learning about chazakah chazakah. If a person halachah is that if a person is in, let's say, a house, and he's there for three years, and then the original owner comes and says, \"What are you doing in my house?\" He said, \"I mean, I bought it from you.\" So, \"You bought it from me? Where is your documents?\" So if he's there for three years, doesn't need the documents. And the house is his, as long as the original owner did not protest, did not proclaim a protest during those three years. If he made a mecha'ah during those three years, then the chazakah is not, unless he has it three more years after the protest. What if he was in jail? Huh? What if he was in jail? If he could make a So certain cases where you couldn't make, legally couldn't, it doesn't count, and then he still gets his field back. What happened after the השואה? There were people that were having their homes and the goyim took them over. Yeah, yeah, yeah. They came back and they Is it a goy and a Jew or just No, this this is not by Jews. It's only Jews. Yeah, גוים אבאדאי, but that's, but the goyishe court doesn't follow our laws. There is such a thing as a squatter's law: squatter's possession or something. In

Manhattan, you have places where there's there's there's a right-of-way, and they'll close it off. They'll close off part of the of a square or plazas, so the buildings shows that one day a year that the that they One day a year, they close it to make it public, right? Why? You'll see on 6th Avenue No, no, what what's To show what? Otherwise, otherwise it will be a right-of-way for the public, right? Oh, you that's for the public. Well, it's not that You lose your chazakah, in other words, right? You lose your your בעלות over it because it becomes Because it Okay, this in halachah would be different. Halachah, it says מיצר שהחזיקו בו רבים, you can't change. If rabim start going, it's theirs. They have a right. Ah, but this is What if What if once a year you say, \"This is mine. I froze it\"? You have to make a mecha'ah right away, as soon as it starts. Well, they make a I mean Okay, then תקע, and then you In other words, they opened it to the public, And yeah and you can say they they have built a big building and they opened the square, and they and they let people go by, Right. and once a year, once a year they close it. Yeah, okay. So anyway, this is a din that of of chazakah. So it has to be three years, whether it's a field. In a field l'mashal, you'll have to have the, and you have to bring proof that you used, took benefit of this field or of this house for three years in the normal way that people take benefit. If you don't have edut for all three years or something like that, you don't have a chazakah. This is the generally in chazakah. So here we find like this: אמר רב הונא on דף כ\"ט, Rav Huna said, \"שלש שנים שאמרו, והוא שאכלן רצופות.\" This three years that we're talking about is only if they're consecutive.

What happens if he had this for one year, then one year he skipped? Let's say a field: he planted and plowed and took the fruit one year. The next year, he skipped. Then he did it the second, another year after that. Then he skipped again, made another year. So לפועל, he had three years where he used it in a normal way, the way people use it, but it wasn't one after another. There was a skip in the middle. It was called מפוזרות, spread out. Then the chazakah doesn't count. That's what Rav Huna said. Then the Gemara says, \"אמר רב חמא: ומודה רב הונא באתרא דמוברי באגי.\" Rav Huna admits, if it's a place where the custom of the people there is to skip, let's say that's the custom, some people some places, they plant one year and then they skip a year. The reason they do that is so because if you keep on planting, it's going to going to lose the the soil is going to lose its its strength. So therefore they skip. So if the custom in that place is that they skip, so if this guy skipped, it's no problem. He still has, if he had As long as he had the three years, even though in between he skipped, there's no problem. Just because they skip doesn't mean that they're still using it. In that way, they're using it by letting it not plant. Good, but does it have to be not Just give me a second. In Eretz Yisrael, you have the sixth year, three years, seven, and the first so automatically you have to skip one year. Right. So then you still need more another year. You have to have Most ראשונים hold you have to have three years. But it doesn't matter if the three years are with a skip in the middle. In the case where the common thing is or like you said, שמיטה. So if they're having it the common thing to do is that you don't you don't plant anyway. Right, so you have to have it for four years. You can use the land for something