# dafyomi

lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> If Shimon is clever, he will induce Levi to
          show it. He will say (in private) 'you are holding it
          because I owe you. Let us have experts appraise it, you
          will get what I owe you, I will get what is mine (i.e.
          the excess)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Acha brei d'Rav Avya):</font></b> Levi can say 'I already had
          it appraised (it is not worth more than you owe me).'
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CHAZAKAH OF A SHARECROPPER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A sharecropper gets no Chazakah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason? Formerly, he only
          received a portion of the Peros. Now that he has taken
          all the Peros for three years, this shows that he owns
          the field!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> The case is, his family has
          always been sharecroppers on the field. (It is common for
          such sharecroppers to eat all the Peros for some years,
          and then the owners eat all the Peros in other years.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If a sharecropper hired sharecroppers to
          work the field (by themselves for three years), he has a
          Chazakah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If an owner saw someone else appoint
               sharecroppers over his field, he would speak up!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If a sharecropper hired sharecroppers to
          help him work the field, he gets no Chazakah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps the owner authorized him to do so.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>FACTORS THAT MAKE ONE IMPARTIAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Nachman bar Rav Chisda):</font></b> Can a
          sharecropper testify about who owns the field (or is he
          considered partial)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> Shmuel said that he can.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> He cannot testify.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa discusses when the fruit is still
          in the field (the sharecropper did not yet get his share,
          so he would gain from his testimony). Shmuel discusses
          when he already took his share.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> An Arev (guarantor) can testify that the
          borrower owns a certain land (e.g. someone else claims
          the land);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if the borrower owns other land
               (sufficient to pay the debt, so in any case the Arev
               expect that he himself will not need to pay).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The lender can testify that the borrower owns a certain
          land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if the borrower owns other land.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If Reuven bought land from Levi, and then Shimon bought
          from Levi, Reuven can testify that Levi truly owned what
          he sold to Shimon, only if Levi has other land. (If not,
          Reuven gains from his testimony. Tosfos - if we will find
          out that Reuven bought stolen land, he will be able to
          get back what he paid from Shimon's land; Rashbam - his
          testimony causes that Levi's creditor will collect
          Shimon's land, and not Reuven's).
<br>

<p>

sjt:
</p><p>
<font><b>2) WHEN MAY A SHARECROPPER TESTIFY ON BEHALF OF THE FIELD-OWNER?</b></font><b>
<br>OPINIONS:</b> The Gemara quotes Shmuel who says that a sharecropper may testify on behalf of the field-owner for whom he works. The Gemara asks that the Beraisa says that he may <i>not</i> testify on behalf of the field-owner. The Gemara answers that whether or not the sharecropper may testify depends on whether or not there is fruit in the field.
</p><p>
What is the meaning of the Gemara's answer?
</p><p>
(a) The <b>RASHBAM</b> (DH Ha d'Ika, DH d'Leika) explains that when the field is in the process of bearing fruit, or the sharecropper has already started to work the field, the sharecropper is no longer considered impartial. After all, if the field is taken away from his boss he effectively loses all rights to the fruits of the field. However, if the field is currently 'resting,' he does not have anything at stake and is considered impartial. Though one might think that the fact that he will lose the arrangement of being the sharecropper of this field should make him favor the field owner, the Rashbam explains that there are two reasons that this is not a valid enough concern to say that he is unfit to testify. It is very possible that he can find work as a sharecropper in another field. Additionally, it is possible that the current field owner might not hire him again next year. Shmuel therefore said that in a case where the fruit is not in the field the sharecropper can testify for the field owner.
</p><p>
The <b>RASHBA</b> has difficulty with this approach. One of the questions he asks is that in a case where the fruit was presently in the field, even if the verdict is against the field owner, the new owner would still have to pay the sharecropper for cultivating and growing his crops. The sharecropper would end up being paid the same!
</p><p>
(b) The Rashba mentions that some say the explanation of the Gemara is that when the sharecropper is a newly hired sharecropper who did not yet work the field he is allowed to testify, but if he has ever gotten fruit from the field he cannot. However, the Rashba says that this approach is also incorrect based on the question above.
</p><p>
(c) The Rashba therefore explains that where there is no fruit in the field the Gemara is saying that he <i>cannot</i> testify. The Gemara means that though the field was already worked by the sharecropper, the trees have not yet born fruit. Why can't the sharecropper testify? If the claimant wins the case, he can dismiss the sharecropper by merely giving him the increased value of the field. He does not have to give him his share in the entire crop. The sharecropper does not want this to happen, and is therefore not considered impartial. In a case where there is fruit in the field the sharecropper can testify, as he will end up getting the value of the fruit in any case. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO GETS A CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Some say that an (Arev) Kablan (the lender may collect
          from the Kablan even before trying to collect from the
          borrower) can testify about land of the borrower. Others
          say that he cannot.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say that he can testify, just like a regular
               Arev (when the borrower has other land. Even if the
               Arev's land is taken, he will be paid back from the
               other land);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Some say that he cannot testify. He prefers that
               he have two lands from which the lender can collect
               (Rashbam - e.g. if the disputed land is Beinonis and
               the other land is Ziburis, the lender is more
               inclined to collect from the borrower; Tosfos - when
               the borrower has more land, the lender is more
               inclined to collect from the borrower, which saves
               the Kablan the toil of paying and collecting from
               the borrower.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> A craftsman does not get a Chazakah, but
          his son does;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A sharecropper does not get a Chazakah, but his
               son does;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A robber does not get a Chazakah, nor does his
               son, but his grandson does.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the child (or grandchild) claims that he
               received the property from his father, he should not
               get a Chazakah more than his father!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he claims that he himself bought the property,
               also a robber's son should get a Chazakah!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Rashbam - Answer:</font></b> The case is, the
          original owner admitted in front of witnesses to their
          father that their father owns it;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 - Tosfos -  Answer:</font></b> The case is, the son
          says that he saw the original owner admit to his  father;
          (end of Version #2)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding a craftsman or sharecropper, we believe
               the admission. Regarding a robber, we do not, like
               Rav Kahana taught.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Kahana):</font></b> The owner admitted to the robber
               out of fear lest the robber be Moser (entice the
               authorities to seize) him and his property.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #1 (Rava):</font></b> Sometimes even a robber's grandson
          does not get a Chazakah, e.g. when he claims that he
          received the property from his grandfather.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2 (Rava):</font></b> Sometimes a robber's son gets a
          Chazakah, e.g. when he claims that he received the
          property from his grandfather.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of a robber?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> He is established to be on
          another's field without permission (he can never make a
          Chazakah on that field).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rav Chisda):</font></b> His family kills people due to
          money.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A craftsman gets no Chazakah. After he
          ceases his trade, he gets a Chazakah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A sharecropper gets no Chazakah. After he ceases
               to be a sharecropper, he gets a Chazakah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	A son who is not supported by his father and a divorcee
          are like strangers. (He/she can make a Chazakah in the
          property of the father/ex-husband).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, it must teach about the son. One
          might have thought that the father owns it, but he does
          not protest to his son's usage. Rather, the Beraisa
          teaches that the son gets a Chazakah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is obvious that a divorcee gets a Chazakah!
               (Her ex-husband would not pardon her usage.)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, she is divorced and not divorced
          (i.e. doubtfully divorced);
<br>
<br>

sjt:
<font><b>1) MAKING A CLAIM ON BEHALF OF A THIEF'S DESCENDANTS</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan teaches that although an Uman cannot make a Chazakah (when the object that he was working on was seen in his possession), the son of an Uman <i>does</i> have a Chazakah. Neither a Gazlan nor his son has a Chazakah, but his grandson <i>does</i> have a Chazakah. If the land was in the son's possession for three years and no one protested against his occupancy during that time, he can claim that his father purchased the land from the present claimant. The Gemara asks why the son should be believed with such a claim; just as the father is not believed to say that he purchased the object, the son should not be believed to say that his father purchased the object.
</p><p>
Why should the son not be believed? Even though the father himself could not claim that he purchased it, the son <i>could</i> claim that he purchased it, since he occupied the land for three years. (This case is not comparable to a case of an object that is normally borrowed or rented, even though it is known that the father received the land as an Uman or as a Gazlan. This is because after the father dies, the true owner usually takes back the object within a short period of time. If the son holds the object for three years, he certainly has a valid Chazakah. See <b>TOSFOS</b> DH Yarad.) Therefore, even if the son claims that he does not know whether or not his father purchased it, Beis Din should claim on his behalf that perhaps his father purchased it, because of the rule of 'To'anin l'Yoresh' (41a). (The <b>RASHBAM</b> (DH Iy d'Asu) writes that the rule of 'To'anin l'Yoresh' does not apply, but he does not explain clearly why it does not apply.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ALIYOS D'RABEINU YONAH</b> explains that Beis Din suggests a claim for the Yoresh only when the father was seen on the land for at least one day. In order for Beis Din to make a claim for the son, Beis Din needs some minimal evidence that the father had rights to the field (even though a three-year Chazakah is not necessary, as the Gemara explains on 41b; see Rashbam to 41b, DH Afilu Chad Yoma). Since Beis Din knows that the father received the land from its owner to work on it and not as a gift, the presence of the father on the land cannot serve as even a minimal proof that the land was his. Without such minimal proof, Beis Din may not suggest any claims for the Yoresh. (See also <b>KETZOS HA'CHOSHEN</b> 146:6.)
</p><p>
Rava teaches that if the grandson of the Gazlan asserts that the claimant admitted to his grandfather that he sold the field to him, the grandson is not believed. Why does Beis Din not 'To'en' for him and say that even if his grandfather did not purchase the field, perhaps his <i>father</i> purchased it? After all, his father <i>did</i> have a valid Chazakah of living on the field for one day (as explained above in the question). <b>TOSFOS</b> (DH Pe'amim) answers that the case in which the grandson is not believed is one in which he provides an implied admission that his father did not purchase it but rather relied on the purchase of his grandfather. (It is obvious that the grandson would not be believed in such a case, and perhaps that is why the Rashbam (DH Lishna Achrina) prefers a different Girsa in Rava's statement.)
</p><p>
(b) <b>TOSFOS</b> (DH Pe'amim) seems to understand that there is a different reason for why Beis Din is not 'To'en' on behalf of the Yoresh (see <b>MAHARSHA</b>). According to Tosfos, Beis Din does not claim for the Yoresh that the father received the property in a manner which is very unlikely. It is very unlikely that the original owner of the property sold the property to the Uman or to the Gazlan, and therefore Beis Din does not make such a claim for the son when he does not present such a claim on his own.
</p><p>


<font><b>2) THE CLAIM OF THE SON OF A CRAFTSMAN AND THE GRANDSON OF A THIEF</b></font><b>
<br>QUESTIONS:</b> Rebbi Yochanan teaches that although an Uman cannot make a Chazakah (when the object that he was working on was seen in his possession), the son of an Uman <i>does</i> have a Chazakah. Neither a Gazlan nor his son has a Chazakah, but his grandson <i>does</i> have a Chazakah. The Gemara explains that Rebbi Yochanan refers to a case in which witnesses testify that they heard the claimant admit that he sold the object or the land to the father. (This is the Girsa as it appears in our text and in the text of the Rashbam.)
</p><p>
A number of questions may be asked on this Gemara.
</p><p>
(a) Why does the Gemara explain that the son of the Uman has a Chazakah because he brings witnesses who testify that the claimant admitted that the Uman owned it? Even if the son of the Uman does not bring witnesses, he should still be believed to say that the claimant sold the object to his father with a Migu that he could have said that <i>he</i> bought it from the claimant (and he would have been believed with that claim since he has a Chazakah of three years). (See <b>TOSFOS</b> DH Kegon, who changes the Girsa because of this question and others.)
</p><p>
(b) If witnesses testify that the claimant admitted that he sold the object to the Uman, then it is obvious that the son of the Uman should be given the object based on that testimony. In fact, the Uman himself would be given the object based on that testimony, as the Rashbam writes (DH Lo Tzericha). Why, then, does Rebbi Yochanan find it necessary to teach this Halachah? One might suggest that Rebbi Yochanan's main point is not that the son of the Uman is believed, but that the son of the Gazlan is <i>not</i> awarded the object, because in the case of the Gazlan the claimant's admission was made out of fear of the Gazlan (see Rashbam to 47b, DH Ra'ayasan).
</p><p>
Why, though, does Rebbi Yochanan continue and say that the grandson of the Gazlan <i>does</i> have a Chazakah? It is clear from the context that Rebbi Yochanan himself considers that a Chidush, but what Chidush is there? If the grandson of the Gazlan brings testimony that the claimant sold the object to his <i>father</i> (and not to his grandfather), then it is obvious that the grandson would be believed. If, on the other hand, he brings testimony that the claimant admitted that the field belonged to his grandfather (the Gazlan), then the grandson should <i>not</i> receive the field because the claimant's admission was made out of fear of the Gazlan. The grandson has no Chazakah on the field since it originally came into his family's possession through theft.
</p><p>
<b>ANSWERS:</b>
<br>(a) A number of approaches are suggested to explain why the son of an Uman does not have a Migu when he says that he heard the claimant admit to his father that he sold him the object.
</p><p>
1. The <b>NIMUKEI YOSEF</b> writes that the son indeed <i>would</i> be believed with such a claim. The reason why the Gemara mentions that the son brought testimony about the claimant's admission is to teach that even in such a case the son of a <i>Gazlan</i> is <i>not</i> awarded the object.
</p><p>
This explanation is not clear. Why is the fact that the son of the Gazlan loses the case when there are witnesses considered more of a Chidush than when there are no witnesses? Even when there are no witnesses, the son has a valid Migu, and the only reason why he loses is that the admission of the claimant was done out of fear. For the same reason, the son of a Gazlan will lose the case even when he brings witnesses who attest to the claimant's admission.
</p><p>
Moreover, how is this added Chidush -- that witnesses do not help the son of the Gazlan -- deduced from the words of Rebbi Yochanan? Rebbi Yochanan does not mention that witnesses were brought. On the contrary, he clearly refers to a case in which there are no witnesses (as the Rashbam writes), since the Gazlan himself does not have a Chazakah.
</p><p>
2. The Gemara in Sanhedrin (29a) teaches that when a person admits that he owes him money to the claimant, even if the claimant conceals witnesses behind a wall who later testify that the borrower admitted that he owed money, Beis Din does not obligate the borrower based on his own admission. The Loveh can claim that when he admitted, he was 'just fooling' and did not really mean what he said, since he did not realize that witnesses were listening to his words. Only when a person realizes that people are listening is his admission binding.
</p><p>
If the son of the Uman would claim that he heard the claimant admit to his father that he sold the field to his father, he would not win the case because it would be considered a Chazakah without a Ta'anah, since the admission of the claimant in private is not binding. That is why the son must bring witnesses to testify that the claimant admitted that he sold the property to his father in front of them, and thus his admission is binding.
</p><p>
(The <b>RITVA</b> and other Rishonim write that in this case, the words of the Gemara in Sanhedrin (29a) do not apply. A person can claim that his admission was made in jest when he admits that he <i>owes</i> money to someone else. However, if the other person is already holding the object, and the claimant admits that the object belongs to the other person, then his admission is accepted even if it was made in private. (The Ritva gives other reasons for why the ruling of the Gemara in Sanhedrin does not apply to the case of the Gemara here.) Accordingly, they explain that the son of the Uman indeed has a Migu and does not have to bring testimony to uphold his case. The Rashbam perhaps do not accept these arguments and thus compares the case of the Gemara here to the case in Sanhedrin, where the claimant may say that his admission was in jest.)
</p><p>
This approach does not answer the question entirely. Why is the son of an Uman not believed to say that the claimant admitted to his father in front of witnesses that the object was sold to his father? Why is it necessary for the son himself to bring the witnesses to court? As long as <i>he</i> saw an admission made in front of witnesses, he has a valid claim with his Chazakah and he should be believed with a Migu that he could have said that he bought it from the claimant himself.
</p><p>
The answer might be that even when a person admits in front of witnesses, he still can say that his admission was in jest. He can say, 'I knew that those witnesses who heard my admission would never testify in court about my admission if I told them not to.' It is only when those witnesses actually come to court that this claim is no longer viable, and the claimant is held accountable for his admission. Therefore, the son of the Uman will have a valid claim for his Chazakah only when he actually brings to court the witnesses who saw the admission. (M. Kornfeld)
</p><p>
(b) The Rashbam appears to have been bothered by the second question. What Chidush does Rebbi Yochanan intend to teach when he says that the grandson of the Gazlan has a Chazakah? The Rashbam explains that even if the witnesses testify that the claimant admitted to the Gazlan himself (and not to his son) that he sold the field to him, the grandson will have a Chazakah. The basis for this Chazakah will not be the admission of the claimant to the grandson's grandfather (the Gazlan), since that admission was made out of fear. Rather, the grandson's claim will be that he received the object from his father and he does not know what rights his father had to the object. In such a case, Beis Din supplements his claim by suggesting that perhaps his father purchased the object from the claimant, because of the rule of 'To'anin l'Yoresh' (41a). That is why the claim of the Gazlan's grandson is accepted.
<br> 
<br>Even though Beis Din is not 'To'en' for the Yoresh based on the Gazlan's occupancy of the land for one day (as explained in the previous Insight), since it is known that it did not come into his possession legally, nevertheless Beis Din <i>does</i> make a claim on behalf of the Yoresh based on the presence of the <i>son</i> of the Gazlan on the land, since it is possible that the son of the Gazlan occupied the land legitimately, after the owner was paid for the land.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A GAZLAN WHO BOUGHT PROPERTY</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman citing Rav Huna):</font></b> If a Gazlan (robber)
               brings a proof, we do not accept it, and we do not
               establish him to be the owner.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> A Mishnah teaches this!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If Levi bought a field from an
                    extortionist, then bought it from the real
                    owner (Shimon), his purchase is void.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rav Nachman teaches that the Halachah is
               unlike Rav. Rather, the Halachah follows Shmuel.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav):</font></b> The Mishnah discusses when Shimon told
                    Levi to acquire through Chazakah, but if Shimon
                    wrote a document, Levi acquires.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Shmuel):</font></b> Even if he wrote a document, Levi
                    acquires only if Shimon wrote in the document
                    that he accepts Achrayus (to compensate him if
                    the land is legally taken from him).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Bivi citing Rav Nachman):</font></b> If a Gazlan brings a
               proof, we do not establish him to own the land, but
               he gets back the money he paid.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This is if witnesses testify that the Gazlan paid.
               If they only saw the owner admit that he was paid,
               the Gazlan get his money, like Rav Kahana taught;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Kahana):</font></b> The owner admitted to the Gazlan
                    out of fear lest the Gazlan be Moser him and
                    his property.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Rav Bivi is unlike Rav Huna, who taught
               that if Reuven hung Shimon until Shimon agreed to
               sell his property, the sale is valid.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> Rav Huna argues with Rav Bivi.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rava:</font></b> The Halachah is, if Levi hung Shimon until he
               agreed to sell <i>a</i> field, the sale is valid. If he
               asked for a specific field, it is invalid, i.e. if
               Shimon did not count the money, and Shimon had no
               way to evade Levi. If not, it is valid.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> The Halachah is, in all cases the sale is valid,
               even for a specific field, for it is like Ameimar's
               law of Kidushin (in which the woman gets no choice):
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Ameimar):</font></b> If Levi hung Leah until Leah agreed
                    to accept Kidushin from him, the Kidushin is
                    valid.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (3:50):</font></b> Rav Bivi said that if a Gazlan
               brings a proof, he does not keep the land, but he
               gets back what he paid, i.e. if witnesses saw him
               pay. If they only saw the owner admit that he was
               paid, perhaps he admitted out of fear lest the
               Gazlan be Moser him and his property. This is when
               he made a Moda'ah beforehand. If not, even though he
               was coerced, it is a sale. The Halachah follows Rav
               Huna, who says that a sale through coercion is
               valid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Ein):</font></b> Even if the Gazlan's
                    document says that the seller received the
                    money, it is invalid. One who comes due to the
                    Gazlan (he bought from him, or received a gift
                    or inheritance) does not keep the land. Shmuel
                    says that Achrayus is a proof, for a Gazlan is
                    particular only about a document, but not about
                    Achrayus. If the seller wrote it, this shows
                    that he sold willingly.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 9:14):</font></b> If Ploni stole a
               field, and after he was Muchzak he bought itr from
               the owner, and the owner says 'I was forced. I did
               not sell it willingly', Ploni did not acquire, even
               if he bought in front of witnesses. We take the
               field from him and return to him the money he paid.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (15):</font></b> This is when the witnesses saw him
               count out the money. If they testified that the
               owner sold and admitted that he was paid, and the
               owner says that he was not paid and admitted only
               due to fear, Ploni gets nothing. The owner admitted
               out of fear, since Ploni was established to be a
               Gazlan on the field.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (16):</font></b> The owner need not make a Moda'ah, for
               the buyer was established to be a Gazlan on this
               field, so his proof is invalid. A Gazlan is unlike
               an Ones, i.e. one who coerces or hangs someone until
               he sells. The Ones does not want to steal, and he
               did not yet steal anything, therefore, if the seller
               did not make a Moda'ah, the sale is valid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> This is unclear. The Rif
                    disagrees. The Rif's opinion is primary. If Rav
                    Huna distinguishes (an Ones from a Gazlan), why
                    did the Gemara need to say that he disagrees
                    with Rav Bivi? According to the Rambam, Rav
                    Huna agrees with Rav Bivi!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rif and Ra'avad hold that if
                    the witnesses did not see money given, the sale
                    is totally Batel. If they saw the money given,
                    the sale is valid. The Sugya equates a coerced
                    sale to a Gazlan who bought. How can the Rambam
                    distinguish them?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Defense (of Rambam - Drishah CM 205:13):</font></b> Tosfos
                    (47b DH v'Rav) asked why the Gemara said 'Rav
                    Bivi concluded Rav Nachman's teaching to
                    say...' Rav Nachman cited Rav Huna, and we
                    conclude that Rav Huna argueswith Rav Bivi! The
                    Rif, Rosh and Tur hold that Rav Bivi explained
                    that sometimes a Gazlan's proof helps. i.e. to
                    get back his money. The 1
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Bach (205:13):</font></b> The text of the Rif, Rambam and
                    Rosh did not say that Rav Bivi argues. (It is
                    an addition of a Ga'on - Gra 151:4.) The Rif
                    and Rosh hold that Rav Bivi discusses when he
                    made a Moda'ah. The Rambam explains that Rav
                    Bivi discusses a Chamsan (who forcibly pays)
                    with a Moda'ah, and a Gazlan (who does not pay)
                    even without a Moda'ah. It is better to say
                    that the Rif and Rosh agree. This is why they
                    said 'he made a Moda'ah <i>on a sale</i>', and this
                    is why the Tur cites the Rambam without saying
                    that the Rosh disagrees.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 151:3):</font></b> A Gazlan cannot bring a
               proof. If we know that Ploni stole a field, even if
               a document says that the owner admitted in front of
               witnesses that Ploni bought and paid for it, if the
               owner says 'I did not sell it. I admitted only due
               to fear', we take the field from Ploni without
               compensation.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> The document says that he was paid,
                    but it does not say that the witnesses saw the
                    money given.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If the owner wrote Achrayus to the Gazlan,
               some say that he acquired.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (9):</font></b> The Tur says that just like a Gazlan
                    on one field can make a Chazakah on another
                    field, for the owner fears to protest only
                    about the field for which the Gazlan risked his
                    life, one does not fear to protest about
                    Achrayus. It is like another field. Therefore,
                    if the owner wrote Achrayus, the Gazlan
                    acquired. If one kills for monetary reasons, he
                    is a Gazlan for everything, and Achrayus does
                    not help for him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (3):</font></b> Be'er ha'Golah holds that the Rema
                    says 'some say so', for the Rambam holds that
                    Achrayus does not help for a Gazlan. Really,
                    the Rambam holds that Achrayus never helps. The
                    Nimukei Yosef holds that Achrayus helps for
                    Ones, but not for a Gazlan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If the witnesses say that
               they saw him count out (and pay) the money, we take
               the field from him and the owner gives back the
               money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz:</font></b> The Tur says that we take the field from
                    him only after the owner gives back the money.
                    This is when the owner did not sell it. If the
                    owner sold it, the buyer takes it immediately
                    from the Gazlan, and the Gazlan requests his
                    money from the owner.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if the witnesses saw him pay the
               money and he did not make a Moda'ah beforehand, the
               sake is valid. We hold that if Levi hung Shimon
               until Shimon agreed to sell his property, the sale
               is valid. This seems primary.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (5):</font></b> The Rif and Rosh say that Rav Bivi
                    discusses when there was a Moda'ah, and Rav
                    Huna agrees in such a case.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (6):</font></b> The Rosh and Tur argue only when
                    the Gazlan did not steal yet, just he made a
                    Chazakah and threatens to steal it if the owner
                    will not sell it. If he already stole it and
                    threatens not to return it if the owner will
                    not sell it, all agree that no Moda'ah is
                    needed.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN IS A FORCED SALE VALID? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Zeira):</font></b> Whenever Chachamim said that a woman
               is divorced and not divorced, her husband must feed
               her. (One might have thought that he allows her to
               take her food from his property, therefore he did
               not protest. The Beraisa teaches that this is not
               so.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>JUSTICE FOR A ROBBER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> Normally, anyone who brings a proof
          (e.g. document) of ownership, we accept it and establish
          him to be the owner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a robber brings a proof, we do not accept it,
               and we do not establish him to be the owner.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> A Mishnah teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven bought a field from a
               Sikrikon (an extortionist who accepts land in place
               of killing people), then bought it from the real
               owner (Shimon), his purchase is void. (Shimon fears
               to refuse to sell, lest this anger the Sikrikon.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Nachman teaches that the Halachah does not
          follow Rav.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> The Mishnah discusses when Shimon told
               Reuven to acquire through Chazakah, but if Shimon
               wrote a document, Reuven acquires.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, the Halachah follows Shmuel.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> Even if Shimon wrote a document,
                    Reuven acquire only if Shimon wrote in the
                    document that he accepts Acharayos (to
                    compensate him if the land is legally taken
                    from him).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Bivi citing Rav Nachman):</font></b> If a robber brings a
          proof, we do not establish him to own the land, but he
          gets back the money he paid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if witnesses testify (or if it is
               written in the document) that the robber paid the
               money;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they only saw the owner admit that he was
               paid, the robber does not get his money, like Rav
               Kahana taught;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Kahana):</font></b> The owner admitted to the robber
                    out of fear lest the robber be Moser him and
                    his property.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A FORCED SALE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> If Reuven hung Shimon (or afflicted him in
          another way) until Shimon agreed to sell his property,
          the sale is valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> In every sale, the owner is coerced. He
          would not sell unless his need for money, and
          nevertheless it is valid.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> Perhaps a self-induced Ones is different
          than an externally induced Ones!
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A FORCED SALE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> 'Yakriv' teaches that if Levi must
          bring an Olah, Beis Din forces him to bring it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps we force him against his
               will!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> It says 'li'Retzono' (willingly).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> How do we fulfill both verses?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> We force him until he says 'I want to
               bring it'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps there is different, for he truly
          wants to bring the Olah in order to get atonement!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #3 (Seifa):</font></b> Similarly, (if one is obligated to
          divorce his wife but refuses to,) we force him until he
          says 'I want' (to authorize Sheluchim to write and give a
          Get).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> Perhaps there he truly wants, because it is
          a Mitzvah to heed Chachamim (who ruled that he must
          divorce her)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #4:</font></b> Rather, reason dictates that amidst the
          coercion, he resolves to sell (since he gets the proper
          price).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Yehudah - Mishnah):</font></b> If (a Beis Din of)
          Yisrael forces a man to divorce his wife, it is valid. If
          Nochrim force him, it is invalid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Nochrim beat him and say 'do what Beis Din of
               Yisrael tell you.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> Why is it invalid when
               Nochrim coerce (on their own)? We should say that
               amidst the coercion, he decides absolutely to
               divorce!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Mesharshiya):</font></b> Mid'Oraisa, it is valid.
          Chachamim decreed that it is invalid, lest women get
          Nochrim to force their husbands to divorce them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Hamnuna - Mishnah):</font></b> If Reuven bought a
          field from a Sikrikon, then bought it from the real owner
          (Shimon), his purchase is void;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We should say that amidst the coercion, he
               decides absolutely to sell!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, if Reuven paid Shimon, the sale is
          valid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> The Mishnah discusses when Shimon told
               Reuven to acquire through Chazakah, but if Shimon
               wrote a document (we assume that he was paid),
               Reuven acquires.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> According to Shmuel, how can we answer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> Even if Shimon wrote a document, Reuven
               does not acquire unless Shimon wrote in the document
               that he accepts Acharayos.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Shmuel agrees that if Reuven paid Shimon, the
          sale is valid. (He argues with Rav and says that a
          document does not prove that he paid.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rav Bivi, how can we answer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Bivi citing Rav Nachman):</font></b> If a robber brings
               a proof, we do not establish him to own the land,
               but he gets back the money he paid.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Huna and Rav Bivi are both Amora'im, they
          argue with each other.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah is, if Reuven hung Shimon until
          Shimon agreed to sell his property, the sale is valid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only when Reuven asked to buy a field. If
               he asked for a specific field, it is invalid;
<br>
<br>

