Chazakah

According to one opinion in the Talmud, the principle of chazakah has a Biblical source in Leviticus 14:38, which discusses the case of tzaraat in a house. After the priest had examined the plague-sore and found it to be of a certain size, he locked the house for seven days, at the conclusion of which time another examination was made. "Is it not possible that while he was locking the door the plague-sore diminished in size? Since, however, Scripture takes no notice of this, it must be because it presumes that the plague remained in the state in which it was first found by the priest; Scripture teaches us here the principle of presumption".[12] However, some of the amoraim rejected this derivation, and instead held that chazakah is a Law given to Moses at Sinai.[13]

The Talmud counts as a demonstration of ownership of land, a chazakah of uncontested usage of property for three years.[14]

Mere possession was not sufficient to establish a title to real property. The presumption was that "real property is always in the possession of its owner"[15] until evidence showed that he had sold it or had given it away. Since, however, people are not careful in preserving documentary evidence for more than three years,[16] the Rabbis ordained that undisturbed possession for three consecutive years was sufficient to establish a claim to real estate. In the case of houses or of other buildings the possessor was required to produce evidence of continuous occupancy, either by himself or by a tenant holding a lease from him, for three full years "from day to day". In the case of fields or gardens, the prevailing opinion was that possession for three successive harvests of the same kind was sufficient, even when the last harvest had been gathered before the expiration of the three years.[17]

"Possession not based on a valid claim is not regarded".[18] If the possessor claimed that he had bought the land of its owner, or that it had been given to him, or that he had inherited it, possession for three years was sufficient. But if he said that he took possession of the property because there was no other claimant, possession even for many years was of no value. And if at any time during the three years the owner protested (meha'ah), either in the presence of the holder or before two witnesses, against the unlawful holding of his property, the fact of possession was of no value in establishing title to the property.[19]

The following persons could not acquire property by usucaption: (1) a building contractor; (2) a partner; (3) a steward; (4) a husband his wife's in which he had the right of usufruct; (5) a father his son's, or (6) a son his father's; (7) a guardian his ward's; (8) a minor; (9) an idiot; (10) a deaf-mute (whose property, in turn, could not be acquired by others); (11) a robber. No argument of possession could be advanced to establish a title to the property of a fugitive who had fled in fear of his life, or to property belonging to a synagogue, or to communal charitable institutions.[20]

With regard to movable property, the presumption was that it belonged to the possessor unless it was conclusively proved that he held it under false pretenses. Even if the owner brought evidence that the object belonged to him, the possessor was believed if he claimed that he had bought it or that he had received it as a gift, and he needed only to take the rabbinical oath (hesset) to establish his claim.[21] Talmudic law distinguished, however, between objects that people are accustomed to lend or hire and objects that people are not accustomed to lend or hire; the mere claim of possession, even for many years, was not sufficient to establish a title to objects of the former class, and the owner could at any time establish a claim by producing witnesses to testify that they belonged to him; but the latter class of objects could be acquired by mere possession.[22]

The maxim that anything that is in a man's possession is his did not apply to a mechanic whose occupation it was to repair the objects in question. Even if he had had an object in his possession for a long time, the owner could claim it on the ground that he had given it to him for repair.[23]

Small cattle of the kind that are left in the open and allowed to move from place to place were excluded from the principle governing title by possession in movable property, for the supposition was that they had wandered onto other premises without the knowledge of their owner. There is a difference of opinion among the later authorities as to whether three years' possession was sufficient to establish the right of property in them. Large cattle of the kind that are delivered to a shepherd and are always under his control, or infant slaves that are unable to walk, were treated like other movable property, while adult slaves were considered in the same category as immovable property, and a continuous possession of three years was sufficient to establish title to them.[24]

The Talmudic law applies the principle of chazakah also to easements or servitudes consisting in the right or privilege of using another's land without compensation. For example, if one causes one of the beams of his house to protrude into the premises of his neighbor, and the neighbor does not object immediately, the owner is regarded as having a chazakah in the servitude of his neighbor's premises as regards the beam. There are three distinct opinions among the later authorities regarding the nature of this ḥazaḳah. Some (the Geonim and Maimonides) are of the opinion that the chazakah of easement need not be accompanied by a real claim, nor need it last for three successive years as is required with movable property. Others (Rabbeinu Tam, Rabbeinu Yonah, Shlomo ibn Aderet) hold that this case is in all respects similar to the case of immovable property, needing both a real claim and three years' possession. Others, again, adopt the compromise of Rashbam, who regards easements as immovable property in so far as they require a real claim to title, but with the difference that they do not require three years' possession to establish the right.[25]

The "status quo kohen" (Hebrew: כהן מוחזק) is a rabbinic title which legitimates Kohen status to a Jewish Kohen who—amongst multiple criteria—exhibits conduct exemplary of and is recognized by his peers and community as such.[26]

The tannaic rabbi Jose ben Halafta praised the soundness of this Chazakah by labeling it a basis for the entire Halachic concept of chazakah.[27] It is based on this chazakah that all poskim agree—unanimously—to forbid the status quo Kohen from marrying a divorcee.[28]

Once a Kohen is established as a Kohein Muchzak it is a mitzvah to sanctify him[29] and assist him in abstaining from the restriction that apply to a Kohen (for example, Prohibition of Kohen defilement by the dead).

The chazakah of the Kohen is deemed valid and in good standing unless a valid objection to his lineage is made before a Beit-Din.[30]

Other presumptions in halacha include:

• All flesh is presumed to have been cut from a living animal ("ever min ha-ḥay") and hence to be forbidden food until it has been determined that proper shechita was performed on the animal; hence an examination of the organs to be severed at slaughtering is necessary. After it is slaughtered it is presumed to be kosher until it is demonstrated how it became forbidden; hence no examination of the animal is necessary, except of those organs (such as the lungs) which contract a disease most readily.[31]
• In cases involving money, the prevailing principle is אוקי ממונא בחזקת מריה ("leave the money in the possession of its master"). Hence the general principle in Jewish law, that the burden of proof is on the plaintiff.[32] This principle has far-reaching results. It is followed not only where there is insufficient evidence to establish the truth,[33] but also where there is contradictory evidence.[34] If after a case has been decided in accordance with a presumption the plaintiff violently takes the object of contention from the defendant so that the presumption shall favor him, it is doubtful whether the former presumption becomes thus annihilated; and the later authorities differ as to which presumption to follow in such a case.[35]

Many Talmudic presumptions are based on analysis of human nature.[36] These include:

• No woman would have the audacity to declare in her husband's presence that she was divorced from him, if she were not.[37]
• No man is presumed to have paid his debt before it was due.[38]
• No one would be so shameless as to deny a debt in the presence of his creditor.[39]
• A shaliah is presumed to fulfill his commission.[40]
• The master is presumed to have paid the day-laborer at the end of his day's work.[41]
• No man permits himself to be robbed without a struggle.[42]
• A scholar would not issue any deed unless it had been correctly executed.[43]
• A house is presumed to have been examined for chametz on the fourteenth of Nisan, and one hiring a house on that day need not examine it again.[44]