he bought it, and he shows a document, then it's bought.

What happens if he doesn't have a document? So, the din is that if he lived there for three years, or in a field if he used the field the normal way people use a field for three years, that itself is a proof that he bought the house, or he bought the field, and he gets it. Which means that the chazakah was like almost in the place of the shtar, and he keeps it. That's חזקת הבתים. מאי טעמא? What is the reason for חזקת הבתים? What is the reason that if you have it for three years, that makes a chazakah that you don't need your document, and automatically it's yours just by being there for three years? So, the Gemara in the beginning of חזקת הבתים discusses it, obviously. First the Gemara goes through a whole discussion about the מקור, the source according to Rabbi Yishmael. That's only according to one opinion. Then the Gemara goes into the the source according to the חכמים. And this is what the Gemara says: אמר רבא, so Rava said the reason for the din of חזקת הבתים is: שתא קמייתא מחיל איניש, תרתי מחיל, תלת לא מחיל. That a person, if he sees someone using his house, for a year, he'll be mochal. He won't mind. For two years, he won't mind. After the third year, a person will not be mochal. And therefore, when three years pass and this guy didn't come and say anything, so if it would be his, he certainly would have come and made a fuss. The first year that he didn't make a fuss is no re'iyah because maybe he's mochal. The second year is no re'iyah. It's takeh his, but he's mochal, he doesn't care. Live there, I don't care, I don't mind. Use the fruit for that year, two years, three years. But more than three years, a person wouldn't. So, the fact that you didn't come shows that you really gave, you really sold it.

אמר ליה אביי, אביי said: אלא מעתה, כי הדרא ארעא, תיהדר לבר מפירי, והא אמר רב נחמן הדרא ארעא והדרא פירי. According to this, it comes out that a guy lived in the house for two years, not for three, then and he doesn't have a document that he bought it, he would have to give it back. The din is that when you give it back, you have to give it back with the fruit. Any use you had from it, you have to get paid back, cause you basically stole it. So, any fruit that you ate, you stole. But if we're saying that the reason that till till three years a person is mochel, so you have to get out of the field, but you don't have to pay for the fruit. And the din is that you do have to. Obviously, this is not the reason. אלא אמר רבא gave a different reason: שתא קמייתא לא קפיד איניש, תרתי לא קפיד, תלת קפיד. Not that a person is mochel, but for a year, two, and up to three, a person doesn't mind. Not that he's mochel, doesn't give it up, but he won't come and make a fuss. He won't come and make a protest. More than three years, a person would not allow someone to stay in his house or in his field without protesting. And therefore, since this guy's there for more than three years, and you didn't say anything, why didn't you say anything if it's yours? That shows it's not yours. אמר ליה אביי, אביי said: אלא מעתה, if so, if it depends on how much a person cares, כגון הני דבי בר אלישיב דקפדי אפילו אמאן דחליף אמצרא, הכי נמי דלאלתר הוי חזקה? There were certain people known at that time that would mind even if you just walked by their field. So, by those people, if someone lives in one of their fields for one day, should be a chazakah! Because we say, I have a re'ayah that he bought it, because why were you quiet, and normally you make a fuss after a day? And there is no such din! So obviously this is not it. אלא אמר רבא, this is the maskana: שתא קמייתא מיזדהר איניש בשטריה, תרתי ותלת מיזדהר, טפי לא מיזדהר. A person is expected, or this is the nature that for a year, two, or three, a person saves his document. More than three years, a person is not expected to save his document. No, that's nature. Nature. It's nature, yeah. Chachamim knew, chachamim estimated, assumed that nature. So therefore, if a person is in a field for a year. And someone comes and says, \"Hey, what are you doing in my field?\" And he answers, \"I bought it.\" We say to him, \"You bought it? Where's your document? You don't have it? You lost it? No such thing, a person keeps a document.\" Two years, up to three. If a person is there three three and plus, then, when we turn to him and say, \"Where's your document?