else, can't you? No, that doesn't say. The fact that you You mean you want to say because the halachah is that you can The guy should have known. Because we'll see, it could mean something, but it's not נוגע. If he used the land for something else, he would not plant it. No, that wouldn't help. One second, let let We're just starting the thing. So the Rashbam says like this, when the Gemara says like if the area is a custom that they skip, so he says like, \"במקום שנהגו לזרוע שנה ולהוביר שנה,\" a place where the custom is that they plant a year, then they skip a year, \"שלא להכחיש את הקרקע,\" in order not to rule- weaken, weaken the land. So in this case, even though he skipped a year within the three years, still the chazakah is a חזקה, דהא אחזיק כדאחזקי אינשי, because he did whatever normal people do. That's the way, you have to do it what normal people do. And then he says, but you have to have three years anyway, three years of chazakah. That year doesn't count. But that year doesn't spoil it, see? Other places, skipping a year would spoil it, here it doesn't spoil it. Okay. Right, but that's what the Rashbam holds, mostly he holds you don't count it. There's a machloket there, but we're not going to get into that. Then the Rashbam continues, ואי טעין אידך אני באתי בתוך שלש, what happens if the other guy, let's call him the original owner we call him the me'arer, the

מערער is the litigant, the one that's protesting, which is the original owner. If he comes and says, you know what, the only reason that you keep the field after a chazakah is because I didn't protest. Had I protested, then you wouldn't keep it. But I could tell you, he says, I came בתוך שלש, I came in the middle of the three years, ומצאתי שדי ריקם, I found the field empty, ולכך לא מחיתי, that's why I didn't make a mecha'ah, I didn't protest. You can't expect me to make a, why should I make a mecha'ah, I saw you're not there. So lichora how do we say that it works when there was a year skipped and this guy has a good excuse why he didn't make a mecha'ah? מצי אמר ליה, but he could answer him, בכל מקום הוה לך למחויי, you still should have made a protest. אף על פי שלא זרעתיה, because even though I didn't plant it, הויתי עביד בה ניר שחר הקוצר, I didn't plant it, but I did other things. I dug it, whatever people do during the middle of the year. Oh no, but that's what he says: you did see, because I did work there. והוה לך להבין, and you should have understood, שבשביל שלא להכחיש כחה, because I didn't want it to get weak, לא חפצתי לזרעה, I didn't want to plant it. But you saw that I'm there because you saw me doing other things. The bottom line that comes out from this Rashbam that when is, in a case where the custom is to skip and we say it is a chazakah, it's only if the year that he skipped he also do some, does some work there. But if he doesn't do any work there then at all, obviously he loses his chazakah. Why? Because the other guy has a good claim: you can't blame me for not making the mecha'ah because I came there, nothing happening, so I assumed you're not there. I assumed that you, therefore I didn't make a mecha'ah. This is the shittah of the Rashbam. Yeah, the Rashbam holds even if it's the custom to skip, but in order to avoid that person's excuse why he didn't, that he didn't make it because of not seeing anything, the only way this chazakah will work, you have to have three years where you actually did the full work, and you could skip the years if that's the custom, as long as you did, let's call it ניר, he calls it ניר, ניר means digging, you did ניר there. Right, right, because we can't give him the right because the fact that he didn't make a mecha'ah is not enough, not enough reason, even if he doesn't say it. Other rishonim, for example the Raavad, the Shittah Mekubetzet brings the Raavad, the Raavad says that even if he didn't make any ניר, even if he skipped the year and didn't do anything, still the chazakah is a chazakah. So we have here a machloket between the Rambam, between the Rashbam and the Raavad. And other rishonim also hold like the Raavad, whether we, the year that you skip, which you have the right to skip, do you, in order to keep your chazakah, you have to have ניר or if you do nothing it's still a chazakah. The question is really, first of all besides what the machloket is based on, but besides that, what's the sevara of the Raavad? After all the guy could have come with a ta'anah and say, you know, you can't blame me for not making the mechah, I came and there was nothing there, why don't we accept that? What is the reason here? And basically the she'eilah is what is the argument here. That's one machloket here. The Gemara continues, and the Gemara says like this: it says in the Mishnah that you could make a חזקה on a house. And the Gemara asks, if you make a חזקה on a house, you have to have three years. But how are you going to prove that you lived there the whole time? You have to have edim that you were machzik, you had benefit from the place fully, the full time. You could only bring witnesses for the day. Can you bring witnesses for the night? So if you can't witnesses for the night, then your night doesn't have a חזקה. So the Gemara says, what do you mean? You could bring witnesses for the night. Who is a witness usually in a house that you lived there? Neighbours. Neighbours will be able to witness for the night also. Then the

