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Ruling: We point out that this entire line of argument is plausible only according to the opinion of the Geonim that chezkat tashmishin does not require three years without protests or a claim that he positively arranged rights from the original owners. In contrast, Tosafot and most Rishonim require the same standards of chazaka as for full ownership claims. On this machloket, the S’ma (153:32) says that the Rama did not decide between the opinions. The Netivot Hamishpat (153:13) says that the Rama allowed for lower chazaka requirements only when the machzik used his own property, just in a manner that improperly disturbs his neighbor’s use of his own property.
We also need to understand the Geonim’s opinion, that chezkat tashmishin is different. The Ri Migash (62) says it is because the machzik does not really take away the property itself but just gets certain peripheral rights. The K’tzot Hachoshen (153:3) says that the use of the property is considered like a kinyan on that element of the property. The Netivot Hamishpat (192:6) reasons that it works as a type of mechila (relinquishing of rights). Either way, since here the owner of the property is the State of Israel and the state did not bestow any rights on pl by any delay in SE’s protesting, pl should not have chazaka. On the contrary, by the state having rules under what conditions people can receive rights and pl not having fulfilled them, the rules are equivalent to protest.
Another reason that there is no chezkat tashmishin follows from the way the Netivot Hamishpat (140:20) explains the Rambam. Specifically, it is because the machzik does not want to take away from the owner’s use of the property in the long term. In contrast, in this case, it is clear that pl are progressing in a manner that in the long term only they will be able to use the land.
P'ninat Mishpat (834)
Beit Din Eretz Hemda - Gazit
853 - P'NINAT MISHPAT: REGULATION OF LAND RIGHTS IN A SETTLEMENT EXTENSION – PART II
854 - P'NINAT MISHPAT: REGULATION OF LAND RIGHTS IN A SETTLEMENT EXTENSION – PART III
855 - Regulation of Land Rights in a Settlement Extension – part IV
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Beit Din Eretz Hemda - Gazit
P'ninat Mishpat A Commercial Rental for a Closed Business – part II
based on ruling 80047 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat Profits from Formerly Joint Swimming Pool – part
(based on ruling 81110 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat P'ninat Mishpat: Multiple Agreements and Parties – part IV
based on final ruling of 80082 of the Eretz Hemdah-Gazit Rabbinical Courts
Igrot Hare’aya Raffle of Property in Eretz Yisrael for Tzedaka
Igrot Hare’aya – Letters of Rav Kook: – #220
P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat P'ninat Mishpat: Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
Rabbis in Midrash
Lessons
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Moreshet Shaul Hashem Is your Shadow – part I
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
P'ninat Mishpat A Non-Contractor in Changing Times – part I
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
Moreshet Shaul Our King on Rosh Hashana, Our Father on Yom Kippur.
Based on Aroch Siach, p. 221 (Rav Shaul Yisraeli)
P'ninat Mishpat A Non-Contractor in Changing Times – part II
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
Moreshet Shaul Hashem Is your Shadow – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
Parashat Hashavua Happiness for the Right Reasons
[With painful longing, we share these divrei Torah from our co-Rosh Kollel for close to 40 years, Harav Moshe Ehrenreich zt”l.]
