Chazakah on a Sukkah – Bava Basra 6


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By: Reb Avi Lebowitz

The Gemora says that generally, if a person builds a hut which infringes on his friend’s property, there is a grace period of thirty days in which the owner graciously permits the hut owner to use the area and doesn’t have to protest. But, after that grace period has passed, if the owner doesn’t protest, the hut owner will have an established right to be able to claim that he purchased the rights of use. But, if the hut is built for a sukkah on Sukkos, then immediately after the seven days of s Sukkos passes, the lack of the owners protest enables the builder to claim that he purchased the right to leave it there permanently. [This is according to Rashi, but the Hagahos Ashri cites other opinions that it is seven days in addition to the thirty days.]

Tosfos points out that in truth, the builder doesn’t have a chazakah after seven days; he only has a chazakah after eight days since on the eighth day, which is Shemini Atzeres, it wasn’t possible to remove the sukkah.

The Ya’avetz asks: What compelled Tosfos to say that he will not have a chazakah until the eighth day is over. Perhaps we assume that the owner would have allowed him to use the space for the mitzvah, but as soon as the mitzvah ends, the owner is expected to protest. The fact that the owner fails to protest would not enable the builder to claim that he has acquired permanent rights to this area!?

It would seem that Tosfos holds that although the owner can protest the sukkah immediately after the seven days pass, even before the eighth day ends, he is not expected to do so. Why? It is because he is well aware that his protest is futile. The owner can claim that for the duration of Sukkos, he allowed the hut owner to fulfill his mitzvah. On the eighth day he also did not protest because he knew that his protest would be in vain, since the hut owner could not remove the sukkah until after Sukkos. Therefore, Tosfos holds that the owner has the right to protest through eight days.

From this we can learn that even after one has been machzik for enough time to create a chazakah, it is only effective if by the owner protesting he could have forced the hut owner to leave. But in a situation, where the owner could not have forced the hut owner to leave, such as when the chazakah concludes on a Shabbos or Yom Tov, the owner is not expected to protest and is given an extra day to voice his protest.