Gemara says also another way: you could What happens if the guy, the machzik, the guy's holding the field, says, \"I rented it to two people and they paid me rent, and they are going to come to be the witnesses that they lived there on my behalf,\" whatever. But then the Gemara says that when do you ask for witnesses specifically for the night? Only if the me'ar'er says, \"I want you to bring witnesses for the night. It's my house, you moved in, you're a liar, you're a ganav. Ah, you claim you have a חזקה? The witnesses that you brought say that you lived there, but they don't testify for the night. You have to bring witnesses for the night.\" But only if he says that. If he doesn't say it, then the fact that you bring witnesses that that you live there, even though they only know about the day, it's good enough. Comes the Rashbam and I'll read you what the Rashbam says here. He says like this: אין מחייבין את המחזיק להביא עדים שיעידו בפירוש על כל הימים ועל הלילות. You don't tell the מחזיק that you have to bring witnesses specifically for the night the day and the night, אלא יעידו סתם. Normally, they could come סתם, שראינו דור ג׳ שנים, we saw the guy live there for three years, ומסתמא, אם בימים דור בבית, אף בלילות דור בו. Probably, if they say we saw him live there for three years during the day, mistama it's night also. But if טוען מערער ואמר, if the other guy, the מערער says, אציץ צדה, I want you to bring specifically witnesses for the night, טענתו טענה, we accept his טענה, וצריך שיביא עדים של לילות וימים, and then you must find witnesses for the day and for the night. Why? דכיון דטעין טענת ברי, since the other guy says clearly, he says אני ראיתי שלא דר בה, I saw, I came to the house at night, I know he wasn't there. He claims he was, let him bring witnesses. So then, he has to bring witnesses for the night. So comes out from the

Rashbam that when do you bring witnesses for the night? Only if the other guy טוען ברי! I I was there at night, I saw you're not there. When he טוען for sure, then we force the guy to bring witnesses for the night. What happens if the guy says, \"Oh, I was I don't know, but, but you bringing witnesses for the day is not enough for me. I want to see witnesses for the night. Not because I know I claim that you weren't there, but who knows? Maybe you weren't there.\" So the Rashbam says that won't work. That doesn't force him to have to bring witnesses for the night. Only if he says beri! He says for sure. While other rishonim argue, and they say that even if the guy says, \"I want you to bring witnesses for the night,\" without saying, \"I know for sure that you were I claim for sure you weren't there,\" just by saying that, it's enough to make him bring witnesses for the night. So let's understand both of these מחלוקתן. Try to make it in the kitzur. Who said beri, again? Huh? Who said beri? The מערער. The מערער said bari. Okay. For sure, for sure. That's The Rashbam says like you have to say bari in order to force the guy to bring edim for the night. And the other rishonim say even if he says shema. So just bekitzur, just one short point here to explain both מחלוקתן, what is it based on? So this is what we could say, like this: When it comes to this chazakah that we have, בכלל the whole idea of chazakah three years, there are two points we made before. One is, he has to have it for three years claiming I bought it. Also, when does your chazakah work? If the guy didn't make a protest, if the guy didn't make a מחאה. If the guy made a מחאה, then there's no chazakah. Since you need these two things, the way to the seems like it's a machloket in the rishonim, some place I'll explain, is: what is the chazakah, and what is the אומדנא? I'll say what I mean. You could say two things. The way to explain the chazakah of three years can be like this: We know by מטלטלין, if I'm holding this, and you come say it's yours, and you could bring a million ראיות that yesterday it was yours, everyone knows it's yours, and I'm holding it, and I say I bought it from you, automatically I keep it. Why? המוציא מחבירו עליו הראיה. You're trying to I'm holding it. What's it based on? Based on the כלל, חזקה כל מה שתחת יד אדם שלו הוא. The chazakah is, whatever I'm holding in my hand is mine. You want to take it away, the burden of proof is on you. You could say the same thing is by קרקע. If I am sitting in a קרקע, I'm holding it, it's like מטלטלין. The fact that I'm holding it is a proof it's mine. So the mere fact that you come to me and say, \"What are you doing in my field?