Hi Daniel,

Thank you very much for the excellent question.

When learning Perek Chezkas ha'Batim, one must take care not to confuse the concepts. The concept you mentioned - ha'Motzi me'Chaveiro Alav ha'Ra'aya, is a concept that speaks primarily of money or movable property in the hands of a person who is now being sued in a lawsuit, and the rule teaches that as long as he is the one who is holding on to the money or object, the burden of proof rests on the prosecutor. As an extension of this rule, it is accepted in Shas that not only real money or assets fall under this rule, but any given situation that is simpler in the eyes of the court, it is called the Muchzak situation, and if there is an argument between two, the side that is supposedly more "innovative" given the reality before us, is The one who is tasked with bringing the evidence. The idea is that when we don't have conclusive evidence, we lean towards simplicity. Either because one of them actually is holding on to the money or an object, or because there is some simple reality that leans in the direction of one of them. This is a kind of idea that is relevant when the court has no real clue what the real story behind the money or object is, and we use this Klal, as the best thing we can do.

Chezkat Karkaot, which is specifically related to real estate, can be conceptually confusing. The Chazaka here does not arise from the possession of land, since it is impossible to 'hold on' to land in the simple sense of the word, since land cannot be in the hands of a person. Therefore, there is no priority for the defendant due to the fact that he is physically sitting in the real estate property at this moment. A three-year Chazaka is a kind of hybrid between his holding and sitting in the property, along with some evidence that if he has been doing so for three years, either we no longer require him to show the proof of sale, or we assume that the owner should have protested and taken actions that show he is still the owner, and the other is a thief. And since he didn't say a word, we assume as a kind of evidence that the person who lives in the property is also the owner. In this combination, it is not appropriate to say ha'Motzi me'Chaveiro, since this Chazaka is a type of 'proof of sale', and if we suppose a person were sued that a certain property is not his, and he were to show a proof of sale, it is clear that he wins the property, and it is not relevant to say here Ordinary Chazaka rules, which are based on the reality before us when we do not have a clue who the money or object belongs too, and not on evidence.

In the 'Shechunei Gavai'i' Sugya, we have an interesting case. On the one hand, the defendant says he has a three-year Chazaka and the plaintiff has not said a word. On the other hand, the plaintiff tells him that the reason he didn't say a word is because he uwas living in the same house with him, and it didn't occur to him that one day the defendant would suddenly claim that this house belonged to him, after he lived in the same house with him, and maybe even let him into his house and did him a favor!

Here, the rule of ha'Motzi me'Chaveiro does apply, because even if we are discussing a three-year chazaka with witnesses that he was indeed there the whole time, the Chazaka also consists of a simple assumption that the plaintiff did not live with him, and this new fact that the plaintiff suddenly surprises with , is against the simplicity of the reality before us.

So, the rule presented here is not that the plaintiff has to bring evidence against Chazaka of three years, but after we have a reality that also includes the defendant's Chazaka, the simplicity is that the plaintiff did not live with him in the inner rooms of the house, and if he wishes to claim such a thing, evidence must be provided for this.

I hope I helped your question, but in any case these are very important concepts for studying Perek Chezkas ha'Batim.

Best Regards,

Aharon Steiner