\" his answer is very pashut. \"I don't need a document. After three years, it's only normal not to have a document.\" So mimela, the fact that I don't have a document is no proof that it's not mine. That's Rava's answer. And this is the maskana, and after this it goes into all the whole perek of חזקת הבתים, and all kinds of sugyot and things in חזקת הבתים. This is the source of the whole thing. Comes the Ramban, asks a kashya on this Gemara. And the Ketzos brings the Ramban, and his kashya is like this: According to the maskana of the Gemara, it comes out that the whole source of the din of חזקת הבתים is this last din, is this last sevara, that a person does not keep his document more than three years. So till three years, the fact that you didn't have your document is a siman you're lying, because if you'd if you'd have bought it, you would've made had a document. After three years, we have no kashya \"Where's your document?\" and it's a re'ayah it's yours. So the Ramban asks: All this does is it takes away a question that we have on the person. \"You claim it's yours, where's your document?\" So we say if he has it for three years, that's not a kashya. But we're still missing: Where's the re'ayah that it's his? The guy claims, \"It's mine.\" Where is his proof? This last thing doesn't do anything. It doesn't prove that it's his. It just takes away we have a kashya to the guy. The לשון הגמרא, not here, but other places, achavi shtarcha, \"If you claim you bought it, show us your shtar.\" That kushya doesn't exist. Beseder, we don't have a kushya on him. But there's still But there's still, no, but still, where The witnesses, no? Huh? You could have had witnesses to Yeah, sure you could, but this guy doesn't have any proof. He has to bring witnesses, bring something else, prove that it's yours. This other guy who claims, he's called the me'arer. The me'arer has a re'aya it's his. He comes and has witnesses that that field for 50 years it's his, his father owned it, it's his. You claim that you got it from him, where's your proof? What should be is, there should be a proof that it's yours. But in addition to the proof, we have a proof against you. What's the proof against you? Where's your document? So for that, we'll answer, after three years you have no proof against him. But where's the proof that he bought it? Comes the Ramban and answers that the Gemara really didn't have חרוב'ט it completely from the previous piece. What was the previous reason? That till three years, a person doesn't care. After three years, a person cares. The Gemara just asked, if so, by every person it should be different. So the Gemara brought this last thing. Really, that thing from before stays. In other words, the proof that it's yours is the fact that that guy didn't make a mecha'ah. Because the din is that if the guy heard that you're sitting in my field, what is he supposed to do? There's a din you have to make a mecha'ah. You have to make a protest. Wherever you are, you have to say, \"I heard this guy sitting in my field, I am protesting,\" you do it in front of two witnesses, \"and I plan to call him to a din Torah.\" So we say like this: The fact that for three years passed and you didn't make a mecha'ah is a re'aya that really you sold it to him. But then we have a re'aya against him... the kushya against him. What's the kushya? Where's your shtar? So for that, we have the last thing. So the Ramban learns that sof kol sof, the re'aya is from the previous piece in Gemara. The Ketzos learns differently, he has a different peshat. We're not going to go into his peshat because a whole bunch of peshatim that you can give here. But this is the Ramban's shita. So it comes out, according to this, if someone will ask: What is the reason for a chazakah of three years? The answer will be: the fact that he didn't make a mecha'ah. Then we ask, but then we have a re'aya against him. But if where's the shtar if he bought it? After three, you don't need a shtar. That's one way the That's the way the Ramban learns. Be'emet, there's another way to answer the the kushya of the Ramban. The kushya was, according to the end of the Gemara, where is the re'aya that it's his? All we have is we have no kushya against him, but we have no re'aya. There's another way to answer it, and that is based on a chakirah, a she'eilah that we have, an approach bichlal to all these ענינים. We all know there is a concept of a muchzak. If I am holding something, I am the muchzak. Anybody who wants to come and take it away from me is called the motzi. The דין is hamotzi meichaveiro alav hare'ayah. If someone comes to me and says, I'm holding, he says, \"Hey, this is mine.