\" and I'm saying, \"Well, I'm sitting in the field and I bought it from you,\" I should be right right away. Why do we have to wait three years for this? Tell you why. Because if you don't have three years, we have a kushya on his ownership. Since by קרקע you write a shtar, where is your shtar? So the fact you don't have a shtar, you can't keep it. So what about after three years? After three years, you don't have to keep a shtar. So the Gemara says. So basically, what makes it yours? Because you're sitting in it. That itself makes it yours. The reason you have to wait three years, because if not, there is a ריעותא, there's something wrong with your chazakah, something against you. But בעצם you have it when you're sitting there, you're the מוחזק. Would you need edim for those three years? Everything you need edim. But, but, you're holding it, you don't need edim, you have two guys Because we see you holding it. But over there, how do you know you're there? Since you need three years, you have to know you were there. So comes out like this. So one way to learn what the ענין of chazakah is the fact that you're holding it, you're the מוחזק, and באמת the chazakah should be right away, but because we have a kushya, where is your שטר, we only give you the chazakah after three years when we have no problem with the שטר. Or you can learn the other way, that when it comes to קרקע, we don't have this chazakah. The fact that you're sitting there doesn't mean anything. By מטלטלין, if you're holding it, that means that it's yours, but by קרקע that doesn't mean anything. So really, you should never have a chazakah. What's your chazakah? You have no שטר. The fact that you're sitting in it means nothing. So why after three years is there a chazakah? For a different reason. Because we say to the other guy, \"You claim it's yours, we have a ראיה that it's not yours.\" What's the ראיה it's not yours? You didn't make a מחאה. So the difference between these two ways is very clear. The first way, who is the מוחזק? Who's the one that is holding it, and who's the one that's trying to take away from the one that's in it? So according to the first way, the מחזיק, the one that's in the field, he's the מוחזק. The מערער is the מוציא. That's one thing. According to the second way, it works the opposite. According to the second way, the fact that I'm sitting in the field means nothing. This guy has proof that it always was his, so automatically it's his, he's the מוחזק. The guy who is sitting there is trying to take it away by sitting in it, which we can't give it to him because he's sitting. But you know why we give it to him? Because we tell him, \"You have to prove that it's yours.\" I have proof. What's my proof? You didn't make a מחאה. If it would be yours and you didn't sell it to me, you would have made a מחאה. So we come down to the bottom line is who is the מוחזק? Is this the מערער or the מחזיק? That could be the reason for the מחלוקת in both of these two places. Let's go to the first place. First place that when he was sitting there and there was a custom that they skip a year, and he did not do anything that year. Is that enough to give him a chazakah, or in order to him to have the chazakah you have to do ניר, you have to do something? The מחלוקת can be based on this. If the מחזיק is the מוחזק, so be'etzem it's his. As long as he doesn't do anything wrong Who is it, the מחזיק or the מוחזק? Yeah. The one who's sitting there? The מחזיק is the one that's sitting in it. All right, it's not If he is the מוחזק, then be'etzem it's his. And if be'etzem it's his, the other guy has to have a strong proof to take it away. And if he says, \"You know what I did? I did everything correctly. I have it for three years, I worked it for three years. This these years I could skip, al pi din I have a right to skip, so why should you take it away from me?\" So ein hachi nami, even though he didn't do ניר, the guy can't take it away because he's the מוחזק. If you hold the opposite, that the מערער is the מוחזק, then farkert, the מערער is as long as the מערער has an excuse, he keeps it. And he has an excuse: \"I came there and I didn't see it. I didn't see you.