sjt:
<font><b>1) A FORCED SALE, GIFT, AND DIVORCE</b></font><b>
<br>QUESTION:</b> Rav Huna rules that when a person sells his property under coercion, the sale is valid. The seller resolves to sell the object with full intent due to the coercion. The Gemara questions Rav Huna's ruling from the Mishnah in Gitin (88b) which teaches that when Jews force a Jew to give a Get to his wife, the Get is valid, but when Nochrim force a Jew to give a Get to his wife, the Get is not valid, unless the Nochrim force the man by telling him to do what the Jews tell him to do. According to Rav Huna, even when Nochrim force a Jew to give a Get, the Get should be valid, just as when Nochrim force a Jew to sell his field.
</p><p>
Why is forcing a man to give a Get comparable to forcing a man to sell his property? When a man divorces his wife, he receives nothing in return, and thus forcing a man to give a Get should be comparable to forcing a person to give a <i>gift</i>, in which case the Kinyan is <i>not</i> valid since the giver receives nothing in return!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> writes that the Kinyan takes effect according to Rav Huna not because the seller receives something in return, but because the seller does not <i>lose</i> anything by selling (since he has been reimbursed). Therefore, in a case where the seller does not lose by giving away the object (such as when he would have had to give it away even without being forced), the Kinyan is valid even though the seller receives nothing in return.
</p><p>
In the case of a divorce, since the wife hates her husband, he will gain nothing by holding back the Get (since she is not going to live with him anyway). Therefore, when he gives a Get under coercion, he loses nothing and the Kinyan should be valid.
</p><p>
The <b>KOVETZ SHI'URIM</b> (#202) questions the Rashbam's explanation from the Gemara in Gitin (88b, as cited by Tosfos here, DH Ileima). The Gemara there teaches that when a Nochri forces a Jew to give a Get, the Get is not valid, but the Get nevertheless causes the woman to become Pesulah to a Kohen after her husband dies. However, when a Nochri forces a Jew to give a Get unlawfully (that is, when the law does not require him to give a Get), the Get is <i>not</i> valid and the woman may even marry a Kohen after her husband dies. It is evident from the Gemara there that Rav Huna's ruling that a forced sale is valid applies to a divorce only when the husband divorced his wife under force when the law <i>required</i> him to divorce her. The Rishonim here explain that when the man is not required to divorce his wife, it is comparable to <i>giving a gift</i> under coercion and not to a sale under coercion (see Tosfos, DH Ileima). According to the Rashbam's explanation, even when the man is not required by law to divorce his wife, a Get given under coercion should be comparable to a sale executed under coercion and it should prohibit her from marrying a Kohen!
</p><p>
Some Acharonim answer that according to the Rashbam, the Gemara here (which follows the opinion of Rav Mesharshiya in Gitin 88b; see Tosfos DH Devar Torah) argues with the Gemara in Gitin and maintains that even when the man is <i>not</i> required to divorce his wife by law, the Get will invalidate her from marrying a Kohen because of Rav Huna's ruling that a sale under coercion is valid. The Get is valid, but the Rabanan invalidated it (lest the woman go and have a Nochri force her husband to divorce her, as the Gemara here says). See <b>ONEG YOM TOV</b> (#168).
</p><p>
(b) <b>TOSFOS</b> (DH Ileima) answers that the giving of the Get is considered a sale, because the husband is required to divorce his wife by law. When a person accomplishes -- through the coerced sale -- something that he is required to accomplish, it is considered a gain.
</p><p>
The intention of Tosfos might be similar to the explanation of the Rashbam: even though the husband does not gain anything, he also does not lose, since he would have had to divorce his wife anyway (had he not been coerced). However, it seems more likely that Tosfos is presenting a different logic. Tosfos maintains that even when the seller receives in return a benefit that is minor in comparison to his loss, it is considered a sale and the Kinyan is valid. (The seller's gain is measured by the actual gain (gross revenue) and not at the net gain.) The <b>BI'UR HA'GRA</b> (CM 42:2) proves this from the words of Tosfos later (48b, DH Kadish) who seems to accept the suggestion that a forced Kidushin (i.e. when a woman was forced to accept Kidushin) is comparable to a forced sale (and it takes effect), since she receives a Perutah in return, even though she is losing much more (such as her ability to marry any other man). This is also the opinion of <b>RABEINU YONAH</b>, who proves this from the Gemara here that says that Rav Bibi argues with Rav Huna because he says that a coerced sale is not valid. If Rav Huna agrees that a coerced sale is not valid unless the seller is reimbursed in full, then how does the Gemara know that Rav Bibi argues with Rav Huna? Perhaps Rav Bibi agrees that a coerced sale is valid, but only when the seller is reimbursed in full! It must be that Rav Huna considers the sale valid even when only a minimal amount is paid to the seller.
</p><p>
However, the <b>RASHBA</b> and <b>RITVA</b> disagree with Rabeinu Yonah, and it seems that the Rashbam disagrees as well. The Rashbam requires that the seller not lose anything as a result of the coerced sale. The Rashba refutes the proof from Rav Bibi by suggesting that the words of Rav Bibi imply that <i>any</i> sale under coercion is not valid, even when the seller is paid in full. The Rashba finds support for this view from the wording of the Mishnah in Gitin (55b) cited by the Gemara here, which says that if a person 'bought' a field from its original owner after he bought it from a 'Sikrikon' (a Nochri who kills Jews who do not give him their land) who stole it from the original owner, the sale is not valid if it was executed with a Shtar and not with the transfer of money. If the owner sold the field without receiving money in exchange for it, then why does the Mishnah refer to it as a 'purchase'? It must be that the buyer <i>did</i> give some money, but since he did not pay the true value of the field, it is considered a gift through coercion and not a purchase through coercion.
</p><p>
(c) The <b>RAMBAN</b> and other Rishonim explain that at this point the Gemara understands that according to Rav Huna, even a gift given through coercion is valid. It is only later that the Gemara differentiates between a gift and a sale.
</p><p>
According to this opinion, a Get indeed is comparable to a gift. The only reason why it is valid when given under the coercion of another Jew is that even a gift given under coercion is valid when the giver fulfills the Mitzvah of listening to the Chachamim by giving the gift, as the Gemara originally suggests. In contrast, when a Nochri forces the Jew to give a Get, the Get is not valid because he is giving a gift through coercion and he is not fulfilling the Mitzvah of listening to the Chachamim by giving it. Therefore, according to the Gemara's conclusion, Rav Mesharshiya's teaching is not necessary (see <b>TOSFOS RID</b>).
</p><p>
This seems to be the opinion of the <b>RAMBAM</b> as well (Hilchos Gerushin 2:20). The Rambam writes that when a person is forced by Beis Din to give a Get, it is considered as though he agrees to give it of his own accord because it is a Mitzvah for him to divorce his wife in such a case, and every Jew really wants to do Mitzvos. His refusal to divorce was his Yetzer ha'Ra's decision and not his 'real' decision. Therefore, as soon as he says 'Rotzeh Ani' ('I agree to divorce her') even under coercion, the divorce is considered to be done with the husband's full consent. As the <b>MAGID MISHNEH</b> there points out, the Rambam cites the principle of 'it is a Mitzvah to listen to the Chachamim' as the reason for why a forced Get is valid. (See <b>NESIVOS HA'MISHPAT</b> 201:1, <b>ZECHER YITZCHAK</b> 23:2.) Apparently, the Rambam does not consider a Get to be similar to a sale, but rather to a gift, and that is why it would not be valid if not for the Mitzvah to listen to the words of the Chachamim. (M. Kornfeld)
</p><p>
(This approach contradicts the words of the <b>AVNEI MILU'IM</b> (42:1) and <b>KETZOS HA'CHOSHEN</b> (9:11) who write that according to the Gemara's conclusion, the fulfillment of the Mitzvah of listening to the Chachamim is <i>not</i> a factor to take into consideration in a forced sale.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS A FORCED SALE VALID?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 47b (Rav Huna):</font></b> If Levi hung Shimon (or afflicted
               him in another way) until Shimon agreed to sell his
               property, the sale is valid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Amidst the coercion, he has Gemiras Da'as (resolves)
               to sell.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rav Hamnuna - Mishnah):</font></b> If Levi bought a
               field from an extortionist, then bought it from the
               real owner (Shimon), his purchase is void. (We
               should say that amidst the coercion, he has Gemiras
               Da'as to sell!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Indeed, if Levi paid Shimon, the sale is
               valid.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> This is like Rav, who says that the
               Mishnah discusses a sale through Chazakah, but If
               Shimon wrote a document (we assume that he was paid,
               so) Levi acquires. According to Shmuel, how can we
               answer?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> Even if he wrote a document, Levi
                    acquires only if Shimon wrote in the document
                    that he accepts Achrayus (to compensate him if
                    the land is legally taken from him).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Shmuel agrees that if Levi paid Shimon, the
               sale is valid.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> According to Rav Bivi, how can we answer?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rav Bivi citing Rav Nachman:</font></b> If a Gazlan brings
                    a proof, we do not establish him to own the
                    land, but he gets back the money he paid.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> Rav Huna argues with Rav Bivi.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rava:</font></b> The Halachah is, if Levi hung Shimon until he
               agreed to sell <i>a</i> field, the sale is valid. If he
               asked for a specific field, it is invalid, i.e. if
               Shimon did not count the money, and Shimon had no
               way to evade Levi. If not, it is valid.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> The Halachah is, in all cases the sale is valid,
               even for a specific field, for it is like Ameimar's
               law of Kidushin (in which the woman gets no choice):
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Ameimar):</font></b> If Levi hung Leah until Leah agreed
                    to accept Kidushin from him, the Kidushin is
                    valid.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Gitin 27a and 5:16):</font></b> The Halachah
               follows Shmuel against Rav. We conclude like Rav
               Huna that in every case the sale is valid, even if
               he asked for a specific field, and no money was
               given, and only a document was written. The seller
               must accept the money afterwards. This is like Rav,
               who does not require Achrayus! This is not
               difficult. Shmuel admits that he acquires without
               Achrayus when money was or will be given, e.g. in a
               forced sale. Shmuel requires Achrayus only in cases
               like an extortionist, who will not pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (3:50):</font></b> Rav Bivi said that if a Gazlan
               brings a proof, he gets back what he paid, i.e. if a
               Moda'ah was made. If not, even though he was
               coerced, it is a sale. The Halachah follows Rav
               Huna, who validates a coerced sale. This is logical.
               Amidst the coercion, he has Gemiras Da'as to sell.
               Rava rules that this is when Levi asked to buy <i>a</i>
               field. If he asked for a specific field, and Shimon
               did not count the money, and he had no way to evade
               Levi, it is invalid. If not, it is valid. The
               Halachah is, in every case it is valid, even
               regarding 'this field', for a woman is like a case
               of this field, and Ameimar said that forced Kidushin
               is valid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Ein):</font></b> If one was hung and
                    gave a gift, it is invalid. The Ritva says that
                    since it depends on the seller's Da'as, we
                    cannot learn entirely from a woman, and say
                    that just like if she was coerced and accepted
                    a Perutah for Kidushin, it is valid, also if a
                    seller received a Perutah for his field. Any
                    woman can be Mekudeshes for a Perutah. Also, a
                    woman prefers to be married. If a woman made a
                    Shali'ach to accept Kidushin and he received a
                    Perutah, she is Mekudeshes. If one made a
                    Shali'ach to sell a field and he erred
                    (received less than its value), the owner can
                    retract. It seems that the Ran agrees, even
                    though some totally equate the sale of a field
                    to Kidushin.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 10:1):</font></b> If Shimon was
               coerced until he agreed to sell and he took the
               money for the goods, even if he was hung until he
               sold, his sale is valid. This applies to Metaltelim
               and land, for amidst the coercion he had Gemiras
               Da'as to sell. This is even if he did not take the
               money in front of witnesses. Therefore, if he made a
               Moda'ah before he sold, and told two witnesses 'I am
               selling this item or field to Ploni because I am
               forced', the sale is void. Even if Ploni made a
               Chazakah (used what he bought) for many years,
               Shimon takes it back and returns the money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Rambam (Hilchos Gezeilah
                    9:15) holds that if someone stole a field and
                    later bought it from the owner, if witnesses
                    did not see the owner count the money he is
                    believed to say that he admitted out of fear,
                    even without a Moda'ah. We give the field to
                    him; he need not pay. Here, we do not know that
                    the buyer once stole the field, therefore the
                    owner is not believed to say that he admitted
                    out of fear unless he made a Moda'ah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishneh l'Melech:</font></b> Perhaps the Rambam says 'he
                    took the money of the goods' to disagree with
                    those who do not require that he paid the full
                    value. It is better to say that the Rambam says
                    this to disagree with the Rif, who does not
                    require that he pay at the time of the sale.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 205:1):</font></b> If Shimon was coerced
               until he agreed to sell and he took the money, even
               if he was hung until he sold, his sale is valid for
               Metaltelim or land, for amidst the coercion he had
               Gemiras Da'as to sell. This is even if he did not
               take the money in front of witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> This opinion relies on admission that
                    he was paid, for he did not make a Moda'ah
                    about this. The Rema brings the other opinion,
                    that the Moda'ah on the sale proves that he was
                    forced also to admit.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (4):</font></b> This is like the Rif, who says that Lo
                    Artzei means that he did not <i>give</i> the money.
                    We cannot say that he did not give at all, for
                    the Halachah follows Shmuel! Rather, he did not
                    give in front of witnesses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some argue and say that the witnesses must see
               the money given, but admission does not suffice.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (5):</font></b> Rav Bivi said that they must see the
                    money given. There is no source to say that Rav
                    Huna argues about this.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that he must give money, but a
               document (saying that he owes) does not acquire.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (6):</font></b> The Halachah follows Shmuel in
                    monetary laws. Shmuel admits that he acquires
                    when money was given.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some disagree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (7):</font></b> The Rif explains that Shmuel admits
                    when the seller expected to get paid, even if
                    he was not paid at the time of the sale.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Therefore, if he made a
               Moda'ah before he sold and told two witnesses 'I am
               selling this item or field to Ploni because I am
               forced', the sale is void. Even if Ploni made a
               Chazakah for many years, Shimon takes it back and
               returns the money. The witnesses must know that he
               sells due to the Ones and he is truly forced. They
               may not rely on what he says. Any Moda'ah in which
               the witnesses did not write 'we know that he is
               Anus' is invalid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (7):</font></b> This connotes that the witnesses must
                    know that he did not resolve to sell amidst the
                    Ones. I say that they need not know this.
                    Perhaps also the Shulchan Aruch only requires
                    that they know of the Ones.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> This refers to a sale. For a
               gift or pardon, the witnesses need not know his
               Ones.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> Only regarding a sale, we say that
                    since he received money, he resolved to sell.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Shulchan Aruch (8):</font></b> The sale is valid if there was
               no Moda'ah regarding a Chamsan, who forces the owner
               to sell unwillingly. If one stole a field and bought
               it afterwards, no Moda'ah is needed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ba'Meh):</font></b> The Rambam holds that
                    the Gemara said that Rav Huna disagrees with
                    Rav Bivi, i.e. according to Rav Hamnuna.
                    Really, they do not argue. Alternatively, Rav
                    Huna disagrees with Rav Bivi, but Rav Bivi
                    holds like Rav Huna. The Halachah follows Rav
                    Bivi, for he cited Rav Nachman, and the
                    Halachah follows Rav Nachman in monetary laws.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>BITUL OF MODA'OS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The sale of a specific field is invalid only if
               Shimon did not count the money (this shows that he
               did not accept willingly).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It is invalid only if Shimon had no way to evade
               Reuven, but if he did, it is valid.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>FORCED KIDUSHIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	The Halachah is, in all cases the sale is valid, even
          for a specific field, for this resembles the following
          law of Kidushin (in which the woman gets no choice):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ameimar):</font></b> If Levi hung Leah until Leah agreed to
               accept Kidushin from him, the Kidushin is valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mar bar Rav Ashi):</font></b> Mid'Oraisa, she is Mekudeshes.
          Mid'Rabanan she is not. Since Levi acted improperly,
          Chachamim fined him and uprooted the Kidushin.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> Granted, Chachamim can uproot
          Kidushin of money and say that the money was only a gift.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if he was Mekadesh through Bi'ah, how can
               Chachamim uproot it? (Tosfos - if they uproot the
               Kidushin, the Bi'ah was Znus (extramarital
               relations)!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> ( Indeed,) Chachamim transform his
          Kidushin into an act of Bi'as Znus.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A MODA'AH AGAINST A FORCED SALE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Tavi hung Papi until he agreed to sell him land. Rabah
          bar bar Chanah signed on a Moda'ah (saying that Papi is
          acting under duress, and he does not agree to sell) and
          on the document of sale.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Huna:</font></b> A witness may properly sign on a Moda'ah, and
          on the document of sale.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> If the Moda'ah is valid, the sale is not!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Correction:</font></b> He meant that if not for the Moda'ah, the
          sale would be valid (a sale through coercion is a sale).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rav Huna said above.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If Reuven hung Shimon until Shimon
               agreed to sell his property, the sale is valid.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Nachman taught that if witnesses say that
          the document they signed was Emanah (the 'borrower'
          trusted the 'lender' with a loan document, even though he
          did not yet lend the money) or that they signed a sale
          document about which they heard a Moda'ah from the
          seller, they are not believed.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> They are not believed to say that the seller
          gave a Moda'ah, for their speech cannot override the
          document they signed, but if they signed a Moda'ah, this
          invalidates the document they signed.
<br>

<p>

sjt:
</p><p>
<font><b>2) A FORCED PURCHASE</b></font><b>
<br>OPINIONS:</b> The Gemara says that the sale of one who is forced to sell his property is valid. What is the Halachah in a case in which one is forced to <i>buy</i> something?
</p><p>
Also, what is the Halachah in a case in which a man who is forced to be Mekadesh a woman, an act which is comparable to a purchase? Is the Kidushin valid in such a case?
</p><p>
(a) The <b>RASHBA</b> (Kidushin 2b) writes that when a person is forced to sell an object, the sale is valid, as the here Gemara says, and <i>all the more so</i> when a person is forced to <i>buy</i> an object, the purchase is valid.
</p><p>
Why is it logical that a forced purchase should be more valid than a forced sale? It seems that the Rashba's reasoning is that in a sale, the seller loses a personal possession which he valued (see Bava Kama 51, 'Aval Mocher,' and Berachos 5a, 'Adam Mocher'). He might never be able to get back the same object or the same plot of land. In contrast, when a person is forced to buy an object, if he does not like what he receives he can sell it and receive money in return for it.
</p><p>
The <b>VILNA GA'ON</b> (Bi'ur ha'Gra to EH 42:1) adds that the Rashba and many Rishonim maintain that even if the seller is paid a minimum amount for what he was forced to sell, the sale is valid. The compensation he receives does not need to be commensurate with the value of the object. Accordingly, when a person purchases an object against his will, even if he pays more than its value, the Kinyan should be valid since he has received something in exchange for his money.
</p><p>
This also seems to be the view of the <b>RAMBAM</b> (Hilchos Ishus 4:1). The Rambam writes that if a man is forced to be Mekadesh a woman, the Kidushin is valid. It is not the manner of the Rambam to record laws that are not discussed explicitly in the Gemara. What is his source for this ruling?
</p><p>
The <b>S'MAG</b> explains that when Ameimar here says that a forced Kidushin is valid, he refers to a Kidushin that is forced upon the <i>man</i> and not to a Kidushin forced upon the woman. Accordingly, the Gemara here is the source for the Rambam's ruling. However, the S'mag asks that Mar bar Rav Ashi argues with Ameimar's ruling, and the Ge'onim and Rishonim accept Mar bar Rav Ashi's opinion. Moreover, the <b>HAGAHOS MAIMONIYOS</b> asks, how can the Rambam explain that it is the man who is being forced? It is clear from Mar bar Rav Ashi's words that it is the man who is the one forcing the woman and doing an improper act, and that is why the Rabanan invalidate the Kidushin! If it is the man who was forced, he can simply divorce his wife later and it would not be necessary for the Rabanan to invalidate the Kidushin!
</p><p>
It seems that the Rambam understands that although Ameimar refers to a man who is forced to be Mekadesh a woman, Mar bar Rav Ashi addresses the case of a woman who is forced to accept Kidushin and he does not argue with Ameimar. That is why Mar bar Rav Ashi adds the word, 'b'Ishah'; Ameimar was <i>not</i> discussing the woman, but the man. (The S'mag, who does not explain the Gemara in this way, might have had the Girsa mentioned in the <b>DIKDUKEI SOFRIM</b> in which Mar bar Rav Ashi does not say the word, 'b'Ishah,' and thus he clearly argues with Ameimar.) According to the Rambam, just as a forced Kidushin is valid, a forced purchase is also valid.
</p><p>
(b) The <b>SEFER HA'ITUR</b> (Erech Moda'a, p. 41) writes that when a man is forced to be Mekadesh a woman the Kidushin is not valid. The Gemara says that a forced <i>sale</i> is valid, implying that a forced purchase is <i>not</i> valid, and a man's act of Kidushin is similar to a purchase.
</p><p>
The <b>AVNEI MILU'IM</b> (42:1) questions the view of the Ba'al ha'Itur from the Halachah that a man who rapes a woman is required by the Torah to marry her, and if he refuses, Beis Din may force him to marry her (Tosefta, Kesuvos 3:9). According to the Ba'al ha'Itur, how can Beis Din force the man to marry her?
</p><p>
According to the Rishonim (see previous Insight) who explain that even according to the Gemara's conclusion, when a man is forced by Beis Din to divorce his wife the divorce is valid because the man accepts to give the divorce because of the Mitzvah to listen to the Chachamim, the same can be said with regard to Kidushin. A forced Kidushin in the case of a man who raped a woman will be valid even according to the Ba'al ha'Itur, because the man thereby fulfills the Mitzvah to listen to the Chachamim.
</p><p>
Alternatively, the Ba'al ha'Itur admits that when a person is forced to accept a gift, he acquires the gift (see <b>CHOCHMAS SHLOMO</b>, end of CM 205, and <b>NESIVOS HA'MISHPAT</b> 205:8). Accordingly, a man can be forced to be Mekadesh a woman with a Shtar, since he does not lose anything. (Even though he becomes obligated to support his wife later, that is not taken into account with regard to the validity of the Kidushin. See Rashba here.)
</p><p>
(c) The <b>ME'IRI</b> in Kidushin (2b) writes that although Kidushin which a man is forced to make is valid, as the Rambam writes, nevertheless a purchase that a person is forced to make is not valid. He explains that since Kidushin is made by giving a Perutah, the man loses only a minimal amount. However, when a person is forced to purchase an item for its full value, the purchase is not valid. (The Me'iri also does not take into account the obligations that the husband will have later, as mentioned above.)
</p><p>
It is important to note that the <b>VILNA GA'ON</b> (EH 42:2) suggests that the opposite is true. If a forced Kidushin is valid, then certainly a forced purchase is valid, because people are more selective about whom they marry than about what they buy, as the Gemara says in Yevamos (63a).
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>EMANAH AND MODA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If witnesses say that the document they
          signed was Emanah, or that they signed a sale document
          about which they heard a Moda'ah from the seller, they
          are not believed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mar bar Rav Ashi):</font></b> They are not believed to say that
          what they signed was Emanah, but they are believed to say
          that they signed a sale document about which they heard a
          Moda'ah (Tosfos - only if we cannot validate the document
          without them; Rashbam - even if we can validate it
          without them).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between the cases?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One may not write and give a document of
          Emanah, so they are not believed to incriminate
          themselves. One may sign a document after hearing a
          Moda'ah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CHAZAKAH IN A WIFE'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A man does not get a Chazakah in his wife's
          property...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious! He is entitled to eat the
          Peros, so this is no proof that he owns the land itself!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is, even if he wrote a document
          saying 'I have no claim to your property' (and has no
          rights to the Peros), he has no Chazakah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Such a document is meaningless!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Levi wrote to Yehudah 'I have no
               claim to this field', 'I have no business in it', or
               'my hand is removed from it', this has no effect.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (d'Vei R. Yanai):</font></b> Our Mishnah discusses one who
          wrote this during Eirusin, before the Nisu'in, like Rav
          Kahana taught;
<br>
<br>

sjt:
<font><b>1) BELIEVING WITNESSES WHO WANT TO INVALIDATE A 'SHTAR' THAT THEY SIGNED</b></font><b>
<br>QUESTION:</b> Rav Nachman rules that when two witnesses who signed a Shtar testify later that the Shtar was a Shtar Amanah (that is, there was not really a loan), they are not believed. Similarly, when two witnesses who signed a Shtar testify later that, before they signed the Shtar, the seller declared a Moda'a in their presence and said that the transaction was done under coercion, they are not believed. Mar bar Rav Ashi argues and says that when they testify that there was a Moda'a, they are believed.
</p><p>
The <b>RASHBAM</b> (DH Ein Ne'emanim) writes that when the Gemara says that the witnesses are not believed to say that the Shtar they signed is a Shtar Amanah, this applies not only when the Shtar is Mekuyam (verified), but it applies even when the Shtar is not yet Mekuyam. The witnesses are not believed to say that the Shtar was an Amanah because of the principle of 'Keivan she'Higid Shuv Eino Chozer u'Magid' -- once they have given testimony, they cannot change that testimony. Their signatures on the Shtar are considered their original testimony which cannot be altered afterwards. The Rashbam proves this from the Gemara in Kesuvos (18b). How, though, can the Rashbam prove this from the Gemara there? The Gemara there discusses a Shtar that is <i>Mekuyam</i>. If the Shtar is <i>not</i> Mekuyam, then the witnesses <i>are</i> believed to say that the Shtar is not valid, because the validity of the Shtar itself is based on their testimony and thus they are believed because of the principle of 'Peh she'Asar Hu ha'Peh she'Hitir,' as the Rashbam himself mentions later! (<b>RASHASH</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHASH</b> explains that the Rashbam is not proving from the Gemara that 'Keivan she'Higid' applies when the Shtar is not Mekuyam. Rather, he is proving only that 'Keivan she'Higid' applies to testimony that is written in a Shtar.
</p><p>
Why, though, does the Rashbam write that witnesses cannot say that the Shtar is an Amanah even if the Shtar is not Mekuyam, if the Gemara in Kesuvos says that they are believed because of 'Peh she'Asar'? The answer is that the Gemara there gives credibility to the witnesses because of 'Peh she'Asar' only when they do not diametrically contradict what is written in the Shtar. When the witnesses say that the Shtar was an Amanah, they contradict what is written in the Shtar, and therefore they are not believed (see <b>TOSFOS</b> DH Amar Rav Nachman).
</p><p>
(b) However, this does not seem to be the view of the Rashbam. In a few places, the Rashbam's words imply that when the Shtar is not Mekuyam, the witnesses <i>are</i> believed through 'Peh she'Asar,' and their second testimony is not invalid because of 'Keivan she'Higid' (see Rashbam DH u'Mar bar Rav Ashi, and DH Moda'a Hayah Devareinu, where he writes that there is no 'Peh she'Asar' because it is already known that the Shtar is valid because the lender and borrower both agree that it is valid). Moreover, Tosfos suggests this logic only to explain why 'Peh she'Asar' does not apply according to his own view that Rav Nachman is discussing a Shtar that is not Mekuyam.
</p><p>
Therefore, it seems that when the Rashbam writes that the reason why the witnesses are not believed is 'Keivan she'Higid,' he is referring back to the case of a Shtar that <i>is</i> Mekuyam. Only later does he give the reason for why the witnesses are not believed when the Shtar is <i>not</i> Mekuyam, when he writes that the witnesses cannot give testimony that will incriminate themselves.
</p><p>


<font><b>2) RELINQUISHING ONE'S RIGHTS TO RECEIVE A BENEFIT</b></font><b>
<br>QUESTION:</b> The Gemara explains that the husband may relinquish his rights to the fields of his wife only by making a written statement to that effect ('Din u'Devarim Ein Li...') when she is still an Arusah. After they are married, it is too late for him to relinquish his rights, because the fields already belong to him with regard to their Peros. He cannot simply forgo his rights to the field; he must make a normal Kinyan and give the field away. (See Kesuvos 43a, 'Yado k'Yadah.')
</p><p>
Why does the Gemara not explain that the husband relinquishes his rights to the Nichsei Melug <i>after</i> they get married, but before his wife inherits property from her relatives? Since that property was not yet in the possession of the husband, he should be able to forgo his rights so that the property will not become his when his wife inherits it!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ALIYOS D'RABEINU YONAH</b> explains that the husband, after Nisu'in, indeed may forgo his rights so that he does not receive property that his wife inherits later. The Gemara could have suggested that case. When it says instead that the husband can forgo his wife's property only when she is an Arusah, it teaches the only way that he can forgo his rights to his wife's property (Nichsei Melug) which she owns at the time that they get married.
</p><p>
(b) The Yerushalmi in Kesuvos (9:1) cited by the <b>ROSH</b> (Kesuvos 9:1) implies that the husband cannot forgo his rights to property that his wife does not yet own, even when he writes 'Din u'Devarim Ein Li' when she is still an Arusah. The reason for this is that the property is considered a 'Davar she'Lo Ba l'Olam,' and therefore the husband is not able to give it away. He can give away only property that his Arusah already owns.
</p><p>
(c) The <b>RASHBAM</b> (DH Ein l'Ish), however, writes that the laws described by the Gemara here refer even to property that a woman inherits while she is married. The Rashbam may have a different answer for why the Gemara does not suggest that the husband writes 'Din u'Devarim' to relinquish his rights to his wife's property after the Nisu'in. The Rashbam (49b, DH ked'Rav Huna) explains that the husband has a reason for why he wants to relinquish his rights to the produce of his wife's property: he wants to exempt himself from his obligation to redeem his wife in the event that she is taken captive. <b>TOSFOS</b> (49b, DH Yecholah) points out that the Chachamim enacted that the husband has the right to eat the produce <i>throughout the marriage</i> in exchange for the obligation to redeem his wife in the event that she is taken captive. The enactment did not grant him the produce on a daily basis on condition that he accept upon himself the obligation to redeem his wife on that day. Hence, after the husband eats the produce for just one day, he may no longer exempt himself from the obligation to redeem his wife by not taking any more produce, because the produce that he already took obligates him to redeem his wife for as long as they are married.
</p><p>
This might explain why the Gemara wants to explain that the husband is ready to forgo his rights to the produce before the Nisu'in. (M. Kornfeld)
</p><p>
(d) <b>TOSFOS</b> and other Rishonim disagree with the Rashbam and maintain that the husband is obligated to redeem his wife even if he forgoes his rights to the Peros. The two Halachos are not interdependent.
</p><p>
The <b>RAMBAN</b> and <b>RASHBA</b> in Kesuvos (83a) give another reason for why the husband cannot relinquish his rights to the property that his wife will inherit after the Nisu'in. They explain that the reason why Rav Kahana allows a person to relinquish his rights only from an inheritance received through marriage and not from an inheritance d'Oraisa (such as inheritance that one receives from his father) is that a person has the rights to the inheritance from his father from the time he is born. Since he already has those rights, he cannot relinquish them (through 'Siluk'), but he also cannot give the property away (through a Kinyan) since it is not yet his. The rights that a person attains through marriage are not his until the marriage, and thus before the marriage he can relinquish them such that he will not receive the property.
</p><p>
According to this approach, it is clear that once he marries her, the husband cannot give away his rights to property that his wife did not yet inherit, since the rights to inherit the property are already his, even though the property is not yet his. According to these Rishonim, there is no difference between rights that the Torah gives to a person and rights that the Chachamim give to a person. The reason why the Gemara mentions the Halachah of Rava -- that a person can forgo his rights to receive something through a Takanas Chachamim -- is to show that rights that are given by the Chachamim are not <i>stronger</i> than rights given by the Torah (for one might have thought that 'Rabanan Asu Chizuk l'Divreihen'). The <b>ROSH</b> in Kesuvos explains that this is also the intention of the Yerushalmi.
</p><p>
The logic of the Ramban and Rashba, who say that a person cannot forgo rights that are already his, does not apply according to the Rashbam and Tosfos. They explain that the reason why a person can forgo a Takanas Chachamim made for his benefit is not that the Takanas Chachamim has not yet taken effect, but rather since the Takanas Chachamim was made for his benefit he is entitled to forgo the benefit. The same reasoning should apply even <i>after</i> the Takanah takes effect (for example, after the Nisu'in); the husband should be able to forgo his rights to receive the Peros by saying that he does not want to take advantage of the benefit that the Chachamim gave him. Therefore, the Rashbam must answer the question with one of the other answers mentioned above.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DECLINING AN ENACTMENT MADE FOR ONE'S BENEFIT</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Kahana):</font></b> One can stipulate not to inherit an
               inheritance that is only mid'Rabanan (for Rava's
               reason);
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rava):</font></b> If an enactment was made to benefit a
                    person, in a case like this, he can say 'I do
                    not want the enactment.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rava refers to cases like Rav Huna's law;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Huna):</font></b> A woman can tell her husband 'do
                    not feed me, and I will not work for you'
                    (because it was enacted for her benefit that he
                    feed her and she will work for him).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bava Kama 7b (R. Acha bar Yakov):</font></b> A loan should be
               paid from Beinonis (at the current price). If the
               creditor requests a larger quantity of Ziburis, the
               borrower can stipulate that he receive it at the
               higher price of Nisan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 8a (Beraisa):</font></b> If a debtor sold (Idis, Beinonis and
               Ziburis) to Levi, Levi is in place of the seller.
               (Victims, creditors and ex-wives collect from what
               they are entitled to, i.e. Idis, Beinonis and
               Ziburis, respectively.)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This is when he bought the Idis last.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> If so, everyone should collect from Idis!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> Levi says 'it is is an enactment to help the
               buyer that we do not collect from Meshubadim (land
               that the debtor sold) when there are Bnei Chorin
               (land that he still owns). I do not want the
               enactment!'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Kesuvos 109b (Mishnah - Admon):</font></b> If Levi went
               overseas and returned, and the path to his field was
               lost, he gets a short path to his field;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> Chachamim say, he must pay whatever his neighbor
               charges for a path, or else he must fly (i.e. he may
               not walk) to his field.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rava):</font></b> The case is, Levi was surrounded by four
               neighbors, and one person bought all their land.
               Admon says, in any case the path to his field is
               with the buyer! Chachamim say, the buyer says
               'accept my terms. If you protest, I will return the
               deeds to the original owners (undo the sales), and
               you will be unable to force them to give you a
               path.'
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (Kesuvos 41a) bring the Gemara in
               Bava Basra
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Bava Kama 3a):</font></b> We conclude that it is is an
               enactment to help the buyer that creditors collect
               from the last land sold. The buyer can say 'I do not
               want the enactment!'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 1:3):</font></b> The buyer can say 'I do not
               want the enactment!' In such a case, we claim this
               on his behalf.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 19:6):</font></b> If a buyer bought the
               Idis last, everyone collects from what they normally
               get. It is is an enactment to help the buyer that we
               collect from the last land sold. (In this case) the
               buyer does not want this enactment!'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Mishneh l'Melech (Hilchos Gerushin 9:27 b'Sof):
                    Chachamim decreed not to allow the scribe and
                    one other witness to sign a Get. However, if
                    Igun will result (there is no other way to
                    permit her to remarry, e.g. two heard a man in
                    a pit authorize them to write a Get), we permit
                    it with Edei Mesirah (witnesses who see the Get
                    given). This is because Edei Mesirah are 
                    primary, and Edei Chasimah (the witnesses who
                    sign it) are a mere enactment for her benefit
                    (in case the Edei Mesirah go away). Here, the
                    enactment harms her, so she can say that she
                    does not want it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Ashri (Kesuvos 13:13):</font></b> A case occurred
                    in which Reuven and Shimon were partners in a
                    house, and each owned Kedei Chalukah (a proper
                    amount, so that he cannot refuse to divide).
                    Shimon bought Levi's share in the house, which
                    was less than Kedei Chalukah. Shimon said 'I do
                    not want the enactment that allows me to demand
                    a share in one place. Rather, I want in two
                    places. If so, one will be less than Kedei
                    Chalukah, so Reuven cannot force me to divide.
                    I come with Levi's rights. Just like he could
                    have vetoed the division, I may. If not, I will
                    return my document of purchase to him!' My
                    Rebbi said that his threat is empty, until he
                    returns the document. We honor such a claim (I
                    will return the document) only to keep what one
                    has and annul the other's claim, like in Bava
                    Kama 8a. Here, Reuven can say 'if you sell to
                    Levi, I have first rights to buy, for I am the
                    neighbor.' I disagree, for a neighbor has no
                    more right to buy than the original owner.
                    Also, a buyer gets all rights that the seller
                    had. It is not a privilege to have less than
                    Kedei Chalukah! Even though Shimon wants it,
                    his opinion in Batel.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Hagahos Maimoniyos (Sefer Kinyan, Teshuvah 14):
                    In Bava Kama, R. Acha taught that if a creditor
                    requests a larger quantity of Ziburis, the
                    borrower can stipulate that he receive it at
                    the higher price of Nisan. Why can't he decline
                    the enactment to collect Beinonis? The Riva
                    answered that one can decline an enactment only
                    when there is no loss to others, and he is
                    Muchzak. A woman can tell her husband 'do not
                    feed me, and I will not work for you' because
                    she is Muchzak in her earnings. I would answer
                    that the enactment of Beinonis for lenders was
                    for the borrower's benefit, lest people be
                    reluctant to lend. We honor a claim 'if not, I
                    will return the document' only to let someone
                    keep what he has.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 119:5):</font></b> If a buyer bought the
               Idis last (Rema - or at the same time), he is in
               place of the seller (everyone collects from what
               they normally get).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav Od):</font></b> Even if he does
                    not say 'the enactment was to help me. I do not
                    want the enactment!', the Nimukei Yosef (Bava
                    Kama 3a DH b'Nezikim) says that anything one
                    can do, we consider it as if he did it, even
                    though it seems that Rashi (Kesuvos 109b DH Iy)
                    disagrees (regarding one who lost the path to
                    his field).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (171:18 DH Kosav ha'Mordechai):</font></b> The
                    Mordechai (Bava Basra 569) says that if
                    Reuven's share in a Chatzer or house is less
                    than Kedei Chalukah, but his partner's share is
                    Kedei Chalukah, he can force him to divide. If
                    one says 'I do not want the enactment that
                    Chachamim made for me (that I can refuse to
                    divide)', we heed him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 138:1):</font></b> If two were holding one
               Kli, and each says 'it is mine', each swears (while
               holding a Chefetz, i.e. a Kodesh item such as a
               Sefer Torah or Tefilin) that he owns (at least)
               part, and he does not own less than half, and they
               divide it. If one said to the other 'swear and take
               it all', we heed him. If the other did not want to
               swear, they divide it without an oath.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (6):</font></b> One can decline an enactment for his
                    benefit. Instead of swearing to receive, he
                    allows the other to swear Heses. In this case,
                    since the other must swear while holding a
                    Chefetz for half, through Gilgul (when one must
                    swear, his opponent can force him to include in
                    the oath also other matters) he must swear
                    about all of it while holding a Chefetz.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (87:30):</font></b> One can decline an enactment for
                    his benefit, for we are not Mezakeh (acquire)
                    for someone against his will.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 112:12):</font></b> If a man died and left
               land and Metaltelim, and the land is too little (to
               feed the girls until they mature) and with the
               Metaltelim it is big (enough), the boys inherit.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (25):</font></b> Why can't the girls say
                    'we decline the Ge'onim's enactment that we are
                    fed from Metaltelim', so the estate will be
                    small and the boys will not inherit? Perhaps
                    there is no reason to judge from the girls'
                    perspective. From the boys' perspective, the
                    estate is big!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (25):</font></b> The Shulchan Aruch holds that
                    the enactment was for the girls, and all the
                    more so for the boys, therefore, the girls
                    cannot decline it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Hafla'ah (Kuntres Acharon on Kesuvos 100:2):</font></b> If
                    a man sold land and left Metaltelim, I am
                    unsure whether or not his wife can say 'I do
                    not want the enactment that allows collecting a
                    Kesuvah from Metaltelim. (I want to take the
                    land.)' (I do not ask according to the Rosh,
                    who says that nowadays she collects without the
                    enactment, for people rely on Metaltelim like
                    land). It is not clear whether this enactment
                    was also to benefit the buyer, like the Beis
                    Shmuel's answer. I answer that if one declines
                    an enactment, he must accept the Torah law. He
                    cannot partially decline. The opinion that
                    Kesuvah is mid'Oraisa agrees that Chachamim
                    enacted to collect only from land. Since the
                    Torah allows collecting from Metaltelim, she
                    may not take Meshubadim if there is Bnei
                    Chorin. (This was surely to benefit buyers!)
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Kahana):</font></b> One can stipulate (Tosfos - even
               with a weak expression of refusal) not to inherit an
               inheritance that is only mid'Rabanan (for Rava's
               reason);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> If an enactment was made to benefit a
               person, in a case like this, he can say 'I do not
               want the enactment.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> To which case does Rava refer?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> He refers to Rav Huna's law;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Huna):</font></b> A woman can tell her husband 'you
                    need not feed me, and I will not work for you'
                    (because it was enacted for her benefit that he
                    feed her and she will work for him).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Inference:</font></b> The Mishnah said that a man does not get a
          Chazakah in his wife's property, but if he can prove
          (through witnesses) that she sold it to him, he gets it!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't she say 'I never meant to sell it.
          I merely wanted to please my husband'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven bought from Shimon a field
               designated to pay the Kesuvah of Shimon's wife, and
               then he bought it from her, the latter sale is void
               (she does not lose rights to collect her Kesuvah
               from it). She can say 'I merely wanted to please my
               husband.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Rabah bar Rav Huna explained, that applies only
          to three types of fields: a field that he wrote in her
          Kesuvah that she has a lien to collect from it; a field
          that he made (in front of witnesses) an Aputiki from
          which to collect her Kesuvah; and a field that she
          brought into the marriage as Tzon Barzel (he must return
          to her its initial value when he pays her Kesuvah).
<br>