\" I say, \"It's mine.\" So we have a dispute here. On who's the burden of proof? On the motzi, because if I'm the muchzak, I have What's the What's this based on? Based on a rule: חזקה כל מה שתחת יד אדם שלו הוא. That's a chazakah. Chazakah that whatever is in the hands of a person, or in his possession, is his. We don't assume a person has something that belongs to somebody else. It's mine. You're trying to come and take it away from me, you have to prove it. I don't have to prove it. I have proof. My proof is that I have it. And that's the klal. That's the whole basis of the whole sevara of hamotzi meichaveiro alav hare'ayah. The question is, does this rule apply also to קרקע? Or is this just on מטלטלין? Is this just by מטלטלין, what's it called, movable items, yeah, tangible movable, or is it also concerning קרקע, concerning real estate? And that's a she'eilah. There is two סברות. There is a sevara to say that when I'm holding it, something that I can put in my pocket, I can put in my hands, there we have this rule that when I have it, it's mine. By קרקע, being that קרקע is something that you can't put into your pocket, you can't hold it, there's a לשון, קרקע בכל מקום שהיא בחזקת בעליה. Wherever the owner is, wherever the קרקע stands always in the same place, it's in the possession of its owner. The fact that you're sitting in the קרקע and you're holding onto it is not necessarily a proof that it's yours, because you are not really holding on, and there's no such thing as chazakah. That's one way to look at it, that this whole concept of the chazakah that you're holding is yours is only by קרקע, by מטלטלין, not by קרקע. You could say, no, not like that. You could say the fact that I'm living in it is a proof, just like by מטלטלין the fact that I'm holding is a proof that it's mine, this is also a proof that it's mine. Now, if you hold that by קרקע we go along with the same chazakah, that whoever is muchzak, whoever holds it, is called a muchzak, and it's חזקה מה שתחת יד אדם שלו הוא, then we could answer the Ramban's kashya very easily. What is the Ramban's kashya? A guy is sitting in the field, a muchzak, a מחזיק. Comes the מרא, and the מרא says to him, \"Listen here, what are you doing in my...\" What, the Gemara's lashon in a case of, \"מאי בעית בהאי ארעא? What are you doing in my field?\" He says, \"I bought it from you.\" Who is the muchzak here? If the guy in the field is the muchzak, he doesn't need a re'aya that it's his. So the kashya that the Ramban asked, a guy sitting there for three years, we give it to him because he doesn't have to keep his shtar, but where's his re'aya? The answer is, need a re'aya? He doesn't need a re'aya. His re'aya is he's sitting there. The only thing we need to say is if you're sitting there and on the claim that you bought it, we have a re'aya against you: where's your shtar? Of of them, we come on with this. In other words, be-emet, chazakah should be right away. If a guy is living in a house for a day and somebody comes and kicks him out, \"Hey, it's my house.\" Who's the burden of proof, bifshitut? The burden of proof should be on the guy, on the mara, the guy that's coming. But it's not so. Till three years he kicks him out. Why? Not because he has no re'aya. He has a re'aya that it's his, but hey, we have a re'aya against him. If it's yours, where's your shtar? So we have a re'aya against him the first year, the second year, the third year. That's why he won't keep it. After the third year, that kashya is not a kashya anymore. Because after three years he doesn't need the shtar, so then he keeps it. Why does he keep it? Based on that chazakah. So it comes out if we learn like this, it's different than the Ramban. So the Ramban, who has the kashya and he says the whole re'aya is because of the fact that he didn't make a mecha'ah, obviously he holds that this klal of חזקה, מה שתחת יד אדם שלו הוא, is only said by מטלטלין, not by קרקע. So by קרקע, the fact that he's sitting there is no re'aya. Farkert, by קרקע, who is the muchzak? The mara. Since he has a re'aya it used to be his, he is the muchzak. The guy who's sitting there is not, it doesn't