\" So the only way He has proof. The What? He has proof. That what? The The מערער has proof. He has a It says that it's his. He has a deed. No, from before. But now this guy sat in there for five years. But he's still the מוחזק. The מערער is the מוחזק. The מערער is the מוחזק. Yeah. So now, but the other guy has a חזקה. But as long as he has a reason why that חזקה is no good, he keeps it. Right. So therefore, even if there was no Even if there was no ניר, but as But L'foal Every time he came, he didn't see him there. If he's the מוחזק, חזקה is the one that's holding on to it, the one who's The one that has the right over it. There's a presumption of So again. alleged owner. Huh? They're both alleged. The one was for sure an owner before, and this guy is an alleged maybe he has it now. So, just to make it bekitzur, so if you hold the מחזיק is the מוחזק, so then the din would be that even if he doesn't do ניר, the guy can't take it away, cuz it's his. If the מערער is the מוחזק, then if he didn't do ניר, the

מערער takes it, because as long as the מערער has an excuse why I didn't make a מחאה, and he has an excuse, so, therefore, the only time he has no excuse, that's when he loses it, is if he makes ניר. So, the machloket whether the only time it's a חזקה when you skip the years if you do ניר or not, will depend whether the מערער is the מוחזק or not, and that's the sevara, the reason for the machloket. Let's go to the other machloket. We could explain the other machloket the same way. Once again, machloket, if the guy says, \"I had I said lived in the house for three years,\" and he brings עדים that he lived there, do we have to ask the עדים, or do we have to pressure to him to bring עדים for the nights also? So, there's a machloket. If the מערער says, \"I want you to bring עדים for the night,\" the Gemara says you have to. But the Rashbam says, when is that? Only if he says ברי, if he says, \"I'm telling you I know you were not there at night.\" So, we tell the guy, \"See what he says. Bring עדים that you're at night.\" But if the guy would say, \"You know what? I'm not sure if you're there at night. But I I I don't believe you. Maybe you weren't there at night. שמא. Bring עדים you're at night.\" So, the Rashbam says that doesn't require the מחזיק to bring עדים. While other Rishonim say that even if he says שמא, that forces him to bring עדים. What is the machloket? So, it's the same machloket, you could say. Machloket is if the מערער is the one that is the really owner till proven wrong, or the מחזיק is the owner that's proven wrong. If you hold the מחזיק is the one that's right, that's the owner, unless the other guy proves him wrong, so in order for the other guy to go against him, he has to say ברי. If you just say שמא, it's not enough to change the matter and force the מחזיק, \"We don't accept your חזקה unless you bring עדים for the night.\" But if you hold the מערער is, and he's the main guy, he owns it, אלא מאי the מחזיק is trying to take away from him, so as long as he has some טענה to say שמא, even though he says שמא, then the מחזיק has to prove it. So, even if he says שמא, the מחזיק has to prove with עדים. This is the general idea. Which idea? The the the one that says that he has to prove, and is the one that says a שמא, ברי, I mean, it becomes the מוחזק. Doesn't become the מוחזק, he has a good טענה. No. He says ברי, it's a טענה. But that guy is sitting in the field, that guy's... If the מחזיק the מוחזק means... Now he's holding it, that makes him a מוחזק according to this side. So, he's a מוחזק. The other guy is just challenging his חזקה. So, to challenge a חזקה which you are the owner, has to be a strong טענה. But otherwise not. So, this is in a good בקיצור. The

problem with this is, but we're not we're going to stop with this, the problem with this is that the people who say it doesn't fit. If we're going to say the first machloket is based on this and the second one, it just doesn't really fit, cuz the first one, we said that the one that says you need ניר, which is the Rashbam, why why do you say that you need ניר and otherwise, if he says there was no ניר, the guy can't get said because the מערער is the is the מוחזק. Here the Rashbam says you have to have ברי. Why? Because the מחזיק is the מוחזק. Conflicts with himself. The same thing, the other opinions, which is the Rambam, says both the Rambam are the other. No. In the two in the two places, the Rambam also holds, it's also conflicting the opposite. So, we've got to find a different peshat. Okay, that we'll be mamshich some other time. Yishar koach. There is actually There is a different way. Sure it is. Yeah, like I think it's a hemshech next week. Huh? They're always There always is, huh? It's very interesting. We'll make a hemshech, like bli neder. Yeah, that's why I'm stopping now. Otherwise, it wouldn't take us so long to finish... Do you have more pistachios, right? We built a wall, right? We're finished with that.