<p>

sjt:
</p><p>
<font><b>1) A WOMAN WHO SELLS HER FIELD IN ORDER TO PLEASE HER HUSBAND</b></font><b>
<br>QUESTION:</b> The Gemara teaches that when a married woman sells her field to a buyer after her husband sold that field to the buyer, the sale is not valid. The woman can claim that she sold the field only in order 'to please my husband' ('Nachas Ru'ach Asisi l'Va'ali') and that she did not really intend for the sale to take effect. The <b>RASHBAM</b> asks why should this case not be considered a case of one who is forced to sell a field (in this case the coercion element ('Ones') is the need to please her husband), in which case the sale is valid, as the Gemara earlier (47b) teaches? The Rashbam answers that when a woman sells her field under pressure to please her husband, that is not considered a significant form of coercion.
</p><p>
What does the Rashbam mean? If there is not a significant degree of coercion, then <i>certainly</i> her sale should be valid since she is considered to have sold it voluntarily! If, on the other hand, she indeed is considered to have been forced to sell the field, then the sale should be valid because she had full resolve in her mind to sell the field due to the coercion! (<b>RAMBAN</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> and other Rishonim disagree with the Rashbam and explain that when the buyer who purchases the field from the woman pays her the full value of the field (that is, what it is worth to her), the sale certainly is valid. The only time the sale is not valid is when he pays her less than the field's value, in which case she is able to claim that she sold the field only in order to please her husband.
</p><p>
(b) The <b>AVNEI MILU'IM</b> (90:27) explains that since the woman's goal is to please her husband, in order to accomplish that goal she needs only to sell the field to the buyer in such a way that the sale is effective while her husband is alive. Such a sale suffices to please her husband. Her husband will not be upset if the sale is done in such a way that the field reverts back to her ownership after he dies. (One may ask, however, what relevance does her sale have if it is effective only until her husband dies? Whether she agrees to the sale of the land or not, the buyer is able to eat the Peros of the field only until the husband dies! The answer is that when she sells the land until her husband dies, the buyer is entitled not only to the produce of the field, but he is also entitled to dig wells and pits and construct buildings on the land.) That the 'Nachas Ru'ach' that the wife wants to do for her husband applies only during his lifetime is implied by the <b>RA'AVAD</b> (Hilchos Ishus 22:18). Accordingly, even if she <i>does</i> sell the field with full resolve in order to please her husband, the sale will not be effective after her husband's death because she did not intend to sell the field for after her husband dies.
</p><p>
(c) The Rashbam does not seem to follow these approaches. Perhaps the Rashbam understands that the rule that a forced sale is valid applies only when the seller is intimidated or humbled into selling his property by somebody else. In such a situation, he agrees to the terms of the one who forces him to sell. In contrast, in the case of the Gemara here the woman decides <i>on her own</i> that there is a need to please her husband and to show her consent to the sale, even though she does not actually want to sell the field. Therefore, since she is not humbling herself to the will of somebody else she does not resolve in her mind to sell the field. Nevertheless, her sale is still called an 'Ones' because she is forced to pretend that she is selling it.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A MARRIED WOMAN WHO SOLD HER PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What does Rabah bar Rav Huna come to exclude?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He excludes other property (to which
               she has no rights).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> All the more so, she can say 'I merely
               wanted to please my husband', because he would be
               very upset if she refused! (He would assume she
               anticipates being divorced or widowed)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, he excludes Melug property (she gets it
          back like it is with her Kesuvah, even if it declined or
          increased in value. Regarding such property, if he can
          prove that she sold it to him, he keeps it).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Ameimar taught that if a man and his wife
          sold her Melug property, the sale is invalid!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> No, that is when he or she sold it,
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he sold it and died, she takes the property;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If she sold it and died, he takes the property
               due to an enactment mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yosi b'Rebbi Chanina):</font></b> In Usha they enacted
                    that if a woman sold her Melug property and
                    died, her husband takes it from the buyer.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If they both sold it, or if she sold it to her
               husband, the sale is valid.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Ameimar holds like R. Elazar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If Reuven sold his
               (Kena'ani) slave to Shimon, and stipulated 'the
               slave will still work for me for 30 days', the law
               of Yom O Yomayim applies to Reuven (if he strikes
               the slave and he dies from the blow after 24 hours,
               Reuven is not killed, since the slave is working for
               him). It does not apply to Shimon;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Meir holds that Kinyan Peros (regarding a
                    slave, his labor) is like Kinyan ha'Guf.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, (Yom O Yomayim) applies to
               Shimon (for the slave is his property), but not to
               Reuven;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yehudah holds that Kinyan Peros is not like
                    Kinyan ha'Guf.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yosi says, it applies to Reuven (for the slave
               is working for him) and to Shimon (for the slave is
               his property);
<br>
<br>

sjt:
<font><b>1) EXEMPTING A PERSON FROM A 'CHIYUV MISAH' IN A CASE OF A DOUBT</b></font><b>
<br>QUESTIONS:</b> The Gemara says that according to Rebbi Yosi, when the owner of an Eved sells his Eved to another master with the condition that the Eved will continue to work for him for thirty days, the law of 'Yom O Yomayim' applies to both masters. Consequently, both masters are exempt from Misah if either one hits the Eved and he dies from his wound after one full day. The Gemara says that Rebbi Yosi's reason for exempting both masters is that he maintains that the Halachic status of a Kinyan Peros (the rights to the Eved's service) is in doubt; perhaps it has the status of a Kinyan ha'Guf (the ownership of the actual body of the Eved). Consequently, it is not possible to determine who the true owner of the Eved is, who should be exempt because of 'Yom O Yomayim.' Due to this doubt, the rule 'Safek Nefashos l'Hakel' applies and both masters are exempt from Misah.
</p><p>
The <b>RASHBAM</b> explains that the principle of 'Safek Nefashos l'Hakel' is derived from the verse, 'v'Hitzilu ha'Edah' -- 'and the congregation shall save' (Bamidbar 35:25), which teaches that Beis Din is obligated to try to exempt a person from a Chiyuv Misah and not to kill him (Sanhedrin 32b). This is also the way <b>RASHI</b> explains in Kesuvos (15a) and Bava Kama (44b). The Gemara there discusses a case in which a person throws a stone into a group of ten people, half of whom are Jews and half are Nochrim. Even if the stone kills one of them, the one who threw it is exempt because of 'Safek Nefashos l'Hakel.' Rashi explains that the law is lenient in a case of a Chiyuv Misah because of the verse, 'v'Hitzilu ha'Edah.'
</p><p>
Rashi's source seems to be the Gemara in Pesachim (12a) in which Rebbi Yehudah says that when two witnesses attempt to have a person put to death, and one of the witnesses says that the event occurred in the third hour of the day and the other witness says that it occurred in the fifth hour of the day, their testimony is accepted. The Gemara explains that it is possible that the event occurred halfway through the <i>fourth</i> hour, and a person is not so careful to clarify the exact time of an event by more than half an hour. The witness who says that the event happened in the third hour means that it happened in the <i>end</i> of the third hour (which is the beginning of the fourth hour), and he is off by just half an hour. The witness who says that the event happened in the fifth hour means that it happened in the <i>beginning</i> of the fifth hour (which is the end of the fourth hour), and he, too, is making a mistake of only half an hour. The Gemara asks how can Beis Din accept such testimony in order to put a person to death? Beis Din has not clarified the true intentions of the witnesses, and thus Beis Din remains in doubt about what they actually meant to say. A person cannot be put to death out of doubt because 'Safek Nefashos l'Hakel'! The Gemara there adds, 'and the verse says, 'v'Hitzilu ha'Edah.'
</p><p>
There are a number of questions on the explanation of Rashi and the Rashbam.
</p><p>
(a) Why does Rashi find it necessary to suggest that the verse is needed to exempt a person from a Chiyuv Misah? Logically, if there is a Safek if someone must be put to death or not, Beis Din certainly should not kill him out of doubt. Whenever there is a doubt about whether an obligation needs to be fulfilled (a Safek Chiyuv), one does not do a prohibited act in order to fulfill that Safek Chiyuv. For example, if a person has a garment and there is a doubt about whether it needs Tzitzis or not, and there is linen in the garment, it is clear that one does <i>not</i> put Tzitzis on the garment. Since there is a Safek Mitzvah (Tzitzis), one certainly does not do a Vadai Isur (Sha'atnez) in order to fulfill the Safek Mitzvah. Similarly, even if this person indeed is Chayav Misah, Beis Din may not kill him out of Safek if, by doing so, Beis Din definitely will be doing an act of Retzichah (murder) by killing him. The Safek Mitzvah to put him to death does not override the Isur of killing (when there is no Chiyuv)! (<b>KOVETZ SHI'URIM</b>)
</p><p>
(b) A number of sources prove that a person is not punished when there is a Safek regarding his Chiyuv. That is, besides the logical reason not to punish him (as mentioned in (a) above), when there is a doubt in a monetary matter regarding whether a person is liable or not, Beis Din exempts him. Accordingly, when there is a doubt about whether or not a person is Chayav Misah or Chayav Malkus, Beis Din certainly cannot punish him. Beis Din cannot administer a punishment mi'Safek! Why, then, do Rashi and the Rashbam find it necessary to cite the verse of 'v'Hitzilu ha'Edah,' which applies only to a Chiyuv Misah, when there is a general rule that Beis Din never acts on a Safek? (<b>TOSFOS</b> DH Safek Nefashos l'Hakel)
</p><p>
The case of the Gemara in Pesachim (12a) is not comparable to the case of the Gemara here with regard to these two questions. The Gemara in Pesachim discusses a situation in which Beis Din has sufficient evidence to kill the defendant. The Gemara there asks why the testimony of the two witnesses provides sufficient evidence; perhaps the witnesses do not mean what Beis Din assumes that they mean. The Gemara there adds that even if there is no reason to suspect that the witnesses do not mean what Beis Din assumes that they mean (because Beis Din does not assume that witnesses are liars if there is no reason for such a suspicion), Beis Din still should not accept their testimony as long as there is a possibility to prove that they are liars, such as by asking them further questions that might cause them to contradict each other. This principle is derived from 'v'Hitzilu ha'Edah' which teaches that Beis Din should make every effort, in cases of Dinei Nefashos, to try to acquit the defendant of the death penalty.
</p><p>
(c) If it is true that the person who killed would be Chayav Misah out of doubt, and the only reason he is exempt is because of the verse 'v'Hitzilu ha'Edah,' then why will a person who commits a Safek Aveirah which is punishable with <i>Malkus</i> be exempt? Many Mishnayos teach that when a person does a Safek Isur d'Oraisa he cannot be punished with Malkus ('Patur Aval Asur'). In those cases, it is not the verse of 'v'Hitzilu ha'Edah' which exempts him, because that verse applies only to Dinei Nefashos, cases judged with 23 Dayanim (as that verse teaches). In contrast, a case of a Chiyuv Malkus may be judged with three Dayanim, according to the Chachamim in Sanhedrin (2a), and yet there is no disagreement about the law in the case of a person who does an act of a Safek Chiyuv Malkus -- everyone agrees that such a person is exempt from Malkus, even though the verse of 'v'Hitzilu ha'Edah' does not apply. It should be evident, therefore, that there is another factor which exempts a person from Malkus in a case of a Safek, and, likewise, that factor should exempt a person from a Chiyuv Misah in a case of a Safek!
</p><p>
<b>ANSWERS:</b>
<br>(a) Why is Beis Din able to kill someone when there is no certainty that he is Chayav Misah? Out of doubt, Beis Din should <i>not</i> kill the defendant, lest Beis Din transgress the Isur of Retzichah! The answer is that if Beis Din rules that a person is Chayav Misah, then there is no Isur against killing him. Beis Din has the authority to decide whether a person is Chayav Misah, Chayav Malkus, or not Chayav at all. Beis Din is empowered to make the ruling that a person is Chayav Misah or Chayav Malkus. Once Beis Din makes the ruling, then whether or not the person actually committed the Aveirah, Beis Din has ruled and the person is Chayav. The person can be punished and there is no Isur of Lo Tirtzach (do not kill) or Lo Yosif (do not give Malkus when undeserved), because Beis Din has ruled that the person must be punished. Since the Isur against killing a person does not apply, there is nothing in opposition to the Mitzvah to punish the person. (See <b>AYELES HA'SHACHAR</b>.)
</p><p>
(b) This answer does not explain <i>why</i> Beis Din should rule that a person is Chayav Misah in a case of a Safek. In the case of Dinei Mamonos, as Tosfos says, Beis Din does not rule in the case of a Safek. On the contrary, when Beis Din has a Safek if someone is obligated to pay or not (even in the case of a Kenas), Beis Din does <i>not</i> obligate him to pay. Why, then, in a case of Dinei Nefashos should Beis Din punish the person when there is a Safek?
</p><p>
<b>RAV YOSEF ENGEL</b> (Beis ha'Otzar, Erech Aluf-Yud, #55) and the <b>KOVETZ SHI'URIM</b> suggest an answer that addresses both this question and the previous question. The Rashbam does not mean to say that Beis Din does not kill the master because of 'v'Hitzilu ha'Edah.' Rather, he means that 'v'Hitzilu ha'Edah' teaches that when a person's guilt is in question, the verse exempts him from Misah with certainty. (This is similar to the concept of 'Safek Tum'ah b'Reshus ha'Rabim Tahor' and 'Safek Tum'ah b'Reshus ha'Yachid Tamei,' which teaches that the object of a questionable Tum'ah in Reshus ha'Yachid is Tamei not merely mi'Safek, but it is Vadai Tamei; see Insights to Sotah 28:2.) What difference does it make, though, whether a person is exempt from Misah because of a Safek or because of a Vadai? They explain that one difference would be with regard to the laws of a Shor ha'Niskal. The Mishnah in Sanhedrin (2a) teaches that a Shor that killed is punished with death only in a situation in which, based on such testimony, a person would have been punished with death had the person killed someone. What would be the Halachah in the case of a Shor ha'Niskal that is Chayav Misah out of doubt? If a person is exempt from Misah in such a situation because his Chiyuv is a Safek, then the animal, in such a situation, will be killed mi'Safek, because there is no law of Piku'ach Nefesh that dictates not to kill the animal mi'Safek. If, on the other hand, a person is exempt from Misah out of <i>certainty</i> when his Chiyuv is in doubt, then the Shor ha'Niskal should also be exempt from Misah, just as a person is exempt from Misah.
</p><p>
Why, though, does the Rashbam need to mention this Halachah here? <b>RAV YAKOV KAMINETSKY</b> zt'l (in <b>EMES L'YAKOV</b>) suggests that in the Beraisa, Rebbi Yosi implies that the master who owns an Eved with Kinyan Peros is exempt in <i>all</i> situations, even if he had another Eved which he owned with a Kinyan ha'Guf (and not Kinyan Peros), and he hit both of his Avadim at the same time. Had it not been for the Vadai exemption (learned from the verse of 'v'Hitzilu'), he would have been Chayav Misah, because he definitely killed one Eved that was his full Kinyan (even though it is not known which one it is; see Rashi to Yevamos 101a, DH Chayav).
</p><p>
However, Rav Yosef Engel cites five proofs that this is not correct l'Halachah. First, the Gemara in Kerisus (24a) teaches that when a Shor ha'Niskal is Safek Chayav Misah, it <i>is</i> killed. Second, the Gemara in Sanhedrin (36b) teaches that the law of a Shor ha'Niskal is similar to the law of the Chiyuv Misah of a person only with regard to the requirement to be judged by a Beis Din of 23, and not with regard to the Halachos derived from the verse of 'v'Hitzilu ha'Edah.' Third, the practical difference that Rav Yakov Kaminetzky suggests is not clear because, in that case, the master has a Vadai Chiyuv Misah and not a Safek Chiyuv Misah, and thus 'v'Hitzilu ha'Edah' should not exempt him. Fourth, it is not clear why Rashi should mention 'v'Hitzilu ha'Edah' in the case of the person who throws a stone into a group of people. Why should Rashi need a Vadai exemption in that case, when the exemption mi'Safek suffices? Finally, if this explanation is correct, then the Rashbam and Rashi need a source for their words that there is a Vadai exemption, and yet there is no such source.
</p><p>
Perhaps an alternative answer may be suggested as follows. In a case of Dinei Mamonos in which Beis Din is not certain whether a person is Chayav, there is no reason to take the money away from one person and give it to another. Why should the other person have more rights than the person who is losing the money? Since Beis Din does not know what to do, Beis Din leaves the money with the person who is holding it. In contrast, in cases of Dinei Nefashos and Dinei Malkus, the punishment also serves as a <i>Kaparah</i>, an atonement, for the person. Perhaps even when Beis Din is not certain whether the person is obligated to receive the punishment, he should receive the punishment out of doubt in order to attain Kaparah. Therefore, Beis Din should rule that he is Chayav so that he may receive the punishment, and thus the atonement, out of doubt. Indeed, such a concept exists in the case of a person who is in doubt about whether he ate Terumah or not. He is obligated to pay a Chomesh to the Kohanim, because the Chomesh is a Kaparah (see Tosfos to Kesuvos 30b, DH Zar). In the case of the Gemara here, Rashi understands that Beis Din may punish a person out of doubt, and it is not like Dinei Mamonos. Although Rashi's source for this is not clear, this approach explains the difference between Dinei Mamonos and Dinei Nefashos.
</p><p>
It should be noted that the doubt is not whether or not the person committed a crime. If there would be a doubt about whether or not he did an Aveirah which obligates him to be punished with Misah, it is clear that Beis Din would not punish him out of doubt, because perhaps he did not sin and he needs no Kaparah. Rather, the master who killed the Eved certainly did an Aveirah of Retzichah (as the Rashbam writes on 50a, DH Mipnei). Similarly, in the Gemara in Kesuvos, when a person threw a stone into a group of people in which there were five Jews and five Nochrim and the stone killed a Jew, the person definitely committed a sin since he knew that his action could result in the death of a Jew (as Tosfos there explains, the Gemara follows the opinion that Hasra'as Safek is a valid Hasra'ah).
</p><p>
(c) Rashi himself seems to have been bothered by the question of why a person is exempt from Malkus in cases of Safek. Rashi writes in numerous places that if a person commits a Safek Aveirah, he is exempt from Malkus because he lacks Hasra'ah, proper warning from witnesses, since his Hasra'ah was a Hasra'as Safek (Yevamos 99b, DH Ein Sofgin; see also Rashi to Yevamos 101a, DH Chayav; Chulin 23b, DH Ela d'Rebbi Yehudah; Chulin 80a, DH Tayish ha'Ba Al ha'Tzeviyah, see Insights there; Chulin 86a, DH she'Eino Sofeg; Sanhedrin 89b, DH Dilma, see <b>ARUCH LA'NER</b> there; Shevuos 37a, DH Hezid, see Insights there). When Rashi uses the term 'Hasra'as Safek' in these places, he does not refer to the Machlokes Amora'im in Makos (15b) regarding whether Hasra'as Safek is a valid Hasra'ah. The Gemara in Makos refers to a situation in which it will become clear later whether the Aveirah was transgressed. In contrast, in the case of a Safek Aveirah, it will not become clear later whether or not the Aveirah was transgressed, and thus everyone agrees that the Hasra'ah is lacking, since the transgressor was not warned that what he was doing was a Vadai Aveirah. (In cases of a Safek Aveirah, the transgressor certainly did something wrong, since he knew that he was doing a Safek Aveirah, and therefore he would have been punished had it not been for the fact that it was a Hasra'as Safek, just like the case of the person who threw a stone into a group of people, half of whom were Jews and half were Nochrim.) Rashi's source might be the Gemara in Sanhedrin (89b) which says that when a person eats dates after being warned not to eat them because they might be forbidden (see <b>ME'IRI</b>), he cannot be given Malkus because he did not receive a proper Hasra'ah. The Gemara should have said that he cannot be punished because nobody knows that he sinned. The fact that the Gemara says instead that he is not punished because nobody gave him a proper Hasra'ah implies that one who does a Safek Aveirah does not receive Malkus because his act lacks Hasra'ah.
</p><p>
If Rashi maintains that a person is exempt from Malkus because of Hasra'as Safek, then why does that reason not suffice to exempt a person from Misah as well? A person needs Hasra'ah in order to be Chayav Misah, and thus Rashi should have exempted cases of Safek Nefashos because of the lack of Hasra'ah!
</p><p>
The answer is that in the case of the Gemara here, the person definitely did an Aveirah of Retzichah, for even if he is the true master of the Eved, he is prohibited from killing the Eved. The only question is whether the person is exempted from punishment for his transgression because of the law of 'Yom O Yomayim.' Therefore, the Hasra'ah that is given to him is a Hasra'as Vadai. Similarly, in the Sugya in Kesuvos there also is a Hasra'as Vadai, because when the stone kills a Jew, it is known for certain that an Aveirah of Retzichah was committed (and the Gemara maintains that a person can be punished for an Aveirah which will become known only after the act is done, as Tosfos there writes). (See also Insights to Kesuvos 15:2.)
</p><p>


<font><b>2) THE GROUNDS FOR LENIENCY IN A CASE OF 'SAFEK NEFASHOS'</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case of 'Palga u'Palga' in which the perpetrator cannot be punished because of the principle of 'Safek Nefashos l'Hakel.' <b>RASHI</b> (DH Safek Nefashos) explains that the basis for this principle is the verse, 'v'Hitzilu ha'Edah' (Bamidbar 35:25). The <b>RASHBAM</b> (Bava Basra 50b) also cites this verse as the source for ruling leniently in a case of Safek Nefashos.
</p><p>
Although this verse indeed is used to acquit a person suspected of murder in a case in which there is a possible way to vindicate him, the verse should <i>not</i> be necessary to exempt a person from a Chiyuv Misah in the case of a Safek. In the case of a Safek the reason why the person cannot be punished is simply that Beis Din does not know for certain that he is a murderer! This is the reason for leniency in all cases of Safek Nefashos. Even in cases of monetary matters, Beis Din does not make a person pay money when there is a doubt. Certainly Beis Din may not execute a person when there is a doubt in a case of Dinei Nefashos! Why does Rashi not give this simple reason? (<b>TOSFOS</b> to Bava Basra 50b, DH Safek)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RAV ELCHANAN WASSERMAN</b> Hy'd in <b>KOVETZ SHI'URIM</b> (#223) answers that the Rashbam there (and Rashi here) do not mean that the person is exempt <i>mi'Safek</i>, out of doubt, merely because Beis Din is unsure whether he deserves punishment. Rather, he is <i>Vadai Patur</i> -- he is <i>definitely</i> exempt, as if there were no Safek, because the Torah says that in a case of doubt in Dinei Nefashos the person is <i>definitely</i> exempt from Misah. This is what the verse, 'v'Hitzilu ha'Edah,' teaches. (This is similar to the Torah's Gezeiras ha'Kasuv that a Safek Tum'ah in Reshus ha'Rabim is deemed definitely Tahor.)
</p><p>
Why is it necessary for the Torah to give the person a definite exemption from Misah? Even without a definite exemption from Misah, he would be exempt from Misah because of the general principle that a person cannot be executed out of doubt!
</p><p>
Rav Elchanan Wasserman points out that there are several ramifications of whether he is Patur mi'Safek or Patur b'Vadai. In the case of a Shor ha'Niskal, an ox that must be put to death because it killed a person, the rule (based on a Hekesh) is that the ox is put to death only in a situation in which a person would have been put to death had he committed the same act. In a case where there is a Safek whether the Shor needs to be killed, does Beis Din kill it or not? If a person, in a case of a Safek Dinei Nefashos, is exempt from Misah only because Beis Din cannot administer the Chiyuv Misah out of doubt, then Beis Din <i>could</i> kill the Shor out of doubt because -- in contrast to executing an innocent person -- there is no prohibition of murder involved in killing an innocent Shor if the Shor is not deserving of death. If, however, the Torah teaches that a person is exempt <i>b'Vadai</i> in a case of Safek Nefashos, the Shor should also be exempt because of the Hekesh.
</p><p>
Another difference between whether a person is Patur mi'Safek or Patur b'Vadai is whether the principle of 'Kam Lei bid'Rabah Minei' applies in a case of Safek. The principle of 'Kam Lei' states that when a person becomes liable for two punishments (such as Misah and a monetary payment) at one time, he receives only the larger, more severe punishment. What is the law in the case of a person who becomes Chayav to pay money at the same time that he becomes <i>Safek</i> Chayav Misah? If his exemption from Misah is only because of a Safek, he remains exempt from paying money because Beis Din cannot make him pay out of doubt (because perhaps in truth he really is Chayav Misah, which would exempt him from the payment, and thus the person to whom he owes the money must bring proof that the alleged perpetrator is <i>definitely</i> exempt from Misah). A Safek Chiyuv Misah is enough to exempt him from payment. If, however, he is <i>definitely</i> exempt from Misah, then he should have to pay the money because there is no punishment of Misah, not even mi'Safek, to exempt him.
</p><p>
Perhaps Rashi finds it necessary to mention the verse, 'v'Hitzilu ha'Edah,' because of the question of Tosfos. Tosfos (DH v'Safek) asks that according to the opinion that 'Hasra'as Safek Shmah Hasra'ah' -- a Hasra'ah given to a person who is about to do is a Safek Aveirah is considered a valid Hasra'ah (to make him liable for punishment) -- the person should be Chayav in this case (since it is clear that a Jew was killed, even though the perpetrator was in doubt about who would be killed at the time that he threw the rock).
</p><p>
Rashi may intend to answer this question when he says that since there is a definite exemption of 'v'Hitzilu ha'Edah,' the Hasra'ah here is not considered a Hasra'ah at all since no Aveirah was done, even according to the opinion that Hasra'as Safek normally is a valid Hasra'ah.
</p><p>
(b) This approach, however, is problematic. First, this approach does not explain why the Rashbam in Bava Basra needs to mention the verse of 'v'Hitzilu ha'Edah' in that Sugya. There, it would suffice to say that Beis Din may not punish a person with Misah out of doubt.
</p><p>
Second, in the case of Shor ha'Niskal, why would Beis Din kill the Shor out of Safek? The owner of the Shor has a Chezkas Mamon which should dictate that the Shor not be killed out of doubt, and since it is not killed the owner should be permitted to derive benefit from it. Moreover, even if a man's exemption from Misah is mi'Safek, there is still reason to say that the Hekesh exempts the Shor from Misah in a similar case of Safek, because the Hekesh says that whenever a person is exempt a Shor is also exempt!
</p><p>
Third, the case of 'Kam Lei' also should not be affected by whether the person is exempt mi'Safek or whether he is exempt b'Vadai. According to those who say that one who killed inadvertently (and is thus not Chayav Misah) is nevertheless exempt from monetary payments because of 'Kam Lei,' why is the Gemara's case of a Safek Chiyuv Misah different from a case of one who killed inadvertently? This case also should be treated like a Safek; although he definitely is exempt from Misah, the very fact that he killed should exempt him from paying!
</p><p>
According to the opinion that one who killed inadvertently is <i>not</i> exempt from paying (because that opinion maintains that 'Kam Lei' does not apply when the Aveirah was done b'Shogeg), it is obvious that he should be <i>Chayav</i> to pay even if the exemption from Misah is only mi'Safek because 'Kam Lei' exempts a person from paying only when Beis Din <i>applies</i> a punishment of Misah; it does not exempt him from payment if the Chiyuv Misah cannot be applied in practice.
</p><p>
In the case of the Gemara here, the verse of 'v'Hitzilu ha'Edah' cannot be applied to exempt a person from Misah according to the opinion that Hasra'as Safek is a valid Hasra'ah. 'V'Hitzilu ha'Edah' is only an exemption from punishment when Beis Din is unsure that the person killed someone; it does <i>not</i> make the Aveirah of throwing a rock into a crowd of people any less of an Aveirah if it turns out that it caused someone's death. The Aveirah is the same Aveirah; the perpetrator is just exempt from punishment. Since, in this case, Beis Din knows that his act eventually killed someone, 'v'Hitzilu ha'Edah' cannot exempt him from Misah because the Hasra'ah was a valid Hasra'ah according to the opinion that Hasra'as Safek is a valid Hasra'ah.
</p><p>
Rashi in other places makes similar statements concerning the reason why a person is exempt in a case of Safek. Rashi in Yevamos (99b, DH Ein Sofgin) writes that if a Safek Kohen becomes Tamei for a Mes, he does not receive Malkus because the Hasra'ah was a Hasra'as Safek. Why does Rashi there not say that the reason the person is exempt from Malkus is because Beis Din cannot punish a person when it is not known for certain that he committed a sin?
</p><p>
Rashi makes the same statement about Chiyuv Malkus in a number of places in Chulin (23b, end of DH Ela d'Rebbi Yehudah; 80a, DH Hasra'as Safek; 86b, DH she'Eino Sofeg).
</p><p>
Apparently, Rashi understands that the principle of 'Safek d'Oraisa l'Chumra' (in a case of doubt regarding a Torah law, one must act stringently) is a rule <i>d'Oraisa</i>, as many other Rishonim explain (see Rashba to Chulin 9b, and Shev Shemaitsa 1:1). (This is in contrast to the view of the Rambam, who maintains that 'Safek d'Oraisa l'Chumra' is <i>d'Rabanan</i>. See Insights to Kidushin 73:1, Bava Metzia 7:1, and Chulin 11:3.) In a case of a Safek in a monetary case the law does not require that the person pay mi'Safek, because it is not known for certain that he owes money. The same law should apply in a case of Dinei Nefashos when it is not known for certain that the person killed (for example, there is a doubt about whether this person killed or another person killed). The person is exempt from Misah because Beis Din does not know for certain that he is guilty. However, when the person committed an act which he knew was an act of a Safek Aveirah, perhaps he is considered to have committed a <i>definite</i> Aveirah; the law that a <i>Safek</i> Aveirah mid'Oraisa is forbidden <i>mid'Oraisa</i> may mean that <i>it has the same status as a definite Aveirah.</i> The Mitzvah in the Torah which tells him not to do an Aveirah when it is Vadai is the same Mitzvah that tells him not to do an Aveirah when it is a Safek. Consequently, he should be punished for the Safek Aveirah that he committed (even though it was a Safek at the time he did the act), since he committed an act which he knew was prohibited by the Torah. This is why Rashi writes that in the case of Malkus, the person is exempt from punishment because of Hasra'as Safek, while in the case of Safek Nefashos (the case of the Gemara here) he is exempt because of the verse, 'v'Hitzilu ha'Edah.'
</p><p>
One question is left unanswered. Why does Rashi here need to write the new reason of 'v'Hitzilu ha'Edah' and it does not suffice to say that the exemption is because of Hasra'as Safek? The answer cannot be that there is an opinion that says Hasra'as Safek is <i>not</i> a Hasra'ah, because <i>this</i> type of Hasra'as Safek is not a Hasra'ah according to <i>everyone</i> (even according to Reish Lakish, who says that a normal case of Hasra'as Safek is a valid Hasra'ah). Why, then, does Rashi give a new reason ('v'Hitzilu') and not the reason of Hasra'as Safek?
</p><p>
It seems that Rashi infers from the wording of the Gemara, 'Safek Nefashos l'Hakel,' that the exemption here is a specific exemption in the laws of Dinei Nefashos (and does not apply elsewhere, such as to exempt a person in a case of Malkus). Why, though, does the <i>Gemara</i> itself give a new reason to exempt a person from Misah in the case of a Safek Aveirah? Why does the normal reason of Hasra'as Safek, which exempts a person in a case of Malkus, not suffice to exempt him here as well?
</p><p>
Apparently, the reason of Hasra'as Safek cannot exempt a person from <i>Misah</i> because there is a difference in the nature of the Hasra'os for <i>Misah</i> and for <i>Malkus</i>. Rashi in Shevuos (20b, DH v'Azharasei) writes that the witness who gives the Hasra'ah must mention the verse in the Torah which the sinner is about to transgress. When the witness gives Hasra'ah for Misah, does he also need to mention the prohibition in the Torah which prohibits the act that the person is about to commit? The Gemara in Sanhedrin (8b) says that he must mention only what the <i>punishment</i> for the act is; it does not say that he must mention the specific verse in the Torah which prohibits the act. It could be that in a case of an Aveirah punishable with Misah, the purpose of the Hasra'ah is only to relate what the punishment is, but not to relate the verse that describes the prohibition. The only reason why the witness must mention the prohibition when he gives Hasra'ah for Malkus is that he needs to show <i>where</i> the punishment of Malkus is written in the Torah for the act that the sinner is about to commit. (The Malkus for every Lo Ta'aseh is derived from 'Lo Sachsom.' By mentioning the verse of the Lo Ta'aseh that the person is about to commit, one thereby shows that its Malkus is derived from the Lo Ta'aseh of 'Lo Sachsom.') Since he must mention the verse of the prohibition in the case of a Lo Ta'aseh, and the Aveirah that the person is doing is only a Safek, the verse (which prohibits a Vadai Aveirah) that he mentions for the Hasra'ah does <i>not</i> refer to the act that the sinner is doing (which is a Safek Aveirah). Hence, it is a Hasra'as Safek and the sinner cannot be punished for it. In contrast, when one gives Hasra'ah for a Chiyuv Misah, in which he does not mention the prohibition in the Torah but only the punishment, it is not a Hasra'as Safek because he will certainly get the punishment if he commits the Aveirah! That is why a separate exemption of 'v'Hitzilu ha'Edah' is needed.
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A HUSBAND GETS BACK WHAT HIS WIFE SOLD</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> In Usha they enacted that if
               a woman sold her Melug property (that she brought
               into the marriage, and when she is divorced or
               widowed she gets it back without compensation for
               change in value) in the life of her husband and she
               died, he takes the property from the buyers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Kesuvos 78a (Mishnah):</font></b> Beis Shamai and Beis Hillel
               agree that if property fell to a woman after
               Nisu'in, if she sold it the husband takes it from
               the buyers.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 78b - Suggestion:</font></b> Our Mishnah teaches Takanas Usha!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> No. Our Mishnah teaches that he takes the
               property from the buyers in her lifetime to eat the
               Peros. The enactment of Usha applies to the land
               itself, after she dies.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Kesuvos 18a and Rosh 4:17):</font></b> In Usha they
               enacted that if a woman sold her Melug property in
               the life of her husband and she died, he is Motzi
               (takes) the property from the buyers. We hold that
               he need not pay for it. If the money she received
               for it is around, he must return it. He cannot say
               'perhaps it is a Metzi'ah (money that she found).'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Kesuvos 4:17):</font></b> He takes the property for free,
               for it is as if he bought it first. He does not
               truly 'take' it, for as long as she was alive, he
               had the property and ate the Peros. She sold the Guf
               (permanent rights to it) immediately, and the Peros
               after she dies. Her husband gets back the Guf, and
               keeps it permanently. If the money she received for
               it is around, he must return it. It is theft, since
               it was not a sale.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Even if her husband gave to her
                    land, in which case she acquired it and eats
                    the Peros, if she sold it and died, he takes
                    back the property.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (DH ha'Ishah):</font></b> The Rashba says that he is
                    Motzi the land, i.e. during her lifetime it was
                    not known if she will die first and he will
                    keep it, or if he will die first and the buyer
                    will get it. The Yerushalmi says so. He is
                    Motzi the buyer, i.e. removes him for free. The
                    Rif and Ge'onim concur, for she does not pay at
                    all (Chidushei Anshei Shem - i.e. even if she
                    were alive, she would not pay). We learned that
                    clashes with (married) women are bad. (One who
                    damages them must pay. They cannot pay for what
                    they damage.) The Rashba infers that there are
                    no witnesses that these are the same coins she
                    received. We assume that they are the same. Now
                    that it was revealed that the sale was invalid,
                    the coins were a deposit. If she exchanged the
                    coins, even though what she received for them
                    is in her hands, her husband is exempt. Once
                    she (improperly) used them, they are like a
                    loan. Her husband need not pay her loan, for he
                    inherited from her only Metaltelim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Ritva (brought in Nimukei Yosef Bava Basra 65a
                    DH Sholach):</font></b> If what she exchanged the money
                    for is intact, or if she owned property to
                    which her husband had no rights, the buyer can
                    collect in her life or after her death.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Note:</font></b> The Nimukei Yosef himself (Bava Basra
                    27a, first wide line) holds that the husband
                    cannot take the land until she dies. It seems
                    that the Ritva holds like the Rosh, who says
                    that he gets back the Guf in her lifetime.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Ran (ibid.):</font></b> R. Efrayim says that if she sold
                    with his permission, he cannot take from the
                    buyer, for she was like his Shali'ach. A buyer
                    can impose a Cherem on the husband that he is
                    not scheming, i.e. that he did not know about
                    or benefit from her sale.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 22:7):</font></b> A husband eats all
               Peros of all his wife's property, Nichsei Melug and
               Nichsei Tzon Barzel, in her lifetime. If she dies in
               his lifetime, he inherits everything. Therefore, if
               she sold her Nichsei Melug after Nisu'in, even if
               the property fell to her before Eirusin, her husband
               takes the Peros from the buyers all her lifetime. He
               does not take the land itself, for the Guf of
               Nichsei Melug is not his until she dies. If she died
               in his lifetime, he takes the property from the
               buyers for free. If the money she received for it is
               around, he must return it. He cannot say 'perhaps it
               is a Metzi'ah.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (5):</font></b> The Gemara says that
                    Takanas Usha enables him to take the land
                    itself after she dies.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 90:9):</font></b> If a woman sold her
               Nichsei Melug after Nisu'in, even if the property
               fell to her before Eirusin, her husband takes the
               Peros from the buyers all her lifetime for free. He
               does not take the land itself. If she dies in his
               lifetime, he takes the land itself for free.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> In any case the buyer gets no Peros.
                    What does it help to have the land itself?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Prishah and Drishah 34):</font></b> It helps
                    for Pruzbul. (We write a Pruzbul only if the
                    lender, borrower or Arev owns land.) It also
                    helps in a case when there is a Safek whether
                    the husband or wife died first (the one holding
                    the land keeps it until the other side brings
                    proof). We cannot say that it helps for the
                    right to spread out produce or live on the
                    land. This is included in eating Peros. The
                    Rema rules like the Nimukei Yosef, who says
                    that the buyer can protest against building or
                    destroying. This is because he holds like the
                    Rambam, who say that the buyer keeps the Guf
                    until she dies. According to the Rosh, the
                    husband holds the land, so the buyer cannot
                    protest, just like she could not protest had
                    she not sold it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Chelkas Mechokek 27,30):</font></b> In any case
                    the buyer can protest. He is in place of her.
                    She could protest even had she not sold it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Beis Shmuel 36):</font></b> In any case the
                    buyer can protest, for perhaps the husband will
                    die first and the buyer will get the land. If
                    we are unsure who died first, all agree that
                    Nichsei Melug go to her heirs (in this case,
                    the buyer).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer #2 (Bach Kuntres Acharon DH Kivan):</font></b> What
                    forced the Prishah to say that having the land
                    helps for these? Surely it is useful for
                    acquiring Metzi'os on it, acquiring through
                    Meshichah (taking something to one's Reshus),
                    acquiring a Get, Bar Meitzra (when one sells
                    land, his neighbors have first right to buy)...
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Answer #3 (Prishah 37):</font></b> If the buyer has the
                    land itself until she dies, he does not get his
                    money back until then.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that even in her lifetime he takes
               the land itself for free.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If the very money she
               received for it is around (Rema - or if money was
               found in her possession and we can attribute it to
               this), he returns it to the buyer. He cannot say
               'perhaps it is a Metzi'ah.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (28):</font></b> Since the sale was invalid, the money
                    is like theft, like it says in Gitin (44b,
                    regarding one who sold a field in Yovel).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (38):</font></b> If she used to buy and sell
                    in the house, he can say that it is his money.
                    Poskim argue about whether or not a husband
                    must pay loans that his wife took before
                    Nisu'in, but all exempt him from what she
                    borrowed after Nisu'in.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH u'Mah she'Chosav Rabeinu):</font></b> R.
                    Efrayim says that even if her husband admits
                    that he has the money, he need not return it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Bach (DH u'Mah she'Chosav Rabeinu):</font></b> Why does R.
                    Efrayim exempt? Perhaps he can tell the buyer
                    'perhaps you knew that I will take the
                    property, so you intended for a gift, like one
                    who is Mekadesh his sister, according to
                    Shmuel.' The buyer cannot take the money
                    without disproving this. However, all the
                    Poskim disagree.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> If she became widowed or divorced, her sale is
               valid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Beis Shmuel 39):</font></b> Why is the sale
                    valid? One cannot sell Davar she'Lo Ba l'Olam,
                    i.e. what is not yet in his Reshus! The
                    Yerushalmi says that the sale is valid, for it
                    holds that the husband cannot take the land
                    (now).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chelkas Mechokek (29):</font></b> Even according to the
                    Rosh, who say that her husband had the land in
                    her lifetime, if she was widowed or divorced,
                    the sale was valid retroactively.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Perhaps this answers the Beis Shmuel's
                    question. The Rosh agrees that retroactively,
                    the Guf was in her Reshus at the time.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> During her entire lifetime, if her husband
               wants to build or destroy the land, the buyer can
               protest.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (7):</font></b> The Nimukei Yosef (Bava Kama
                    Sof 31b and Bava Basra Sof 27a) says that the
                    same applies if she sold Nichsei Tzon Barzel.
                    The sale does not take effect until she is
                    widowed or divorced. Since the sale can take
                    effect, if her husband wants to build or
                    destroy the land, the buyer can protest. The
                    Rosh (Teshuvah 40:2) says that if she sold and
                    her husband was quiet, he did not forfeit his
                    rights.<p>


