The Gemara establishes that when the squatter resides in the chatzer of the baal, it is necessarily classified as he is chasering him.
But who is to say that the bal chetzer could actually rent out his chatzer? Why is the burden of proof on the squatter and not the baa; chatzer when the baal chatzer is trying to motzi money from squatter?
Soheil Zaman, United States
Soheil, you raise a very good point.
1) However, if we look at the Mordechai (printed at the end of the Gemara after the Rif), we find that he cites the Ra'avan (this is in the second chapter of the Mordechai on Bava Kama, just before it says "[17]") who writes that nowadays all houses are ready to be rented out. Even if the house has never yet been rented out, the owner can still argue that he would have rented it out if not for the squatter.
2) The Rema (Shulchan Aruch, Choshen Mishpat 363:6) writes a slightly different wording in the name of the Mordechai. He writes that nowadays the standard house is ready to be rented out, even if it has never yet been rented out. According to this, we can understand why the burden of proof is on the squatter: the houseowner may claim that since the law assumes that he can rent out his house, since houses can usually be rented out, the burden of proof is no longer on him.
3) Nevertheless, it is not always like this. The Rema (CM 363:10) writes that if the owner is not in town, and there is no one who is making any effort to rent out a house, then the house indeed would now be classified as a house which is not ready to be rented out, and the squatter would not have to pay.
4) So in any practical case, it would depend on the market forces in that particular locality. Normally, the burden of proof is on the squatter, because usually the owner is capable of finding a tenant, but if the squatter can prove that the Ba'al Chatzer would not normally be capable of finding a tenant, he would not have to pay.
Kol Tuv,
Dovid Bloom
1) I asked above when the Gemara establishes that when the courtyard is rentable, that would be categorized as zeh neheneh zeh chaser and thus the squatter chayav. But why is the squatter automatically chayav? Let him taina hamotzi chaveyro alav haraya?
2) Based on the points 1, 2, and 3, you conclude Rav:
"So in any practical case, it would depend on the market forces in that particular locality. Normally, the burden of proof is on the squatter, because usually the owner is capable of finding a tenant, but if the squatter can prove that the Ba'al Chatzer would not normally be capable of finding a tenant, he would not have to pay."
3) I ran into a svara where it seems it negates the very question and consequently the answers:
If a man who squats in a house that is rentable but market forces would indicate that the house could note have been rented, would be patur, then it would be a kal v'chomer that a man who resides in a house that is not rentable ato begin with would be patur.
4) Based on the kal v'chomer, what is shaila of the Gemara at all? That is, if zeh neheneh zeh lo chaser when the house is rentable but could not have been rented out, then it's a kal v'chomer that zeh neheneh zeh lo chaser is patur when it's not even rentable to begin with!
I do not see why it makes a difference what the reason is that the house is not rentable. Whether it is a house in good condition but cannot be rented out because of market forces, or it is a house in bad condition, at the end of the day the real estate agents will say that this house does not interest us, so it is really only one scenario and it follows that one cannot make a Kal va'Chomer.
B'Hatzlachah Rabah.
Dovid Bloom