Chazakah

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Chazakah, (Hebrew חזקה, khazakah, legal acquisition by right of possession) is a Midrashic and Talmudic concept, the presumption of ownership of a personal status (such as being of kohen or levite status) or of land, or tangible property.

Etymology[edit]

The Hebrew word חזקה is a noun form of חזק, which can be translated as "strong holding".

Personal status[edit]

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.[1]

The Tanna Rabbi Yossi extolled the soundness of this Chazakah by labeling it a basis for the entire Halachic concept of Chazakah.[2] It is based on this Chazakah that all Poskim agree—unanimously—to forbid the Status-quo Kohen from marrying a divorcee.[3]

Once a Kohein is established as a "Kohein Muchzak" it is a Mitzvah to sanctify him[4] and assist him in abstaining from the restriction that apply to a Kohein (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.[5]

In property law[edit]

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

The conceptional terminology is "default status", "agreed properties" or Status quo of an object, land or person − usually when sufficient proof is missing or unavailable. The concept is relevant to many aspects of Talmudic law and Halakha.[6][7][8]

There are various ways how something can get the certain state of Chazakah:

  1. The previous known state, which may include but is not restricted to:
    1. In a disputed ownership of articles, they would be left in the hands which holds them.
    2. By disputed ownership of land, it would be left in the hands of the last certain owner (Hebrew: חזקת מרא קמא‎‎). The one who argues that he bought off that piece of land, must approve it, unless he is already in for three years when the "Chazakah" changes to his side (see next paragraph).
    3. In Kashruth, every article is in its previous state (Hebrew: חזקת כשרות‎‎), before proven different.
  2. The automatic acquisition of certain usage rights following three years of undisturbed usage (equivalent to usucapion in Roman law). After retaining a property for more than three years, without protest from the previous owner, the party that is retaining the property is assumed to be the owner and the previous known owner assumes the burden of proof if he claims lawful title to the property, that is that he losses the chazaka that a previous known owner has on the property. This is because the fact that he did not protest against the party retaining the property for three years is construed as proof that he relinquished his ownership.
  3. Rules which are based on common belief, since it is true in most cases (Rov). A common example is the belief that most people wouldn't pay their loans until it is due, so one cannot argue before that he already paid without further proof.
  4. A real-estate transfer could be achieved by "Chazakah", which in this form means that the new owner shows ownership, by doing some kind of construction on the property.

References[edit]

  1. ^ Such conduct includes—but not limited to—abstaining from becoming impure to a corpse, abstaining from forbidden marriages to a Kohein, administering the priestly blessing, redeeming the firstborn and more (see table of Halachic opinions below)
  2. ^ Talmud Bavli Kesubot 24b
  3. ^ Of note is that from amongst the opinions of the Achronim, the mentioned Chazakah is given the title "A sound Chazakah (see Bait Yitzchok)" (in Hebrew). Archived from the original on 2012-04-05. 
  4. ^ Sefer HaMitzvot of the Rambam, positive commandment 32
  5. ^ Mishna Ketubot (and Rambam thereof)
  6. ^ An introduction to Jewish civil law - Page 117 Arnold J. Cohen - 1991 The rule that real property is always in the possession of its owner is a Chazakah — a presumption of ownership, similar to that of possession of movable property. To revert to the idiom of the previous chapter, what type of Chazakah is ...
  7. ^ Ḥamishah ḥumshe Torah - Page 87 Chaim Miller - 2008 "Through this procedure, Avraham made a legal acquisition (chazakah) of the Land of Israel. ... At the Covenant of the Parts, God made a binding agreement for eternity concerning the Jewish ownership of the Land of Israel (v. 18-21).
  8. ^ Blood and the Covenant: The Historical Consequences of the ... - Page 250 Pierre Parisien - 2010 - 412 pages - Preview Two are germane here: 2a: The union of all the elements constituting legal ownership ... the Talmud, expounding the law of Chazakah regarding the acquiring of land, asserts that uncontested usage of real property for three years, ...