lvr: 43
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yosi is in doubt whether or not Kinyan Peros
                    (labor) is like Kinyan ha'Guf (therefore, we do
                    not kill either master);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Elazar says, it does not apply to Reuven (for
               the slave is not his property) nor to Shimon (for
               the slave is not working for him);
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rava):</font></b> What is R. Elazar's reason?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> 'Lo Yukam Ki Kaspo Hu' - he must
               be entirely the property of the owner.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> (Likewise, since Melug property is not entirely
               the property of the husband or wife, neither can
               sell it.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CHAZAKAH IN A PROPERTY OF A MARRIED WOMAN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A man does not get a Chazakah in his wife's
          property...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Rav taught that a married woman must protest
          (against someone on her property)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Against whom must she protest?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> She must protest against another
                    man.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> Rav taught that one cannot make
                    a Chazakah in the property of a married woman!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, she must protest against her
               husband. (If she does not, he gets a Chazakah in her
               property!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Answer #1 (and Answer #2 to Question b:1 - Rava):
          Really, she must protest against her husband. The case
          is, he was digging pits in her property. (Since his right
          to eat the Peros does not allow him to dig pits, this
          proves that he bought it from her.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Rabah taught that there is no Chazakah
               regarding damages!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> He meant that the usual three years of
               Chazakah are not needed for one who damages property
               (rather, he gets a Chazakah immediately. If someone
               else owned it, he would protest immediately!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2:</font></b> He meant that one is never Muchzak to
               do something that is very damaging to his neighbor:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Mari):</font></b> One is never Muchzak to make smoke
                    enter his neighbor's property;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Rav Zvid):</font></b> One is never Muchzak to use an
                    area as a bathroom if the stench will reach his
                    neighbor.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Yosef):</font></b> Really, Rav meant that a married
          woman must protest against another man;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, the man used her field for some time
               before her husband died, and for three years after
               her husband died;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Migo he would be believed to say that he bought
               it from her, he is believed to say 'you sold it to
               your husband, and I bought it from him.'
<br>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHAZAKAH IN A WIFE'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> One cannot make a Chazakah in the property of a
          married woman!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Judges of Chutz la'Aretz):</font></b> He can make a Chazakah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav):</font></b> The Halachah follows the judges of Chutz
          la'Aretz.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rav Kahana and Rav Asi (to Rav):</font></b> Did you retract?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rav:</font></b> No. Presumably, they discuss the case of Rav
          Yosef.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CHAZAKAH IN A HUSBAND'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A woman cannot make a Chazakah in her
          husband's property...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious! He allowed her to use the
          field because he must feed her!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he designated another field from
          which she will be fed.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Inference:</font></b> She does not get a Chazakah in his property,
          but if she can prove that he sold it to her, she gets it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't he say 'I only pretended to sell it
          in order to get her to show the money that she took from
          me (and I took back my money)!'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This teaches that if one sells to his
               wife, she acquires, and he cannot say that he only
               pretended to sell it in order to get her to show the
               money that she took from him!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No, perhaps she gets his property only if she
          can prove that he gave it to her (for free. Then, he
          cannot say that he only intended to get her to show
          money.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If one sells to his wife, she acquires.
          He cannot say that he intended only to get hr to show the
          money that she took from him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (Rav Huna):</font></b> This is obvious! She acquires
          through the document of sale, even without the money (so
          he cannot say that wrote the document in order to get her
          to show the money)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Land is acquired through money, a
               document or Chazakah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Shmuel taught that a document by itself
          acquires a gift, but a sale is not final until the money
          is given.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> This law was challenged!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rav Hamnuna - Beraisa):</font></b> A document to
               acquire land: he writes on paper or pottery, even if
               it is not worth a Perutah, 'my field is sold or
               given to you.' The field is sold or given (even
               without the money)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Hamnuna himself answered that!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer #1 (Rav Hamnuna):</font></b> The Beraisa discusses a
               field sold due to its low quality. (Rav Nachman's
               law needed to teach about a normal field, which is
               not acquired until the money is given.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> The document says 'sold and
               given.' The original owner wanted to give it for a
               gift. He also wrote 'sold' to accept Acharayos (to
               compensate the receiver if the land will be taken).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven borrowed from his slave
          and freed him, or borrowed from his wife and divorced
          her, the freed slave or ex-wife has no claim against him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He can say 'I only pretended to borrow in
               order to get him or her to show the money that  he
               or she took from me!'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, we say this regarding a loan, for
          people are very reluctant to borrow (so it is unlikely
          that he truly borrowed) - 'Eved Loveh l'Ish Malveh';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Regarding a sale, we assume that the sale is
               valid.)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rav Huna bar Avin):</font></b> If one sells a field to his wife,
          she acquires. The husband eats the Peros.
<br>
<br>

sjt:
<font><b>1) A GIFT GIVEN WITH A GUARANTEE</b></font><b>
<br>QUESTION:</b> Rav Ashi states that a husband who gives a field to his wife as a gift may include in the Shtar wording that indicates that the field was sold, in addition to wording that indicates that he gave it to her as a gift. This double formula grants his wife certain advantages. Writing that the field was sold to her gives her the rights of compensation if a third party comes and confiscates it from her (such as the creditor of the husband). The husband will be required to reimburse the woman for the lost field, just as a seller must reimburse a buyer. The <b>RASHBAM</b> explains that writing that the field was given to her as a gift gives her the rights to keep the land even against the protest of a 'Bar Metzra.' Normally, when a land-owner wants to sell his field, the immediate neighbor ('Bar Metzra') has priority status and is entitled to buy the field before any other potential buyer. However, if the field is given as a gift to someone else, the neighbor does not have the right to protest and insist that he be allowed to buy the land.
</p><p>
<b>TOSFOS</b> (DH v'Lamah) questions this explanation of the advantage of writing in the Shtar that the field was given as a gift. The Gemara in Bava Metzia (108b) states that when a person gives a field as a gift with 'Achrayus,' a guarantee that the benefactor will replace the field if it is legally confiscated from the recipient, it is considered a sale with regard to the law of 'Bar Metzra.' Consequently, the neighbor maintains the right to purchase the field before it is given away! In Rav Ashi's case, the field was given to the wife with 'Achrayus,' and thus law of 'Bar Metzra' still should apply. Why does the Rashbam say that it does not apply?
</p><p>
<b>ANSWER:</b> The <b>RITVA</b> answers that the reason why the law of 'Bar Metzra' still applies when land is given as a gift with 'Achrayus' is that Beis Din suspects that the original owner actually intends to <i>sell</i> the field (and that is why the recipient demands a guarantee). However, he fictitiously writes in the Shtar that the transaction is a gift in order to prevent his neighbor from claiming entitlement as the 'Bar Metzra.' In Rav Ashi's case, however, Beis Din is certain that the husband is giving the field to his wife as a genuine gift, even though a clause of 'Achrayus' is written in the Shtar. Hence, the law of 'Bar Metzra' does not apply.
</p><p>
The Ritva points out that this answer explains why Rav Ashi states, 'He wanted to give it to her as a gift.' Rav Ashi implies that the husband's intentions were genuine and he sincerely meant to give the field as a gift. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DEPOSITS THAT MAY HAVE BEEN STOLEN</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> The Halachah is, if one sells a field to his
               wife, she does not acquire. He eats the Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Saying that he eats the Peros (in the case
               of a sale) implies that she acquires, but Rava said
               that she does not acquire!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> If he had not seen her money (he only
               pretended to sell in order to get her to show the
               money she took from him) she does not acquire. If he
               had seen her money, she acquires, but he eats the
               Peros.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Beraisa):</font></b> We do not accept deposits from a
               (married) woman, slave or child. If Reuven took a
               deposit from a woman or slave, he returns it to him
               or her. If the woman or slave died, he returns it to
               the Ba'al (husband or owner);
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If he took a deposit from a child, he sells it and
               buys a Segulah. If the child dies, he gives the
               Segulah to the child's heirs.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> A Segulah is a Sefer Torah (for one
               may sell it only to get married).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rabah bar Rav Huna):</font></b> It is a date tree from which
               he eats dates.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> We do not accept deposits from a woman, slave
               or child. If Reuven took a deposit from a woman or
               slave, he returns it to him or her. If the woman or
               slave died, he returns it to the Ba'al. If he took a
               deposit from a child, he sells it and buys a
               Segulah. If the child dies, he gives it to the
               child's father.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Ein):</font></b> We are concerned lest
                    they stole,. Accepting a deposit aids the
                    thief. She is believed to say that money she
                    has was given to her for a gift. The Yerushalmi
                    says that they enacted that he receives her
                    Metzi'os, lest she steal from him and say that
                    she found a Metzi'ah. It asked, perhaps she
                    will steal and claim that she received a gift!
                    The Ri and Ritva say that she is believed to
                    say that the gift was on condition that her
                    husband has no rights in it, even for Peros.
                    Our Gemara supports this, for we return it to
                    her (without informing her husband - Hagahos
                    me'Eretz Yisrael, based on Tosfos). If Reuven
                    returned to the minor and it was lost, he is
                    exempt. He should make a Segulah for Hashavas
                    Aveidah, to be Yotzei Yedei Shamayim. One may
                    give to the minor's overseer. The Rashba says
                    that if the child reached the age of Pa'utos
                    (six to 10, depending on his sharpness), we
                    return to him, for he may buy and sell
                    Metaltelim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 22:32):</font></b> We do not accept
               deposits from a woman, slave or child. If Reuven
               took a deposit from a woman or slave, he returns it
               to him or her. If the woman or slave died, he
               returns it to the Ba'al. If he took a deposit from a
               child, he sells it and buys a Sefer Torah, or
               something from which he will eat the Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (70):</font></b> Ra'avan says that if
                    the Ba'al (or father) demanded it, we return to
                    him, for a Ba'al acquires what his wife or
                    slave acquires and what his child finds. If
                    Reuven returned it to the Ba'al, the Ba'al need
                    not return it, and she has no claim against
                    Reuven. If she sold something and the Ba'al
                    says that she stole it, the buyer keeps it for
                    Takanas ha'Shuk (lest people fear to buy). The
                    <b><b><b>RI</b></b></b> says that the Ba'al may not take it from
                    Reuven, but if he did, he keeps it, for the
                    Gemara did not teach the Chidush that he must
                    return it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh (Hilchos She'elah 7:10):</font></b> The
                    Rashba says that the Rambam means that he may
                    <i>even</i> return to the depositor. He does not
                    forbid to return to the Ba'al.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rivash (50):</font></b> Even if she does business in the
                    house, Reuven returns to where he received
                    from, i.e. her. The Rambam and Ramban say that
                    she is not believed without a proof to say that
                    money she holds is hers. Even so, they say that
                    one returns to her. Her husband can claim
                    against her that he has rights to Peros.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question (Chelkas Mechokek EH 86:6):</font></b> What is 
                    his proof from the Rambam and Ramban? They do
                    not discuss a woman who does business in the
                    house! Surely, if the husband does not protest,
                    we need not be an overseer for him, but the
                    Rivash connotes that even if he protests, we
                    return to her! This is astounding.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Defense (Gra 6):</font></b> The Rivash learns from the
                    Gemara, which says that if the slave died, we
                    return to his master.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Chazon Ish (EH 72:20):</font></b> The Gra holds that the
                    slave is not believed when his master claims
                    (that he stole), for if not, we would not
                    return to the master even after the slave died.
                    However, Tosfos believes the slave against his
                    master's claim, yet says that we return to the
                    master after the slave died! Perhaps the Gra's
                    proof is like the Rambam and Ramban.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Chazon Ish:</font></b> Tosfos holds that we return to the
                    slave even if the master protests. If the slave
                    died, the master is believed, for no one else
                    claims it. As long as the slave is alive, even
                    if he was freed, and he is Muchzak in the
                    money, he has authority over it, even if it was
                    another's. Reuven holds it for the slave. The
                    Rashbam connotes that after he dies, the master
                    gets it, even if the slave fathered a child
                    after he was freed. Why doesn't his heir
                    inherit his right to the money? If the money
                    was given for freedom, the heirs do not get it
                    for it was not their father's, even though he
                    was like a borrower of Shomer on the money. The
                    Ra'avan holds that it returns to the slave's
                    heirs.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Beis Yosef (EH 86 DH Kasuv bi'Teshuvas):</font></b> The
                    Rashba (906) says that if one bought from her
                    husband with hidden money, she does not
                    acquire, for he merely induced her to reveal
                    the money. However, he only eats the Peros. He
                    may not seize the money entirely for himself.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> If she died, we return to him, for even
               if a gift was given on condition that he has no
               rights to it, he inherits it. We return a slave's
               deposit to the slave. We suppose that it was
               deposited with him, or it was given (to redeem him,
               i.e.) on condition that he go free through it. If he
               dies, it goes to his master, for presumably he took
               it from there, but while alive he was believed to
               say that it was a deposit or for freedom. Therefore,
               even if he died after he was freed, it goes to his
               master. If a divorced woman died, it goes to her
               heirs.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 86:1):</font></b> We do not accept deposits
               from a married woman. If Reuven took a deposit from
               her, he returns it to her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Piresh Rashbam):</font></b> The Rashbam
                    says that we do not return it to her husband,
                    for we do not establish her to be a thief.
                    After the slave dies, we return it to his
                    master, for presumably he acquired whatever his
                    slave acquired.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chelkas Mechokek and Beis Shmuel (1):</font></b> Perhaps
                    she stole, and if we do not take from her,
                    perhaps she wil return it to her husband.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH Kosav ha'Rivash):</font></b> The Rivash
                    (50) says that this is even if she does
                    business in the house.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If she went overseas, and her husband came and
               demanded it from Reuven and said that his wife stole
               it from him, I think that he does not give it to him
               until she comes or dies.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Shmuel (4):</font></b> This is unlike the Rambam, who
                    says that one may return it to her husband. Or,
                    perhaps the Rambam does not say so when he
                    claims that she stole it and wants to keep it
                    for himself.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If she did not say anything, and died (he
               gives to her heirs).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some say that if she does
               business in the house, she is not believed to say
               that the money is Ploni's.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> However, as long as she is alive, we return to
               her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (6):</font></b> This is astounding! Since
                    her husband can say that it is his, why do we
                    return to her without a proof? He should have
                    written that if the husband does not protest,
                    we return to her.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema:</font></b> However, if he returned to her husband, he is
               exempt, even if she does not do business in the
               house.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (7):</font></b> The Mordechai (Bava Basra
                    546) was unsure about this. He leaned to exempt
                    Reuven, but the money is Nichsei Melug, just
                    like if she bought from him with hidden money.
                    If the money was not hidden, all agree with the
                    Rambam (that it is Nichsei Melug).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (8):</font></b> The Poskim other than the
                    Rambam hold that he can totally take hidden
                    money. However, this is like a Shali'ach who
                    paid a debt and did not take back the document.
                    The borrower claims from the Shali'ach, and the
                    Shali'ach claims from the lender. Here also,
                    she claims from Reuven, and Reuven claims from
                    her husband. However, perhaps here she has no
                    claim against Reuven, unless the money was
                    exposed, for then she can say that it was
                    totally hers.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DO WE HEED THE COMMAND OF A DEPOSITOR SUSPECTED OF THEFT? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(R. Aba, R. Avahu and the greatest Chachamim of the
          generation):</font></b> He really gave it for a gift (therefore, she
          eats the Peros). He wrote an expression of a sale to
          accept Acharayos (to compensate the receiver if the land
          will be taken).
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven borrowed from his slave
          and freed him, or borrowed from his wife and divorced
          her, the freed slave or ex-wife has no claim against him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He can say 'I only intended to get him or
               her to show the money he or she took from me!'
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> We say so only regarding a loan, for 'Eved
          Loveh...' (but we assume that a sale is valid).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHO EATS THE PEROS OF A GIFT TO HIS WIFE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If one sells a field to his wife, the sale is
          valid. He eats the Peros (like from any of her fields);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he gave to her a gift, the gift is valid and
               she eats the Peros. (This is an exception to the
               general rule that he eats the Peros of her
               property);
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> In both cases (sales and gifts), she
          acquires and she eats the Peros.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A case occurred, and Rav Chisda ruled like R. Elazar.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Ravna Ukva and Ravna Nechemyah:</font></b> Why did you rule like
          the smaller Chacham against the greater (Rav, R. Elazar's
          Rebbi)?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rav Chisda:</font></b> R. Yochanan agrees with R. Elazar. He is as
          great as Rav.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ravin citing R. Yochanan):</font></b> In both cases, she
               acquires and she eats the Peros.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah is, if one sells a field to his
          wife, she does not acquire. He eats the Peros;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he gave to her a gift, she acquires and she
               eats the Peros;
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Saying that he eats the Peros (in the case of
          a sale) implies that she acquires, but Rava said that she
          does not acquire!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> If he had not seen her money (he only pretended
          to sell in order to get her to show the money she took
          from him) she does not acquire;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he had seen her money, she acquires, but he
               eats the Peros (like Rav).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If he had not seen her money, she
               does not acquire. If he had seen her money, she
               acquires.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DEPOSITS THAT MAY HAVE BEEN STOLEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We do not accept deposits from a (married)
          woman, slave or child (perhaps he or she stole it from
          his or her husband, owner or father);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven took a deposit from a woman or slave,
               he returns it to him or her. If the woman or slave
               died, he returns it to the husband or owner;
<br>

<p>

sjt:
</p><p>
<font><b>2) A DEPOSIT DELIVERED BY A MINOR</b></font><b>
<br>QUESTION:</b> The Gemara states that one may not accept an item as a deposit from a woman, slave, or minor, because of the fear that he or she might have stolen the item. The <b>RASHBAM</b> (DH Lo) explains that the reason one may not accept a deposit from a minor is because he might have stolen it from the owner of the house in which he lives.
</p><p>
The Gemara continues and says that if, b'Di'eved, one accepted a deposit by mistake from a minor, the recipient who is holding the item may not return it to the minor, because the minor is not considered mature and responsible enough to take care of the item. Instead, the recipient should invest the money on behalf of the minor. If the minor dies before he reaches adulthood, the deposit must be returned to his heirs.
</p><p>
Why does the Rashbam not explain that the minor stole from his <i>father</i>? Similarly, why does the Gemara not say that if a deposit was accepted from a minor and the minor died, the deposit should be returned to his <i>father</i>?
</p><p>
<b>ANSWER:</b> The <b>PNEI SHLOMO</b> cites <b>TOSFOS</b> (52a, DH Kibel) who explains that the reason why the value of the item deposited must be invested for the minor is because it may be assumed -- once the deposit has already been accepted -- that the minor found the item in the street and it legitimately belonged to him (we do not make this assumption l'Chatchilah and permit a person to accept a deposit from a minor, because of the possibility that it might be stolen). We can infer from Tosfos that it is unlikely that someone gave the item to the minor as a gift. This is because it is uncommon to give a gift of value to a child, since it is probable that he will lose it. Therefore, there are two possible sources for the origin of an item in the possession of a child: either he stole it from the house in which he lives, or he found a lost article. Consequently, if the Gemara would be referring to a minor who is living in his father's home, then any articles in his possession would belong to his father -- either because he stole it from his father, or because of the law that states that any lost article that a minor finds automatically belongs to his father (see Bava Metzia 12a). The Gemara cannot be discussing a minor who lives in the home of his father, because the law, then, would always require the item to be returned to the minor's father, regardless of whether or not the minor is still living. This is also why the Rashbam explains that the minor have stolen the item 'from the house in which he lives,' and does not explain that he may have stolen it from his father. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DEPOSITS THAT MAY HAVE BEEN STOLEN (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Continuation of Beraisa):</font></b> If he took a deposit from a
          child, he sells it and buys a Segulah (something that
          yields fruits and the principal remains intact, like we
          will explain);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the child dies, he gives the Segulah to the
               child's heirs.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If the woman, slave or child said just before dying 'it
          belongs to Ploni', we give it to Ploni;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven does not believe this, he gives it to
               the husband, owner or father.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	When the wife of Rabah bar bar Chanah died, she said
          'these rings belong to Marsa and his grandsons.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Rav (to Rabah bar bar Chanah):</font></b> If you
          believe her, do like she said. If not, keep them for
          yourself.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 - Rav:</font></b> If you think that Marsa and his
          grandsons are wealthy enough to deposit such rings with
          your wife (alternatively, if you think that your wife had
          friends who would give her such rings for a gift (on
          condition that you have no rights to them), do like she
          said. If not, keep them for yourself. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one took a deposit from a child, he sells
          it and buys a Segulah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is a Segulah?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chisda):</font></b> It is a Sefer Torah. (One may
          sell it only to get married.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rabah bar Rav Huna):</font></b> It is a date tree from
          which he eats dates. .
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CHAZAKAH IN PROPERTY OF RELATIVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A father does not get a Chazakah in his
          son's property, nor vice-versa.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> This applies even if the son is
          independent of his father (for one would not protest if
          the other used his property).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> If the son is independent of his father, they
          can get a Chazakah against each other.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Yirmiyah mi'Difti):</font></b> A case occurred, and Rav Papi
          ruled like Rava.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Nachman bar Yitzchak):</font></b> I heard that Rav Nachman
          held like Rava.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Halachah follows Rava.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> If a son was independent of his
          father, or a woman was divorced, he or she can get a
          Chazakah in the property of his or her father or ex-
          husband, like a stranger.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A BROTHER WHO RAN THE ESTATE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Yakov died, and Reuven (one of the orphans) used to buy
          and sell property of the estate on behalf of all the
          brothers. There were documents saying that he bought
          property or lent money. He claims that they belong to him
          himself, from money he inherited from his mother's
          father.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> He must bring proof. (If not, we assume that the
          property or loans belong to all the brothers.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> His brothers must bring proof (if not, he is
          believed).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> Rav admits that after Reuven dies, his
               brothers must bring proof.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rav Papa):</font></b> Do we claim on behalf of
               Reuven's orphans something that he himself could not
               claim (that the brothers must bring proof)?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rava took combers' scissors and a Sefer of
                    Agadeta from orphans (of Ploni), for these are
                    things that are normally lent or rented;
<br>
<br>

