# dafyomi

lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> The Mishnah says that he had a wall
          close to Shimon's wall!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The Mishnah says, if Reuven's wall
          was four Amos away from Shimon's wall and it fell, he may
          not rebuild it within four Amos.
<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> We want people to walk on the ground in
               between, this hardens the ground and strengthens the
               walls.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav):</font></b> The Mishnah only discusses a wall of a garden;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may build a wall within four Amos of a wall
               of a Chatzer.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Oshaya):</font></b> The Mishnah discusses a wall of a garden
          or of a Chatzer.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yosi b'Rebbi Chanina):</font></b> Rav and R. Oshaya do not
          argue;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav discusses an old city, in which the ground
               near the Chatzer walls is already hard (from years
               of trampling);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Oshaya discusses a new city, in which even the
               ground near the Chatzer walls is soft.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Reuven wants to build a wall
          near Shimon's window, the wall must be at least four Amos
          taller than or four Amos lower than the window, and at
          least four Amos away from the window.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If it is taller, it must be enough
               taller so that he cannot crouch down from his wall
               and look into the window. If it is lower, it must be
               low enough so he cannot stand on his wall and see
               through the window. It must be far enough away, so
               it will not block light.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> We are concerned only for blocking
               light, but not for trampling!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the wall is perpendicular to the
          existing wall. (Rashi - it inhibits treading only on a
          minute portion, i.e. the thickness of the new wall.
          Rashash - people will not walk near the old wall if they
          must then go around the new wall! Rather, if there was
          just enough room between the walls to squeeze through,
          people would do so for a shortcut, since it is cramped
          only for the thickness of the new wall.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa did not say how far away the wall
          must be so that it will not block light!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Yeiva):</font></b> One must distance the wall the width of
          the window.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> (Because it is close, even if it is higher,)
          Reuven will be able to look into the window!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rav Zevid):</font></b> The case is, Reuven slopes his wall
          so he cannot stand or lean on it.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah says that he must distance four
          Amos!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when he builds walls on both sides of
          the window;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he only builds on one side, the width of the
               window suffices.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> One must distance a wall four Amos
          from a gutter-pipe, in order that a ladder can be set up
          (to fix the pipe).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> We are concerned only for the pipe,
               but not for trampling!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the pipe is (on a roof that is)
          inclined (and extends past the wall). There is room to 
          walk underneath (the roof and next to the wall),
          therefore he must leave room only for the ladder.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BEING A CAUSE OF DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One must distance a ladder four Amos from a
          dovecote, in order that a marten (a weasel-like animal)
          cannot jump from it;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One must distance a wall four Amos from a gutterpipe,
          in order that a ladder can be set up.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Suggestion:</font></b> Our Mishnah is not R. Yosi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yosi:</font></b> says that each neighbor may dig or plant
               in his own property (he need not worry that damage
               will result to his neighbor).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Even R. Yosi agrees to our Mishnah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> R. Yosi admits regarding 'arrows'
               (i.e. damage that comes directly from the person's
               hand);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here also, sometimes as he erects the ladder, the
               marten jumps from it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This is only Gerama (causation. We do not
          obligate for damage through Gerama!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Tuvi bar Masnah):</font></b> This teaches that Gerama
          of damage is forbidden.
<br>

<p>

sjt:
</p><p>
<font><b>2) ACTIVITIES WHICH ARE PROHIBITED EVEN IN ONE'S OWN DOMAIN BECAUSE OF DAMAGE THEY CAUSE ELSEWHERE</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that when a person's dovecote is situated adjacent to his neighbor's property, and the neighbor wants to lean a ladder near the dovecote, he must distance the ladder at least four Amos from the dovecote. This is required so that an animal (such as a marten) will not be able to climb the ladder, jump into the dovecote, and prey on the doves.
</p><p>
The Gemara initially assumes that the Mishnah's ruling is unlike the view of Rebbi Yosi, who maintains that a person <i>is</i> permitted to do an act in his own domain that might later cause damage to his neighbor's property. The Gemara rejects this assumption and concludes that the Mishnah is also consistent with the view of Rebbi Yosi, because Rebbi Yosi agrees that one is prohibited to 'fire arrows from one's house into a neighbor's domain' ('Girei Didei') -- that is, a person may not do an act in his own domain that <i>directly causes damage</i> to his neighbor's property. In the case of the Mishnah, a marten might jump from the ladder into the dovecote at the exact moment at which the neighbor places his ladder next to the dovecote; such an occurrence would be considered 'Girei Didei.' <b>RASHI</b> stresses that the concern is that the marten will jump into the dovecote while the neighbor is holding the ladder, and it will be considered as though he fired arrows and damaged his neighbor's property.
</p><p>
The <b>CHAZON ISH</b> (Bava Basra 10:1, DH v'Ha) asks why, in this case, would it be considered 'Girei Didei'? After all, the neighbor did not throw the marten into the dovecote; he simply happened to be holding the ladder at the moment that the marten jumped on it. Why should that case differ from a case in which the marten jumped from the ladder after it was placed on the ground?
</p><p>
<b>ANSWER:</b> The <b>CHAZON ISH</b> suggests three answers to his question. In his third answer, he suggests that in the case of the Gemara, the marten jumps onto the ladder while the neighbor is holding it, and the neighbor <i>then</i> places the ladder next to the dovecote. When he does so, he actively brings the marten closer to the dovecote. Only in such a case does Rebbi Yosi agree that the action is prohibited because of 'Girei Didei,' because the neighbor actively brings the damaging object closer to the object being damaged. Therefore, even though the neighbor's action is confined to his own domain, everyone agrees that it is prohibited, because it is considered as though he shot arrows from his own house into his neighbor's property. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHAZAKAH FOR DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rav Yosef had small date trees. Bloodletters sat under
          them. Ravens came to eat the blood of their Kelim, and
          perched on the trees, and damaged the dates.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> The bloodletters must leave!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Abaye:</font></b> It is only Gerama!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> Rav Tuvi taught that Gerama of damage
               is forbidden.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Abaye:</font></b> They are Muchzak to sit there!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> Rav Nachman taught that there is no
               Chazakah for something that damages.
<br>       <b>   <b><font color='darkgreen'>6.  </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'>7.  </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>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>PREVENTING DAMAGE OF BIRDS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One must distance a dovecote 50 Amos from a
          city.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One may not make a dovecote in his property unless he
          owns 50 Amos around it in every direction;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yehudah says, he must own (the area in which one
          seeds) four Korim. This is as far as birds fly.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one bought a dovecote, even if it is very
               close to neighbors, he is Muchzak (and may keep it).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Fifty Amos is not enough!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Mishnah):</font></b> We may not set traps for
               doves within four Mil (a Mil is about a kilometer)
               of a settled area.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> They can fly further, but they eat
          their fill within 50 Amos.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> They can fly more than four Mil!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> In a settled area, one
               may not set traps within 100 Mil!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yosef):</font></b> That is when vineyards are in
          between (it flies from vineyard to vineyard).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> That is when other dovecotes are in
          between.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, one may not spread traps due to
               the other dovecotes!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answers:</font></b> The trapper owns the other dovecotes, or
               a Nochri owns them, or they are Hefker.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CHAZAKAH OF THINGS THAT MAY DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Yehudah... (If one bought a dovecote,
          even if it is very close to neighbors, he is Muchzak).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> This teaches that we suggest claims on
          behalf of buyers and heirs.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> A Mishnah explicitly teaches that we claim on
          behalf of heirs!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> An heir need not explain how the one
               who bequeathed to him received the property.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Papa needed to teach about buyers.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> A Mishnah also explicitly teaches that we
          claim on behalf of buyers!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one bought a Chatzer with ledges
               sticking out (over the Reshus ha'Rabim) he is
               Muchzak (that he is entitled to them).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> We must teach both cases.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had we taught only that case, one might have
               thought there we argue for a buyer, for perhaps the
               area under them was really part of the Chatzer, or
               the public allowed the previous owner to build them,
               but we would not argue for one who buys a dovecote.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we only taught about a dovecote, one might
               have thought that the previous owner appeased the
               neighbor, or the neighbor allowed him;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  But we would not assume that one appeased or
                    obtained pardon from the public!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He is Muchzak.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Nachman taught that there is no Chazakah
          for damage!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Rav Mari):</font></b> Rav Nachman refers to damage of
          smoke.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rav Zvid):</font></b> He refers to a Beis ha'Kisei.
