Sunday 4 April 2010

The Walnut Tree and the Tnach Lchahd (twelve witnesses)

In our garden stands an old walnut tree. The trunk of the tree is crooked and bents over severely as if the many years of life have begun to weigh heavily upon the tree. The walnut tree is another presence we take for granted. It stands in the middle of the garden and offers a cool shade on a sweltering summer day. Imagine our surprise when we recently discovered that we were not the legal owners of the walnut tree on our property! A local Berber family has claimed ownership of the walnut tree in our garden and wishes to practice their right to collect the walnuts annually.

The title-deed of our property describes in detail all there is to know (or all one thinks there is to know) about the land and property. However there is no mention of ownership regarding the walnut tree but after some research it became clear to us that we were not confronted with an unusual situation. In the rural areas it is apparently not uncommon that fruit carrying trees are owned by a different person than the land owner. Not only does the legal owner of the tree have the right to gather the fruit from the tree he also has the right to sell the tree or claim a minimum of ten years loss of income from the fruit harvest in case the tree is chopped without his permission. These ownerships are not described in deeds or contracts but are subject to the ancient oral law called the tnach lchahd (twelve witnesses).

In the old days marriages and other agreements were orally settled with the presence of twelve male witnesses. Also disputes were settled with the testimony of twelve witnesses. Today the tnach lchahd isn’t practiced anymore but there are still legal cases with issues based on the old oral law and the authorities are still updating town indexes in the rural areas regarding marriages, birth’s etc.

In our case the only problem with the ownership of the walnut tree was the surprise. We have been able to settle this issue in harmony with the owners and we’ve learned something about tnach lchahd. However, I can imagine that such an issue can create enormous problems for the unaware foreign property buyer. So just a little word of advice, make absolutely sure that all the fruit carrying trees on the property really belong to the property you are buying!

All comments are welcome but if anyone reading this has more relevant information regarding tnach lchahd please leave me a comment.

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