sjt:
<font><b>1) AN OBJECT DEPOSITED BY A MINOR</b></font><b>
<br>OPINIONS:</b> The Gemara states that one who received an item as a deposit from a minor should not return it to the minor, but rather he should sell the object and invest the money on behalf of the minor. The Gemara later states that this investment should be either a Sefer Torah or a palm tree, in order to preserve the minor's capital.
</p><p>
The Gemara continues and says that if a woman, slave, or minor deposited an object with someone to watch, and then the woman, slave, or minor specified on his or her deathbed to whom the object belongs, he or she is believed and the deposit should be handed over to the named owner.
</p><p>
(a) The <b>RASHBA</b> comments that the reason why an investment is made for the minor (and the object itself is not returned to him) is not that the child is not considered mature enough to take care of the object, but rather the one holding the object has an obligation 'b'Yedei Shamayim' to perform the Mitzvah of returning the lost object in the best possible way. If he returns the object to the minor, he would not be obligated to compensate the minor for the loss if the minor later loses the object. In order to ensure that the minor receives and retains his property, it is invested for him and returned to him when he reaches adulthood.
</p><p>
The Rashba continues and says that the Gemara's statement that one should invest the money refers only to the money of a very small child, such as a child below the age of six, or one who has no idea of the meaning of buying and selling (see Gitin 59a). If, however, the child has already reached the age at which he understands the meaning of buying and selling, then the deposit should be returned to him because at this age children are actively encouraged to start learning about trade and are given objects with which they can trade. When a minor has reached the age at which he understands the meaning of buying and selling, his transactions of buying and selling are valid.
</p><p>
(b) The <b>RASHBAM</b> (DH Kibel) seems to disagree with the Rashba. He states that the reason why one should not return a deposit to a minor is that doing so is considered equivalent to throwing the object away, since the child does not know how to take care of the object. It seems that, according to the Rashbam, Beis Din may even force the guardian of the object to purchase an investment for the minor.
</p><p>
Also, the Rashbam states that even a minor is believed on his deathbed to identify the owner of the object. The <b>KOVETZ SHI'URIM</b> (#235) proves from this statement that the Rashbam does not agree with the Rashba. Since a minor under the age of six is not believed to identify the owner of the deposited object, the Gemara must be discussing a minor over the age of six. Hence, when the Gemara discusses investing the money of a minor, it must refer to investing the money of a minor over the age of six. The reason for this must be that even though the child at this age is capable of buying and selling, one should not rely on him to take care of objects until he reaches the age of adulthood (i.e. 13 for a male, 12 for a female). (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DO WE HEED THE COMMAND OF A DEPOSITOR SUSPECTED OF THEFT?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 51b (Rava):</font></b> The Halachah is, if one sells a field to
               his wife, she does not acquire. He eats the Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Saying that he eats the Peros (in the case
               of a sale) implies that she acquires, but Rava said
               that she does not acquire!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> If he had not seen her money (he only
               pretended to sell in order to get her to show the
               money she took from him) she does not acquire. If he
               had seen her money, she acquires, but he eats the
               Peros.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Beraisa):</font></b> We do not accept deposits from a
               (married) woman or slave or child. If Reuven took a
               deposit from a woman or slave, he returns it to him
               or her. If the woman or slave died, he returns it to
               the Ba'al (husband or owner). If he took a deposit
               from a child, he sells it and buys a Segulah (Sefer
               Torah or date tree). If the child dies, he gives the 
               Segulah to the child's heirs.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If the woman, slave or child said just before dying
               'it belongs to Ploni', Reuven does like he
               specified. If not, he gives it to the husband, owner
               or father.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> When the wife of Rabah bar bar Chanah died, she said
               'these rings belong to Marsa and his grandsons.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Version #1 - Rav (to Rabah bar bar Chanah):</font></b> If you
               believe her, do like she said. If not, interpret her
               command.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Version #2 - Rav:</font></b> If you estimate that they are
               wealthy enough, do like she said. If not, keep them
               for yourself. (end of Version #2).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> We do not accept deposits from a woman, slave
               or child. If the woman, slave or child said what to
               do with it just before dying, Reuven does so. Some
               say that he interprets the command.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Perush):</font></b> 'Interprets the
                    command' means that they were ashamed to say
                    that they stole it. Therefore, the Ba'al
                    (husband, master or father) may keep it unless
                    Ploni brings a proof that it is his or swears.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Beis Yosef CM 86 DH v'Chosav
                    Nimukei):</font></b> Why is he believed to swear that it
                    is his? I did not see any Poskim say so.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Nimukei Yosef (DH Iy):</font></b> 'If you estimate that
                    they are wealthy enough' means that Ploni is
                    wealthy enough to give such a deposit.
                    Alternatively, it means 'if your wife has so
                    much money over which you have no Reshus in
                    it.' We assume that she wants to give a gift to
                    Ploni.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (3:55):</font></b> The text of Bahag and is '(if the
               depositor said what to do with it...) Reuven does
               so. If not, he interprets the command.' The Rashbam
               explains this like the case of Rabah bar bar
               Chanah's wife. If Reuven does not believe the
               depositor, or he is not estimated to be so wealthy,
               he interprets the command and returns to the owner.
               According to the Rif's text, the two versions argue
               about one who is estimated. The first version
               believes him, since he is estimated. Or, they argue
               about when he is not estimated, and Rav ruled like
               the latter version. The Ge'onim say that the first
               version is always primary. The majority say so, but
               some say differently. It is proper to explain the
               first way, so that Rav is like the first version.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif (Bava Metzia 25a):</font></b> If Reuven believes the
               command, he follows it. If not, he interprets the
               command. Some say that if he is estimated, he
               follows the command. If not, he interprets the
               command.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 22:32):</font></b> We do not accept
               deposits from a woman, slave or child. If when the
               depositor was about to die, he said 'the deposit is
               Ploni's', if he (Reuven) normally believed him, he
               follows the command. If not, he gives it to his (the
               depositor's) heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ri mi'Gash says that this is
                    when she died and her husband inherited her and
                    he gives. In her lifetime, it says that we
                    return to her. Since she gives, he cannot
                    protest. The same applies when a slave or child
                    deposited.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid.):</font></b> If Reuven took a deposit from a woman,
               and she said 'give it to Ploni', she is believed due
               to a Migo. She could have taken it back and given it
               to him. We distinguish between whether or not she is
               believed in a case like Rabah bar bar Chanah's wife,
               who was about to die. She had no Migo, for she could
               not give it to him. Even if her husband says 'it is
               mine', Reuven does not return it to her husband. If
               the Halachah wefre that he returns it, the Beraisa
               would have taught that we inform her husband.
               Normally, what a woman has came from her husband's
               house. If he said that it is his, we would return it
               to him. Rather, even if he says that it is his, we
               give it to her. If he seized it from her, Beis Din
               does not return it to her. She is not believed to
               say that it is Ploni's. We learned that if one
               borrowed from his wife and divorced her, she has no
               claim against him. If she were believed to say that
               it is Ploni's, she would be believed to say that it
               is hers, Migo she could say that it is another's
               deposit. She need not say who deposited it. It would
               remain with her forever. The Ri says so. R. Shimshon
               asked, if so, why does she acquire (what he sold to
               her) with exposed money? She does not acquire with
               hidden money, for he can say that he intended to get
               her to reveal it. Even if it was exposed, he can say
               that he intended to get it from her! He answered
               that if her husband seized exposed money, Beis Din
               returns it to her. If he seized hidden money, Beis
               Din returns it to him. We say that he does not owe
               her what he borrowed from her, i.e. if the money was
               hidden. If she does business in the house, she is
               not believed to say that the money is hers or of
               Ploni (52b). The same applies if she does not do
               business in the house, but her husband deposits
               everything with her.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 86:1):</font></b> We do not accept deposits
               from a married woman. If Reuven took a deposit from
               her, he returns it to her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If she said 'it is Ploni's', she is believed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Shmuel (3):</font></b> The Rambam holds that there is
                    a Chazakah that whatever she has is Nichsei
                    Melug. She is not believed to say that it was 
                    given to her on condition that her husband has
                    no rights in it. The Tur brings other Poskim
                    who say that she is believed. Here, the Rambam
                    could admit that she is believed, Migo she
                    could take it and give it to Ploni. However,
                    why do we return to her when she does business
                    in the house? We must say that she has no Migo,
                    for we inform the husband! If so, we have no
                    source why the Rambam should admit.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chazon Ish (Kesuvos 72:18 DH Sham Sa'if):</font></b> Even
                    though If we inform the husband because we are
                    concerned that she is hiding it from him, we
                    should inform him before returning it to her!
                    What does it help to inform him afterwards? She
                    can hide it immediately, or claim that she gave
                    it to her husband! Rather, whenever we return
                    it to her we need not inform the husband, for
                    we do not assume that she hides from him.
                    However, perhaps it is not a Migo to say that
                    it is Ploni's, like I wrote in Sa'if 16.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chazon Ish (16):</font></b> Even though Stam we believe
                    her to give it to Ploni, if her husband demands
                    from Reuven, her husband gets it. Likewise, her
                    husband can claim it from Ploni. There is no
                    Migo, for had she taken it herself and given it
                    to Ploni, her husband would get it back if he
                    could prove that Ploni got from her. We return
                    it to her because we do not suspect that she
                    hides it from her husband (unless she says to
                    give it to Ploni), but she is not believed to
                    say that it is hers. She does not realize that
                    we suspect her. If she openly said that it is
                    hers, perhaps she is believed, Migo she could
                    have hidden it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If when she was about to die,
               she said 'the deposit is Ploni's', if he believes
               her, he does like she said. If not, he gives it to
               her heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Posak):</font></b> The Rambam and Tur
                    rule like the first version. R. Yerucham rules
                    like the second version.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (3):</font></b> We rule like the first version because
                    the Beraisa supports it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH u'Piresh):</font></b> There is nothing
                    different about when they are about to die,
                    just it is the normal case. If they were
                    healthy, they would themselves return it to
                    Ploni, and not reveal that it was not theirs.
                    If he does not believe them, presumably they
                    were ashamed to say that they stole it from
                    their Ba'al.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> R. Yerucham (Meisharim 23:6, 58:3, cited in
                    Beis Yosef DH Kosav Rabeinu):</font></b> David claimed
                    that Shimon owes him. Shimon said 'I will keep
                    the money, for you owe to my wife.' If she is
                    alive and says 'give to my husband', Shimon
                    keeps the money. If she died, we do like she
                    commanded, and give to her husband. If so, in
                    any case he keeps the money.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some say that if she does
               business in the house, she is not believed to say
               that the money is Ploni's.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DEPOSITS THAT MAY HAVE BEEN STOLEN </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  (Rav Huna bar Avin):</font></b> If something is
                    normally lent or rented (and it is known that
                    it previously belonged to someone else), one is
                    not believed to say that he bought it. (Since
                    Ploni would not have been believed to say 'I
                    bought it', we do not make this claim on behalf
                    of his orphans.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is left difficult.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> Rav's law applies only when the brothers
          share everything, but if they prepare their food
          separately, we assume that Reuven acquired money by
          eating less.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What kind of proof must Reuven bring?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> He must bring witnesses.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rav Sheshes):</font></b> The document must be validated
          (this shows that Beis Din verified that it is Reuven's
          property).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rava (to Rav Nachman):</font></b> Like whom do you hold?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> I hold like the Beraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven used to buy and sell on
               behalf of all the brothers, and documents said that
               he bought property or lent money; and he claims that
               they belong to him himself, from money he inherited
               from his mother's father, he must bring proof.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Similarly, if a widow used to buy and sell on
               behalf of the orphans, and documents said that she
               bought property or lent money; and she claims that
               they belong to her, from money she inherited from
               her grandfather, she must bring proof.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the Chidush regarding the
               widow?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that since a widow
               who toils on behalf of orphans is respected, she is
               unlikely to falsely claim their money, and she
               should be believed. The Beraisa teaches that this is
               not so. (She feels she is entitled to compensation
               for her toil, and rationalizes claiming their
               property for herself.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CHAZAKAH TO ACQUIRE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> This refers to Chazakah, but if one gives a
          gift, or brothers that divide an inheritance ...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Are the latter cases not Chazakah?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah is abbreviated. It means as
          follows: three years are needed for Chazakah that is a
          proof of ownership (for one who lost his document), but
          regarding a gift, division of inheritance, or Kinyan of
          Hefker property, when only a Kinyan is needed (not a
          proof), locking the fence, fencing or breaching any
          amount in a wall is a Chazakah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Hoshaya):</font></b> Locking the fence, fencing or breaching
          any amount in a wall in front of the original owner is a
          Chazakah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This implies that if it is not in front of
          the owner, it is not a Chazakah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> He means, if it is in front of the
          owner, the owner need not say 'go make a Chazakah and
          acquire.' If it is not in front of the owner, the owner
          must say 'go make a Chazakah and acquire'.
<br>

<p>

sjt:
</p><p>
<font><b>2) ARTICLES WHICH ARE OFTEN LENT OR RENTED OUT</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which Reuven claims that a certain object in Shimon's possession belongs to him. Reuven brings witnesses who testify that they saw that the object once belonged to Reuven. If the object is the type of object that is frequently lent or rented to others, Shimon is not believed to say that he bought the object from Reuven and the object belongs to him. Beis Din assumes that Reuven lent or rented it to Shimon (unless Shimon proves otherwise).
</p><p>
This principle -- that a person cannot make a Chazakah on objects that are normally lent or rented out -- seems to contradict the Gemara in Shevuos (34a). The Gemara there teaches that when Levi hands over money to Yehudah in the presence of two witnesses, Yehudah is believed to claim later that he indeed received money from Levi but that money was the repayment of a loan from Levi. According to the principle presented by the Gemara here, in a case in which the witnesses do not know whether Yehudah was receiving a loan from Levi or whether he was receiving a repayment for a loan that he gave to Levi, Beis Din should assume that Yehudah was receiving a loan from Levi since money is something that is normally lent to others. Why does the Gemara there say that Yehudah is believed to say that the money he received was a repayment of a loan due to him?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>KETZOS HA'CHOSHEN</b> (79:2) distinguishes between money and objects. With regard to the lending of money, the principle of 'Milveh l'Hotza'ah Nitnah' applies. This means that when the lender lends money, the borrower is allowed (and expected) to spend that money and to return different money of the same value to the lender. In contrast, when a person lends an object, the borrower is obligated to return the same object. The reason why objects that are frequently lent or rented out are not assumed to belong to the person holding them is that they are not considered to have left the possession of the original owner (Mara Kama) unless there is proof otherwise. Money, however, always leaves the possession of the Mara Kama, and afterwards the borrower must return different money. Hence, Yehudah, who is holding the money, is believed to say that it is his money because no Chezkas Mara Kama opposes him.
</p><p>
(b) <b>RAV YITZCHAK ELCHANAN SPECTOR</b> (cited by the <b>MILU'EI CHOSHEN</b> to the Ketzos ha'Choshen) gives another answer to this question. The <b>SHULCHAN ARUCH</b> (CM 72:19) cites the <b>RIF</b> and <b>RABEINU TAM</b> who rule that any object which the owner does not usually lend out because of its importance is not considered in the category of 'objects which are normally lent out.' Accordingly, money is not considered to be something that is normally lent out, because the owner is apprehensive about lending it because the borrower might not return it.
</p><p>
The Shulchan Aruch there also quotes the <b>RAMBAM</b> who rules that only objects which are made for the purpose of being lent or rented out fall into this category. According to this definition as well, money is not considered an object that is normally lent. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHAZAKAH TO ACQUIRE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav):</font></b> What is the law regarding a gift?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shmuel:</font></b> What is Rav unsure about?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A buyer pays money, yet he does not acquire (if
               not in front of the seller) unless the seller said
               'go make a Chazakah and acquire';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One who receives a gift pays nothing. All the
                    more so he acquires only if the seller said
                    this!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rav holds that one who gives a gift, he
               gives (more) generously (than one who sells).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	(Rav's question is not resolved.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> (We said that fencing or breaching any amount
          in a wall is a Chazakah.) How much is considered 'any
          amount'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It is like Shmuel taught.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If one added to a low fence, and
               completed it to a height of 10 Tefachim, or widened
               a hole so that he can leave through it, this is a
               Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the case of adding to the
               fence?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If originally people could not go over it (due
                    to the slope or position), and now also they
                    cannot, he accomplished nothing by adding to
                    it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> Originally people could go over it
               (with difficulty), and now they cannot.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> He accomplished much. This is not
               called 'any amount'!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2:</font></b> Originally people could go over it
               easily, now they can go over with difficulty.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> What is the case of breaching the
               fence?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If originally there was a hole through which
                    people could pass, and he widened it, he
                    accomplished nothing!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1:</font></b> Originally people could not pass
               through, and now they can with difficulty.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection:</font></b> He accomplished much. This is not
               called 'any amount'!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #2:</font></b> Originally people could pass through
               with difficulty, and now they can pass through
               easily.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> If he inserted or removed a stone and this
          helped, it is a Chazakah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What does it mean 'inserted or removed'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he did so to prevent the field from being
               flooded, or to enable excess water to leave the
               field, he saved another's property from damage. This
               is not a Chazakah!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, he inserted it to keep the water in the
          field (to irrigate it), or removed it to allow water to
          enter (to irrigate it. This improves the field; it is a
          Chazakah.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE CHAZAKAH FOR TWO PROPERTIES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> If there was a fence between field A and
          field B (of a convert who died), and Reuven was Machazik
          in field A to acquire it, he acquires it;
<br>
<br>

sjt:
<font><b>1) ACQUIRING A HOUSE BY LOCKING THE DOOR</b></font><b>
<br>QUESTION:</b> The <b>RASHBAM</b> (DH v'Hashta) states that when the Gemara (52b) rules that an act of locking the door of a house is an effective act of Kinyan, it refers only to when the purchaser of the house affixes a lock to the door. Merely closing the door and locking it with a key does not constitute an act of Kinyan, because when one does such an act merely indicates that he is protecting his friend's property and does not show that he is behaving like the owner of the property.
</p><p>
<b>TOSFOS</b> (52b, DH No'el) questions this ruling of the Rashbam. The Gemara in Gitin (77b) discusses a case in which a dying man wrote a Get to his wife on Erev Shabbos so that when he would die, his wife would not be obligated to do Yibum with his brother. The man did not manage to hand over the Get to his wife before the onset of Shabbos. On Shabbos, the man's condition deteriorated. He was instructed to give to his wife the area in his house where the Get was situated so that the Get would then be considered resting in the wife's domain and she would automatically acquire it. The Kinyan of that part of the house was performed by the wife's act of closing and opening the door. Tosfos argues that it cannot be that the wife had to affix a new lock to the door, because such an act is prohibited mid'Oraisa on Shabbos and the Rabanan would not have permitted it. They permitted her only to do an Isur d'Rabanan on Shabbos of making a Kinyan on the house, in order to prevent the husband's condition from deteriorating further as a result of worrying that his wife would have to perform Yibum.
</p><p>
How does the Rashbam understand the ruling in Gitin? The Gemara there seems to prove that it suffices to lock the door and it is not necessary affix a lock on the door in order to effect a Kinyan.
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> in Bava Kama (52b, commenting on Tosfos DH Keivan) answers that the Rashbam agrees that locking the door suffices when it is accompanied with the Kinyan of the seller handing over the keys to the buyer. The act of handing of the keys alone does not suffice, because no act is performed with the property itself. Locking the door alone does not suffice, because it merely suggests that he is doing a Mitzvah of guarding his friend's property and does not show that he is acting in the manner of the owner. When both acts are done together, the handing over of the keys shows that the seller wants to sell his property to the buyer, and the locking of the door shows that the buyer is not merely protecting the seller's property but that he is showing his ownership of the property.
</p><p>
In the case of the Gemara here, the field is being acquired from the estate of a Ger who died with no heirs, and thus there is no one who can hand over the keys to the person acquiring the field. Therefore, locking the door alone does not suffice, and thus the Rashbam explains that one must affix a lock to the door as an act of Kinyan in order to acquire the house. In the case in Gitin, the husband handed over the keys to his wife and she locked and opened the door. Since both acts were done, she was able to make a Kinyan on the property and acquire the place where the Get was situated. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES LOCKING ACQUIRE HEFKER OR FROM A SELLER?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 42a (Mishnah):</font></b> Locking the fence, fencing or
               breaching any amount in a wall is a Chazakah to
               acquire a gift or Hefker or to divide an
               inheritance.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 53b (Rav Nachman):</font></b> If Reuven built mansions on
               Hefker property (a convert owned it, and he died
               without heirs), and Shimon put doors on them, Shimon
               acquires them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Without doors, a mansion is a mere arrangement of
               bricks.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 57a (Mishnah):</font></b> Raising chickens in a Chatzer is not
               a Chazakah. If one sets up a 10 Tefachim wall to
               enclose his animal, or for his oven or millstone, or
               brings chickens into a house, this is a Chazakah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Ula):</font></b> Only a Chazakah that acquires Hefker property
               is a Chazakah in another's property.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Objection (Rav Sheshes):</font></b> Eating Peros does not
               acquire Hefker, but it is a Chazakah in another's
               property!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Gitin 77b:</font></b> A man was about to die on Shabbos. Rava
               suggested that he give to his wife (on Shabbos), for
               a gift, the place where the Get is resting. She
               should close or open the door there to acquire it
               through Chazakah.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 1:10):</font></b> Locking is a
               Chazakah when the door to a house or Chatzer was
               open, and the buyer locked it and opened it. He did
               a usage that helps.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 2:9):</font></b> If Reuven built
               mansions on Hefker property, and Shimon put doors on
               them, Shimon acquires them. Reuven did not do
               anything to the land itself. He is like one who made
               a rockpile, who does not acquire. This fence does
               not help, for it is too wide and open at the ends.
               The form of the building is useful only once doors
               are set up.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (3:59):</font></b> A Mishnah teaches that locking is a
               Chazakah. The Rashbam explains that this is putting
               a lock on the door. Closing the door and locking it
               with a key is not a Chazakah to acquire Hefker, for
               it is merely Mavri'ach Ari (preventing damage). This
               is wrong. Rava said that a woman can close and open
               the door to acquire through Chazakah. He did not
               tell her to affix a lock, for it was Shabbos.
               Chachamim permitted to acquire from a Shechiv Mera
               on Shabbos, lest he become frenzied. They did not
               allow fixing a lock, which is an Isur Torah, even
               through a Nochri. This is unlike Mavri'ach Ari, for
               one is obligated to save another's property. To lock
               a door in front of everyone and prevent them from
               entering a house shows that it is his. He acquires
               just through locking. A Mishnah teaches that
               bringing chickens into a house is a Chazakah. Ula
               taught that only a Chazakah that acquires Hefker is
               a Chazakah to acquire from others. We challenged
               Ula, but not from the Mishnah. We must say that he
               brought chickens in and locked the door in front of
               them, and this acquires! However, perhaps this is
               considered eating Peros, and the Gemara challenged
               Ula from this.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> Later, we say that if Reuven built
               mansions on Hefker property, and Shimon put doors on
               them, Shimon acquires them. This connotes that
               locking is not enough by itself. Do not say that one
               acquires through erecting doors without locking
               them. We said that Reuven did not acquire because
               without doors, the mansions are mere arrangements of
               bricks, i.e. for one can enter easily just like
               before the mansion was built. The same applies if he
               erected doors but did not lock them! Really, locking
               suffices by itself. The Mishnah discusses erecting
               doors, for typically the one who erects the door
               locks it. The Rashba connotes that affixing a lock
               acquires even without locking. If so, also erecting
               doors acquires even without locking.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rashbam (53a DH v'Hashta):</font></b> 'No'al any amount' can
               mean that initially one could enter easily, and now
               one can enter with difficulty. Alternatively, he
               affixed a lock, which is building. Closing the door
               and locking with a key does not acquire. It is just
               a Mitzvah to guard another's property and Mavri'ach
               Ari. Handing over the key acquires for rental, but
               this does not apply to Hefker.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rashbam (53b DH Kama):</font></b> Without doors, one can enter
               easily just like before the mansion was built. The
               completion is primary, not the beginning. A Mishnah
               teaches that locking the fence or fencing, i.e.
               erecting doors, is a Chazakah. (It says that
               breaching any amount in a wall is a Chazakah, but)
               it does not say that building any amount is a
               Chazakah.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 192:3):</font></b> How is locking a
               Chazakah? If one sold or gave a house or Chatzer,
               and the door was open, and the buyer locked it and
               opened it, he acquired. Some say that he must lock
               it with a key.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Da):</font></b> Those who argue with the
                    Rashbam and say that closing suffices, they
                    require closing with a key. The Rambam connotes
                    like this, and the Rosh in Gitin says so. The
                    Rashbam connotes that locking does not acquire
                    for a renter, buyer or from Hefker. Why does
                    the Tur require erected doors here, but in
                    Siman 275 he says that it suffices to lock
                    them? Here, an owner is Makneh, but what is the
                    source to distinguish?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (DH ul'Fi):</font></b> The Rosh distinguishes! After
                    he proved that locking suffices, he asked from
                    one who built on Hefker property, in which we
                    require erecting doors. He brought the Rashbam,
                    who says that erecting suffices by itself. The
                    Rosh initially discussed Hefker. There, as long
                    as the latter did not lock, he did not
                    accomplish more than the first! Therefore, we
                    must say that he locked them. Then the Rosh
                    cites the Rashbam's opinion regarding a buyer.
                    Here, regarding a buyer, no one argues with the
                    Rashbam.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (275:10):</font></b> The Maharshal asked why the
                    Tur rules like Tosfos, that affixing and
                    locking a door acquires. The Rosh concluded
                    that affixing alone acquires! I proved (Prishah
                    192:2 DH b'Hamadas) that the Rosh says so only
                    to acquire from another, but not to acquire
                    Hefker.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Drishah (2):</font></b> Even though the Rashbam requires
                    erecting doors for Hefker, the Tur holds that
                    the same applies to a buyer, for locking alone
                    does not acquire for it is Mavri'ach Ari. Also,
                    the Rashbam said so to explain 'No'al' in the
                    Mishnah, which discusses also a buyer. Tosfos
                    and the Rosh disagreed only with the Rashbam's
                    opinion that locking does not acquire. They did
                    not challenge the Rashbam's opinion that
                    affixing a lock acquires, for they agree that
                    it acquires for a buyer. It does not acquire
                    Hefker, for there we need an action that truly
                    improves the land. A buyer need make only a
                    minor improvement..
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz:</font></b> We cannot distinguish, for Tosfos asked
                    about a buyer from Hefker. The Gemara (57a)
                    equates them. The Tur holds that just erecting
                    doors does not acquire, for one can still
                    enter. One must lock it, even without a frame,
                    as long as it prevents entrance. In Siman 275
                    the Tur teaches that it must be locked, and
                    here he teaches that  one does not need a
                    frame.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Gra (5):</font></b> Here, the Shulchan Aruch and Rema
                    omitted the opinion of Tosfos, the Rosh and all
                    the Poskim, that locking alone acquires. The
                    Tur says that the Rosh concludes like the
                    Rashbam, that affixing a lock acquires. In
                    Siman 275, the Tur and Rema rule like Tosfos!
                    The Bach and <b>SMA</b> distinguish between acquiring
                    Hefker and acquiring from a seller. This is
                    difficult, for Tosfos and the Rosh asked the
                    contradiction between these! The Rema is
                    difficult, for he comments on the Shulchan
                    Aruch, which is like the Rambam, who holds that
                    it suffices to erect doors without locking! The
                    Rambam and Shulchan Aruch (Sa'if 13) say that
                    this is only for Hefker. There are three
                    opinions about erecting doors. The Rambam holds
                    that it helps only for Hefker. The Rosh holds
                    that it does not help even at all. The Rashbam
                    holds that it helps for Hefker and purchases.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> The same applies if he made a lock for the
               door or erected doors. Some say that he acquired.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (275:21):</font></b> If Reuven built mansions on
               Hefker property, and Shimon put doors on them,
               Shimon acquires them. The form of the building is
               useful only once doors are set up.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that the same applies if Reuven
               erected doors but did not lock them, and Shimon
               locked them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav u'Chegon):</font></b> The
                    Rosh and Tur say that locking them acquires,
                    but just erecting them does not. The Rambam
                    connotes like the simple reading of the Gemara,
                    that erecting alone acquires.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>IS BUILDING OR LOCKING A CHAZAKAH? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he was Machazik in field A, intending to acquire
          both, he acquires only field A;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he was Machazik in field A, intending to acquire B,
          he does not acquire either field.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> If he was Machazik in field A with
          intent to acquire it, the fence and field B, what is the
          law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he intends to acquire also the fence, they
               are considered like one field (and he acquires
               everything)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, they are judged like two separate fields, and
               he acquires only field A?
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Elazar):</font></b> If he was Machazik in the fence,
          intending to acquire both fields, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that the fence is like reins on the
               fields, so he acquires them?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, is it a matter unto itself, and he does not
               acquire them?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If there were two houses, one inside the
          other, and one was Machazik in the outer one to acquire
          it, he acquires it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was Machazik in it with intent to acquire
               both, he only acquires the outer one;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he was Machazik in it with intent to acquire
               the inner one, he does not acquire either.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If he was Machazik in the inner one to acquire it, he
          acquires it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was Machazik in it with intent to acquire
               both, he acquires both;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he was Machazik in it with intent to acquire
               the outer one, he does not acquire either.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW TO ACQUIRE HEFKER LAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If Reuven built mansions on Hefker
          property (a convert owned it, and he died without heirs),
          and Shimon put doors on them, Shimon acquires them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Without doors, the mansions are mere
          arrangements of bricks.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Dimi bar Yosef):</font></b> If Levi found a mansion on Hefker
          property and plastered or engraved a picture on the wall,
          he acquires it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How much area must he plaster or engrave?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> It must be a (square) Amah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> It must face the entrance.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Amram citing Rav Sheshes):</font></b> If one spread a sheet
          on Hefker property and sleeps on it, he acquires the
          property.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Rav Sheshes proved this from a Beraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Reuven makes Chazakah on a slave in
               any of these ways: the slave ties or unties Reuven's
               shoe, takes his clothes to the bathhouse, undresses
               him, bathes him, anoints him, scratches him, dresses
               him, or lifts him;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, Chazakah is not greater than
               Hagbahah, which acquires everywhere!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What are the opinions of R. Shimon and
               Chachamim regarding Hagbahah?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The first Tana says that if the slave
               lifts Reuven, Reuven acquires him, but not if Reuven
               lifts the slave. R. Shimon says that since Chazakah
               acquires, all the more so Hagbahah (lifting the
               slave).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> (Just like using a slave is a Chazakah, also
               using land.)
<br>

<p>

sjt:
</p><p>
<font><b>2) ACQUIRING THE PROPERTY OF A 'GER' WHO DIED WITHOUT HEIRS</b></font><b>
<br>QUESTION:</b> Rav Amram states that 'Rav Sheshes taught us a Halachah and enlightened our eyes by citing proof from a Beraisa.' The Halachah is that the act of spreading out sheets on the ground of the property of a Ger who died with no heirs is a sufficient act of Chazakah to make a Kinyan and acquire the property. The proof that he cites is from the Beraisa which states that when a servant puts shoes on his future master or takes them off, or performs certain other personal services, this is considered a Chazakah through which the new master acquires the servant.
</p><p>
The <b>RASHBAM</b> (DH Hetzi'a) explains that even though the act of Kinyan of spreading sheets does not involve making an improvement to the property itself, it nevertheless suffices as an act of Kinyan because the person thereby derives benefit from the property. Similarly, the master derives benefit from the servant attending to him, and therefore that benefit is a valid Kinyan.
</p><p>
The <b>RAMBAM</b> (Hilchos Zechiyah u'Matanah 2:2) states that even though eating the fruit of a field establishes a Chazakah and serves as an act of Kinyan when one buys a field from a fellow Jew, it does not suffice as an act of Kinyan to acquire a field from a Ger who died without heirs. The difference is that when one acquires a field from a fellow Jew, the seller has intention to be Makneh the field. In the case of the field of a deceased Ger, however, there is no owner to be Makneh the field to the person who wants to acquire it, and therefore a stronger act of Kinyan is necessary.
</p><p>
The <b>LECHEM MISHNEH</b> questions the Rambam's ruling from the Gemara here. If there is a difference between the Chazakah required to acquire the property of a Ger and the Chazakah required to acquire the property in a normal transaction when one purchases property from a fellow Jew, how does Rav Sheshes 'enlighten our eyes with a proof from the Beraisa' that discusses how a servant is acquired? That Beraisa discusses the acquisition of a servant by virtue of the servant's service to the master, which is comparable to eating the fruits of a field in order to acquire the field from another Jew, which is a valid Kinyan. In both cases, the owner (or the servant himself) has intention to be Makneh the property to the new owner. In contrast, spreading sheets on the ground of the property of a Ger -- which is comparable to eating the fruits of the field of a Ger -- is not a sufficient Kinyan to acquire the field from the Ger, since no one has intention to be Makneh the field to the new owner!
</p><p>
<b>ANSWER:</b> The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Zechiyah u'Matanah 2:2) cites the ruling of the Rambam later (2:17) that if a Ger dies without heirs and he leaves as part of his estate servants who are minors, the first person to perform a Chazakah on those minor servants acquires them. The Rambam concludes that 'we have already explained the ways of Chazakah by which servants are acquired.' He is referring to the Halachah in Hilchos Mechirah (2:2) which is based on the Beraisa cited by the Gemara here which discusses the Kinyan made by having a servant attend to the master. The Rambam's words imply that he maintains that this Chazakah on servants is considered a more effective act of Chazakah than eating the fruits of the field, because he writes that it is a sufficient Kinyan to acquire the minor servants of the Ger. If this Chazakah on servants would be no different from eating fruits of a field, it would not suffice in order to acquire the property of a Ger.
</p><p>
Indeed, the <b>RASHASH</b> states that when the servant attends to the master, it is considered as though the master has received an important usage of the servant, superior to eating fruits of a field (in contrast to the view of the Lechem Mishneh), and this is effective as a Kinyan Chazakah. Similarly, when someone spreads out sheets on the field of a Ger, it is considered as though he is preparing the ground for an important usage for himself, and therefore this act is an effect Chazakah to acquire the field. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>EXAMPLES OF CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yirmiyah Bira'ah):</font></b> If one seeds a turnip in the
          cracks of Hefker property, this is not a Chazakah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why not?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> When he seeded it, he did not improve the land.
          The improvement (the turnip sprouts) happens by itself.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If one prunes a date tree so it will grow
          better, he acquires it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he pruned it to feed to his animals (even
               though he intended to acquire it), this is not a
               Chazakah (because he did not intend to improve the
               tree).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How do we know whether or not he intended to
          improve the tree?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> If he took branches from all sides of the tree,
          he intended to improve the tree. If he took branches from
          only one side, he did so for his animals.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If one takes pieces of wood and grass from a
          field so it will be easier to plow, he acquires it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he took them for burning, he does not acquire
               (this is like eating Peros, which is not a
               Chazakah).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> How do we know what his intention was?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> If he took big and small pieces, he intended to
          improve the field. If he took only big pieces, he did so
          for fuel.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If one leveled a field so it will be easier
          to plow, he acquires it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he did so to prepare the area to thresh grain,
               he does not acquire (a granary is detrimental to the
               field in the long term).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> How do we know what his intention was?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> If he put the dirt of the mounds into the
          ditches, he intended to improve the field. If he merely
          flattened them a bit (to reduce the slope), he did so for
          threshing.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If one made an opening so that water (from
          the river) will enter a field to irrigate it, he acquires
          it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he did so for fishing, he does not acquire.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> How do we know what his intention was?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> If he made one opening for water to enter from
          the river and another for water to leave, he did so for
          fishing;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he made only an opening for water to enter, it
               was for irrigation.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	A woman pruned a date tree for 13 years, from one side.
          A man came and dug under it a bit. Levi ruled that he
          gets it. The woman was protesting.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Levi:</font></b> You did not make Chazakah like people
               normally do!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Rav):</font></b> If one draws a picture (of an animal or bird) on
          the wall of a Hefker house, he acquires it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This was inferred from a case that occurred. A
               convert who owned a garden near Rav's Beis Medrash
               died. Rav acquired it by drawing a picture.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MUST ONE DIG IN THE ENTIRE FIELD?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna citing Rav):</font></b> If one digs any amount in a
          field surrounded by fences, he acquires the entire field.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He acquires only where he digs.
<br>
<br>