<br>
<br>

sjt:
<font><b>1) THE RAVENS IN THE TREES</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rav Yosef owned some small date palms, under which some blood-letters practiced their profession. The blood attracted ravens to the area, and the ravens perched themselves upon Rav Yosef's trees. Rav Yosef demanded that the blood-letters leave so that the ravens would go away. The Gemara concludes that even though the damage that the blood-letters caused to Rav Yosef was only indirect ('Gerama'), the Halachah prohibits causing damage even indirectly (through a 'Gerama').
</p><p>
This ruling seems to contradict another ruling of the Gemara. The Gemara rules like Rebbi Yosi who maintains that a person may place an object in his own domain even though it might cause damage to someone else's property. The Mazik is not required to distance himself unless the damage is caused by 'Girei Dilei' -- by the Mazik 'shooting his arrows' into the domain of the Nizak. Why, then, were the blood-letters (the Mazikim) required to move? They certainly did not actively send the ravens to damage Rav Yosef's trees! (<b>RABEINU YONAH</b>, <b>RASHBA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU YONAH</b> and the <b>RASHBA</b> answer that the blood-letters <i>did</i> cause the ravens to go into Rav Yosef's trees. When the ravens would come to eat the blood, the blood-letters would chase them away and cause them to fly up to Rav Yosef's trees. Hence, the damage caused by the ravens indeed was 'Girei Dilei,' the 'arrows' of the blood-letters, and thus the blood-letters were required to move.
</p><p>
(b) <b>TOSFOS</b> later (26a, DH Aval b'Gefanim, and end of DH Zika) seems to understand that the damage caused by the ravens would have been considered 'Girei Dilei' even if the blood-letters did not chase them away. Apparently, Tosfos maintains that the very fact that blood was spilled beneath the trees caused the ravens to come, and thus the damage caused by the ravens was considered 'Girei Dilei' of the blood-letters. (See <b>SHI'UREI REBBI SHMUEL</b>, #61.)
</p><p>
(c) The <b>PISKEI HA'RID</b> (cited by <b>OHEL TORAH</b>) writes that in this case, Rebbi Yosi would agree that the blood-letters were required to move even though they did not cause damage through 'Girei Dilei.' Normally, a Mazik does not have to distance himself because he is <i>in his own domain,</i> and a person is entitled to do whatever he needs to do inside his own domain. In this case, however, the property beneath Rav Yosef's trees did not belong to the blood-letters; rather, it was public property. Therefore, they were <i>not</i> entitled to use that area for any purpose, as it was not part of their private domain. (See <b>BIRKAS SHMUEL</b> 20:3.) (I. Alsheich)
</p><p>


<font><b>2) HALACHAH: DAMAGES DEPENDENT ON SUBJECTIVE FEELINGS</b></font><b>
<br>HALACHAH:</b> The Gemara relates that Rav Yosef owned small date palms, under which some blood-letters practiced their profession. The blood attracted ravens to the area, and the ravens perched themselves upon Rav Yosef's trees. Rav Yosef demanded that the blood-letters leave so that the ravens would go away. The Gemara says that the blood-letters could not claim that they had gained through a Chazakah the right to work there (that is, no one protested when they started to work there, and thus they acquired the right to work there), because there is a principle that 'Ein Chazakah l'Nezikin' -- a Chazakah does not work for an activity that causes damage. Even though this principle was said only with regard to activities that cause severe damage (such as setting up something that makes a lot of smoke, or setting up a bathroom), Rav Yosef claimed that he was extremely sensitive and that the damage caused by the blood-letters (either the blood that the ravens splattered around him (<b>TOSFOS</b>), or the loud noise that the ravens made (<b>BI'UR HA'GRA</b> CM 155:116) was to him akin to the damage caused by smoke or a bathroom.
</p><p>
<b>RABEINU YONAH</b> and the <b>RASHBA</b> (see also <b>RABEINU CHANANEL</b>) write that from this Gemara it is apparent that when a person is known to be extremely sensitive to a certain damaging agent and cannot tolerate it, he is entitled to demand that it be moved, and the other person cannot make a Chazakah to continue doing his activity in that place. The activity of a neighbor can be classified as a serious disturbance even if the degree of disturbance is only subjective. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>  IS ONE LIABLE FOR GERAMA?</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'> 22b (Mishnah):</font></b> One must distance a ladder four Amos
               from a dovecote, in order that a marten (a weasel-
               like animal) cannot jump from it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Tuvi bar Masnah):</font></b> This teaches that Gerama of
               damage is forbidden.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Yosef had small date trees; bloodletters sat
               under them. Ravens came to eat the blood of their
               Kelim, and perched on the trees, and damaged the
               dates.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> The bloodletters must leave! Rav Tuvi
               taught that Gerama of damage is forbidden.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Bava Kama 98a (Rabah):</font></b> If Reuven threw Shimon's coin
               into the sea, he is exempt.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> This is because the coin is there; it can be
               retrieved. This is only if the water is clear, so
               the coin can be seen. This is only if he knocked
               Shimon's hand. If he took the coin and threw it, he
               stole it, and he must return the coin to Shimon.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rabah):</font></b> If Reuven rubbed out the image on Shimon's
               coin, he is exempt.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> This is because he did not do (take away) anything,
               e.g. he pounded it with a hammer. If he filed it
               smooth, he removed some of the metal, so he is
               liable.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 98b (Rabah):</font></b> If Reuven burned Shimon's loan
               document, he is exempt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He can say 'I burned a mere piece of paper!'
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Bava Basra 12a) brings the Gemara in Bava
               Basra.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Bava Kama 35a):</font></b> Rabah exempts one who pushes a
               coin into the sea, makes a groove in the ear of a
               cow, or burns documents. The Halachah does not
               follow him for all of these. Rafram forced Rav Ashi
               to pay the full value of a document that he burned.
               This is like the opinion that obligates for Garmi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 7:7):</font></b> Anyone who
               causes to harm to another's property must pay full
               damage from his best property, like other damagers.
               Even though he did not do the final damage, since he
               is the first cause, he is liable.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (11):</font></b> If Reuven pushed Shimon's coin and it
               rolled into the sea, or flattened Shimon's coin, he
               is liable.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bava Kama 9:13):</font></b> Tosfos says that the
               following are Gerama, and all exempt for it. Leaving
               a ladder near a dovecote, throwing a Kli off the
               roof, and then removing the pillows below, putting
               poison in front of an animal, sending a fire with a
               Cheresh, lunatic or child, breaching a fence in
               front of an animal (it left and damaged, or was
               lost), bending grain in front of a fire, working
               with a Parah Adumah, deafening someone through
               scaring him or blowing a Shofar in his ear, fanning
               a flame and the wind spread it, inciting a dog or
               snake, bringing Peros into a Chatzer (and the Ba'al
               ha'Bayis' animal ate them and got sick). Inciting a
               dog or snake is not certain to damage. One who
               removes pillows does not touch the object that is
               damaged. When one sent a Shali'ach with a fire, the
               Shali'ach did the damage. One who was scared damaged
               himself by being frightened. Alternatively, Gerama
               is when the damage is not immediate. The one who
               obligates for unobservable damage (Gitin 53a)
               exempts for working with a Parah Adumah or the water
               with which its ashes will be mixed, because the Isur
               depends on mere thought, and it is Gerama (even
               though it is immediate). Really, it is Garmi; that
               Gemara is like Chachamim, but R. Meir obligates.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (Bava Basra 2:17):</font></b> Even though one is exempt
               for Gerama, l'Chatchilah one can prevent another
               from causing damage.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Teshuvas Rashba (1052):</font></b> If Levi paid part of his
               debt and they left the document with Ploni and he
               returned it to David, who then collected the full
               amount, and Ploni admits, he is exempt b'Yedei Adam,
               for it is Gerama. If David did not yet collect, we
               excommunicate Ploni until he accepts to compensate
               Levi for all losses due to the document. We force
               one to remove all damage of Gerama.