Why Why not solve the problem by building a wall? Why Why you have to dig? We solved the problem. The walls, we solved. So, why is it not a bari veshema? One seagull take the fish from the others. In the sky, the seagulls take the fish from the others. The fish? The fish? Who? The The birds take the fish? Yeah, the birds, the seagulls. So, let them take it. He says ברי, and the other one says שמא. Who says ברי? If he say, \"Maybe you weren't there at night.\" And the other guy also says ברי. No, no. The other guy is ברי. He is He's... They're both ברי. If he's saying שמא... If the מערער says שמא. Yeah, according to some opinions... opinions, he can still, he still has to prove he was there at night. According to other opinions, what's, what's, what's, what's, what's the, what's the logic? It's bari veshema. So? Bari veshema bari adif, no? Yeah. But there's a she'eilah he challenges him his חזקה. He challenges חזקה with a שמא. That's, it wouldn't be at that, let me ask you another she'eilah. A

guy comes, says, \"What are you doing in my house?\" Touch touch, okay. I'll ask I'll ask you a real... that's another she'eilah. A Yid a Yid answers a she'eilah with a she'eilah. You remember the sichah you have to be humble. What can you do, it's a sichah, you know the joke. All right, so I forgot bari veshema. No, but hear a joke. Once a galach asked a rabbi, \"How come you, you Yidden, you always answer a question with a question?\" So he says, \"Why not?\" We learned last night that you have to be battel when you receive Torah to really mekabel the Torah. So he asks silly questions. I was there, I was there. That's why I do that. I want to ask you I want to ask you a question. A real question. A guy comes to somebody... I already walked into a trap. I said... He says to him, \"What are you doing in my house?\" Yeah. So he says to him, \"I bought it from you, and I lived here, I have a חזקה.\" And the other guy says, \"Bring me עדות.\" Does he have to bring עדות? If he has a חזקה? The guy claims, \"I have a חזקה,\" he says, \"Bring עדות.\" No, no, no. Does he have to be חזקה, does he have to prove the עדות? Do you have to bring עדות for three years? Why do you have to bring עדות? He's claiming, \"It's my house. I have the deed to the house. You live in it.\" But he says, \"I have a chazakah.\" So what's the guy answer? Everyone knows there's a din of chazakah. If you have a chazakah, so what's his claim? He has to prove he has a chazakah. Oh, have to prove. Why do you have to prove? So if the guy says, \"For sure you weren't there, you didn't sit live there.\" What happens if the guy says, \"Prove that you were, I don't know if you were there or not.\" What would you say is the din? Okay, I got it. You got it? That's it. But that's, that's called ברי ושמא? That's the whole that's the whole need to bring עדות. He says, \"Prove it.\" He doesn't agree to you, he just wants to go home. No, no, I got it, I got it, I got it. Yashar koach.