י״ז באדר ה׳תשע״ז (March 15, 2017)

Bava Batra 52a-b: Locking the Door

As we learned in the Mishna (daf 42a) the term ḥazaka has two different meanings. While most of our perek has dealt with ḥazaka as an act that supports a claim of ownership, i.e. living or working a piece of land for three years will support a man’s claim that he had purchased the land, there is another type of ḥazaka, as well. A ḥazaka can also mean a formal act that shows that a person controls the land, which will serve as an act of kinyan – of taking possession of the land.

In the case where the ḥazaka will serve as an act of acquisition, for example, where someone gives a present to another, then the ḥazaka of na’al, gadar u-faratz will be effective. That is to say, if the recipient of the present locked the door, put up a fence, or performed any other action that exhibited ownership, such a ḥazaka will effect ownership.

In defining the case of na’al – locking the door – the Rashbam explains it does not simply mean locking an existing door, rather that the new owner establishes a door in a space that did not have one previously, or minimally places a lock in a door that did not have one before. The Ramah disagrees, claiming that according to Rav Hai Ga’on even closing the door – which is referred to by the term ne’ila by the Rabbinic Sages – would be enough to complete the kinyan, since it changes the inside into a “closed area” at least for that particular moment, which is enough to exhibit ownership. The Ramah goes one step further, suggesting that opening a door that had been locked can also be seen as a sign of ownership, since it is similar to someone who breaks down the gate around a field. According to him, both of these exhibit control over the property.

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