<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 386:1):</font></b> We hold like R. Meir, who
               obligates for Garmi. Therefore, if one pushed
               another's coin until it fell into the sea, or
               flattened it, even though nothing is missing, he
               must pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema (3):</font></b> Some say that the following are Gerama,
               and are exempt: one who pushed another's coin to the
               sea, or flattened the image, a scribe who wrote the
               wrong amount in a document, one who damaged by
               giving bad counsel, and a middleman who improperly
               returned a document. However, we excommunicate him
               until he removes the damage. The same applies to
               every Gerama in Nezikim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (CM 386 DH Kosav ha'Rashba):</font></b> The
                    Rashba (3:76) exempts one who returned a paid
                    document to the lender, for there is no
                    immediate loss. Writing the wrong amount in a
                    document is Gerama. If one sold land to a
                    Nochri, the Rosh says that Beis Din makes him
                    compensate his neighbor (for damage that the
                    Nochri does). The majority exempt, for it is
                    Gerama.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (8,9):</font></b> We excommunicate before the damage
                    was done or the loan was collected. However,
                    the Rema (below) says that some fine for every
                    Gerama that is common, i.e. even after the
                    damage was done. The Rashba (1052) obligates
                    one to pay for damage that occurred after he
                    was excommunicated. This is like the Ra'avad.
                    The Ran (Bava Metzia 108b DH Ela) says that we
                    excommunicate him until he removes the damage.
                    The Rosh (Bava Metzia 9:28) obligates paying
                    all the damage. It seems that if he died before
                    accepting to remove the damage, he (i.e. his
                    heir) is exempt.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (7):</font></b> The primary opinion exempts for
                    everything that Rabah exempts, except for
                    burning a document. One who pushed a coin to
                    the sea or flattened it is exempt only if he
                    never picked it up.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> Some fine for every Gerama that is
               common.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (24):</font></b> I disagree. Who will say which
                    Geramos are common? I say that we fine only
                    where we find that Chazal did. Garmi is a mere
                    fine mid'Rabanan. We should not add to it!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> If Reuven lent money (on interest) to
               a Nochri (Tony) and took securities, and Shimon told
               Tony that he will lend to him with less (securities)
               and Tony returned the money to Reuven, Shimon is
               exempt, for it is Gerama, but he is called a Rasha.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (10):</font></b> R. Yerucham exempts Shimon letter of
                    the law even if he told Tony to return the
                    money. A case occurred in which Ricky
                    contracted to buy whiskey from David. Then,
                    Ricky went to Moshe to try to get a better deal
                    and retract from his deal with David. David
                    told Moshe and asked him not to sell to Ricky,
                    but Moshe did not heed him. We do not punish
                    Moshe, for Ricky went to Moshe by himself.
                    Also, perhaps he will also honor his contract
                    with David! R. Yerucham exempts even Levi who
                    told Bart 'take this money and pay your debt to
                    Yosef, and I will charge you less interest',
                    for it is not certain to damage. Yosef might be
                    able to lend his money to another Nochri. This
                    is like preventing someone from using his money
                    (to profit), but he is called a Rasha. The one
                    who ruled that Moshe must give his profit to
                    David erred.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A KLI DROPPED ONTO PILLOWS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CHICKS THAT ARE FOUND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A chick found within 50 Amos of Reuven's
          dovecote belongs to Reuven;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is more than 50 Amos away, the finder keeps
               it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If it is found between two dovecotes, it belongs to the
          owner of the closer one;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is exactly in the middle, they divide it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - R. Chanina):</font></b> When in doubt about where
          something came from, we assume that it came from the
          majority, even if the minority is closer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though the Torah says that we follow the
               majority, and that we attribute to the closest
               source, the majority is stronger.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> 'Ha'Ir ha'Kerovah' - we attribute
          (an unknown murderer) to the closest city, even though
          other cities have more people!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No, the Torah selects the closest city only
          when the populations are equal.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If we follow the majority, we should assume
          that the murderer came from the rest of the world (not
          from the closest city)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the area is surrounded by
          mountains (so we do not suspect that the murderer came
          from further away).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> A chick found within 50 Amos of
          Reuven's dovecote belongs to Reuven;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though there are dovecotes with more birds,
               we assume that it came from Reuven's!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, no dovecote in the area has
          more birds.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Mishnah):</font></b> If it is more than 50 Amos away,
          the finder keeps it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If no dovecote in the area has more birds, surely
               it came from Reuven's!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The chick cannot fly, it only walks.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Ukva bar Chama):</font></b> A chick does not walk more
               than 50 Amos. (If it is not within 50 of any
               dovecote, we must say that it flew. We assume that
               it came from elsewhere in the world.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (R. Yirmiyah):</font></b> If one leg is within 50
               Amos and the other is outside, what is the law?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yirmiyah was expelled from the Beis Medrash
                    for this (Rashi - for asking too many
                    questions; Tosfos - for not accepting that it
                    cannot walk more than 50 Amos).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If it is found between two
          dovecotes, it belongs to the owner of the closer one.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is even if one has more chicks than the
               other!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> No, both have the same amount.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> We should assume that it came from elsewhere
          in the world (since it cannot walk more than 50)!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, it was found on a path between
          vineyards, so it can walk more than 50;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It could not have come from another dovecote,
               since a chick will never walk out of sight of its
               nest (and these are the only two dovecotes in
               sight).
<br>

<p>

sjt:
</p><p>
<font><b>3) RETURNING A PIGEON TO ITS RIGHTFUL OWNER</b></font><b>
<br>QUESTION:</b> The Mishnah states that when a person finds a pigeon between two coops, he should assume that the pigeon came from the coop that is closer to it, and he should return the pigeon to the owner of that coop. When a person finds a pigeon between two coops at an equal distance from each coop, the pigeon (or its value) is divided between the owners of the two coops.
</p><p>
The Acharonim ask that dividing the pigeon between the two owners does not seem to be a valid way to resolve the problem. The finder has an obligation to return the pigeon to its rightful owner. The Gemara in Bava Metzia (28a) rules that in a situation in which two opposing claimants both offer proof that a lost object belongs to them, the finder must place the object in escrow until conclusive proof of ownership is brought. The Gemara reasons that since the finder has an obligation to return the object to its rightful owner, he cannot fulfill that obligation by dividing it and giving it to both claimants. Why, then, does the Mishnah here rule that the finder should divide the pigeon and give it to both claimants? (<b>DIVREI CHAIM</b> (Hilchos Kidushin #21), <b>SHA'AREI YOSHER</b> (4:9, 6:14), <b>CHIDUSHEI REBBI SHIMON SHKOP</b> (#8), <b>KOVETZ SHI'URIM</b>, and others)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Acharonim distinguish between the case of the Gemara in Bava Metzia and the case of the Mishnah here. The Gemara in Bava Metzia refers to a case in which a person finds an object and <i>then</i> the claimants offer Simanim and create a doubt as to which of them is the owner. At the time that the object is found, however, neither of them has yet claimed it. Hence, the finder cannot fulfill his obligation to return the object by splitting it between the two claimants. In the case of the Mishnah here, however, the Safek arises before the object enters the finder's possession. Since the pigeon was located at an equal distance from each of the coops, there was already an objective doubt as to who owned it. If the two owners had come to court at that point to claim the ownership of the pigeon, the court certainly would have split the pigeon between them. Therefore, when the finder picks up the pigeon, each of the two claimants is already entitled to take half of it. Thus, the finder is considered to have picked up an object that already belongs to both of the claimants. The finder's obligation is to return the object in accordance with its ownership at the time that he found it. Accordingly, he fulfills his obligation by splitting the pigeon between the two claimants.
</p><p>
(b) <b>REBBI SHIMON SHKOP</b> zt'l in <b>SHA'AREI YOSHER</b> (6:14) answers this question based on a principle that he establishes there: there is no obligation to return a lost object when the owner is present. When the owner is present, an object cannot be considered 'lost,' and, consequently, the finder is exempt from the obligation of Hashavas Aveidah. Here, since the pigeon certainly belongs to one of the two claimants, there is no obligation of Hashavas Aveidah since the pigeon is not a 'lost' object. In any case of money whose ownership is in doubt (where there is a 'Derara d'Mamona') the Halachah is that the money is divided between the two claimants. Since the Halachah in this case does not have to take into account the finder's obligation of Hashavas Aveidah, it follows the normal rules of Dinei Mamonos and the object is split between the two claimants.