make him a chazakah. Mimela, the Ramban has a problem: where is the re'aya that it's his? So he says the re'ayah is the fact that he didn't make a macha'ah. But the other way to learn is that the guy who is sitting there is the muchzak, mimeila he doesn't need a re'ayah, and all we need is to farentfer the problem with him, we farentfer it. The difference between the two ways is on the basis, what is a chazakah? According to the Ramban, what makes the chazakah? The fact that he didn't make a macha'ah. Chazakah means you got it. What, what proof do you have it's yours? The fact that he didn't make a macha'ah. His problem with the shtar is a זייטיגע זאך. According to the second way, what makes a chazakah? The fact that I'm muchzak. If a person, let's put it this way, if a person didn't make a macha'ah, if a person didn't make a macha'ah, what, so the chazakah is a If a person was there for three years, and normally, and the guy didn't make a macha'ah, so this guy keeps it. If the guy made a macha'ah, then he doesn't keep it. The fact that he didn't make a macha'ah makes If he makes a macha'ah, what does he do? If he makes a macha'ah, he doesn't allow the chazakah ever to start. The whole chazakah is based on the macha'ah. According to the second way, what does if he doesn't make a macha'ah, what does it do? That's not what makes the chazakah. So without a macha'ah, it's not the העדר המחאה, you have all this, העדר המחאה means not making a macha'ah. According to the first way, that not making a macha'ah is the reason for that chazakah. According to the second way, it's the being there. Now, it seems as if this could be a machloket between the Rambam and the Tur. But first to show where the Rambam, where we see that it seems that the Rambam holds like that. When we look at the Rambam, where the Rambam gives the יסודות in all these קנינים and things like that, the Rambam in Hilchot To'en ve-Nitan פרק ח' הלכה א', right in the beginning. The Rambam says, so I'll read the Rambam: כל, and and when we, this is what I'm saying, when we compare, see one lashon itself, you can't be medayek so much, but when we start comparing one lashon to another, you see that they're parallel, you see right away. כל המטלטלין בחזקת זה שהם תחת ידו. That's a rule. Every metaltel, all metaltelin are in the chazakah of the one that's in his hands. אף על פי שהביא התובע עדים שהמטלטלין הללו ידועים לו, even though the guy who's complaining comes, brings proof, \"You have this, I have re'ayah that this is mine.\" Fine, but as long as I have it now, I'm the muchzak and it's mine. Now the burden is on you to prove that it's mine. That's the way and he goes into all kinds of dinim. That's in פרק ח׳. Then when he goes to פרק י״א, here he speaks about karka. כל הקרקעות הידועות לבעליהן, all karka that's known to belong to a person, אף על פי שהן עתה תחת יד אחרים, הרי הן בחזקת בעליהן. Even though now they're in the in the hands of somebody else, they're in the chazakah of their owner. So what do we see right away when we start comparing the two? The Rambam makes it I think very clear that by metaltelin we say כל מה שתחת יד אדם שלו, and by karka we don't say that. Lefi, yeah, לפי זה, what would be the reason according to the Rambam, why is there a chazakah of three years? But the fact that he didn't make a mecha'ah. See, because he holds that the fact that you're sitting there is no re'ayah. So let's look in the in the second halachah where he speaks of חזקת ג׳ שנים, he says that if a person had the karka for three years, so we give it to him. And he gives the reason. Why would we give it to the person who has the chazakah? מפני שאומרים לו לשמעון, we say to שמעון, אם אמת אתה טוען, שמעון is the ma'arer, if we say if it's true what you're saying שלא מכרת ולא נתת, למה היה זה משתמש שנה אחר שנה בקרקע זו, ואין לך עליו לא שטר שכירות ולא שטר משכונה ולא מחית בו? He says clearly, מפני, when after he gives the din of chazakah, he says why is there a chazakah? Because we take we say to the ma'arer, you let him sit there and you didn't make a mecha'ah. And if you if you, ela mai you might claim maybe you rented it to him, you don't have a shtar that you rented it, you don't have a shtar that this is a משכונא, and you know he's there without you any proof that it's not your not his, and you let him stay there for three years! That's the reason the Rambam gives for chazakah. Lichorah, the Rambam should have