The next two mishnayot (Mishnah passages) are going to talk about a different type of chazakah. We'll talk about the chazakat tashmishin, which is a chazakah that something is being used in a certain way. What we'll say is different from the other type of chazakah we've been talking about until now. That chazakah was ownership of a property. Here, we'll say that if something is used in a specific way for three years, we assume that a person is allowed to continue using it like that after those three years are up. If there's no protest during those three years, then either the neighbors or the partners who are with him have no problem with his using it in this way. Therefore, he can continue using it after those three years, even if they start to become unhappy with it. We assume that once those three years pass, he has the ability to continue like that.
We'll talk about partners in a courtyard. A courtyard is a shared property between two people. If one of the partners uses the courtyard in a certain way, he establishes a chazakah if he does it for three years. The other partner in the courtyard can't come later and say, “Oh, he wants to use that part of the courtyard.” Rather, we say that the first partner has acquired the right to use that part of the courtyard permanently. He doesn't take ownership of it if they ever split up or if the property is sold; they both jointly own it. But in terms of use, he is entitled to use that portion of the courtyard. This is only true if the usage is significant enough that it would have warranted the other partner to protest during those three years. If it was something menial, something no big deal, that you couldn't expect the partner to protest, then that wouldn't count as a chazakah.
The Mishnah says: These are the things for which a partner in a courtyard could establish a chazakah of usage, and these are the things for which a person cannot establish a chazakah of usage. If one of the partners kept an animal in the courtyard, set up an oven or a kirah, a smaller type of oven, or a millstone in the courtyard, raised chickens in the courtyard, or put his milk or manure in the courtyard. And a chazakah. If a person did this for three years, and the partner did not protest, it still does not count as a chazakah. The other partner, even after three years, could demand that these items be removed.
The uses here are not considered permanent, and there's no actual structural change in the courtyard. Maybe the partner would say, “You know what? It's not significant enough. I'm going to let him continue.” Even if he lets him continue for three years without protesting, he'll say to himself, “I have no problem letting him continue to do it. But if I need to use it one day, these items can be easily removed, and I'll have the ability to use it.” Therefore, the fact that he didn't protest is not indicative of his approval. Rather, he's viewing it as something that's not permanent, and therefore, that'll go away. That's the only reason he's not bringing it up. So there's no chazakah. If he does bring it up after the three years, saying that he wants use of that portion of the courtyard, we say that he's allowed to speak up, and we do give him use of that part of the courtyard.
But if he made an enclosure for his animal within that courtyard that was at least 10 tefachim (handbreadths) high, or if he made an enclosure in the courtyard that surrounded his tanur oven, his kirah oven, or his millstone, or if he brought chickens into a house that was owned by two people, or if he made a storage place for his manure that was either three tefachim high or three tefachim deep, then the rest of the courtyard—then this is a chazakah, and he establishes the right to use the courtyard like this permanently. If the second partner had a problem, he should have said something. The fact that he remained silent all this time shows that he was okay with it. Therefore, three years of usage like that means he's okay with it. It's significant enough that he should have spoken up if he had a problem with it. So the fact that he didn't speak up means that this partner who's been doing this could continue to do this even after three years have passed.