</p><p>
(c) The <b>KOVETZ SHI'URIM</b> suggests further that in the case of the Gemara in Bava Metzia, in which each of the two claimants presents Simanim to prove that the object is his, the two claimants have two proofs which contradict each other. To divide the object between the two of them would contradict both of the proofs. In contrast, in the case of the Mishnah here, neither claimant brings proof that the pigeon belongs to him. Therefore, to split the pigeon between the two of them would not contradict any proof to the contrary. (The clarifying factor of 'Karov' does not apply here, since the pigeon is equally close to each of the coops.) (I. Alsheich)
</p><p>




</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FOLLOWING THE MAJORITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support (for R. Chanina - Abaye - Mishnah):</font></b> If blood
          was found in the Prozdor (outer chamber of the womb), we
          are in doubt where it came from. We assume that it came
          from the Makor (inner chamber), and she is Tamei;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though the Aliyah (upper chamber) is closer,
               we attribute it to the Prozdor because more blood
               comes from there.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> There, the majority source is also
          more frequent. Surely we follow the majority in such a
          case (no one would argue with R. Chanina about this)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya):</font></b> If blood was found in a woman's
               Prozdor, she is considered definitely Teme'ah. She
               is liable if she entered the Mikdash, and we burn
               Terumah that she touches.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> We learn three things from R. Chiya's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When in doubt about where something came from, we
               assume that it came from the majority, even if the
               minority is closer;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Mid'Oraisa, we follow the majority;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Zeira's law is correct.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Zeira):</font></b> We follow even a single majority.
                    (E.g. if meat was found in a city, if most of
                    the butchers sell Kosher meat, and the city
                    doors are locked, it is permitted. We do not
                    require a second majority, i.e. that it could
                    have come from travelers, and most of their
                    meat is Kosher.)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Also in a woman, there is only one
                    majority. There is no other place the blood
                    could be from!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1A - Rashi - Question:</font></b> Above, Rava said that
          when the majority source is more frequent, all agree that
          we follow the majority, but here he says that R. Chiya
          supports R. Chanina!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #1B - Maharam (in Tosfos) - Question:</font></b> Above,
          Rava said that blood from the Aliyah (the majority
          source) is more frequent (for if not, R. Chanina would
          not have taught his law, it follows from R. Chiya's law),
          but here he says that R. Chiya is a support for R.
          Chanina!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava retracted. R. Chiya does not support R.
          Chanina.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2 (R. Gershom) Question:</font></b> Above, Rava said that
          we follow the majority source only if it is more
          frequent. Here, he says that we follow any majority!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava retracted from what he said above. (end of
          Version #2)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav):</font></b> If a barrel (of wine) floating in a river was
          found near a city that is mostly Yisraelim, it is
          permitted. If the nearest city is mostly Nochrim, it is
          forbidden;
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Even if it was found near a city that is
          mostly Yisraelim, it is forbidden. Perhaps it came from
          Ihi Dekira (a Nochri city upstream in Bavel).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Suggestion:</font></b> They argue about R. Chanina's law. Shmuel
          follows the majority like R. Chanina, and Rav argues and
          assumes that it came from the closest.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Rejection No, all agree with R. Chanina;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says that it could not have come from Ihi
               Dekira, for it would have broken on rocks in the
               river;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel says that perhaps it floated in the middle
               of the river, where there are no rocks.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	A barrel of wine (was presumably stolen and) was found
          in an orchard of Orlah. Ravina permitted it (we assume
          that it came from elsewhere. Most fruit in the world is
          not Orlah.)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Ravina holds like R. Chanina.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. He permitted in this case only because a
          thief would not hide wine in the place he stole the
          grapes (lest they see him stomp them).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This refers only to wine, but he would hide the
               grapes there.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Jugs of wine were found hidden among vines in Reuven's
          vineyard. Rava permitted them.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rava argues with R. Chanina. (Rava assumes
          that they were stolen from Reuven, the closest possible
          source, and not the majority.)
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Here is different, for most of the
          vendors (in the entire region) selling jugs of wine are
          Yisrael.
<br>
<br>

sjt:
<font><b>1) 'ROV' VERSUS 'KAROV' IN THE CASE OF A 'RUBA D'LEISA KAMAN'</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa in which Rebbi Chiya states that Dam that is found in the 'Prozdor' is assumed, mid'Oraisa, to be Dam Nidah which came from the 'Mekor,' because most Dam is located in the 'Mekor' (as opposed to the 'Aliyah'). The principle of Rov dictates that the Dam must be considered to have come from the 'Mekor.'
</p><p>
Is this Rov -- which indicates that the Dam came from the 'Mekor' -- a 'Ruba d'Leisa Kaman' or a 'Ruba d'Isa Kaman'? A 'Ruba d'Leisa Kaman' is a majority in <i>frequency</i> -- something usually occurs in this manner. The majority is not present and countable, but is a predictable consequence of natural events. For example, there is a Rov that 'most animals are not Tereifos.' This Rov is not present, but there nevertheless exists a fact that most animals are born healthy.
</p><p>
A 'Ruba d'Isa Kaman,' on the other hand, refers to a situation in which the Rov is physically present. For example, when one piece of Tereifah meat became mixed with two pieces of Kosher meat, the Rov (the two pieces of Kosher meat) is present. This type of Rov is considered more powerful than a 'Ruba d'Leisa Kaman.'
</p><p>
If it is a 'Ruba d'Leisa Kaman' that determines that the Dam came from the 'Mekor' and is Dam Nidah, then it can be deduced from Rebbi Chiya's statement that Rov overrides Karov even when the Rov is a weaker form of Rov, a 'Ruba d'Leisa Kaman.'
</p><p>
<b>ANSWER: TOSFOS</b> (DH v'Shama, in the 'Hagahah,' or, according to an alternative Girsa, in DH Hachi Garsinan) says that this Rov is considered a 'Ruba d'Leisa Kaman.' Tosfos asserts that if the Rov was a 'Ruba d'Isa Kaman,' Rava would not have needed to infer from Rebbi Chiya's statement that the principle of Rov is mid'Oraisa. It is obvious that the normal form of Rov, 'Ruba d'Isa Kaman,' is mid'Oraisa, as the verse states explicitly, 'Acharei Rabim l'Hatos' (Shemos 23:2). From the fact that Rava needs Rebbi Chiya's statement to prove that a Rov is mid'Oraisa, it is clear that he is referring to a 'Ruba <i>d'Leisa</i> Kaman,' which is not necessarily learned from the verse. (See <b>MAHARSHA</b>.)
</p><p>
According to Tosfos who says that Rebbi Chiya's case is a case of a 'Ruba d'Leisa Kaman,' it follows that even such a Rov overrides a Karov.
</p><p>
(The Acharonim infer from the <b>RAMBAM</b>, however, that he maintains that a 'Ruba d'Leisa Kaman' does <i>not</i> override a Karov. The Acharonim explain that the Rambam does not rule in accordance with the statement of Rebbi Chiya (<b>PLEISI</b> #63, <b>ZICHRON YEHOSEF</b> as cited by the <b>PISCHEI TESHUVAH</b> YD 48:14).)
</p><p>
Why, though, is the case of Rebbi Chiya considered a 'Ruba d'Leisa Kaman'? Since the Dam of the 'Mekor' is more abundant than the Dam of the 'Aliyah,' it should be considered a 'Ruba <i>d'Isa</i> Kaman,' since the body is present, and in the body there is a majority of Dam in the 'Mekor' and a minority of Dam in the 'Aliyah.' (<b>SHEV SHEMAITSA</b> 4:1, <b>CHIDUSHEI CHASAM SOFER</b>)
</p><p>
1. The <b>SHEV SHEMAITSA</b> answers that had this Rov been based on the fact that there is more Dam in the 'Mekor' than in the 'Aliyah,' then indeed this Rov would have been considered a 'Ruba d'Isa Kaman.' However, this Rov cannot be based on the abundance of Dam in the 'Mekor.' The fact that there is a greater amount of Dam in the Mekor cannot be considered a Rov because it is a case of 'Kavu'a' in which Rov does not apply ('Kol Kavu'a k'Machtzeh Al Machtzeh Dami'). Rather, the Rov here is based on the fact that Dam flows <i>more frequently</i> from the 'Mekor' than from the 'Aliyah.' This Rov is a 'Ruba d'Leisa Kaman' (as per the above definition).