given the reason of the Gemara. The Rambam should have said why is the chazakah after three years? So he should have said because after three years don't need a שטר. Rambam doesn't say. The Rambam says מפני, he gives the first reason, because he This fits, according to the Rambam, that the whole chazakah is because he's not a מוחזק. The מערער is the מוחזק, and therefore we need a ראיה that he is a מחזיק to give him a chazakah because of this. This is what the Rambam says. Based on this, that this is the pshat in chazakah, we could understand, we when we look at the difference between the way the Rambam puts a דין and the way the Tur puts a דין, the same דין, we'll see a big difference in the לשונות and it'll be based on these two ways of looking the whole גדר of chazakah. One of the דינים of chazakah is this Mishnah on דף מ״א: כל חזקה שאין עמה טענה אינה חזקה. A chazakah that has no טענה is not a chazakah. כיצד? The Mishnah says what does that mean? אמר לו: מה אתה עושה בתוך שלי? If the מערער says to the מחזיק, \"What are you doing in my house?\" אמר לו, so he says to him, שלא אמר לי אדם דבר מעולם. \"I saw an empty house, I moved in. I'm here for five years, but no but no one said anything to me.\" That's called a חזקה שאין עמה

טענה. The regular type of chazakah is when we ask him, \"What are you doing in my field?\" \"What do you mean? I bought it from you.\" \"Where's your shtar?\" \"Three years.\" Fine, that's a chazakah. But if he himself doesn't ta'anah, he just says, \"I saw an empty field,\" so then we tell him, \"Get out.\" That's what the Mishnah says. And the Gemara asks: peshita! Obviously, he has no ta'anah. So the Gemara says: לא, מהו דתימא I would think האי גברא מיזבן זבין ליה, maybe the guy did sell it to him, האי ארעא, this field, ושטרא הוה ליה, he had a shtar once, ואירכס, he lost it, והאי דקאמר, why did the guy answer because no one told me anything? סבר, he thought, אי אמינא מיזבן זבנא לי האי ארעא, he was afraid, he says, if I'll answer I bought it from him, אמרו לי they'll tell me אחוי שטרך. הלכך, therefore, לימא ליה אנן, so there- so therefore that's why he answered that. So we would think maybe we should start him off and ask him, \"Are you sure that's what it is, maybe you had a shtar?\" So the Mishnah tells us we don't ask him anything. And if he says, \"What are you doing in my field? I don't know, I just moved in just like that,\" it's not a chazakah. This is the Mishnah. Now when it comes to this din, there will be a difference between these two ways in the peshat in חזקה שאין עמה טענה. Not in the halachah of it, but in the sevarah behind it and it will be נוגע להלכה. If you hold the fact is that a guy is in the field, that's a muchzak, that makes it his. And in this case, This guy has a re'ayah it's his. So it shouldn't matter whether you just saw No, but the only thing is, when he ta'anes, \"I didn't buy it,\" he's breaking his own chazakah. In other words, that's for sure, you can't give it to him when he's modeh that he didn't buy it. Cuz chazakah you're talking about is not that chazakah doesn't make it his. Chazakah is a proof that it's his. But if he's modeh, \"I didn't buy it,\" it's not his. But the peshat is like this: he has a chazakah, which means be'etzem there is a re'ayah that it's his. By him admitting that, \"I didn't buy it,\" is breaking his own chazakah. According to the other way, the fact that he's there is nothing to begin with. The whole chazakah is because the guy didn't make a mechah, and then then it's his if he ta'and that he bought it. Since he ta'anes he ta'anes he didn't buy it, so there is nothing to begin with. So the difference would be there are two expressions you find in a lot of things between העדר and שלילה. העדר means it doesn't exist to begin with. העדר means it's not there. שלילה means it's there, but you are שולל, you take it away. Example always given with a mashal from העדר and שלילה is, when it gets to night, night, it's העדר האור. There is no light. During the day and you close the shades, it's שלילת האור. A chiluk. That's the difference here. If you

