When one sells a house, what parts of his property are not included in the sale?
In what types of cases can one not build an opening (window or door) from his house? In extending an existing door, there are issues regarding not only seeing into the neighbor’s property but also in doing so, one gains rights to more space of the commonly shared courtyard as the space directly in front of the door belongs to the owner of the house. What if one has something that juts out into public space? There are two stories brought of people who came before rabbis who ruled they had to get rid of it but the rabbis themselves had something similar or the same in their own property. The stories highlight the needs of leaders to hold themselves to higher standards or at least to the same standards as they demand of others. In the context of things one must do to remember the destruction, the gemara discusses the concept of moderation and the concept of not demanding something of the people that they will not be able to keep.
What types of things that either jut out into your neighbor’s property or affect your neighbor (like a window) can you create a chazaka on if they haven’t complained? It depends on whether or not it’s something we would expect the neighbor to complain about. If it is unlikely they will complain, then their lack of complaint doesn’t enable you to create a chazaka. In each case, what does it mean to create a chazaka? What types of things do they not even have the right to complain about?
Rabbi Bena’a is demarcating graves and needs to go inside the burial caves to measure them. A story is told of what happens when he gets to Avraham’s grave and Adam’s grave. What is his purpose for going there? What is he allowed to see and what is he not allowed to see? Another story is told of an amgosh (seemingly a sorcerer) who goes into the graves of others to take things. Other stories of Rabbi Bena’a are brought as well, including one where he gets put in jail by the non-Jewish authorities and then released because of his great intelligence and made to be a judge. As judge he critiques and corrects a number of statements they have hung up at the entrance to their city. The next mishna discusses various things that may or may not create a chazaka depending on various factors including size – a gutter, the spout of the gutter, a ladder, windows.
In what type of a case can brothers be involved together in testimony that would be allowed and in what type of case would it not? The mishna lists types of acts that can create a chazaka of possession in another’s field and in which not. There are a few different explanations given to the specific case discussed in the mishna. Rabbi Yochanan and Rabbi Bena’a make certian recommendations regarding appropriate behavior including: not looking at women when they launder their clothes, how men should dress, how to set the table in a way that will be neat and minimize mess, on which side of the table the ring should jut out so it doesn’t harm others or cause children to play with it and what should one store under one’s bed look (only slippers so it shouldn’t be cluttered).
If there is a border or a sea quill plant in the middle of a field, it separates the field regarding certain halachot but not others. One case it works for is acquiring land that belonged to a convert who died (hefker). One opinion is that is is not considered a separation for carrying on Shabbat and Rava says that it is. The exact details about what this means are described in the gemara. If there is no border, how much of the field goes to the one who acquired it? The gemara then discusses that the sea quill was used by Yehoshua to demarcate borders between the tribes when he conquered Israel. From there the gemara mentions another issue relating to Yehoshua and then one relating to the borders of Israel that Moshe was shown by God right before he died which are the ones that are obligated in tithes. The ones excluded from this are the lands that belonged to other neighbors (not from the 7 nations) – the Kini, Knizi and Kadmoni. There is a 3 way argument about what geographic areas this is referring to. The next mishna and gemara discuss issues regarding testimony about the 3 year chazaka. Can 3 groups of witnesses testify each about a separate year? Is this considered a whole unit of testimony (which is acceptable) or a part of a testimony (which is not acceptable)? What if 2 witnesses testified about all 3 years but disagreed about which type of produce the person benefitted from? Would their testimony be accepted?
The gemara continues to differentiate between different actions whether or not they can affect acquisition. How is it done, how much is done, etc. all help to determine whether or not there was a chazaka. Since laws regarding how one can acquire land are different in Torah law for Jews and non Jews, the can be a situation where a Jew buys land from a non-Jew by paying him (which affects acquisition for non-Jews but for Jews it doesn’t – until there is a document) and before the document is written or the Jew takes possession, one can come along and possess the land by a kinyan chazaka. A question is asked – how can Shmuel who brought this halacha say this when he also holds dina d’malchuta dina – we must abide by the law of the land – which says that one can only acquire land with a document.
If one acquired property he bought or received as a gift through a kinyan chazaka, what exactly does one need to do to acquire the property (so that each side can no longer change their minds)? What type of change, how much needs to be changed, would that type of change work in any situation?
One should not accept to watch over an item given to them by a woman, Caananite slave or child as they are suspected that the item is the husband/owner/father’s. But if one did, it can be returned to the one who gave it to him. If a son is independent from a father, then he can create a chazaka on the father’s property. If one brither is in charge of all the inheritance porperty and there are documents that say he has ownership on part of the property and he claims it came to him through inheritance on his mother’s side, Rav and Shmuel disagree about whether or not the burden of proof lies on him (as he is suspect) or the burden of proof lies on the brothers (as he has a document of ownership).
A woman can’t create a chazaka on her husband’s property. But can she use a document as proof? Are we concerned that she had hidden money that belongs to him and he is using the “sale” as a way to get that money back and really never meant to be giving her the field? In what cases are we concerned about this type of situation – a sale, a loan?