</p><p>
The <b>SHA'AREI YOSHER</b> (4:3, DH Lachen) challenges the Shev Shemaitsa's proof that the Rov in this case is not a 'Ruba d'Isa Kaman.' The concept of 'Kavu'a' cannot determine the origin of the Dam because 'Kavu'a' does not resolve a question that concerns an event that happened (in this case, whether or not the Dam separated from the 'Mekor'). The Sha'arei Yosher agrees, however, that there is a Rov that the majority of Dam comes from the 'Mekor' (which is a 'Ruba d'Isa Kaman'), and that there is another Rov -- a 'Ruba d'Leisa Kaman' -- that Dam flows <i>more frequently</i> from the 'Mekor' than from the 'Aliyah.'
</p><p>
2. The <b>CHASAM SOFER</b> answers that this Rov is considered a 'Ruba d'Leisa Kaman' because it is not certain that this woman has any Dam at all in her 'Mekor,' and thus there certainly is no Rov that indicates that a majority of her Dam is in her 'Mekor.' Rather, the Rov is based on the fact that <i>women in general</i> have more Dam in their 'Mekor.' This is a 'Ruba d'Leisa Kaman,' because the majority is not present and countable, and the Rov is merely a predictable consequence of natural events.
</p><p>
The <b>KOVETZ SHI'URIM</b> argues with the Shev Shemaitsa's explanation of the difference between a 'Ruba d'Isa Kaman' and a 'Ruba d'Leisa Kaman.' The Shev Shemaitsa understands the difference to be based on whether the Rov is present and countable. However, there is another difference between a 'Ruba d'Isa Kaman' and a 'Ruba d'Leisa Kaman.' In the case of a 'Ruba d'Isa Kaman,' the nature of the majority can be determined based on all of the individual details. In contrast, in the case of a 'Ruba d'Leisa Kaman,' knowledge of the general situation indicates what the situation is in each specific case. For example, there is a Rov that most animals are Kesheros. That is knowledge of the general situation, which then can be applied to a specific situation to determine that a certain animal is part of the Rov and is kosher. According to this, the Rov in Rebbi Chiya's case is a 'Ruba d'Leisa Kaman' since the Rov is not based on an actual measurement of the amount of Dam in the 'Mekor' compared with an actual measurement of the amount of Dam in the 'Aliyah.' Rather, it is based on general knowledge that, normally, a majority of Dam is in the 'Mekor.' (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>  IS SHUMA HADAR IF THE PROPERTY WAS IMPROVED?</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'> (Mishnah):</font></b> We distance a tree 25 Amos from a city.
               If the city was there first, we cut it without
               paying the owner. If the tree was there first, we
               cut it, but we must pay. If we are unsure which came
               first, we cut it and do not pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why is this different than a tree near a
               pit (he may not cut when in doubt)?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> If the tree preceded the pit, it may not be
               cut. When in doubt, we do not cut. Here, either way
               we cut the tree, so we may cut it. We are in doubt
               if we must pay for it. To collect money, the owner
               must bring proof.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Metzia 35a (Chachamim of Neharda'a):</font></b> If Beis
               Din allowed a lender to collect a field for payment,
               the borrower can recover his field if he pays the
               debt within one year.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Ameimar):</font></b> I am from Neharda'a. I hold that he can
               always redeem his field!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> From when may the lender eat the Peros of
               the land he collected?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1 (Rabah):</font></b> It is from when he receives the
               Adrachta (a document authorizing him to take
               Reuven's property for payment).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (Abaye):</font></b> (It is from the day the Adrachta
               is signed.) When witnesses sign a document, the
               receiver acquires immediately.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #3 (Rava):</font></b> It is from when the days of
               announcement (to sell the field) are over.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Bava Metzia 3:4):</font></b> Shuma Hadar only when the
               creditor did not improve the land and it did not
               rise in value. It is unreasonable that a borrower
               can wait forever until the value rises, and then he
               will redeem it. This would cause Ne'ilas Deles
               (deter people from lending)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Bedek ha'Bayis CM 103 DH v'Ein):</font></b> The
                    Poskim did not distinguish this way. The Gemara
                    says 'Shuma Hadar', which connotes even if the
                    price rose. There is no Ne'ilas Deles, for the
                    creditor eats the Peros as long as he has it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Magid Mishneh (Hilchos Malveh 22:17):</font></b> If the land
               declined in price, I say that he cannot force him to
               return it for less than the debt. If the land rose
               in price by itself from 100 to 200, the creditor
               gets only 100. If he would get 200, it would look
               like Ribis for his money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rebuttal (Bedek ha'Bayis CM 103 DH uv'Hukra):
                    If it looks like Ribis, why do we permit the
                    creditor to eat the Peros? Rather, we are not
                    concerned for this, for it is a full sale. If
                    the law is true, it is due to 'v'Asisa
                    ha'Yashar veha'Tov', we do what is good for the
                    borrower.
<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 103:9):</font></b> If Beis Din took land to
               pay Reuven's debt to Shimon (Rema - Metaltelim are
               not returned), whether the land was with Reuven or
               with Ploni who bought it from Reuven, and later
               Reuven or Ploni or their heirs obtained money and
               paid Shimon, we remove Shimon from the land, even if
               he had it many years. If the creditor destroyed or
               built and did not improve the property through this,
               he does not receive his expenses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (21):</font></b> This is like one who spent money on
                    his wife's property (Kesuvos 80a) or one who
                    bought a field from one whom he knew had stolen
                    it (Bava Metzia 15b).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH Kasav Ba'al):</font></b> Sefer ha'Terumos
                    says that if the creditor destroyed or built,
                    even if it seems that he did not improve the
                    property through this, he receives his
                    expenses. The Magid Mishneh says that some
                    disagree. Since it is a Safek, the Nitva
                    (defendant) need not pay.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (15):</font></b> The Shulchan Aruch rules that the
                    borrower is Muchzak in the land, for it was his
                    and he can redeem it when he wants. The lender
                    claims his expenses. It holds that the lender
                    is Muchzak, for Beis Din gave the land to him
                    and he eats the Peros. Chachamim gave to the
                    borrower the right to buy back his land; he is
                    the claimant. Due to the Safek, he must pay the
                    expenditures to take back his land.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz (DH Eino):</font></b> The Shulchan Aruch learns from
                    Bava Basra. When a tree is too close to the
                    city, in any case it should be cut, so we cut
                    it. We are unsure whether or not we must pay,
                    so we do not pay. Here also, in any case Shuma
                    Hadar. We are unsure whether or not we must
                    pay, so we do not pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If it improved due to the
               expenditures, he swears and receives like one who
               worked on another's field with permission.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (16):</font></b> He gets his expenditures and part of
                    the improvements above the expenditures, like
                    one who worked on another's field with
                    permission, who gets even Shevach ha'Magi'a
                    l'Kesafim (Peros ready to be detached and
                    carried on the shoulder). He does not get all
                    the Shevach, for Shuma Hadar.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 12):</font></b> He is not a partner, who
                    gets a share! Rather, he receives like people
                    hired to plant, like one who worked another's
                    field with permission.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (26):</font></b> He is like a Bar Metzra who buys the
                    field after someone else bought it and improved
                    it (175:6).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If it improved by itself,
               e.g. the price rose, he receives only the debt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (27):</font></b> We say so about Bar Metzra (108a),
                    and also in the Havah Amina that one Shuma
                    Hadar applies to rings (35a).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (17):</font></b> The Tur discussed when it rose in
                    price, for if soil was deposited on it or a
                    date tree became thicker, since the Shevach is
                    recognizable, the creditor would receive it. He
                    would not need to swear, for we can see the
                    Shevach. Alternatively, in this case he
                    obviously does not get Shevach, for it is due
                    to the Mazal of the lender. The Tur and
                    Shulchan Aruch teach about a rise in price,
                    which is not due to his Mazal, and one might
                    have thought that he must pay the higher price,
                    lest he wait to buy it when the price will
                    rise.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (13):</font></b> I say that if soil was deposited on
                    it or a date tree became thicker, also this is
                    like Ribis (if he will pay the Shevach). The
                    Rosh explicitly says so regarding one who sold
                    a field he did not own (Bava Metzia 1:38).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if he invested in it and
               improved it, it does not return at all. If it rose
               in price, it returns only for the higher price.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (28):</font></b> This opinion holds that it is unlike
                    Bar Metzra, for there the buyer is like a
                    Shali'ach of the neighbor.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (18):</font></b> This is even if the borrower agrees
                    to pay the Shevach, because the creditor
                    acquired through Shinuy. We do not say so when
                    it improved by itself, for this was due to the
                    borrower's Mazal.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (14):</font></b> I say that if he agrees to pay the
                    Shevach, even the Rosh says that Shuma Hadar,
                    just like when the price rose. If not, what is
                    the Rosh's source to say that it does not
                    return at all when he improved it? Even though
                    it is only for 'v'Asisa ha'Yashar veha'Tov',
                    also the law of Bar Metzra is only due to this,
                    and the neighbor can buy even after it was
                    improved. Also, if he cannot redeem it after
                    the creditor improved it, every creditor will
                    improve it a little to ensure that he keep it!