hold that the fact that you're in there is a re'iyah it's yours, so you have a chazakah, but we're you're breaking your chazakah, שלילת החזקה. If you hold that lechatchilah so there's no chazakah to begin you you're not machzik, you're not ta'aning anything, the ta'anah is part of your chazakah, if you don't have a chazakah you don't have anything. Now, when we look at the Rambam in this din, פ״ד quick look should be find out a little later on. Must say it is only with a ta'anah going to happen? What? This case that what ta'anah, that what happened? Let's see which halachah this is. פרק י״ד פרק י״ד הלכה י״ב. Listen to the words: כל חזקה שאין עמה טענה אינה חזקה, same like the Mishnah. כיצד? הרי שאכל פירות שדה זו כמה שנים, and the guy was sitting and using the field many years, ובא המערער ואמר לו, the מערער says to him, מאין לך שדה זו? Where did you get this from? So he answers, שלי הוא, it's mine. No no, how does he answer? How did you get this field? It's my field. השיב ואמר לו, he answers him, איני יודע של מי היא, I don't know whose this is, אלא כיוון שלא אמר לי אדם כלום, no one told me get out of here, whatever I did, אינה חזקה. שהרי לא טען, It says, why is it not a חזקה? Because he didn't טענ, שלקחה, that he bought it, ולא שניתנה לו, or that it was given to him, ולא שהורישו, didn't inherit. And the Rambam says, ואף על פי שלא טען, even though he didn't טענ, so על פי שכל, what would be? You kick him out right away, I mean he has nothing to do here. Still, אין מוציאין אותה מידו עד שיביא זה המערער עדים שהיא שלו. You don't take him take it away from him till the מערער brings עדים that it's his, then you kick him out. הביא עדים, if the מערער brings עדים, תחזור לו השדה ויוציא הפירות, you bring the you you give him back the field, not only that, this guy has to pay for all the fruit that he ate, ואין פותחין לזה המחזיק כלום. He says the same thing as the Gemara, and you don't start off this מחזיק saying, ואין אומרים לו, we don't say to him, שמא שטר היה לך ואבד, עד שיטעון הוא מעצמו, unless he טענ'ס himself. Is that why he was there for three years then? What are you talking about? It's not that three years that even with a טענה he doesn't get it. The whole case is he was there for three years or ten years, but since חזקה שלוש שנים. But this is the לשון. Now, it seems like the Mishnah, but when we look at the לשון of the Tur, we'll see the לשון of the Tur in the same דין, but with a few differences, which means something. The Tur in סימן קמ״ו brings the same דין. כל חזקה שאין עמה טענה אינה חזקה. Same thing. כיצד? אמר לו המערער מה מעשיך בתוך שלי, what are you doing in my field, והשיב המחזיק, then that מחזיק answers, ידעתי שהיא שלך אלא מפני שלא אמר לי אדם דבר, אינה חזקה, not a חזקה. לפיכך, therefore, אם יש עדים למערער שהיתה שלו, if the מערער has עדים it used to be his, נשבע, the מערער has to swear, ונוטלה קרקע מיד המחזיק, we will take away the קרקע from the מחזיק. אבל אנו לא נפתח לו לומר, but we will not start him off to טענ, maybe you had a שטר. Basically the same thing. One difference we can see already, the שבועה. The Tur says that the מערער has to swear. The Rambam did not mention a shevuah. The מפרשים talk about it. The Beis Yosef in fact says on this Tur, says the Rambam doesn't say it. שבועה זו למה? Where did he get this shevuah? Why should he have to swear? This guy has no טענה, this guy brings eidim, why do you have to swear? And he asks the kashya, and the Bach says, צריכין עיון, where does the Tur get this from? Why do you have to swear? That's one difference. So we have a machlokes here, clear machlokes, between the Rambam and the Tur, like חזקה שאין עמה טענה, the Rambam holds the מערער does not have to swear, the Tur holds the מערער has to swear. Then when we look at the לשונות, Why does the Tur say anything about peirot? He does, he does, skip it. Yeah, he does, he does mention it. I just I just brought it, read those words in the beginning. You look at the Rambam, when the Rambam says that you have to bring eidim, see that they both say, side the Rambam and the Tur, that the מערער only kicks him out if he brings eidim. So the Rambam uses the לשון, ואף על פי שלא טען, even though the guy didn't טענה, still this guy needs eidim. As if saying, the Rambam בפירוש, like you might think, since the guy doesn't טענה anything, you don't even need eidim, the מערער doesn't even need eidim. The Rambam says, אף על פי he doesn't טענה, you still need eidim. The Tur doesn't say af al pi. The Tur just says, since he answers, well, that just proves that it's not his, that he's admitting that it's not his, but that doesn't Right, right, right, right, right, I understand they both hold you need edim, but the Rambam says the lashon that af al pi he doesn't ta'anah, still the