sjt:
<font><b>1) AN UNINTENDED ACT OF KINYAN</b></font><b>
<br>QUESTION:</b> Shmuel states that one who prunes the branches of a date-palm (which is Hefker), with intention to help the growth of the tree, acquires the tree through his action. One who prunes the branches in order to give them to his animals to eat does <i>not</i> acquire the tree.
</p><p>
Why does he not acquire the tree even when he cuts the branches in order to give them to his animals? He still does something that is beneficial to the tree! (<b>RISHONIM</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> explains that even though the person intends to acquire the tree by cutting its branches, his intention in cutting the branches is not to benefit the <i>tree</i> (but rather to feed his animals), and thus his action does not work to acquire the tree. In order for an act to effect a Kinyan, both conditions are necessary: one must intend to acquire the tree with one's action, <i>and</i> one must intend to benefit the tree with one's action.
</p><p>
The <b>ROSH</b> adds that even if the person says afterwards that he specifically intended to benefit the tree, his action is still not effective because it must be clear from his <i>action</i> -- and not just from his words -- that he intended to benefit the tree. In this case, his action indicates that he cut the branches only for his animals.
</p><p>
(A similar concept is mentioned by the <b>MAGID MISHNEH</b> (Hilchos Shabbos 10:17), who writes that one does not transgress the Melachah of 'Makeh b'Patish' on Shabbos by doing an act to a utensil which he does not consider the completion of the utensil. See Insights to Shabbos 107:3:b.)
</p><p>
(b) <b>TOSFOS</b> (DH a'Da'asa) answers that even though the person's act of pruning the tree is beneficial to the tree, his act is not an effective Kinyan to acquire the tree because he does not <i>intend</i> to acquire it with his act. Tosfos understands that when the Gemara says that he pruned the tree with intention to feed the branches to his animals, it means that he also did <i>not</i> intend to acquire the tree. Had he intended to acquire the tree with his action, his action <i>would</i> have been an effective Kinyan, even though he did not intend to benefit the tree (in contrast to the view of the Rashbam and the Rosh).
</p><p>
(c) The <b>RAMAH</b> (end of #233) explains that the reason why the person does not acquire the tree when he prunes it in order to feed the branches to his animals, even though the tree still benefits, is as follows. The Ramah maintains, like Tosfos, that the person's act in itself is a valid Kinyan to acquire the tree. Even if he did not intend to benefit the tree, the act would be a valid Kinyan since the tree nevertheless benefits. The reason why he does not acquire the tree with his act of pruning is that he intended to acquire the tree with an act of <i>cutting off branches</i> (for his personal benefit) and not with an act of <i>helping the tree to grow</i> (for the benefit of the tree). He seems to mean that when a person has intention to perform a Kinyan with an act that does <i>not</i> constitute a valid form of Kinyan, and, at the same time, he unintentionally performs an act that <i>does</i> constitute a valid form of Kinyan, he is not Koneh the object. The act which is a valid form of Kinyan is not effective because he did not intend to be Koneh with that act.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS BUILDING OR LOCKING A CHAZAKAH?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 42a (Mishnah):</font></b> Locking the fence, fencing or
               breaching any amount in a wall is a Chazakah to
               acquire a gift or Hefker or to divide an
               inheritance.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 53b (Rav Nachman):</font></b> If Reuven built mansions on
               Hefker property (a convert owned it, and he died
               without heirs), and Shimon put doors on them, Shimon
               acquires them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Without doors, a mansion is a mere arrangement of
               bricks.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 54a (Shmuel):</font></b> If one takes pieces of wood and grass
               from a field so it will be easier to plow, or
               leveled a field so it will be easier to plow, he
               acquires it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 57a (Mishnah):</font></b> Raising chickens in a Chatzer is not
               a Chazakah. If one sets up a 10 Tefachim wall to
               enclose his animal, or for his oven or millstone, or
               brings chickens into a house, this is a Chazakah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Ula):</font></b> Only a Chazakah that acquires Hefker property
               is a Chazakah in another's property.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Objection (Rav Sheshes):</font></b> Plowing acquires Hefker,
               but not others' property! Eating Peros does not
               acquire Hefker, but it acquires others' property!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Gitin 77b:</font></b> A man was about to die on Shabbos. Rava
               suggested that he give to his wife (on Shabbos), for
               a gift, the place where the Get is resting. She
               should close or open the door there to acquire it
               through Chazakah.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 1:10):</font></b> How is locking a
               Chazakah? The door to a house or Chatzer was open,
               and the buyer locked it and opened it. He did a
               usage that helps.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Some say that 'No'al' means
                    affixed a lock or erected doors, but one does
                    not acquire through locking and closing the
                    door. This is wrong. No'al refers to locking.
                    The Gemara in Gitin proves this, and it is the
                    Rambam's source that one must also open it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kesef Mishneh:</font></b> The Tur (CM 192) did not
                    understand why the Rambam requires opening it.
                    The Ramban rejected the proof from Gitin, for
                    the Mishnah says (only) No'al. The Gemara said
                    'lock and open' only because this is typical. I
                    say that the Rambam agrees that locking alone
                    acquires. The Gemara taught a bigger Chidush,
                    that she may even open it again like it was
                    before, and it is not evident that anything was
                    done. Even so, she acquires.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 2:9):</font></b> If Reuven built
               mansions on Hefker property, and Shimon put doors on
               them, Shimon acquires them. Reuven did not do
               anything to the land itself. He is like one who made
               a rockpile, who does not acquire. This fence does
               not help, for it is too wide and open at the ends.
               The form of the building is useful only once doors
               are set up.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rashba says that the Ri
                    mi'Gash says that Reuven did not dig
                    foundations. Digging prepares the land for
                    planting, like plowing. Even if he did not
                    plant, he acquires. If Reuven made a place to
                    keep animals or chickens, he acquires, like the
                    Mishnah (57a).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (CM 275 DH u'Mah she'Chosav
                    u'Chevar, citing the Ran):</font></b> The Re'em says that
                    this is when Reuven did not dig foundations. It
                    seems that the Rambam agrees, for he says that
                    Reuven did not do anything to the land itself.
                    The Ramban and Rosh say that digging
                    foundations acquires only land destined to be
                    plowed. We rule like those who disagree, for
                    they are the majority and are greater
                    (Chachamim).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (22):</font></b> We learn that plowing acquires from
                    54a and 57a.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam did not specify
                    whether Shimon acquires only the land, or also
                    the building. I do not know how he acquires the
                    building, unless we say that what one builds in
                    Hefker is Hefker, since he did not make a
                    Chazakah. The Ri mi'Gash says so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (3:59):</font></b> Rava said that a woman can close and
               open the door to acquire through Chazakah. We cannot
               say that he told her to affix a lock, for it was
               Shabbos. She acquires just through locking. A
               Mishnah teaches that bringing chickens into a house
               is a Chazakah. Ula taught that only a Chazakah that
               acquires Hefker property is a Chazakah in others'
               property. We challenged Ula, but not from the
               Mishnah. We must say that he brought chickens in and
               locked the door in front of them, and this acquires!
               However, perhaps this is considered eating Peros,
               and the Gemara challenged Ula from this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Piplulei Charifta (3):</font></b> One <i>raises</i> young
                    chickens in a Chatzer. He need not lock in
                    front of them, therefore, it is not a Chazakah.
                    One must lock in front of big chickens. He
                    brings them into the house, for one cannot lock
                    in the Chatzer, for people from other houses
                    must enter and leave.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (61):</font></b> If Reuven built mansions on Hefker land,
               and Shimon put doors on them, Shimon acquires them.
               Even though Reuven dug when building the foundation,
               digging helps only for farmland. Even though the
               Rashbam explains that if one improved land for a
               fixed granary, he acquires, there is different, for
               he completed his intended improvement to the land.
               Here he dug the foundation to build a house, and he
               did not complete his intent, i.e. a house to live
               in.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid. and Gitin 8:3):</font></b> Some say that also
               opening a door acquires. It says that she should
               lock or open it. Normally, one opens a locked house
               only if it is his. I disagree. This is unlike
               breaching, which fixes the opening to enable
               entering and leaving. Merely opening to allow people
               to enter is not a Chazakah. It is unlike locking,
               which prevents people from entering. The word 'and
               open' is imprecise. Or, the door was locked, and she
               needed to open and close it. The Gemara said 'close
               and open' for people normally say it in this order.
               Alternatively, just locking does not prove that it
               was done for the sake of a Kinyan. Perhaps it was
               like she normally closes her husband's house, to
               guard the contents. Since she immediately opened it
               afterwards, this shows that it was for the sake of a
               Kinyan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (28b DH Linvei):</font></b> Reuven receives
                    like one who worked on another's field with
                    permission. He has the upper hand. Surely, he
                    intended to acquire the bricks through building
                    them.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 275:21):</font></b> If Reuven built mansions
               on Hefker property, and Shimon put doors on them,
               Shimon acquires them. Reuven did not do anything to
               the land itself. He is like one who made a rockpile,
               who does not acquire. This fence does not help, for
               it is too wide and open at the ends. The form of the
               building is useful only once doors are set up.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that the same applies if Reuven
               erected doors but did not lock them, and Shimon
               locked them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav u'Chegon):</font></b> The
                    Rosh and Tur say that locking acquires, but
                    just erecting doors does not. The Rambam
                    connotes like the simple reading of the Gemara,
                    that erecting alone acquires.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that this is when Reuven did not own
               the wood and rocks, rather, they were Hefker and he
               intended to acquire them only through building, or
               he built through workers who did not intend to
               acquire. However, if Reuven acquired them, or they
               were his from the beginning, he can say 'I will take
               back my bricks', so Shimon's Chazakah is void, and
               the land is still Hefker. The first to acquire will
               acquire it. Some say that even if Reuven built with
               his own wood and rocks, Shimon acquires everything.
               Reuven does not acquire when his building does not
               help at all. If he made a building suitable for
               animals or chickens or he dug foundations for a
               building and built, he acquires the land through
               building. Some disagree and say that he does not
               acquire through digging foundations.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> R. Yeshayah says that even if the wood and
                    rocks were Hefker, Reuven acquired them through
                    Hagbahah (lifting them), so Shimon must pay him
                    for them. Since Reuven did not acquire land, he
                    is like like one who worked on another's field
                    without permission. The Ramah says that if the
                    wood and rocks were Hefker, Reuven intended to
                    acquire them only through the building, which
                    he did not acquire. Therefore, Shimon acquired
                    everything. If Reuven owned the bricks, or they
                    were Hefker and he intended to acquire them, he
                    did not acquire the land. Also Shimon did not,
                    for Reuven can take back his bricks, so the
                    door did not help at all. Therefore, if Reuven
                    removed Shimon's doors and put up his own, he
                    acquires. If not, Reuven takes back his bricks,
                    Shimon takes his doors, and the land is still
                    Hefker. The Rosh says that Shimon acquires only
                    when Reuven built through workers who did not
                    intend to acquire
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (27 and Gra 18):</font></b> One who builds without
                    permission can take back his wood and rocks.
                    (Bava Metzia 101a explicitly says so.)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (192:5):</font></b> The Poskim hold that locking alone
                    acquires. The Rambam requires to lock and open.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES LOCKING ACQUIRE HEFKER OR FROM A SELLER? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> (According to Rav Huna,) if the field is not
          surrounded by fences, how much does he acquire through
          one insertion of the shovel? (Tosfos; Rashbam - how much
          must he dig to acquire the entire field?)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> He acquires the standard length of a
          furrow (Tosfos; Rashbam - he must plow two furrows along
          the length of the entire field).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BUYING FROM A NOCHRI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah citing Shmuel):</font></b> A Nochri's property (after
          he sold it to a Yisrael) is like Hefker: whoever makes a
          Chazakah in it acquires it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Once a Nochri receives the money, he
          relinquishes his ownership of the property. The Yisrael
          does not acquire until he gets a document.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Shmuel could not have said that, for
          Shmuel holds that the law of the kingdom is binding, and
          the king says that one needs a document to acquire
          (Chazakah is not enough)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> A case occurred in which Reuven bought
          land from a Nochri, and Shimon dug a little in it. Rav
          Yehudah ruled that Shimon keeps it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> There is different, for the Nochri
          himself did not pay the land tax. The king's law is that
          whoever pays the tax gets the Peros.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav Huna bought land from a Nochri, and Levi dug a
          little in it. Rav Nachman ruled that Levi keeps it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rav Huna:</font></b> You rule like Shmuel, that a Nochri's
          property is like Hefker, and whoever makes a Chazakah in
          it acquires it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You should also rule like Shmuel's other law,
               that he acquires only where he dug!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> Regarding that law, I rule like you
          yourself said in Rav's name: if one digs any amount, he
          acquires the entire field.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE DIFFERENCE BETWEEN BUYING LAND FROM A NOCHRI AND BUYING LAND FROM A JEW</b></font><b>
<br>QUESTION:</b> Rav Yehudah in the name of Shmuel rules that when a Jew buys land from a Nochri, the Nochri removes his ownership from the land at the moment he receives payment, but the Jew does not intend to acquire the land until he receives a Shtar from the Nochri. Consequently, in the interim the land is considered Hefker, and if another Jew comes and performs an act of Kinyan on the land, he acquires it. (With regard to whether he must pay the first Jew, see <b>RASHBAM</b> (DH Harei Hen k'Midbar), <b>RAMBAN</b>, <b>RITVA</b>, and <b>ROSH</b> here.)
</p><p>
It is clear from the <b>RASHBAM</b> and other Rishonim that although a Kinyan Kesef is an effective Kinyan when buying land from a Nochri, the Jew does not have intention to acquire the land until he receives a Shtar, and therefore the land remains Hefker. However, if the Jew does not have intention to acquire the land with the giving of the money, then even when he buys land from another Jew the land should be Hefker until he receives a Shtar, and if another person comes and performs an act of Kinyan on the land he should acquire it! Why is this Halachah stated specifically with regard to buying land from a Nochri?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> asks another question: How is it possible for another Jew to make a Kinyan on the land that the Nochri sold to the first Jew? The Nochri did not make the land Hefker to the entire world -- he made it Hefker only for the Jew who bought it from him (see end of Bava Kama 116a)! That is, he relinquished his ownership (upon receipt of payment) only so that the buyer could come and be Koneh the land, and not for anyone else to be Koneh the land. Why, then, can another Jew be Koneh it?
</p><p>
The Ritva answers that once he has received his money, the Nochri does not care about the welfare of the buyer. The Nochri is interested only in his own gain and benefit. Hence, once the Nochri receives his money, he removes his ownership from the land completely, making it Hefker to all, and he does not care whether the true buyer comes and takes it or whether someone else comes and takes it.
</p><p>
In contrast, when a Jew receives money for the sale of his land, he makes it Hefker only to the person who bought it, so that the buyer should not suffer a loss. Therefore, no other Jew can come and make a Kinyan on the land.
</p><p>
(b) The <b>CHASAM SOFER</b> writes that the difference between buying land from a Nochri and buying land from a Jew is as follows. The Halachah is that mid'Oraisa a Jew can acquire land from another Jew through either a Kinyan Kesef (by giving money) or a Kinyan Shtar. When the buyer does not intend to take possession of the land by giving money, the seller, too, does not intend to be Makneh the land with the receipt of the money, but rather only with his giving of a Shtar. In contrast, a Nochri has no Kinyan Shtar (as Tosfos writes), and thus he always intends to relinquish his ownership of the field through the receipt of the money. (See also <b>NESIVOS HA'MISHPAT</b> 194:2.)
</p><p>


<font><b>3) THE REASONS BEHIND 'DINA D'MALCHUSA D'INA'</b></font><b>
<br>OPINIONS:</b> Shmuel teaches the principle of 'Dina d'Malchusa Dina' -- the law of the country in which a person lives is binding as Halachah. What is the source for this principle?
</p><p>
(a) The <b>RASHBAM</b> here writes that the laws of the land are binding because 'all of the citizens of the country accept upon themselves willingly the statutes of the governing body and its laws.' The communal acceptance of those laws creates a binding obligation on every individual (similar to the way that a Minhag of a place obligates everyone in that place to abide by that Minhag).
</p><p>
(b) The <b>RAN</b> in Nedarim (28a) writes in the name of <b>TOSFOS</b> that the principle of 'Dina d'Malchusa Dina' is based on the reasoning that one must follow the laws made by the governing body of the country because that sovereign is entitled to demand any payment that he wants as compensation for allowing people to live in the land under his jurisdiction, as he has the legal right to expel from his land anyone he chooses. Accordingly, 'Dina d'Malchusa Dina' applies only to laws made by non-Jewish kings in their kingdoms. 'Dina d'Malchusa Dina' does not apply to laws made by a Jewish king who rules over Eretz Yisrael (and follows the Torah), because no Jewish king has the right to expel a Jew from Eretz Yisrael. Every Jew is entitled by the Torah to live in Eretz Yisrael and the king cannot legally deny any Jew that right. Consequently, a Jewish king may not demand payment from the people for permission to live in Eretz Yisrael, because it is not the king who is granting them permission to live there. (See Insights to Nedarim 28:2.)
</p><p>
According to this reasoning, the rule of 'Dina d'Malchusa Dina' <i>would</i> apply to the laws of a Jewish king ruling over a country <i>outside</i> of Eretz Yisrael. This in fact is the ruling of the <b>RASHBA</b> (Teshuvos 1:637; see, however, <b>NIMUKEI YOSEF</b>, beginning of Nedarim 28a).
</p><p>
The <b>CHASAM SOFER</b> (cited by <b>OHEL TORAH</b>) writes that the Ran gives this reason only to explain why 'Dina d'Malchusa Dina' applies to laws of taxation, which a king levies against the will of his constituents. The Ran agrees, however, with the Rashbam that the other laws (such as the case of the Gemara here) of a country are binding because everyone accepts those laws upon himself (and, accordingly, 'Dina d'Malchusa Dina' applies to the laws of a Jewish king in Eretz Yisrael as well).
</p><p>
(c) The <b>DEVAR AVRAHAM</b> (1:1) cites the <b>ALIYOS D'RABEINU YONAH</b> here who says that the principle of 'Dina d'Malchusa Dina' is a form of 'Hefker Beis Din Hefker.' He maintains that the principle of 'Hefker Beis Din Hefker' is not specifically a law that applies to Beis Din, but a law that applies to Beis Din because of the authority and power granted to Beis Din to issue rulings on monetary matters. Accordingly, it applies to any authority figure that has such power (as derived from the verse, '[A proclamation was issued in Yehudah and Yerushalayim to all of the people of the exile to assemble in Yerushalayim:] And that anyone who would not come within three days, in accordance with the counsel of the officers and the elders, all his property would be destroyed...' (Ezra 10:7-8). This rule of 'Hefker Beis Din Hefker' is the basis for the rule of 'Dina d'Malchusa Dina.' (See Insights to Gitin 36:2, where the view of Rabeinu Yonah is discussed at length.)
</p><p>
(d) According to one way of understanding <b>RASHI</b> in Gitin (9b; see Insights there), Rashi proposes that the source for the law of 'Dina d'Malchusa Dina' is the Torah's obligation for Bnei Noach to set up a system of courts and law. Rashi explains that this commandment obligates the Nochrim not only to see to it that justice is administered for criminals, but it also grants them the power to set up a system of laws which establishes guidelines regarding monetary matters, such as what constitutes an acquisition. This is what the Chachamim refer to when they say 'Dina d'Malchusa Dina' -- the system of the courts of Nochrim that establishes legal guidelines in monetary matters is binding on all of the residents of that country, mid'Oraisa. (See Dibros Moshe to Gitin there.) This source for 'Dina d'Malchusa Dina' gives Nochrim the right to enact any mandate or statute pertaining to anything that affects the constituents of the country in any way. They cannot set up guidelines regarding what is considered Kidushin and Gerushin, since Kidushin cannot be effected by Nochrim; since Kidushin has no applicability to Nochrim, the Torah does not command them -- or give them the right -- to establish guidelines for it. (According to this explanation, it could be that 'Dina d'Malchusa Dina' does <i>not</i> apply to a Jewish king, whether in Eretz Yisrael or in any other country, since a Jewish king is not bound by the Mitzvos of Bnei Noach, but rather by all of the Mitzvos of the Torah. This might be the intention of the <b>NIMUKEI YOSEF</b> in Nedarim (28a) cited above.)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LAWS OF THE KINGDOM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna bar Avin, R. Avin...):</font></b> If Reuven bought land
          from a Nochri and Shimon dug a little in it; we do not
          take the land from Shimon.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah citing Shmuel):</font></b> The law of the kingdom is
          binding;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In Persia, a Nochri makes a Chazakah after 40
               years (if Levi buys from a Nochri who has such a
               Chazakah, Yehudah cannot claim 'the land was stolen
               from me');
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one pays (to the king's officials) the tax due
               on another's land to receive the land, he acquires
               it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is only if the land is sold for the land
                    tax. If it is sold for the head tax (that the
                    owner owed, this is not the law of the
                    kingdom), the sale is invalid.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer:</font></b> The head tax is a personal
                    liability. It is unrelated to the land.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Huna brei d'Rav Yehoshua):</font></b> No, the sale is
               valid. The head tax creates a lien even on Peros
               that were harvested and put in a Keli!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Ameimar):</font></b> If so, a firstborn does not
               get a double portion (if his father had not yet paid
               the head tax for this year), for the father was not
               Muchzak in his land. Whoever paid the tax would
               receive it!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A firstborn gets a double portion only in
                    property Muchzak to the father, but not if the
                    father was merely apt to receive it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Counter-question (Rav Ashi):</font></b> Also according
                    to you (that only the land tax creates a lien),
                    if this year's land tax was not yet paid, a
                    firstborn does not get a double portion!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Rav Ashi):</font></b> You must say that a
                    firstborn gets a double portion when the father
                    already paid the land tax;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> Likewise, Rav Huna brei d'Rav
               Yehoshua holds that he gets a double portion when
               the father already paid the head tax.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> Rava's scribes said that the Halachah
          follows Rav Huna brei d'Rav Yehoshua.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Halachah is not like him. They said so
          to defend the documents they wrote (for sales due to non-
          payment of the head tax).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> An utterly idle man (he does not work or
          learn) must pay a share of taxes imposed on the city
          (even though he does not earn money in the city);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if the king's tax collectors asked
               him to pay, and people of the city convinced the tax
               collectors that he is unable, and therefore more was
               collected from the other residents;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the tax collectors never asked him to pay,
               this shows that Hash-m exempted him!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DIVISIONS IN A FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> A fence or Chatzav (tree) divides a Hefker
          field (i.e. Chazakah on one side does not acquire the
          other side), but they are not divisions regarding Pe'ah
          or Tum'ah (as will be explained).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Ravin):</font></b> They are divisions also regarding Pe'ah and
          Tum'ah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make regarding
               Pe'ah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Mishnah):</font></b> The following are a division
               for Pe'ah (they obligate leaving a separate Pe'ah on
               each side): a Nachal (Rashi - valley; Rambam -
               river; Rashbam - rocky area), a Shelulis (irrigation
               ditch; some explain, a pond), a public or private
               road, or a public or private path that is used in
               winter and summer.
<br>
<br>

sjt:
<font><b>1) 'DINA D'MALCHUSA DINA' IN THE CASE OF AN INDIVIDUAL KING'S PERSONAL LAW</b></font><b>
<br>QUESTION:</b> Rav Huna brei D'Rav Yehoshua says that it is the law of the land ('Dina d'Malchusa') that all property, even 'barley [that has been harvested and placed] in the barrel,' is considered Meshubad to the taxes of the king, both the land tax and the head tax. Consequently, if a person pays the tax of another person to the king, he is entitled to take even the 'barley in the barrel.'
</p><p>
Why should Rav Huna brei d'Rav Yehoshua say that such a specific item is Meshubad to the king's taxes? He should say instead that we inquire about this particular king's policies and determine what is Meshubad to his taxes based on his particular policies!
</p><p>
<b>ANSWER:</b> The <b>RAMBAN</b>, <b>RASHBA</b>, and <b>RAN</b> answer that Rav Huna brei d'Rav Yehoshua means that such an object is Meshubad to the taxes in all kingdoms, and therefore it falls within the category of 'Dina d'Malchusa Dina.' A policy that is unique to only this specific king does <i>not</i> fall under the category of 'Dina d'Malchusa Dina' (for the rule is not 'Dina <i>d'Melech</i> Dina,' but rather 'Dina <i>d'Malchusa</i> Dina').
</p><p>
(The <b>RAMBAM</b> (Hilchos Gezeilah 5:13-14), however, rules that any law that the king establishes for all of the constituents of his kingdom is considered 'Dina d'Malchusa' and is binding. Only when the king takes property with no legal grounds (even under a law that he makes himself) is it not considered 'Dina d'Malchusa.')
</p><p>


<font><b>2) THE PRE-TAX 'SHIBUD' OF A KING ON A PERSON'S PROPERTY</b></font><b>
<br>QUESTION:</b> The Gemara asks that if, in a certain country, the law is that a person's property is Meshubad to the king until the tax is paid, then the Torah's law that the Bechor receives a double portion of his father's inheritance will never apply, because a Bechor receives a double portion only of property which is actually in his father's possession ('Muchzak') and not of property that will eventually come into his father's possession ('Ra'uy'). The Gemara answers that the law of a Bechor's inheritance will apply when the father paid the tax before he died, and thus the property entered his possession completely.
</p><p>
Why does the Gemara assume that the Shibud of a king on the property of the father makes the property 'Ra'uy' and not 'Muchzak' with regard to the Bechor's right to inherit it? In all other cases of property that is Meshubad to someone else, the Shibud does <i>not</i> make the property 'Ra'uy' and not 'Muchzak.' For example, in a case where the father's property is Meshubad to the Kesuvah of his wife, or his property is Meshubad to a lender, that property still is considered 'Muchzak' and the Bechor receives a double portion of it (see Bava Basra 124a). Why, then, is the Gemara bothered by the Shibud that a king has on a person's property?
</p><p>
<b>ANSWER: TOSFOS</b> (DH Im Ken) answers that the Shibud of a king is much stronger than the Shibud of a wife's Kesuvah or of a lender. In the case of a Kesuvah or a lender, the property still is in the complete possession of the man and is considered 'Muchzak'; if the man's creditors, or former wife, wants to collect that property, then they must initiate a prolonged judicial process (see Background to the Daf to Bava Metzia 35:22) in order to obtain the property. In contrast, a king by law may simply evict the person from his property with no further ado. Therefore, property that is Meshubad to a king is not considered fully in the possession of the owner (and it is 'Ra'uy'), whereas property that is Meshubad to a Kesuvah or to a creditor is considered fully in the possession of the owner ('Muchzak'). This also seems to be the explanation of the <b>RASHBAM</b> (DH Im Ken).
</p><p>
The <b>ALIYOS D'RABEINU YONAH</b> adds that the Shibud of a king to a person's property is actually more than just a Shibud. As long as the taxes have not yet been paid, the king actually owns the property (and he may sell it to whomever he wishes). In contrast, the Shibud of a creditor to the borrower's property is merely a lien; the borrower still fully owns his property. The <b>RAMBAN</b> explains further that the Shibud of a creditor merely obligates the borrower, or his heirs, to pay back the loan or to give the property to the creditor as repayment. The Shibud of a king actually places the property into the king's possession until the taxes are paid. Proof for this difference, the Ramban points out, is that the creditor is not entitled to sell the property of the borrower that is Meshubad to him, while the king is entitled to sell the property that is Meshubad to him.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO WAS PARDONED FROM THE TAX</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> An utterly idle man (he does not work or
               learn) must pay a share of taxes imposed on the city
               (even though he earns no money in the city);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if the king's tax collectors asked him
               to pay, and people of the city saved him. If he was
               saved through Andiski, Hash-m exempted him!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 143a:</font></b> Rav Yitzchak bar Yosef taught that once, the
               king demanded that the rich people and the (less
               rich) nobles buy a crown for him. Rebbi ruled that
               the rich pay half, and the nobles pay half.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Initially, the king wrote only that the rich must
               pay. The nobles used to help a small amount. When
               the king found out, he included the nobles to
               (increase the demand and) teach that each group pays
               half.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Bava Kama 116b (Beraisa):</font></b> If a troop despoiled a
               caravan, and a member of the caravan saved some of
               what the troop took, everyone gets back his own
               things. If he told them that he saves for himself,
               he keeps it all.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> If others can also save, why does his
               declaration help?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Rami bar Chama):</font></b> The case is, they were
               partners. In such a case, a partner can divide the
               property by himself. If he did not say that he saves
               for himself, they are still partners.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (3:66) bring the Gemara on 55a.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Omar ha'Mechaber):</font></b> The Gemara
                    (8a) said that one who has lived in the city
                    for 12 months must help pay for planks (used to
                    support the wall). The same applies to taxes
                    and conscription. This is when there is no
                    fixed amount, and perhaps he causes it to be
                    bigger, for he adds to the population. Rav Hai
                    Gaon says that Andiski is a stamp from the king
                    that he is exempt from the tax. This is only if
                    it was before the collector started demanding
                    payment, or before an amount was fixed for the
                    city. If an amount was already fixed for the
                    city, he is not exempted.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe (CM 163:10):</font></b> The Mordechai (Bava
                    Kama 180,177) says that the same applies to
                    anyone pardoned, even if he is not idle. R.
                    Simchah obligates him only if he requested the
                    officer to exempt him. Maharam says that if the
                    officer pardoned him after fixing a sum for the
                    Tzibur, he is exempt, but not if he pardoned
                    him before fixing a sum for the Tzibur, for
                    then the officer will make the Tzibur pay more
                    to compensate. However, if the officer said on
                    his own that Ploni will not pay, he is exempt
                    even if they used to give together. Likewise,
                    he can say that they will give equally. This is
                    before the Tzibur settled with the officer.
                    Once they settled, he cannot be lenient on one
                    and stringent on another. Dina d'Malchusa Dina
                    does not apply to this. However, perhaps even
                    before settling, an officer, or even the king
                    cannot be more lenient on one than another, for
                    the Tzibur are partners regarding taxes.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bava Kama 10:25):</font></b> A Tosefta teaches that if
               tax collectors pardoned partners, they share the
               savings. If the tax collectors said that this is due
               to Ploni, he was pardoned. R. Simchah asked that the
               Reisha is obvious! He answered that it teaches that
               if one partner requested pardon, the pardon is for
               both of them, as if he was his partner's Shali'ach.
               The Seifa says that if they said that this is due to
               Ploni, i.e. they exempted him without any request,
               he was pardoned. One could say that in the Reisha he
               requested pardon, and the pardon was Stam. When they
               specified that the pardon was for Ploni, it is only
               for him. However, if so the Reisha is not a Chidush.
               Surely, Stam pardon is for the partnership!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Mordechai (Bava Kama 177):</font></b> Even if one partner
               requested pardon, the pardon is for both of them,
               for a partner cannot divide without his partner's
               consent, and one normally toils to help his partner.
               If they said by themselves that they pardon due to
               Ploni, he alone was pardoned. Based on this, R.
               Simchah ruled that if Reuven requested the officer
               to pardon him (even) after the officer fixed an
               amount for the Tzibur, Reuven must pay his share
               with the Tzibur. He wrote 'my uncle R. Klonimus used
               to ask pardon from the officer after he settled with
               Tzibur, and he would pay with the Tzibur. We thought
               that this was Midas Chasidus. Now I see that letter
               of the law requires it. Rabbeinu Meir rejected this
               (like the Rosh brought above). Therefore, if the
               Tzibur already settled with the officer, and then
               one requested pardon, he saved for himself. If this
               was before the Tzibur settled with the officer, he
               must pay, like we say about a troop that ravaged a
               caravan. If one saved, he saved for everyone.
               Whenever others can save, even if he said that he
               saves for himself, he saved for everyone. We follow
               the clear assessment that when the officer exempts
               one, he will collect more from the others. However,
               if the officer said by himself before settling that
               Ploni will be exempt, and David and Levi will be
               liable, Ploni is exempt, even if they used to give
               together. In Bava Basra 143a, even though the rich
               used to give more, when the king decreed that the
               others pay half, they do like the king says. An
               officer can exempt one and make another pay more
               before settled with Tzibur. Afterwards, he cannot,
               for they are partners, and they share the burden
               like they normally do. This is unlike Bava Basra
               143a, for there they were not partners. The king
               obligated only the rich, and the others voluntarily
               gave a little.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Yam Shel Shlomo (Bava Kama 10:45):</font></b> The Rosh said
               that it is no Chidush that if Ploni requested
               pardon, and the pardon was Stam, he pays with the
               others. I say that one might have thought that since
               he alone appeased, presumably the officer pardoned
               him! However, I disagree with Rabbeinu Meir's
               conclusion about a tax that they used to give
               together. His initial proof from 143a is valid. It
               makes no difference whether or not initially they
               were obligated to pay. There also, they used to give
               according to their money (the richer gave more)! He
               said that a partner cannot divide without his
               partner's consent. If needed to avoid a loss, he
               can! Also, he does not divide. The king does, and
               Dina d'Malchusa Dina! This is not theft, for they
               did not yet settle the amount.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (CM 163:89):</font></b> Dina <i>d'Malchusa</i> (laws of the
                    kingdom that help the kingdom), is Dina, not
                    Dina d'Malka (whatever the king decides - Ran
                    (Gitin 4a DH Omar, v'Ibo'is).
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 163:6):</font></b> If an idle man (Ploni)
               does no business in the city, and people of the city
               appeased for him, e.g. a tax collector came to
               collect the quota from (each of) them according to
               his estimation of their abilities, and they told him
               that Ploni cannot pay, and he exempted Ploni and
               imposed Ploni's quota on them, Ploni owes them.
               However, if he exempted Ploni by himself, even if he
               imposed Ploni's quota on them, Ploni is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Adam):</font></b> The Rashbam explains
                    like this. He is exempt when the collector
                    overlooked him or did not bother to ask from
                    him because he knew that Ploni is idle, and
                    presumably he has no money.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> An idle man is liable only if he lives in the
               city, but not if he just happened to come here,
               since he does not profit here. This is if they
               exempted him before fixing the tax. If they fixed
               the tax and afterwards exempted an idle man, he must
               pay his share. If the officer pardoned David from
               his share of the tax, if David requested this, he
               must pay his share to the Tzibur.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (36):</font></b> This is even if they do not collect
                    from the Tzibur what David should have paid.
                    This is because one is no different from his
                    partners, and the entire Tzibur are partners in
                    taxes.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (37):</font></b> He pays what he would have paid had
                    he not been pardoned. The Tzibur spends it on
                    the tax or other public needs, and he will
                    benefit from it. This is the Mordechai's
                    intent.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If the officer pardoned David on his own, this
               is David's gain. Some say that before settling with
               the officer, the officer has no power to exempt or
               be lenient on one of them and impose more on the
               others or separate them. After settling with the
               officer, if he pardoned one of them even through his
               request, this is his gain and he need not pay the
               Tzibur.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (37):</font></b> The latter opinion holds that if he
                    pardons David after settling with the Tzibur,
                    he will deduct this from the city's obligation.
                    If he pardons David's share before settling, he
                    will impose David's share on the others. The
                    opposite applies to an idle man (Ploni). If he
                    pardons Ploni after settling, he will not
                    deduct this from the city's obligation, for he
                    never intended that Ploni pay, for he is idle,
                    therefore, Ploni is liable. If he pardons Ploni
                    share before settling, Shamayim exempted Ploni.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Taz):</font></b> Before settling, if the king
                    pardoned or forgot Ploni, he is exempt. This is
                    like the Maharam's first version, that if the
                    officer explicitly exempted Ploni before fixing
                    the tax, without Ploni's request, Ploni is
                    exempt. This version is primary. We cannot
                    resolve this with the Mechaber. Before settling
                    we do not distinguish an idle man from anyone
                    else!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (16):</font></b> The Rema means that the officer has
                    no power to exempt one who requests pardon. He
                    can exempt one on his own, like the Mordechai
                    says in the name of Maharam.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (17):</font></b> After settling, he can pardon one
                    and that person will gain only if his exemption
                    is not added to the Tzibur's obligation.<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make regarding
               Tum'ah?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Mishnah - R. Elazar):</font></b> If Reuven entered a
               valley in winter, and there was Tum'ah in one field
               in the valley, and Reuven does not know whether he
               entered that field, he is Tahor;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Chachamim say, he is Tamei (this is Safek Tum'ah
               in a Reshus ha'Yachid (Reshus ha'Yachid)).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Elazar says that a Safek about touching
                    Tum'ah is Tamei, but here we are unsure whether
                    he even entered the place of Tum'ah. (Rashi -
                    we learn (from Sotah) only that Safek Tum'ah is
                    Tamei when he surely entered the place of
                    Tum'ah; Rashbam - we have a double Safek.
                    Perhaps he did not enter, and even if he
                    entered, perhaps he did not become Tamei.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Ravin):</font></b> Regarding Shabbos, a fence or Chatzav does not
          divide a field.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> Also regarding Shabbos, a fence or Chatzav
          divides a field.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven took half a fig (on Shabbos,
               b'Shogeg, from a Reshus ha'Yachid) to a Reshus
               ha'Rabim and put it down, and then brought another
               half fig to a Reshus ha'Rabim: if he remembered in
               between that this is forbidden, he is exempt (from
               bringing a Korban). If not, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, if he took both halves to the same
               Reshus ha'Rabim, he is liable. If not, he is exempt.
<br>