                    This is why the Rosh discussed together active
                    and automatic improvements. The Tur says that
                    the Rosh holds that it does not return when the
                    borrower wants to pay the expenditures. This
                    implies that if he offers to pay all the
                    Shevach, it returns. According to the <b>SMA</b>, if
                    he acquired through Shinuy, the same should
                    apply when the value did not increase! He must
                    say that the Rema argues also in the previous
                    case. This is difficult.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If the price declined, the
               lender does not lose. If the owner or buyer wants to
               remove him, they must pay the full debt. If Kinyan
               was done that they will not remove him, they cannot
               remove him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (29):</font></b> Kinyan helps, like for Bar Metzra.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>SHUMA HADAR </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies only to large jugs, but small jugs
               are forbidden. Perhaps they fell from travelers (who
               may have come from far away. The majority of them
               are Nochrim.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If large and small jugs are found together, all
               are permitted;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Travelers do not carry large jugs. Even though
                    merchants do not need small jugs, they often
                    use them  to balance a load on the donkey.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A TREE NEAR A CITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We distance a tree 25 Amos from a city. A
          carob or sycamore tree must be distanced 50 Amos;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Aba Sha'ul says, any barren tree must be distanced 50
          Amos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the city was there first, we (people of the
               city) may cut it, we need not pay the owner;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the tree was there first, we may cut it, but
               we must pay.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If we are unsure which came first, we may cut it,
               we need not pay.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why must trees be distanced?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Ula):</font></b> It is for the beauty of the city.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Even more should be forbidden! We may not
          convert a Migrash (1000 Amos surrounding a city in each
          direction) into a field, or vice-versa!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Mishnah is R. Eliezer, who permits
          converting a Migrash into a field, or vice-versa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Twenty-five Amos are forbidden due to beauty of
               the city.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Even Chachamim, who say that we may not
          convert a Migrash into a field or vice-versa, forbid only
          a seeded field, but we may plant trees;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Twenty-five Amos are forbidden due to beauty of
               the city.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source to distinguish between a
          seeded field and trees?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> If a Karfaf (an unroofed enclosed
          area) more than the area in which one seeds two Se'ah was
          enclosed for dwelling: if the majority was seeded, it is
          like a garden, and one may not carry in it on Shabbos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the majority was planted (with trees), it is
               like a Chatzer, and one may carry in it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the city was there first, we (people of
          the city) may cut it, we need not pay the owner.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If a tree is near a pit, the owner of the pit
          may cut it and pay the owner (25b); if a tree is near a
          city, we (the city residents) may cut it and do not pay
          the owner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why are the laws different?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> An individual will pay (for the
          tree) for the sake of his pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There are many people in the city, no one wants
               to pay first. (If we cannot cut it without paying,
               it will not be cut.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> Why was the question asked? Damage to the
          public is worse than damage to an individual!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, Rav Kahana replied to a question on
          the Seifa.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the tree was there first, we may cut it,
          we must pay.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't the owner demand to be paid before
          they cut the tree?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> It will be a long time before the
          money is collected. (After we cut, the owner can go to
          Beis Din to demand compensation.)
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If we are unsure which came first, we may
          cut it, we need not pay.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between the case of a
          tree near a pit (he may not cut when in doubt) and our
          case (when in doubt, we cut)?
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer:</font></b> If the tree preceded the pit, it should not be
          cut. When in doubt, we do not cut;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, either way the tree should be cut, so we
               may cut it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We are in doubt if we must pay for it. To collect
               money, the owner must bring proof.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DISTANCING A GRANARY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We distance a fixed granary 50 Amos from a
          city;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One may not make a fixed granary on his property unless
          he owns 50 Amos around it in each direction.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He must distance it from his neighbor's saplings
               and Nir (plowed, unseeded field) so it will not
               damage them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why is the law different in the last
          case (50 Amos are not required)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> It discusses a granary that is not
          fixed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case of a granary that is
               not fixed?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (R. Yosi b'Rebbi Chanina):</font></b> There is so
               little grain that the wind winnows it itself. One
               need not throw it with a pitchfork.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> Fifty Amos are required; the
          Seifa explains the Reisha:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We distance a fixed granary 50 Amos from a city
               in order that it will not damage.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (against Abaye - Beraisa):</font></b> We distance a fixed
          granary 50 Amos from a city;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We keep the same distance from gourds, saplings
               and a Nir.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is left difficult.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	We understand how the granary hurts gourds. The dust
          enters the buds and dries them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> How does it harm a Nir?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Aba bar Zavda):</font></b> It over-fertilizes it (this
          burns the seeds).
<br>

<p>

sjt:
</p><p>
<font><b>2) A TREE PLANTED NEAR A CITY</b></font><b>
<br>QUESTION:</b> The Mishnah states that one is forbidden to plant a tree within twenty-five Amos of a city. If a person does plant a tree in that area, he must cut down the tree. If the city preceded the tree, then he is not reimbursed for his tree, but if he planted the tree first and then the city was built, he is entitled to be reimbursed for his tree. When there is a doubt as to whether the city was there first or the tree was there first, the owner of the tree must cut down his tree and, due to the doubt, he does not receive reimbursement for his tree.
</p><p>
The Gemara asks why this case differs from a case in which a person's tree is within twenty-five Amos of his neighbor's Bor, and there is a doubt whether the tree preceded the Bor or vice versa. In such a case, the Mishnah (25b) says that the owner of the tree is <i>not</i> required to cut down his tree.
</p><p>
The Gemara answers that in the case of the tree and the city, the owner of the tree is obligated to cut down his tree regardless of whether it was there first; the only question is whether he receives reimbursement for his tree (and since it is a Safek, he cannot exact compensation without proof that his tree was there first). In the case of the tree and the Bor, the owner does not have to cut down his tree if his tree was there first, and, therefore, he is not required to cut down his tree in a situation of doubt.
</p><p>
Why does the Gemara here not give the same answer it gives to an earlier question? Earlier, the Gemara explains that there is a difference between a privately-owned Bor and a publicly-owned city; if damage is caused to a publicly-owned city, the Halachah is more stringent and requires the owner of the tree to cut it down. Why does the Gemara not give this answer here? (<b>GILYON TOSFOS</b>, cited by <b>TERUMAS HA'DESHEN</b> #341)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>GILYON TOSFOS</b> writes that the Gemara indeed could have given this answer, but it preferred to give a better answer.