Rambam says you need edim. As if there would have been a sevara that you don't. The Tur makes it very simple. The Tur says the guy answers, I don't I know one told me anything, לפיכך אם יש עדים למערער, if the me'arer has edim, he kicks him out. The Tur doesn't b'feirush that af al pi he doesn't have, he doesn't ta'anah. The whole thing would be a shevuah according to the Tur. No, they say of also he says yesh edim and a shevuah. The Tur says both. He doesn't have edim, just a shevuah? Wouldn't help. A shevuah wouldn't help. But you have to have edim and a shevuah, you have to have both. But I'm saying even the edim part of it, there's a difference between the way In lema'aseh it's the same, but the way the root the Tur puts it, and the way the the the Rambam puts it, that af al pi that he doesn't have, still you need edim, and the Tur says, therefore you need edim. Later on also, the Rambam says, אבל No, ואין פותחין לו את פיו. After he says the din that we take it away from him, then he adds a din, and we don't start the machzik off saying to him, well, maybe you had a shtar, maybe you

bought it? No, we don't do that. You don't say it. עד שיטעון מעצמו, and he adds unless he claims himself. The way the Tur does it, the Tur says, אבל אין אנו טוענין לו לפתוח לו. But, we don't start him off. And not only that, the Rambam says double lashon: But we don't Not but, we don't start him off unless he claims. The Tur doesn't finish off the words unless he claims. Doesn't make it that clear. He says, אבל אנו אין נפתח לו ונאמר לו שמא היה לך שמא קנית שמא היה לך, we don't say that. If he claims, you don't have to start him off. Huh? If he claims, if he claims, I know, but still the Rambam still said it. Why is he saying it? But the Rambam still said it. The Rambam says we we don't start him off עד שיטעון מעצמו. And he doesn't say אבל אנו לא נפתח לו עד שיטעון מעצמו, he skipped these words. What's the basis of this machloket? I mean, there's some machloket in halachah, in shevuah, and there's also machloket in the zugang here. So I want to say like this: This is a machloket in this whole nekudah we said before, who is the muchzak? Is the me'ar'er the muchzak or the machzik the muchzak? We said before the Rambam, according to his leshonot in these halachot, by metaltelin, the holder is the muchzak. By karka, the Rambam holds the machzik

is not a muchzak, the me'ar'er is the muchzak. The me'ar'er, not the machzik. I want to say that the Tur, look at the Tur in other places before where he speaks about karka, metaltelin, he says also Everyone says by karka you don't say המוציא מחבירו עליו הראיה, but he doesn't say it so clear. The words are not that way. I want to say that the Tur holds the other shitah. And we have other rishonim, but I think in this case the Tur holds that the machzik, who's inside, is the muchzak. Okay. Based on this, it will come out we'll see the difference between the Rambam and the Tur, very clear. We said that the difference is, in what's the פשט חזקה שאין עמה טענה? If you hold the מחזיק is the מוחזק, the מחזיק here has a ראיה it's his, even without a טענה. He's just going ahead and spoiling his טענה. He's spoiling his חזקה because he's מודה that 'I didn't buy it'. According to the other שיטה, that the מערער is the מוחזק, the מחזיק has nothing here. Sitting there is nothing. קיין טענה האט ער נישט, he's מודה. Sitting is nothing. Is it yours? No. So, then he's out of the picture. Comes out this: The Rambam says because the Rambam holds that the מערער is the מוחזק, so it would have been a סברא according to the Rambam that this מערער doesn't even need עדים. Why? The מערער has something over the מחזיק. What does he have? טענה. No, the מערער doesn't have If he doesn't have עדים, we don't know if it's his, but he has a טענה. Both have nothing. Let's say the מערער would not have עדים. The מחזיק has no עדים. Obviously, if the מחזיק would have עדים The מחזיק has no עדים, the מערער has no עדים. They're both nothing. Who's more? The מחזיק is גארנישט מיט גארנישט. The מחזיק doesn't have a חזקה is nothing, קיין טענה האט ער נישט. The מערער at least has a טענה. This guy says, it's his. This guy says, it's not mine. So, give it to him. קומט דער Rambam, he says, אף על פי כן, still, it's a chidush, the Rambam makes it into a חידוש, אף על פי כן, אף על פי שלא טען, אין מוציאין מידו עד שיהיו לזה המערער עדים. But, a shevuah he doesn't need, because his He has the