sjt:
</p><p>
<font><b>3) A VALLEY WITH MULTIPLE FIELDS AND 'TUM'AH' IN ONE OF THEM</b></font><b>
<br>OPINIONS:</b> Rav Asi says in the name of Rebbi Yochanan (55a) that a boundary fence or a Chatzav tree divides a field of Hefker with regard to a Chazakah (such that one who does an act of Chazakah on one side does not acquire the other side), but not with regard to Pe'ah or Tum'ah. Ravin in the name of Rebbi Yochanan argues and says that they serve as divisions even with regard to Pe'ah and Tum'ah.
</p><p>
The Gemara here explains what relevance a division in a field has to the laws of Tum'ah by quoting the Mishnah in Taharos (6:5). The Mishnah there discusses a case in which a person entered a valley in the wintertime (when people normally do not walk in a valley, and thus the valley is considered a Reshus ha'Yachid), and there was Tum'ah (such as a grave) in one field in the valley, and the person does not know whether he entered that field or not. Rebbi Elazar says that if the doubt is whether he even entered the field that contained the Tum'ah, then he is Tahor, but if he certainly entered the field with the Tum'ah but the doubt is whether he touched the Tum'ah, then he is Tamei. Hence, according to Rebbi Elazar, if something divided the land in the valley into at least two fields, then the person is Tahor. The Chachamim argue and say that the person is Tamei regardless of how many fields there are in the valley, because the rule is that a Safek Tum'ah in a Reshus ha'Yachid is Tamei.
</p><p>
What is the basis of the dispute between Rebbi Elazar and the Chachamim?
</p><p>
(a) The <b>RASHBAM</b> explains that Rebbi Elazar says that the person is Tahor because of a Sfek Sfeika. The first Safek is that perhaps the person did not enter the field that contains the Tum'ah. The second Safek is that even if he did enter the field that contains the Tum'ah, perhaps he did not touch it. The Chachamim, on the other hand, maintain that there is only one Safek: perhaps the person walked until and reached the Tum'ah and stood over it, and perhaps he did not reach it. Since it is a single Safek, the rule is that Safek Tum'ah in Reshus ha'Yachid is Tamei.
</p><p>
(The Acharonim question the Rashbam's explanation (that according to Rebbi Elazar this is a Sfek Sfeika) from certain rules that govern the application of the principle of Sfek Sfeika. See <b>BINAS ADAM</b> (Sfek Sfeika #53), <b>BEIS ME'IR</b> (YD 110:14), <b>SHACH</b> (YD 110:15), as cited by <b>OHEL TORAH</b>.)
</p><p>
(b) <b>TOSFOS</b> cites <b>RASHI</b> in Avodah Zarah (70a) who explains that the Mishnah in Taharos discusses a case of a field full of Tum'ah. The Machlokes between Rebbi Elazar and the Chachamim is as follows. Rebbi Elazar maintains that even though there is only a single Safek, since the Safek is not whether the person touched the Tum'ah but rather whether he entered that field or not, Rebbi Elazar rules that Safek Bi'ah is Tahor. He rules this way because the principle of 'Safek Tum'ah in Reshus ha'Yachid is Tamei' is learned from the laws of Sotah. A woman who was warned by her husband not to seclude herself with another man and nevertheless secluded herself is Asurah ('Teme'ah') to her husband even though there is only a doubt whether she sinned or not with the other man. The Torah teaches that a Safek Tum'ah of Sotah in Reshus ha'Yachid is considered Vadai Tamei and thus she is Asurah to her husband. There, in the case of Sotah, the Safek is a Safek <i>Maga</i> -- the Safek is whether the woman 'touched' the man or not. The Safek is not a Safek <i>Bi'ah</i> -- a Safek of whether she entered the place or not. Therefore, Rebbi Elazar rules that in a case of a Safek Bi'ah, a Safek of whether or not the person entered a certain place (such as a field containing Tum'ah), the Safek is Tahor even in Reshus ha'Yachid. According to Rashi, Rebbi Elazar says that the person is Tahor <i>not</i> because it is a case of a Sfek Sfeika, but because the <i>type</i> of Safek is not the type to which the rule of Safek Tum'ah in Reshus ha'Yachid applies.
</p><p>
The Chachamim disagree and maintain that since there is only one Safek in this case, even though it is a Safek Bi'ah, the rule of Safek Tum'ah in Reshus ha'Yachid applies and the person is Tamei.
</p><p>
(c) <b>TOSFOS</b> cites <b>RABEINU TAM</b> who questions the explanations of Rashi and the Rashbam. According to both Rashi and the Rashbam, Rebbi Elazar and the Chachamim agree that a Sfek Sfeika in Reshus ha'Yachid is Tahor (the Machlokes is only whether this case is considered one Safek or two Sfeikos (Rashbam), or whether this case is the type of Safek to which the rule of Safek Tum'ah in Reshus ha'Yachid applies (Rashi)). Rabeinu Tam asks that the Mishnah in Taharos seems to contradict this. The Mishnah there (6:4) states that regardless of how many Sfeikos there are in Reshus ha'Yachid, a Safek Tum'ah is still Tamei.
</p><p>
Rabeinu Tam therefore explains that the Machlokes between Rebbi Elazar and the Chachamim is whether a Sfek Sfeika in Reshus ha'Yachid is Tamei or not. The Chachamim maintain that a Sfek Sfeika in Reshus ha'Yachid is Tamei, even when there are multiple Sfeikos. Their reasoning is that, m'Ikar ha'Din, even a single Safek in Reshus ha'Yachid should be Tahor because the person has a Chezkas Tahor: since he was Tahor until now, once the Safek arises his status now is considered the same as his status before the Safek arose (as in all other cases of Safek), and he should be Tahor. However, the laws of Sotah teach that a Chezkas Tahor does <i>not</i> apply in the case of a Safek Tum'ah in Reshus ha'Yachid, but rather the person is deemed Vadai Tamei. Accordingly, it makes no difference whether there is one Safek or multiple Sfeikos -- the law of Sotah that Safek Tum'ah in Reshus ha'Yachid is Tamei overrides the rule of Chezkas Tahor.
</p><p>
Rebbi Elazar maintains that this Chidush (that Safek Tum'ah in Reshus ha'Yachid is Tamei) applies only to the extent that the Torah applies it with regard to Sotah. In the case of Sotah, there is only one Safek, and the Torah teaches that the Safek Tum'ah of a Sotah (in Reshus ha'Yachid) is Vadai Tamei. This is a Chidush, since one would have otherwise determined the status of the woman based on the Chazakah that the Sotah is permitted to her husband. Therefore, this Chidush applies only to a case similar to the case of Sotah -- where there is only a single Safek. Where there is a Sfek Sfeika, though, the normal rule of Chazakah applies, and thus the person is Tahor.
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DIVISIONS IN A FIELD (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> It is (called a different Reshus ha'Rabim)
          only if a Reshus ha'Yachid separates one from the other,
          but not if a Karmelis separates them (for one is not
          liable for transferring between a Reshus ha'Rabim and a
          Karmelis. Mid'Oraisa, Karmelis is neither Reshus
          ha'Yachid or Reshus ha'Rabim. Mid'Rabanan, it has the
          stringencies of both.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Abaye):</font></b> It is even if a Karmelis separates them, but
          not if a piece of wood separates them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> It is even if a piece of wood separates them.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	This is like Rava said elsewhere.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> Domains of Shabbos have the same law as
               domains regarding Gitin. (If a man lent his Chatzer
               to his wife to receive her Get (he will throw it
               there), a piece of wood is considered a domain unto
               itself. He lent to her only the Chatzer, but not the
               wood. If the Get lands there, she is not divorced.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If there is no fence or Chatzav, what is the
          law (Rashbam - of one who makes Chazakah in property of a
          convert that died; Tosfos - regarding Tum'ah)?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (R. Merinus):</font></b> Whatever was called one field is
          considered one field.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What does it mean 'it was called one field'?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> It was called 'the Gargusa
          (irrigated field) of Ploni.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Acha bar Avya):</font></b> What is Chatzuva?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> It is a tree that Yehoshua used
          to mark borders. (Its roots go straight down, so it does
          not nurture from the other's property).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OTHER TEACHINGS OF RAV YEHUDAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> Yehoshua listed only the cities on the
          borders (to teach what is within each tribe).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> One must tithe Peros of all the land
          that Hash-m showed Moshe (before Moshe died).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does this come to exclude?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It excludes the lands of the Keni, Kenizi and
          Kadmoni (even when they will become part of Eretz
          Yisrael);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> These lands (of the Keni,
               Kenizi and Kadmoni) are Naftucha, Arva'ah and
               Shalma'ah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, they are Mount Se'ir, Amon and
               Mo'av;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon says, they are Ardiskim, Asya and
               Aspamya.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>COMBINING TESTIMONIES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two witnesses testified that Reuven ate
          the Peros of Shimon's field for three years, and they
          were Huzmu (they were found to be Zomemim, i.e. they were
          not present where they claimed to see the testimony),
          they pay Shimon the entire value of the field;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If a different pair of witnesses testified about each
          of the three years, and all were Huzmu, they jointly pay
          Shimon the entire value.
<br>
<br>

sjt:
<font><b>1) TESTIMONY OF 'CHATZI DAVAR'</b></font><b>
<br>QUESTION:</b> The Mishnah states that when a different pair of witnesses testifies for each year of a Chazakah, the three testimonies of the three pairs combine and the Chazakah is established. The Gemara says that this does not follow the view of Rebbi Akiva who derives from the verse, 'Al Pi Shnei Edim... Yakum <i>Davar</i>' (Devarim 19:15), that the entire matter ('Davar') must be made known to Beis Din by the two witnesses, and not half of the matter by two witnesses and half of the matter by another two ('Davar v'Lo Chatzi Davar'). How do the Rabanan, who accept the Chazakah established by the testimony of three different sets of witnesses testifying about three different years, understand this verse? The Gemara answers that according to the Rabanan, the verse teaches that 'Chatzi Davar' in a different case is not accepted. In order to prove that a girl has reached maturity (and is liable for punishments), witnesses must testify that she has two hairs, even if one is on the back and one is on the front. When two witnesses testify that they saw a hair on the back, and another two witnesses testify that they saw a hair on the front, the Rabanan consider this 'Chatzi Davar' and is not acceptable testimony.
</p><p>
What is the difference, according to the Rabanan, between the case of the Mishnah here and the case of the testimony about the hairs? In each case, there is a valid pair of witnesses testifying on <i>part</i> of a matter, and, when combined, their testimony attests to a full Chazakah or to a full sign of maturity!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> explains that the difference is that in the case of the hairs, neither pair of witnesses saw everything that was possible to see at the time. Had the witnesses checked more extensively, they would have seen the hair in the other place as well. Therefore, their testimony about one hair is considered testimony on an incomplete matter, and it cannot combine with the other pair's testimony on an incomplete matter. In contrast, in the case of a Chazakah, each pair of witnesses saw everything that was possible to see at that moment -- the pair witnessed the Machzik occupying the field for a year. During that year, it was impossible, obviously, for that pair of witnesses to see the Machzik occupying the field for any other year. Therefore, their testimony about that year is considered testimony on a complete matter. This is also the explanation that the <b>BA'AL HA'ME'OR</b> here prefers. Tosfos in Bava Kama (70b) gives this explanation in the name of the <b><b><b>RI</b></b></b>.
</p><p>
The <b>KOVETZ SHI'URIM</b> (#255) explains that the Rashbam understands the Pesul of 'Chatzi Davar' to be a lack not in what the witnesses <i>say</i> ('Hagadas ha'Edus'), but in what the witnesses <i>see</i> ('Re'iyas ha'Edus'). That is, at the moment that they saw the matter, were they seeing only half of what there was to see (as in the case of the hairs), or were they seeing everything that there was to see (as in the case of the Chazakah)? It is not a Pesul in what they say to Beis Din (that is, two witnesses <i>say</i> that they saw one part of the Chazakah, and another two witnesses <i>say</i> that they saw another part of the Chazakah).
</p><p>
(b) <b>TOSFOS</b> (DH Ela) cites <b>RASHBA</b> (Rabeinu Shimshon mi'Shantz) who explains that the difference is that testimony of two witnesses about the presence of one hair has absolutely no ramifications at all. Without testimony about the second hair, the testimony is completely irrelevant and useless. In contrast, testimony about a single year of occupancy of a field is considered a complete and valid testimony in itself for a different matter -- to prove that the Machzik ate the produce of the field and must reimburse the owner of the field (if no Chazakah is established) for a year's worth of produce. This is also the explanation of the <b>RIF</b> here.
</p><p>
The <b>CHIDUSHEI RABEINU MEIR SIMCHAH</b> explains that Tosfos, too, understands that the Pesul of 'Chatzi Davar' is a Pesul in the 'Re'iyah' of the witnesses, in what they saw, and not in what they say. Hence, if, at the time that they see the event, what they saw is relevant in itself for a complete matter, then it is considered a valid testimony that can combine with the testimony of other witnesses. (See, however, the <b>CHASAM SOFER's</b> explanation of the <b>RIF</b>.)
</p><p>
(c) The <b><b><b>RI</b></b> MI'GASH</b> and the <b>RIF</b> (in Teshuvos) explains that the reason why the witnesses do not combine in the case of the hairs is that the Halachah is that the two hairs must be in the same place. This is the subject of a Machlokes Tana'im in Nidah (52b), and the Halachah follows the view that the two hairs must be in one place. Therefore, even if <i>one</i> pair of witnesses testifies about two hairs, one on the back and one on the front, that testimony is not valid.
</p><p>
The Rishonim (<b>BA'AL HA'ME'OR</b>, <b>RAMAH</b>, <b>RASHBA</b>) reject this explanation because it gives an entirely different reason for why the testimony of the witnesses in the case of the hairs is not valid. It is not because of 'Chatzi Davar' but because of a specific requirement in the location of the hairs that has not been fulfilled. Accordingly, this explanation is not consistent with the words of the Gemara here, which says that the reason why the testimony is not accepted is that it is 'Chatzi Davar.'
</p><p>
(d) <b>RASHI</b> in Bava Kama (70b) writes that in the case of the testimony about a girl's hairs, according to the testimony of each witness the girl is still a Ketanah and therefore their testimonies do not combine, while in the case of a Chazakah, according to the testimony of each witness the Machzik is occupying the field. The <b>RAMBAN</b> and <b>RASHBA</b> explain that Rashi means that when two witnesses testify about one hair, that in no way indicates anything about the girl's maturity, since even a very young girl has a single hair. Therefore, that 'Chatzi Davar' is not acceptable testimony. In contrast, when two witnesses testify that they saw the Machzik occupying the field for one year, they are testifying about the Chazakah itself -- that the Machzik acted in a way that demonstrated his ownership of the field. Even though further testimony is needed to tell Beis Din that the field did not leave the Machzik's possession during the next year, nevertheless if it is assumed that the facts provided by the testimony about the first year remained unchanged (i.e. the Machzik continued to occupy the field), then the Machzik would have a Chazakah. Hence, the testimony about the first year is the beginning of the proof about the subsequent years, and thus the testimonies about the different years combine. (See <b>AVI EZRI</b>, Hilchos Edus 21:9.)
</p><p>
The <b>RAN</b> explains Rashi differently. The Ran explains the mechanism of a three-year Chazakah like the <b>RAMBAN</b> (see Insights to Bava Basra 29:2): even when the Machzik occupies a field for one day without the protest of the original owner, that is enough to establish proof of his ownership. The fact that the previous owner did not protest immediately proves that he is not the true owner. A true owner would <i>immediately</i> object to someone else using his land. However, the fact that the Machzik cannot show a Shtar weakens the Machzik's claim of ownership. The weakened Chezkas Mara Kama overrides the weakened Chazakah of the Machzik. Only after three years have passed is the claim of the Machzik no longer weakened by his lack of possession of a Shtar, since he is not expected to keep a Shtar for that long, and therefore his Chazakah prevails. Accordingly, when the first two witnesses testify that the Machzik occupied the field for one year, that suffices to establish a Chazakah of his ownership. The other two pairs of witnesses, who testify about the second and third years, are necessary only to remove the element that weakens the Machzik's claim.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HOW CAREFUL MUST WITNESSES BE ABOUT THE TESTIMONY?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If one witness saw Reuven eat wheat,
               and one saw him eat barley, this is a Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rav Nachman):</font></b> If so, we should also say
               that if one witness saw Reuven eat in the first,
               third and fifth years (of a six year period), and
               another witness saw him eat the other three years,
               this is a Chazakah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Rav Yehudah):</font></b> There is different, for
               they do not testify about the same years. I discuss
               witnesses who testify about the same years.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> They argue about what he ate!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Since he makes a Chazakah through eating
               either, witnesses are not careful to see exactly
               what he eats.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings the Gemara verbatim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 15:2):</font></b> If one of the witnesses
               of Chazakah testified that Reuven ate wheat, and the
               other testified that he ate barley, their testimony
               stands, for a witness is not so particular about
               this. If one witness saw Reuven eat in the first,
               third and fifth years (of a six year period), and
               another witness saw him eat the other three years,
               the testimonies do not join, for they do not testify
               about the same years. He returns the land and the
               Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> We discuss a place where people
                    leave the land fallow. If not, even if the
                    witnesses did not contradict the other, it
                    would not be a Chazakah!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (CM 145:2):</font></b> Perhaps the Rambam discusses
                    when they do not contradict each other, in a
                    place where people do not leave the land
                    fallow! The Tur (140:12) says that such
                    testimonies join, but the Rambam could argue,
                    for in such a place each witness must testify
                    about consecutive years! We can answer that if
                    so, the Rambam would not have concluded 'for
                    they do not testify about the same years',
                    rather, 'because they do not testify about
                    consecutive years.' Had they both testified
                    about years one, three and five, they would
                    join.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>R. Akiva Eiger (CM 141:4):</font></b> We may infer that
                    the Rambam holds like the Tur (and one opinion
                    in the Shulchan Aruch) that a place where
                    people leave the land fallow, eating
                    consecutive years is not a Chazakah. This is
                    why the witnesses do not join, even though they
                    do not contradict each other!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (3:68):</font></b> Witnesses are not careful to notice
               whether Reuven ate wheat or barley, but they would
               know whether he ate wheat or legumes.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Even though people distinguish
                    between a white Manah (100 Zuz) and a black
                    Manah (Sanhedrin 31a), that is because it is
                    the essence of the testimony, so they must be
                    exact. We are not concerned about Chazakah, for
                    whether he ate wheat or barley, it is a
                    Chazakah.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 145:1):</font></b> If one witnesses
               testified that Reuven ate wheat for years of
               Chazakah, and the second testified that he ate
               barley, their testimony stands, for a witness is not
               so particular about this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> If one witness saw Reuven eat in
               the first, third and fifth years, and another
               witness saw him eat the other three years, do not
               join, for they do not testify about the same years.
               He returns the land and Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> If one witness (Moshe) says that he ate
                    <i>only</i> years one, two and three, and the other
                    (David) says that he ate only years four, five
                    and six, he returns the land but not Peros. If
                    they do not contradict each other, this is a
                    Chazakah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Prishah (DH Im):</font></b> Even if David contradicts
                    Moshe, but Moshe does not contradict David, it
                    is not a Chazakah! Do not say that the Tur
                    discusses when both contradict each other, for
                    if not Reuven must pay Peros. In any case he
                    need not pay Peros, for if we believe a witness
                    that he ate three years, he has a Chazakah and
                    the land was his! Rather, the Tur means that
                    David <i>or</i> Moshe says that he ate <i>only</i> three
                    years. Alternatively, the Tur says here that
                    both contradict each other for parallel
                    structure with the next case he brings (in
                    which each witness testifies about alternate
                    years). There, if David contradicted Moshe, but
                    Moshe did not contradict David, David would
                    obligate Reuven to pay for Peros. (Reuven
                    cannot swear to contradict David, for he agrees
                    that he ate!)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>R. Akiva Eiger:</font></b> I say that when each testifies
                    about consecutive years, if David (the latter
                    witness) contradicts Moshe, but Moshe does not
                    contradict David, we believe David that Reuven
                    has a Chazakah, Migo that David could have
                    testified about the three years he saw Reuven
                    eat, without mentioning that Moshe lied! The
                    Ran (Kesuvos 10a) says that a witness is
                    believed through a Migo, just like a litigant.
                    The Pnei Yehoshua (Kesuvos 19b) says that the
                    Ran discusses only a Peh she'Asar (had the
                    witness been silent, he would have been
                    believed), but this applies here!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Tur:</font></b> If one witness says that he ate years one,
                    three and five, and the other says that he ate
                    years two, four and six, and they do not
                    contradict each other, in a place where people
                    leave the land fallow, some say that this is a
                    Chazakah. I say that it is not a Chazakah, for
                    if we believe both of them, he ate consecutive
                    years, unlike the way people farm here. Also in
                    a place where people do not leave the land
                    fallow it is not a Chazakah, for neither
                    testifies about consecutive years.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (DH Hevi):</font></b> The Rashbam says that Rav
                    Nachman thought that Rav Yehudah meant that (we
                    assume that) the witnesses testified about
                    different years, for if they testified about
                    the same years, they contradict each other. Rav
                    Yehudah answered that we assume that they
                    discuss the same years, but there is no
                    contradiction. Tosfos rejected this (for if so,
                    why does Rav Nachman say 'if so...?' Rav
                    Yehudah teaches precisely this!) Tosfos says
                    that Rav Nachman knew that Rav Yehudah meant
                    that the witnesses testified about the same
                    years, and asked that if this is a good
                    Chazakah even though they contradict each
                    other, we should likewise allow a Chazakah when
                    they contradict each other about which years
                    they ate. The Tur holds like Tosfos.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Drishah (2):</font></b> Farmers told me that it is normal
                    to plant wheat and barley in alternate years,
                    and then one need never leave the land fallow.
                    Tosfos need not argue with the Rashbam
                    l'Halachah. They argue about even if the
                    witnesses did not contradict each other. It is
                    not a Chazakah if they do not testify about
                    consecutive years. Rav Nachman did not want to
                    ask directly, for this is not so obvious.
                    Rather, Rav Nachman asked in any case when the
                    witnesses explicitly contradict each other
                    about the years. The Tur did not write a
                    difference between Tosfos and the Rashbam, for
                    he holds that they agree l'Halachah. In a place
                    where people (alternate crops and) never leave
                    the land fallow, all agree that using the field
                    in alternative years is not a Chazakah. Both of
                    them hold that the Gemara did not discuss a
                    place where people leave the land fallow in
                    alternative years. The Tur brings an opinion
                    that in such a place, it is a Chazakah even
                    according to the Rashbam. The Tur holds that 
                    even in such a place it is not a Chazakah. The
                    Beis Yosef says that the Tur holds like Tosfos.
                    It seems that he holds that they argue
                    l'Halachah, and Tosfos holds that it is a
                    Chazakah when they do not contradict each
                    other. However, the Tur says that even then
                    there is no Chazakah! Perhaps we can say like I
                    explained. The Tur holds like Tosfos, that Rav
                    Nachman asked from a case in which the
                    witnesses contradict each other. 'Some say' (in
                    the Tur) hold that Rav Nachman holds that when
                    they do not contradict the other, it is a
                    Chazakah in a place where people leave the land
                    fallow. The Tur holds that Rav Nachman holds
                    that even there it is not a Chazakah. Rav
                    Nachman asked from a case that is clearcut.
                    'Some say' cannot hold like the Rashbam, for he
                    holds that even without a contradiction, it is
                    no Chazakah! However, I disagree, for 'some
                    say' discuss where people leave the land
                    fallow, and the Gemara (and Rashbam) discuss a
                    place where they do not.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>SMA (3):</font></b> The Gemara and Tur did not mention
                    Peros. The Rambam and Shulchan Aruch mention
                    Peros. They must discuss a place where people
                    leave the land fallow, and the witnesses did
                    not contradict the other. Since he ate
                    abnormally, the owner saw no need to protest.
                    The witnesses do not really contradict each
                    other. If they did, we could not force Reuven
                    to pay for Peros! However, perhaps Peros refers 
                    to what is now attached.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If David testified about all three years, and three
          brothers testified, each about one of the three years,
          (this is testimony of Chazakah, for) testimony of each
          year is separate (the brothers do not testify together);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding Hazamah, it is like one testimony (they
               are exempt unless all of them are Huzmu).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara):</font></b> Our Mishnah is not like R. Akiva.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Aba Chalifta) Question:</font></b> If a different
               pair of witnesses testified about each of the three
               years of Chazakah, what is the law?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (R. Yochanan ben Nuri):</font></b> This is a
               Chazakah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Aba Chalifta:</font></b> I agree, but R. Akiva argues.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Akiva:</font></b> '(According to two witnesses will be
                    established a) Davar (matter)', and not half a
                    Davar.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What do Chachamim disqualify due to 'half a
          Davar'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> One witness saw one hair on the back
               of a 12 year-old girl, and another witness saw one
               hair on her front.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> That is not 'half a Davar.' It is half
               testimony! (Each witness says that she only has one
               hair, so she is still a minor.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, two witnesses saw one hair on her back,
          and two other witnesses saw one hair on her front.
          (Rashbam - neither pair saw all that was possible to see
          at the time; Tosfos - the testimony of either pair by
          itself has no significance at all.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If one witness saw Reuven eat wheat, and
          one saw him eat barley, this is a Chazakah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Nachman):</font></b> If so, we should also say that
          if one witness saw Reuven eat in the first, third and
          fifth years (of a six year period), and another witness
          saw him eat the other three years, this is a Chazakah!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection (Rav Yehudah):</font></b> There is different, for they
          do not testify about the same years. I discuss witnesses
          who testify about the same years.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> They argue about what he ate!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Since he makes a Chazakah through eating
          either, witnesses are not careful to see exactly what he
          eats.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>COMBINING THE TESTIMONY OF BROTHERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If David testified about all three years,
          and three brothers testified, each about one of the three
          years, these are three testimonies. Regarding Hazamah, it
          is one testimony.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Reuven and Moshe had signed a document, and Reuven
          died. (To validate the document, Moshe verified his
          signature, and) Moshe's brother (Aharon) and a stranger
          came to testify about Reuven's signature.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Ravina:</font></b> This is like the Mishnah. One witness can
          combine with brothers regarding years of Chazakah. Also
          here, the stranger joins Moshe and Aharon regarding the
          signatures.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rav Ashi:</font></b> No. In the Mishnah, only half the testimony
          is from the brothers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, Moshe and Aharon supply three quarters of
               the testimony (so it is not allowed).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT MAKES A CHAZAKAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Not all uses of a Chatzer make a Chazakah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The following do not make a Chazakah:</font></b> leaving
               one's animal there, setting up an oven or millstone,
               or raising chickens;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one sets up a 10 Tefachim wall to enclose his
               animal, or for his oven or millstone, or brings
               chickens in a house, or made a ditch three Tefachim
               deep or a pile three Tefachim tall for his waste,
               this is a Chazakah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between the Reisha
          (things that do not make Chazakah) and the Seifa (surely,
          an owner would object to all the uses listed. If no one
          protested, this proves ownership)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Ula):</font></b> Any Chazakah that acquires Hefker
          property (those in the Seifa) is a Chazakah to prove
          ownership (in what used to belong to someone else). A
          Chazakah that does not acquire Hefker (those of the
          Reisha) is not a Chazakah to prove ownership.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (Rav Sheshes):</font></b> This is not always true!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Plowing acquires Hefker property, but it is not a
               Chazakah to prove ownership. Eating Peros does not
               acquire Hefker property, but it is a Chazakah to
               prove ownership.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman):</font></b> The Mishnah discusses a
          jointly owned Chatzer;
<br>
<br>