</p><p>
(b) The <b>MAHARAM MI'ROTENBURG</b> writes that the earlier answer -- that there is a difference between a privately-owned Bor and a publicly-owned city -- cannot be used to answer the Gemara's question here. The Gemara here asks that when a tree was planted near a Bor and there is a doubt as to which came first, the owner of the tree should not be required to cut down his tree because 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' -- the owner of the Bor must prove that his Bor was there first. The Gemara asks why the Halachah is different in the case of a tree planted near a city, when there is a doubt as to which came first. In this case, too, the owner of the tree should be able to say to the residents of the city that he will cut down his tree (without reimbursement) only when they prove that the city was there first. Until they bring proof, he should not be obligated to cut down his tree, in accordance with the general principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' With regard to this principle, there would be no difference between a privately-owned Bor and a publicly-owned city. (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DISTANCING DAMAGERS FROM A CITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	We must distance Neveilos, graves and tanneries 50 Amos
          from the city.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	A tannery may only be made to the east of the city;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Akiva says, it may be made in any direction except
          for the west, and he must distance 50 Amos.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	We must distance a soaking pit from (his neighbor's)
          vegetables, and leeks from onions, and mustard from bees;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Yosi permits mustard near bees.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What does R. Akiva say?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does he permit a tannery adjacent to the city in
               any direction except for the west, and he requires
               50 Amos if it is in the west?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, does he require 50 Amos in the other
               directions, but the west is always forbidden?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Beraisa - R. Akiva):</font></b> One may make a tannery 50
          Amos from the city in any direction except for the west;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The west is always forbidden. It is constant.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> What does this mean?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The west wind blows more often than
               the other directions.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Rav Chanan bar Aba taught that all
               four winds blow every day. The north wind blows with
               each one, the world could not survive without this;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The south wind is the harshest. A certain angel
                    contains it. If it did not, it would destroy
                    the world.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE FOUR DIRECTIONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> The west constantly hosts the
          Shechinah (Divine Presence);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yehoshua ben Levi):</font></b> We must be grateful to
               our ancestors (Anshei Keneses ha'Gedolah), for they 
               taught us the direction to pray in - 'u'Tzva
               ha'Shomayim Lecha Mishtachavim' (the sun, moon and
               stars travel westward).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (Rav Acha bar Yakov):</font></b> Perhaps the Shechinah
          is in the east. The sun, moon and stars bow to His
          Presence while departing, like a servant who walks
          (backwards) away from his master!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	This is left difficult.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Oshaya holds that the Shechinah is everywhere.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Oshaya):</font></b> 'Atah Hu Hash-m Levadecha' - Your
               messengers are unlike a human's messengers!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  When one sends a messenger, the messenger later
                    returns to where he was sent from;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> When Hash-m sends a messenger, the
                    messenger need not return (wherever he goes,
                    Hash-m is there) - 'ha'Sishalach... v'Yelechu
                    v'Yomeru Lecha Hinenu' (the messenger reports
                    back to Hash-m at the place he goes to).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Also R. Yishmael holds that the Shechinah is
          everywhere.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Tana d'Vei R. Yishmael):</font></b> 'Ha'Mal'ach...Yotzei
               u'Mal'ach Acher Yotzei Likraso' - it does not say
               that another angel is sent after the first, rather
               he goes to greet him;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Hash-m can send the second angel from the place
                    the first angel was heading towards, because
                    the Shechinah is everywhere.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Also Rav Sheshes holds that the Shechinah is
          everywhere.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Rav Sheshes was blind.) He told his servant 'you
               can point me in any direction to pray, except for
               eastwards.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Shechinah is also in the east, Rav Sheshes
               did not want to pray eastwards because Minim pray
               eastwards.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	R. Avahu holds that the Shechinah is in the west.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Avahu):</font></b> (In Persian, west is) 'URiYaH' - the
               AviR of KaH (Hash-m. Alternatively, 'Uriyah' means
               east,) - the Avir that Kah faces.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> 'Ya'arof ka'Matar Likchi' refers to the
          west wind, which comes from the Oref (strength, i.e. the
          place of the Shechinah. Alternatively, the back) of the
          world;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Tizal ka'Tal Imrasi' refers to the north wind,
               which (brings heat and famine, which raises the
               price of food and) Mazeles (cheapens) gold;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Ki'Se'iRim Alei Deshe' refers to the east wind,
               which is MeSa'eRes (agitates) the entire world like
               a Sa'ir (goat);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 'Vechi'Rvivim Alei Esev' refers to the south
               wind, which brings Revivim (rain) and makes Asavim
               (herbs) grow.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa - R. Eliezer):</font></b> The world is like a three-
          walled building; the north side is not covered;
<br>
<br>

sjt:
<font><b>1) DISTANCING A POTENTIALLY DAMAGING OBJECT FROM A NEIGHBOR'S PROPERTY</b></font><b>
<br>QUESTION:</b> The Mishnah states that a person must distance his washing pit from his neighbor's vegetables, his leeks from his neighbor's onions, and his mustard from his neighbor's bees. The Mishnah does not specify how far he must distance these items from his neighbor's property.
</p><p>
How far must one distance his washing pit from his neighbor's vegetables, or his leeks from his neighbor's onions? (The <b>RAMBAN</b> states, 'I am perplexed by the fact that the Mishnah does not specify [the distance].')
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> suggests that the distance is the same as the distance specified in the earlier Mishnah (17a), which states that a person must distance his irrigation channel or his laundry pit <i>three Tefachim</i> from the wall of his neighbor's Bor.
</p><p>
(b) The Rashba cites a Tosefta, however, which states that a person must distance his mustard plant <i>fifty Amos</i> from his neighbor's bees. The Rashba adds that perhaps the same distance of fifty Amos applies to a soaking pit and to leeks, since the Tana mentions all of these items together.
</p><p>
The reason why such a large distance is necessary is that the smell, fumes, or vapor of these potentially damaging objects travels far and thus these things are able to cause damage up to a distance of fifty Amos. (The Rashba infers this also from the words of the <b>RIF</b>.)
</p><p>
(c) The <b>RAMBAN</b> writes that it is logical that a soaking pit must be kept <i>four Amos</i> away from a neighbor's vegetables, since that is the distance that one must move his laundry pit (that is, the 'Nadyan' type of laundry pit, which one must move four Amos away from his neighbor's property, as the Gemara says on 19a). The distance required for leeks is the same distance that a person must keep his plants away from his neighbor's plants in order to prevent Kil'ayim -- three Tefachim (see Tosfos to 19a, DH ha'Mavrich). The distance required for a mustard plant is fifty Amos, as the Tosefta writes.
</p><p>
The Ramban asks, however, why the Tana of the Mishnah groups all of these objects together and does not differentiate between them based on the different distances they each require. The Ramban therefore concludes, like the Rashba, that all of these objects must be kept fifty Amos away from the neighbor's property, but he writes that this conclusion is not clear. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>  IN WHICH DIRECTION DO WE PRAY?</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'> (Beraisa - R. Akiva):</font></b> One may never make a tannery
               in the west of a city, for it (the west) is
               constant.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The west constantly hosts the
               Shechinah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yehoshua ben Levi):</font></b> 'U'Tzva ha'Shamayim
                    Lecha Mishtachavim' teaches the direction for
                    prayer (the stars travel westward).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection (Rav Acha bar Yakov):</font></b> Perhaps the
               Shechinah is in the east. They bow to His Presence
               while departing, like a servant walking (backwards)
               away from his master!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This is left difficult.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rav Sheshes holds that the Shechinah is everywhere.
               He was blind. he told his servant 'point me in any
               direction to pray, except for eastwards.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Shechinah is also in the east. Rav Sheshes
                    did not want to pray eastwards, because Minim
                    (heretics) pray eastwards.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 25b (R. Yitzchak):</font></b> To grow wise, one should face
               southwards when praying. To grow rich, one should
               face northwards when praying.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> A way to remember this is that (in the Heichal) the
               Menorah was in the south, and the Shulchan was in
               the north.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (R. Yehoshua ben Levi):</font></b> One should always face
               south. Wisdom will make him rich - 'Orech Yamim
               bi'Minah bi'Semolah Osher v'Chavod.'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> R. Yehoshua ben Levi said that the
               Shechinah is in the west (so one should face west)!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'>  Answer:</font></b> He faces west, and tilts to the south.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'>  R. Chanina (to R. Yoshiyah):</font></b> You live (in Bavel,)
               to the north of Eretz Yisrael. You should face
               southwards.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'>  Berachos 28b (Mishnah):</font></b> If one cannot come down
               from his donkey to pray, he turns to face (towards
               Yerushalayim). If he cannot, he directs his thoughts
               to the Kodesh ha'Kodashim.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'>  30a (Beraisa):</font></b> One who is blind or does not know
               the direction (to the Mikdash) directs his thoughts
               to his Father in Heaven -- 'v'Hispalelu El Hash-m.'