sjt:
<font><b>1) A CHAZAKAH MADE BY USING ANOTHER PERSON'S PROPERTY</b></font><b>
<br>QUESTION:</b> The Mishnah describes acts through which a person is able to make a Chazakah on the property of another person, and that Chazakah serves as proof to his claim that he purchased the rights to use the other person's property for that purpose. The <b>RASHBAM</b> explains that the Mishnah refers to acts done for <i>three</i> years on or with the property of the other person, and the Mishnah means that if one does such acts for three years, then he has a Chazakah of three years.
</p><p>
The Rashbam seems to contradict what he writes earlier. The Rashbam earlier (41a, DH Kol Chazakah), as well as <b>RASHI</b> (or the Hagahah in Rashi, 6b) and <b>TOSFOS</b> (6b, DH v'Iy Chavrei), write that a Chazakah made through the usage of someone else's object takes effect immediately, as soon as the owner fails to protest the usage of his object, and the Machzik can claim that he purchased the rights of usage of that object from the owner. Why, then, does the Rashbam here explain that the Chazakah made through the usage of someone's object is only a Chazakah after three years of usage?
</p><p>
<b>ANSWER:</b> The <b>TUR</b> (CM 153) explains that the Rashbam maintains that when one gives permission to someone to use his property for small usages, it is not the practice to write a Shtar. Therefore, the Chazakah takes effect immediately if the owner does not protest, and the person using the property is believed to claim that he bought the rights to use the property for that purpose. In contrast, it <i>is</i> the practice to write a Shtar for <i>large</i> usages, such as those mentioned in the Mishnah. Therefore, the Machzik can claim only that he bought the rights to that usage after he has used the property for three years, because within three years the owner can demand to see the Shtar.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAKING NOISE IN A CHATZER</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 20b (Mishnah):</font></b> A millstone's lower stone must be
               distanced three Tefachim. The upper stone will be
               four Tefachim away.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is due to the noise.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one set up a store in a Chatzer,
               others can stop him because the noise of people
               entering and leaving disturbs their sleep. Rather,
               he may make Kelim in the Chatzer and sell them in
               the market.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If their sleep is disturbed by the noise of his
               hammer, millstone or children (coming to the store)
               they cannot complain.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> What is the difference between the
               clauses?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (Abaye):</font></b> The Seifa teaches that people of
               another Chatzer cannot complain.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Objection (and Answer #2 - Rava):</font></b> If so, it should
               say so explicitly! Rather, the Seifa (does not
               discuss a store, rather, it) discusses one who
               teaches Torah to children, after the enactment of
               Yehoshua ben Gamla.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 23a:</font></b> Bloodletters used to sit under Rav Yosef's date
               trees. The Kelim attracted ravens, which damaged the
               dates. Rav Yosef said that the bloodletters must
               leave, for Rav Nachman taught that there is no
               Chazakah for damage.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Abaye:</font></b> Rav Mari taught that that refers to smoke,
               and Rav Zevid taught that it refers to a Beis
               ha'Kisei (a privy. It does not apply to other
               things!)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rav Yosef:</font></b> I am very sensitive. The ravens bother me
               like smoke and a Beis ha'Kisei.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 57b (R. Yochanan):</font></b> Partners can object against each
               other regarding any use of the Chatzer, except for
               laundry. This is an enactment lest women need to
               launder in the river.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (2:6) bring the Gemara verbatim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH mi'Kol):</font></b> The Mishnah says
                    'the noise of people entering.' Really, it is
                    not due to noise, rather, to increased traffic.
                    The Yerushalmi clearly says so.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Nimukei Yosef (DH Gemara Omar):</font></b> Abaye taught that
               people of another Chatzer cannot complain. This
               shows that one in another Chatzer of the Mavuy
               cannot complain about increased traffic. Rava
               refuted Abaye's Perush, but he did not argue with
               this law (that one cannot complain about increased
               traffic in a Mavuy). Above, we said that people in a
               Mavuy can prevent someone from making an opening to
               the Mavuy. We must distinguish between increased
               traffic of people coming to buy from increased
               traffic from another Mavuy.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Nimukei Yosef (DH l'Tinokos):</font></b> Even though he could
               teach the children in a Beis ha'Keneses or Beis
               Medrash special for this, we do not require him to
               do so, to strenghen the enactment so that teachers
               will be available.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> In every case, one may protest
                    against one who wants to establish a
                    profession. Rav Nachman taught that there is no
                    Chazakah for damage, but we established this to
                    refer to smoke or a Beis ha'Kisei. One can get
                    a Chazakah for other damages.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Shechenim 6:12):</font></b> If one set up a
               store in a Chatzer, the neighbors can stop him
               because the noise of people entering and leaving
               disturbs their sleep. Rather, he may make Kelim in
               his shop and sell them in the market. They cannot
               protest that their sleep is disturbed by the noise
               of his hammer or millstone, for he made a Chazakah.
               Similarly, he may teach Torah to Yisrael children,
               and the partner cannot complain that he cannot sleep
               due to the children.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam explains that this is
                    when he already made a Chazakah, but at the
                    beginning they can stop him. The Rambam was
                    bothered why they cannot protest. A hammer
                    disturbs sleep more than people entering and
                    leaving! Also, the Mishnah says 'a store in the
                    Chatzer', which connotes that it is already
                    there. It does not say 'one who seeks to make a
                    store' or 'one may not make a store.' Rather,
                    it discusses one who already has a store. It
                    teaches that his Chazakah does not help for
                    others, i.e. people entering and leaving, like
                    he said in the name of Ge'onim in Halachah
                    11:5. His Chazakah helps for himself to do his
                    own work. The Rashba disagrees and says that
                    others cannot protest about the <i>noise</i> of the
                    people entering and leaving, for they cannot
                    protest about the noise of his hammer or
                    millstone! Rather, they can protest  that the
                    increased traffic in the Chatzer increases the
                    distance they must walk. He says that even if
                    they permitted this, they can say 'we thought
                    that we could tolerate it, but now we cannot.'
                    He derives this from the words 'a store in a
                    Chatzer', like I said above.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 156:2):</font></b> If one set up a store in
               a Chatzer, the neighbors can stop him because the
               noise of people entering and leaving disturbs their
               sleep. Rather, he may make Kelim in his shop and
               sell them in the market. They cannot protest that
               their sleep is disturbed by the noise of his hammer
               or millstone, for he made a Chazakah and they did
               not protest.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (9):</font></b> This is unlike grinding grits
                    (157:14), which others can protest about, for
                    it makes a great noise and shakes walls, which
                    is a great damage.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (10):</font></b> They can protest against the other
                    matters, which are in the Chatzer, but not
                    against a hammer or millstone, which are in his
                    house. The Shulchan Aruch says in Sa'if 4 that
                    Chazakah helps for Melachah, but not for people
                    entering and leaving.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (11):</font></b> The Rambam says that Chazakah helps.
                    Three years are not needed. It suffices that it
                    is recognized that he did Melachah, they heard
                    and did not protest.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (9):</font></b> The Tosefta (1:3) says that if the
                    store was there first, others cannot protest.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that whatever he does in his house
               even l'Chatchilah they cannot protest.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Amai):</font></b> R. Yo'el (in Mordechai
                    512) says that they cannot protest against his
                    hammer in his house, but in the Chatzer,
                    partners can protest about anything except for
                    laundry, like it says in 57b. R. Yerucham and
                    the Semag say that before he gets a Chazakah,
                    neighbors can protest against a hammer in his
                    house. It seems that the Rambam agrees. The
                    Ramban holds like the Rashba (they can protest
                    only due to increased traffic), and it seems
                    that also Tosfos does.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (12):</font></b> This is unlike the Mechaber, who
                    permits only if he already made a Chazakah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> This refers to healthy people. Sick
               people can protest if the noise harms them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (11):</font></b> We learn from 23a.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> Similarly, he may teach Torah to
               Yisrael children, and the neighbors cannot complain
               that they cannot sleep due to the children learning
               from their Rebbi. Similarly, they cannot protest
               about any Mitzvah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu):</font></b> The
                    Ritva (Sof Teshuvah 27) says that likewise they
                    cannot protest if he sets up a Medrash to
                    spread Torah or expound to the Rabim to glorify
                    Torah, lest it be forgotten.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (13):</font></b> This connotes that there is no limit
                    to the number of children. The Tur says so
                    explicitly. This is unlike the Ramban, who says
                    that Rashi holds that it is forbidden if there
                    are more than 50.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (12):</font></b> This is l'Chatchilah (neighbors
                    cannot protest).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Pischei Teshuvah (9):</font></b> The Levush says that we
                    discuss people of the Chatzer or Mavuy (alley)
                    protesting, but one who lives in the same room
                    or Beis ha'Choref (a room with little
                    ventialltion, for the winter) can prevent
                    another even from teaching Torah to Yisrael
                    children, for most people cannot bear this. He
                    did not become partners in the room with this
                    intent, unless he explicitly stipulated.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN PEOPLE KEEP PROFESSIONALS OUT OF A MAVUY? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Partners do not object to these temporary uses.
               They do object to a wall.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection:</font></b> Partners do object to these temporary uses!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If partners (in a Chatzer) vowed not
               to benefit from each other, they may not enter the
               Chatzer.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3 (Rav Nachman):</font></b> The Mishnah discusses the area 
          in back of houses. There, people do not object to these
          temporary uses, but they object to a wall.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Indeed, our Mishnah discusses a jointly
          owned Chatzer. Some people object to temporary uses,
          others do not;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Since we do not know whether or not these
               partners object,) regarding money we are 'lenient'
               (we say that they do not object, so the Machazik has
               no proof of ownership to take the property).
               Regarding Isurim (vows) we are stringent.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Ravina):</font></b> (Our Mishnah discusses a jointly owned
          Chatzer,) people do not object to temporary uses
          (therefore, it is not a Chazakah); the Mishnah about vows
          is R. Eliezer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> Even Vitur (things that
               people freely give or allow) is forbidden to someone
               who is forbidden to benefit due to a vow..
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Partners can object against each other
          regarding any use of the Chatzer, except for laundry.
          This is an enactment lest women need to launder in the
          river (which leads to immodesty).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WAYS OF CHACHAMIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> 'V'Otzem Einav me'R'os b'Ra' refers
          to one who does not look at women washing laundry.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he could have chosen a path on which women do
               not wash laundry, he is evil!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If there was no other path, this is Ones (Rashbam
               - why is he expected to close his eyes? Ramah - he
               must look so he will not fall)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, there was no other path. Still, he
          should force himself (Rashbam - to look the other way;
          Ramah - to avoid looking, even though he might fall.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Yochanan):</font></b> What kind of tunic befits a
          Chacham?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Bana'ah):</font></b> It does not allow his feet to be
          seen.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Yochanan):</font></b> What kind of outer cloak befits
          a Chacham?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Bana'ah):</font></b> It does not allow a Tefach of his
          tunic to be seen.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Yochanan):</font></b> What kind of table befits a
          Chacham?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Bana'ah):</font></b> Two thirds is covered with a
          cloth, and one third is uncovered, for plates and
          vegetables. The ring (from which the table is hung)
          should be on the outside.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> The ring is on the inside.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> If children eat with him, the ring should be
          on the outside (so they will not play with it and shake
          the table);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If children do not eat with him, the ring should
               be on the inside (lest the waiter trip on it).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2:</font></b> In both cases, children do not eat with him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a waiter serves them, the ring should be on
               the inside (lest the waiter trip on it);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If no waiter serves them, it should be on the
               outside (lest the people eating get hurt from it);
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #3:</font></b> In both cases, a waiter serves them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> During the day, the waiter can see, and he will
               not trip on it, so the ring should be on the outside
               (lest the people eating get hurt);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> At night, we are more concerned lest the waiter
               trip on it, so the ring should be on the outside.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	The table of an ignoramus is like a bonfire (surrounded
          by pots):</font></b> the cloth and bread are inside, and the plates
          are outside.
<br>

<p>

sjt:
</p><p>
<font><b>2) TAKING A SPIRITUALLY DANGEROUS ROUTE</b></font><b>
<br>QUESTIONS:</b> The Gemara cites the verse in Yeshayah (33:15) which praises a person who 'closes his eyes from viewing evil.' Rebbi Chiya bar Aba explains that this refers to a person who does not gaze at women while they are standing at the wash pool washing clothes (when they have to expose parts of their legs to enter the pool). The Gemara asks what situation Rebbi Chiya bar Aba is discussing. If he is discussing a situation in which there is another route to take, then even if the person closes his eyes, he is considered a Rasha for taking this route in the first place! If there is no other route to take, then why does he need to close his eyes? He is an 'Ones,' and the Torah exempts him! The Gemara answers that, indeed, there is no other route to take, and nevertheless he is required to force himself not to look at the forbidden sites and to turn his head away and close his eyes.
</p><p>
(a) The Gemara says that when there is another route for him to take, he is a 'Rasha' for taking the path with the forbidden sites, even if he closes his eyes. The <b>CHAFETZ CHAIM</b> (Sefer Chafetz Chaim, Klal 6, Be'er Mayim Chaim #14) asks that the Gemara in Pesachim (25b) rules that a prohibited form of Hana'ah (pleasure) is permitted when a person could have avoided it, as long as he does not have specific intention to benefit from it ('Efshar v'Eino Mechaven'). Why, then, does the Gemara here call the person a 'Rasha' when he could have avoided walking along the path but did not intend to derive pleasure from the forbidden sites there?
</p><p>
(b) The Gemara says that when there is no other route for him to take, he is an 'Ones' and there is no reason for the verse to require him to close his eyes. <b>RAV MOSHE FEINSTEIN</b> zt'l (Igros Moshe EH 1:56) asks, why does the Gemara exempt the person with the rule of 'Ones'? If there is no other route to take other than the one which contains forbidden sites, then let the person not go at all! Even if he needs to go in order to earn money or for other needs, such necessities do not permit the transgression of Isurim.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>CHAFETZ CHAIM</b> answers that the Isur of Arayos is different, because a person has a strong lust for such Isurim (Chagigah 11b, Makos 23b), and therefore a person must be especially stringent to avoid temptation. Even though he feels that right now he has no desire for such pleasure, nevertheless his Yetzer ha'Ra might overcome him later and, Chas v'Shalom, he might have forbidden thoughts because of the sites that he saw. The <b>IGROS MOSHE</b> (loc. cit.) adds that the Torah itself prohibits one from seeing things which later will cause him to have forbidden thoughts, and it warns a person not to rely on himself to say that he will not have such thoughts: 'v'Nishmarta mi'Kol Davar Ra' (Devarim 23:10).
</p><p>
(b) <b>RAV MOSHE FEINSTEIN</b> answers that the problem here is not that the person, by walking there, will certainly sin, but merely that there is a possibility that the person might have forbidden thoughts. Therefore, since it is not a certainty, when there is no other route to take a person is permitted to rely on himself to remove his mind from the forbidden sites, and he is not obligated to lose his money as a result. Only when there is no pressing need for him to walk there is he prohibited to rely on himself to remove his mind from forbidden thoughts.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A CHACHAM'S BED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Under a Chacham's bed, only his shoes are found;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Under an ignoramus' bed, a whole storehouse is
               found.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>R. BANA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	R. Bana'ah used to mark off graves. He found Eliezer
          (Avraham's slave) by Avraham's grave. Eliezer told him
          that Avraham was sleeping in Sarah's arms.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Bana'ah:</font></b> Ask Avraham if I may enter.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Avraham:</font></b> He may enter. It is known that there is
               no evil inclination after death, so there is no need
               for modesty.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	When R. Bana'ah came to Adam ha'Rishon's grave, a voice
          from Heaven said:</font></b> 'you saw (Rashbam - Yakov; R. Chananel 
          - Avraham, who has) the semblance of (Adam, who has) My
          form. You may not see (Adam, who has) My form itself.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Bana'ah:</font></b> I need to mark off the grave (I must
               see exactly where he is)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> A voice from Heaven:</font></b> The inner cave (of the
               Ma'aras ha'Machpela, in which Adam and Chavah are
               buried) is the same size as the outer cave (in which
               the Avos and Imahos are buried, which you saw).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  According to the opinion that one cave is on
                    top of the other, since they are the same size,
                    it suffices to mark off one.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	R. Bana'ah:</font></b> I saw the heels of Adam ha'Rishon. They
          were like the sun;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Anyone compared to Sarah (regarding beauty) is
               like a monkey compared to a person (i.e. they are
               incomparable);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Sarah compared to Chavah is like a monkey
               compared to a person;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chavah compared to Adam is like a monkey compared
               to a person;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Adam compared to the Divine Presence is like a
               monkey compared to a person.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The radiance of Rav Kahana is a semblance of that of R.
          Avahu;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The radiance of R. Avahu is a semblance of that
               of Yakov;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The radiance of Yakov is a semblance of that of
               Adam.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	A witch was digging up corpses. He came to the cave
          where R. Tuvi bar Masnah was buried. He was holding R.
          Tuvi by the beard (because he was so beautiful).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> Please let go of him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The witch complied. The next year, he came again,
               and grabbed his beard. He did not let go. They had
               to cut his beard.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	A man was commanding how do divide his property after
          his death:</font></b> a barrel of dirt to this son, a barrel of
          bones to this son, a barrel of feathers to this son. They
          did not understand what he meant.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	R. Bana'ah:</font></b> 'Dirt' refers to his land, 'bones' refers
          to his animals, and 'feathers' refers to his clothing.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	A woman chastised her daughter:</font></b> you should be secretive
          about illicit Bi'ah! Your (alleged) father has no idea
          that only one of my 10 children is from him!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Her husband overheard this. He commanded that all 
               his property be given to one son. No one knew which
               son he meant.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Bana'ah:</font></b> You should all bang on his grave
               until he reveals to you which son he meant.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> All the sons did so, except for one. R. Bana'ah
               awarded to him all the property. (Surely, he was the
               true son.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	People informed to the king that R. Bana'ah judged
          without witnesses or due process. They seized him. His
          wife cried to the judges 'I had a servant. They cut off
          his head, stripped his skin, ate his flesh, and use his
          skin to draw water for people to drink, and they did not
          pay me!'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They did not understand this; they called R.
               Bana'ah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Bana'ah:</font></b> She refers to her goat.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> His captors:</font></b> Since you are so smart, you should
               judge for us!
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	R. Bana'ah saw written by the courthouse 'if someone
          makes a claim against a judge, he is disqualified from
          judging.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Bana'ah:</font></b> If so, anyone can make a claim
               against him, and disqualify him!
<br>
<br>

sjt:
<font><b>1) THE GRAVES OF THE FOREFATHERS</b></font><b>
<br>QUESTION:</b> Rebbi Bena'ah used to demarcate the areas of graves so that people would not carry Taharos over those areas and cause them to become Tamei with Tum'as Ohel (<b>RASHBAM</b>), and to warn Kohanim from walking over those areas (<b>RASHI</b> in Bava Metzia 85b, and <b>RITVA</b> here). The Gemara describes what occurred when Rebbi Bena'ah entered the burial cave of Avraham Avinu and that of Adam ha'Rishon.
</p><p>
Why did Rebbi Bena'ah enter those caves to mark the areas of the graves? Adam ha'Rishon and Avraham Avinu both lived before the Torah was given, when all people had the status of Nochrim. The bodies of Nochrim are not Metamei through Tum'as Ohel, as Rebbi Shimon bar Yochai states in Yevamos (61a). Rebbi Shimon derives from the verses that only the grave of one who is called 'Adam' is Metamei b'Ohel, excluding the graves of Nochrim who are not called 'Adam.'
</p><p>
Even according to the Rabanan who disagree with Rebbi Shimon and maintain that the grave of a Nochri <i>is</i> Metamei through Tum'as Ohel, this applies only to Nochrim who died <i>after</i> the Torah was given (Nazir 54a). Why should the graves of Adam ha'Rishon and Avraham Avinu be Metamei? (<b>TOSFOS</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that Avraham Avinu indeed was called 'Adam,' as the verse states, 'ha'Adam ha'Gadol' (Yehoshua 14:15). Similarly, Adam ha'Rishon, obviously, was called 'Adam.'
</p><p>
This answer does not resolve the question that Tosfos asks according to the Rabanan, since the Derashah from the verse still does not apply to the time before the Torah was given, and thus the grave of Avraham Avinu still should not be Metamei. Even according to Rebbi Shimon, the Derashah of 'Adam' applies only after the Torah was given. Hence, even though Adam ha'Rishon and Avraham Avinu were called 'Adam,' nevertheless their graves should not be Metamei. (<b>TOSFOS</b> to Yevamos 61a, DH Kivrei)
</p><p>
(See <b>RABEINU CHAIM HA'LEVI</b> (Al ha'Shas), and <b>SIDREI TAHAROS</b>, Ohalos 2b.)
</p><p>
The <b>RAMBAN</b> writes that Rebbi Bena'ah marked the graves of the forefathers out of respect and honor for them, since they fulfilled all of the Torah. The <b>RAN</b> writes that since they fulfilled all of the Torah, they had the status of Yisrael, and therefore their graves are treated like graves of Yisrael. See also <b>RITVA</b> here.
</p><p>
(b) <b>TOSFOS</b> in Nidah (70b) (and in Nazir 54a, according to the Girsa of <b>RAV BETZALEL RENSBURG</b>; see also <b>TASHBATZ</b> 3:323) gives a different explanation for the Gemara in Nazir, according to which everyone agrees that <i>before</i> the Torah was given the graves of Nochrim <i>were</i> Metamei with Tum'as Ohel, since there was no distinction between a Jew and a Nochri before the Torah was given.
</p><p>
(c) The <b>NIMUKEI YOSEF</b> explains that the purpose for marking the graves of the forefathers was not to prevent Kohanim and Taharos from becoming Tamei with Tum'as Ohel. Rather, it was to prevent them from becoming Tamei with Tum'as <i>Maga</i> by walking on and touching the earth in which the bodies were buried.
</p><p>
The intention of the Nimukei Yosef is not clear. As the <b>VILNA GA'ON</b> (in Ohalos) explains, <i>earth</i> cannot be Metamei with Tum'as Maga (see <b>AYELES HA'SHACHAR</b> here). It seems that the Nimukei Yosef's intention is as the Vilna Ga'on explains in another context (<b>ADERES ELIYAHU</b>, Parshas Chukas). The Vilna Ga'on explains that even if the grave of a Nochri is not Metamei b'Ohel, it is Metamei b'Maga not only if one touches it directly, but even if one merely touches the gravestone or any object that rests directly above the Mes. The reason for this is as follows.
</p><p>
A Halachah in the laws of Tum'as Ohel states that if an object comes within less than a Tefach above the Mes, the Tum'ah of the Mes penetrates the object and goes out the other side (this is called 'Tum'ah Retzutzah,' or 'Kever Sasum'). The Vilna Ga'on rules that touching the object through which the Tum'ah is penetrating is the same as touching the source of the Tum'ah (the Mes) itself. Therefore, walking over (and touching) the grave of a Nochri is like touching the Mes itself (unless, of course, there is a Tefach of space between the top of the Mes and the roof of the coffin or object above the Mes). (According to the Nimukei Yosef's answer, it must be that the graves in Me'aras ha'Machpelah were constructed as structures which would constitute a 'Kever Sasum.')
</p><p>
(d) The <b>TESHUVOS BATEI KEHUNAH</b> suggests that even though their graves were not actually Metamei, the people were particularly stringent with regard to Taharos, as we find that the Rabanan instituted a number of enactments to safeguard the Taharah of Taharos (see Chagigah 19b). (The Teshuvos Batei Kehunah concludes that this explanation is not correct.)
</p><p>
(e) <b>RAV YAKOV EMDEN</b> and the <b>RASHASH</b> in Bava Metzia (85b) give an entirely different explanation for why Rebbi Bena'ah was marking the graves of Adam ha'Rishon and Avraham Avinu. He was marking their graves not because of a concern for Tum'as Mes, but so that people would know where the Tzadikim were buried so that they could go to their graves and pray to Hash-m there in the merit of the Tzadikim.
</p><p>


<font><b>2) AGADAH: THE REWARD FOR THOSE WHO HELP TZADIKIM</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rebbi Bena'ah used to demarcate the areas of graves (see previous Insight). The Gemara describes what Rebbi Bena'ah saw when he entered the burial cave of Avraham Avinu and that of Adam ha'Rishon. He found Eliezer, the servant of Avraham Avinu, standing at the entrance. When he entered the cave itself, he saw Sarah 'checking Avraham's head.'
</p><p>
What does this mean?
</p><p>
<b>ANSWER:</b> The <b>MESHECH CHOCHMAH</b> (Bereishis 21:12; see also <b>RAV YAKOV EMDEN</b> in Chidushei ha'Ya'avetz ha'Aroch) writes that the Avos developed their unique spiritual personalities and characters over many years. Since Avraham Avinu was born into a family of idolaters, it took a number of years until he began to serve Hash-m, and thus there was a certain degree of imperfection in his character. The role of Sarah, and of the other Imahos, was to refine the Midos that the Avos developed and imbue them in the next generation, so that those Midos would be passed to the children that the Avos would bear and the imperfections would be left behind. That is why Sarah gave birth to Yitzchak while Hagar gave birth to Yishmael; Sarah took the perfected Midos, while Hagar took the imperfections.
</p><p>
This is why Hash-m told Avraham Avinu to follow the words of Sarah (Bereishis 21:12). The Midrash says that she had a higher level of Ru'ach ha'Kodesh with regard to raising children.
</p><p>
When the Gemara says that Rebbi Bena'ah saw 'Sarah checking the head' of Avraham Avinu, it means that she was removing from his head, so to speak, the elements of the various philosophies that Avraham Avinu had learned throughout his life; she was picking out the pure elements and separating them from the others. This alludes to what she did while she was alive by cultivating Avraham's Midos while removing the imperfections. Rav Yakov Emden adds that 'his head' refers to the youth of Avraham Avinu ('his head' in the sense of 'Rosh,' beginning), when he still had not yet perfected his worldview and philosophy, and Sarah was removing those philosophies of his youth.
</p><p>
Based on this explanation, the Gemara may be teaching that even the greatest Tzadik grows only with the help of others, particularly with the help of his wife. Avraham Avinu could not have developed his teachings and passed them on to ensuing generations if not for his wife, Sarah. Similarly, Rebbi Bena'ah saw Eliezer guarding the burial cave of Avraham Avinu, an allusion to his life accomplishment of protecting Avraham Avinu (see Bereishis 14:14 and Nedarim 32a) and serving as his link to the outside world ('Doleh u'Mashkeh mi'Toraso Shel Rabo l'Acherim'; Yoma 28b). As a result of Eliezer's help, the teachings of Avraham Avinu were spread throughout the world.
</p><p>
One of the lessons of this Gemara is that although not everyone is destined for greatness like Avraham Avinu, nevertheless one's accomplishments in this world are not considered less important. If one's actions help another person develop himself and reach his potential in Avodas Hash-m, then he attains to a certain degree the same level of that person in Olam ha'Ba, just as Sarah and Eliezer share the Me'arah of Avraham Avinu.
</p><p>


<font><b>3) AGADAH: LIKE A MONKEY BEFORE MAN</b></font><b>
<br>QUESTION:</b> The Gemara says that a person compared to Sarah is like a monkey compared to a man. The Gemara makes the same comparison between Sarah and Chavah, and between Chavah and Adam ha'Rishon. The Gemara concludes that Adam ha'Rishon before the Shechinah is like a monkey before a person.
</p><p>
How can the Gemara attribute any sort of corporeal appearance to the Shechinah?
</p><p>
<b>ANSWERS:</b>
<br>(a) A monkey does not initiate thoughtful actions on its own. Instead, when it sees a person acting in a certain way, it is able to imitate the person. The Gemara, through the analogy of a monkey, is teaching that any Midah Tovah that a person has is present only because of what the earlier generations instilled in him. Any Tzadik, when compared to Sarah, is like a monkey compared to a person, in the sense that his actions are more of a reflection of what was instilled in him (by Sarah) then something he achieved on his own initiative. Sarah had to work hard to instill these Midos into her offspring.
</p><p>
Adam ha'Rishon, too, learned his Midos from Hash-m (see Sotah 14a). Adam ha'Rishon learned how to conduct himself by seeing the ways of the Shechinah.
</p><p>
(b) A monkey does not know why its trainer does certain things. Its trainer might appear to be causing it distress, such as by withholding food or by frightening it, but in truth its trainer has a goal and a purpose for training the monkey and helping it develop. The monkey, though, has no idea why the master does what he does. (See 'Second Focus,' page 202, 'Sacred Monkeys.')
</p><p>
Sarah was able to perceive much more of Hashem's master plan than other people are able to perceive. Adam ha'Rishon, who recognized much more of Hashem's master plan than any other person, was still like a monkey when compared to the Shechinah, in that no one can fully comprehend the intentions of Hash-m.
</p><p>
(c) The letter 'Kuf' (from which the word 'Kof,' monkey, is derived) represents a distortion of the will of Hash-m, which results from arrogance. The Gemara in Shabbos (104a) explains that the letters 'Heh' and 'Vav' represent the Name of Hash-m (see also Menachos 29a, where the Gemara says that Hash-m created this world with the letter 'Heh,' meaning that the 'Heh' represents what is revealed by Hash-m to the people in this world). The letter 'Kuf' is a 'Heh' with an elongated leg. This represents the arrogant person, about which the Gemara in Sanhedrin (29a) says 'Kol ha'Mosif Gore'a' -- when a person is arrogant and adds to his self-image, he actually detracts from his own worth. Instead of being a better 'Heh,' the 'Kuf' is distorted. It becomes a distorted and laughable imitation of the 'Heh,' just like a monkey is a distorted and laughable imitation of a human being.
</p><p>
Adam ha'Rishon was created with Tzelem Elokim, which means that he was given the ability to internalize all of the Midos that Hash-m wants a person to have. However, his arrogance (manifested in his desire to be on an equal stature with Hash-m) caused a distortion of his Tzelem Elokim, as the Gemara in Chagigah (12a) says: after Adam ha'Rishon sinned, Hash-m decreased his size. This decrease in size was a manifestation of 'Kol ha'Mosif Gore'a'; as a result of his attempt to add to his self-image, he was actually decreased in stature.
</p><p>
The Gemara here teaches that any person compared with Sarah is like a monkey compared with a person, because a person's arrogance distorts his true worth, like a monkey is a distorted imitation of a human being. Even Adam ha'Rishon -- who was the quintessential Tzelem Elokim -- compared with the Shechinah which he was supposed to imitate, was like a monkey compared to a person because he distorted his Tzelem Elokim through arrogance.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE ISUR TO LEAVE FOOD UNDER A BED</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Under a Chacham's bed, only his shoes are found.
               Under an ignoramus' bed, a whole storehouse is
               found.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Pesachim 112a (Beraisa):</font></b> If one puts food or drink
               under a bed, even if it is covered in an iron
               container, Ru'ach Ra'ah dwells on it.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Avodah Zarah 10b and Sof 2:13):</font></b> The
               Yerushalmi says that we must be concerned for
               everything that people are concerned for... one may
               not put a cooked food under a bed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (DH Pisa):</font></b> One may not put a cooked food
                    under a bed, for Ru'ach Ra'ah dwells on food
                    under a bed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Rotze'ach 12:5):</font></b> One may not put a
               cooked food under a bed, even if he is engaged in a
               meal, lest something damaging fall in, and he will
               not see it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> The Yerushalmi forbids due to Ru'ach
                    Ra'ah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Migdal Oz:</font></b> I received that the Ra'avad's Perush
                    is correct. According to the Rambam, it should
                    be forbidden also under a table or chair!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Semak (171):</font></b> Ru'ach Ra'ah is not common where
                    people are found, therefore, we are not
                    concerned if one is engaged in a meal. Perhaps
                    Pesachim 112a discusses other times, when
                    people are not around.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Yerucham (15:5 (141a)):</font></b> One may not put a cooked
               food under a bed, lest something damaging fall in,
               and he will not see it. The Yerushalmi says so. If
               one transgresses this and says 'I will endager
               myself', he is lashed mid'Rabanan for transgressing
               Chachamim's words.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 116:5):</font></b> One may not put a cooked
               food or drink under a bed, for Ru'ach Ra'ah dwells
               on it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Tzarich):</font></b> Even though the
                    Rambam did not explain that a cooked food under
                    a bed is due to Ru'ach Ra'ah, one must be
                    concerned for this, like the Ran says. Ru'ach
                    Ra'ah dwells on a drink under a bed, even if it
                    is in an iron Keli.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Prishah (26) and Drishah (7):</font></b> The Rambam
                    forbids due to exposure; people used to sit on
                    beds while eating. This is why some are lenient
                    nowadays. The Beis Yosef connotes that the Ran
                    argues. I disagree. The Ran discusses a bed
                    that people sleep on. The Rambam discusses a
                    bed on which people eat. There is no Ru'ach
                    Ra'ah underneath it. Since nowadays we do not
                    eat on beds, the Tur and Ran, who bring only
                    what applies nowadays, always forbid under a
                    bed.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Rebuttal (Shiyurei Berachah (Birkei Yosef) 9):
                    Pri Chodosh says that if the food is covered,
                    the Rambam permits. This is wrong. It was
                    taught Stam that it is forbidden, due to Ru'ach
                    Ra'ah, even if it is covered! Perhaps The
                    Rambam omits all matters of Ru'ach Ra'ah. The
                    Rambam and Ran argue about whether the
                    Yerushalmi is concerned for things falling in,
                    or for Ru'ach Ra'ah. If so, the Ran has no
                    source for the Rambam's law, and vice-versa.
                    The Rambam learned from the Yerushalmi, which
                    says that one must be concerned for everything
                    that people (on their own) are concerned for.
                    People are concerned for things falling in, but
                    not for Ru'ach Ra'ah! For all the matters the
                    Yerushalmi lists, the concern is from the
                    matter itself, not from something else.
                    However, it is difficult why the Rambam omits
                    the Bavli.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Toras Chayim (Bava Basra 58a, cited in Gilyon
                    ha'Shas):</font></b> Sleep is a taste of death, and there
                    is no Neshamah to ward off Mazikim. Therefore,
                    under the bed is like under a Mes at the time.)
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Binas Adam (63, on Chachmas Adam 68):</font></b> The
                    Gemara connotes that we are concerned even for
                    raw foods. Omce, a radish was put under a bed,
                    and the Gra commanded to dice it and throw the
                    pieces in a place where no one will find them.
                    Nowadays, many villagers put turnips and eggs
                    under a bed. Perhaps since many transgress
                    this, 'Shomer Pesa'im Hash-m' (Hash-m guards
                    people who do not know to guard themselves)
                    applies. Alternatively, perhaps the (correct)
                    text in Pesachim does not mention food at all,
                    for the Rambam, Semag, Rif, Rosh and Ra'avad
                    all cite this from the Yerushalmi. The Rambam
                    and Semag say that the concern is things
                    falling in, and the Ra'avad says on his own
                    that it is due to Ru'ach Ra'ah. Perhaps the
                    entire Beraisa was not in their texts, for they
                    do not mention liquids. If so, only cooked
                    foods are forbidden. The Gra was concerned for
                    our text.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Pischei Teshuvah (5):</font></b> Bava Basra 58a supports
                    that the Isur applies to all foods. Under a
                    Chacham's bed, only his shoes are found.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Tzitz Eliezer (19:56):</font></b> Indeed, the Rashbam
                    explains this due to concern for food under a
                    bed, but Rashi (Sukah 21b) says that it is so
                    the Chacham's household will not regularly come
                    to his bed!
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Kaf ha'Chayim (43):</font></b> Some forbid only a bed
                    fixed for sleeping. Some forbid only if it is
                    used for relations. Toras Chayim would forbid
                    only at the time one sleeps there. Ohr Yitzchak
                    shows that one should be careful at all times
                    if it is regularly used for sleeping.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b></b> Kaf ha'Chayim (40 and Aruch ha'Shulchan 11):
                    The Shulchan Aruch connotes that a raw food is
                    permitted, i.e. if it is not edible until it
                    will be cooked or pickled. Some are concerned
                    even for this. Nowadays we are not careful
                    about this, and 'Shomer Pesa'im Hash-m', for
                    many transgress it.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Igros Moshe (YD 3:20 DH v'Hinei):</font></b> The Shulchan
                    Aruch mentions only a <i>cooked</i> food and drinks,
                    for it brings other matters forbidden due to
                    danger from the Yerushalmi. Perhaps the
                    Shulchan Aruch forbids only cooked food, and
                    therefore, it needed to forbid also drinks,
                    even though the Yerushalmi omits drinks.
                    However, why should we rule like the Yerushalmi
                    against the Bavli?! Therefore, it is more
                    reasonable to say that the Shulchan Aruch
                    forbids all foods.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Minchas Yitzchak (4:117):</font></b> Some equate the Isur
                    of food under a bed to touching food after
                    sleeping at night without washing, and
                    therefore, it does not apply to a Nochri's bed.
                    Mishbetzos Zahav (4:4) is concerned for even
                    young (Yisrael) children. Shulchan Aruch ha'Rav
                    says that this Tum'ah seeks only a Kodesh
                    'Keli' from which the Kedushah (Neshamah) left
                    (during sleep). Therefore, we are lenient about
                    children below the age of Chinuch. The primary
                    Kedushah comes at Bar Mitzvah. Sidur Ya'avetz
                    brings many opinions about this. Those who are
                    lenient can also be lenient about food under a
                    carriage in which a baby sleeps. Even though
                    some do not equate these matters, this is a
                    reason to be lenient. The primary Heter is
                    based on Mizmor l'David (brought in Darchei
                    Taharah 116:37). He permits putting a cooked
                    food between pillows and blankets to keep it
                    warm, for the Isur is only on the ground under
                    a bed. Also, Darchei Taharah (38) cites Mili
                    d'Chasidusa, who is concerned only for a bed on
                    which people have relations. Therefore, one may 
                    be lenient l'Chatchilah about a carriage.
<br>             <b>  <b><font color='darkgreen'>xii. </font></b><font color='darkgreen'>Kaf ha'Chayim (42):</font></b> Yafeh l'Lev (YD 3:116:6)
                    says that the Isur is only on a dirt floor.
                    Ru'ach Ra'ah does not dwell on a tiled or
                    wooden floor, like we say about Mayim
                    Acharonim. Some disagree, but one may combine
                    this with other reasons to be lenient.
<br>             <b>  <b><font color='darkgreen'>xiii.</font></b><font color='darkgreen'>Tzitz Eliezer (10:35):</font></b> Seemingly, the Isur
                    should apply under a bed in a boat, even though
                    one has no other place to put things. Some are
                    lenient about raw foods, or b'Di'eved, or for a
                    bed not used for relations. However, perhaps
                    all permit in a boat. Darchei Taharah, citing
                    Yafeh l'Lev, forbids only on a dirt floor.
                    Normally we are stringent for a tiled floor,
                    but this custom does not prove that we must be
                    stringent on a boat. There, the floor is not
                    even attached to the ground, so we cannot apply
                    'whatever is attached to the ground is like the
                    ground.' We find that Kishuf (magic) does not
                    apply to water (Sanhedrin 67b). Darchei Taharah
                    says that nowadays the concern is Kishuf. An
                    additional Heter is from Keren l'David (OC 1),
                    who is lenient if the bed is its own Reshus,
                    i.e. 10 Tefachim tall, and perhaps even if it
                    is three Tefachim, for then it is not
                    considered attached to the ground through
                    Lavud.
               xiv. Shemiras ha'Guf veha' Nefesh (14(1)): R.
                    Yeshayah Epstein permits l'Chatchilah to put
                    food under a bed on Pesach night, for it is
                    Leil Shimurim (guarded from all damagers).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MAY ONE EAT FOOD THAT WAS LEFT UNDER A BED? </b></b>(</font><font color='blue'>