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b>  In Chutz la'Aretz, one faces Eretz Yisrael --
               'v'Hispalelu Elecha Derech Artzam.' In Eretz
               Yisrael, he faces Yerushalayim -- 'v'Hispalelu...
               Derech ha'Ir.' In Yerushalayim he faces the Mikdash
               -- 'v'Hispalelu El ha'Bayis ha'Zeh.' In the Mikdash
               he faces the Kodesh ha'Kodashim -- 'v'Hispalelu El
               ha'Makom ha'Zeh.' In the Kodesh ha'Kodashim he faces
               Beis ha'Kapores (the wall in back of the Aron). In
               back of Beis ha'Kapores he (faces west, towards Beis
               ha'Kapores, but) considers himself as if he was in
               front of it.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'>  Conclusion:</font></b> Wherever one is, he faces towards Beis
               ha'Kapores. All of Yisrael face one place.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'>  (R. Avin):</font></b> We learn from '... Tzavarech Banuy
               l'Salpiyos' -- the Tel (mound) towards which all
               Piyos (mouths) turn.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Berachos 20b) brings the Gemara in
               Berachos.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (4:19):</font></b> Even if there is no danger, one may
               pray while riding, for the delay would disturb him.
               He need not turn his face towards Yerushalayim. R.
               Yosef holds that this is only if there is danger. We
               hold like our Sugya, unlike the Sugya in Bava Basra
               in which Tana'im and Amora'im argue about whether
               the Shechinah is in the east or west. Also there,
               the conclusion is to pray towards Eretz Yisrael. We
               face east because we are west of Eretz Yisrael.
<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 (OC 94:1):</font></b> In Chutz la'Aretz, one who
               rises for Shemoneh Esre faces towards Eretz Yisrael,
               and intends also for Yerushalayim, the Mikdash and
               the Kodesh ha'Kodashim. In Eretz Yisrael, he faces
               Yerushalayim and intends also for the Mikdash and
               the Kodesh ha'Kodashim. In Yerushalayim, he faces
               the Mikdash and intends also for the Kodesh
               ha'Kodashim. In back of ha'Kapores he turns his face
               towards ha'Kapores.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> R. Yonah (20b), cited in Beis Yosef (DH
                    Kosav).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magen Avraham (1):</font></b> In back of ha'Kapores means
                    west of the Beis ha'Mikdash.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> If one prays in a different
               direction, he turns his face towards Eretz Yisrael,
               Yerushalayim or the Mikdash, if he was in Chutz
               la'Aretz, Eretz Yisrael or Yerushalayim,
               respectively.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (2):</font></b> The Shulchan Aruch discusses
                    a place where the custom is to pray in a
                    different direction, or one who prays on a
                    donkey.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah):</font></b> Mahari Avuhav was
                    astounded why we pray to the north and south.
                    We should face east, like the Tur says! It
                    seems that we should turn our faces east when
                    we pray to the north or south, like it says in
                    Bava Basra that one who prays to the north or
                    south (to get rich or wise) should turn his
                    face towards Eretz Yisrael. Rashi explained
                    that he faces a bit south, i.e. he faces east,
                    and tilts a bit south to get wise or north to
                    get rich. Since we find that tilting the face
                    helps, if one prays to the north or south, it
                    suffices to turn his face towards Eretz
                    Yisrael. Semag says 'we are west of Eretz
                    Yisrael, and face east. Even though it says
                    that one who wants to get rich or wise should
                    pray to the north or south, he must turn his
                    face towards Eretz Yisrael like it concludes
                    there.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (1):</font></b> One who prays to the west cannot turn
                    his face to the east. The Gemara discusses
                    tilting the face to the side, but not in back.
                    This is why Mahari Avuhav mentioned north and
                    south, but not west. Even though the Shulchan
                    Aruch discusses Stam another direction, it does
                    not refer only to us, who are west of Eretz
                    Yisrael and must face east. Rather, it is a
                    general rule. Whenever one is, he must turn his
                    face to Eretz Yisrael.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> We face east because we are west of Eretz
               Yisrael. We do not make the Aron and the direction
               of prayer where the sun rises, for Minim do so.
               Rather, we face midday.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (2):</font></b> The Levush says that since we are
                    northwest of Eretz Yisrael, the Aron should be
                    southeast. If it is in the east, we do not pray
                    towards Eretz Yisrael, and we do like the
                    Minim!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (9):</font></b> If the Aron cannot be
                    fixed in the east, it should be fixed in the
                    south. Surely it should not be in the west, for
                    then people will Daven with their backs to the
                    Aron! Even if the Aron is in a different
                    direction, one must face east.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (9):</font></b> Some say to face east even
                    if the Aron is in the south and the Tzibur
                    faces south. Others disagree. How foolish are
                    those who put the Aron in the wrong place to
                    'beautify' the Beis ha'Keneses!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishnah Berurah (10):</font></b> If one prayed to north or
                    south and they alerted him, he may not uproot
                    his legs to face east. Rather, it suffices to
                    turn his face to east, even if he prays with
                    others facing east. If he cannot, or he faces
                    west, he should intend for the Kodesh
                    ha'Kodashim. However, if he is in a Beis
                    ha'Keneses and many see it, the Pri Megadim
                    says that he turns to face like the Tzibur. If
                    the Aron is in the south and people pray to the
                    south, even though this is wrong, he should do
                    so also, but he should turn his face to the
                    east.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishnah Berurah (11):</font></b> We do not face the midday
                    sun, rather, where it is an hour or two after
                    sunrise in Nisan and Tishrei (slightly south of
                    east). All Acharonim say like the Levush, that
                    if we are northwest of Eretz Yisrael, we face
                    southeast. Every country should do according to
                    its location. Lechem Chamudos justifies the
                    custom (to face east), but he agrees that it is
                    better to do like the Levush. If the Aron is in
                    the east, one faces east and tilts his face
                    southeast, unless he is south of the Aron, lest
                    it look like his back is to the Aron. In such a
                    place, the Rav's place should be north of the
                    Aron, so he can face south and grow wise.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> If one wants to fulfill 'to grow rich, one
               should face north. To grow wise, one should face
               south', in any case he should point his face east.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (3):</font></b> One can also face east and point his
                    face north or south (Rashi, brought in Beis
                    Yosef). This is better, for then he does not
                    look like he Davens unlike the Tzibur.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (12):</font></b> The Perishah (4) says that
                    it is better if his legs face north or south
                    and his face faces east, to fulfill 'v'Hayu
                    Einai v'Libi Sham.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishnah Berurah (13):</font></b> Where the Aron is in the
                    southeast, there is no need to tilt to the
                    south. One may not tilt north, for this is like
                    turning away from Eretz Yisrael.<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The sun traverses the other three directions.
               When it reaches the northwest corner, it goes above
               the Raki'a (and goes eastward overnight, and rises
               in the northeast in the morning).
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	R. Yehoshua says, the world is like a box, the north
          side is covered;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When the sun reaches the northwest corner, it
               goes (through a window) in back of the box;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Holech El Darom v'Sovev El Tzafon' - the sun
               (always) travels along the south by day, and circles
               around the north side by night.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 'Sovev Sovev Holech ha'Ru'ach' - sometimes (i.e.
               in summer) the sun travels along the east and west
               by day. Sometimes (i.e. in winter) it circles around
               the east and west by night.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	R. Eliezer says, 'umi'Mezarim Karah' refers to the
          north wind (which is cold, because the north side is
          exposed).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Rochav Mayim b'Mutzak' - this is the east
               wind.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> We said that the south wind brings
               rain!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The south wind brings rain gently, the
               east wind brings gushing rain.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> From the day of the Churban, the south
          wind no longer brings rain - 'Va'Yigzor Al Yamin
          v'Ra'ev';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Tzafon v'Yamin' - this shows that Yamin is
               south.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rafram bar Papa):</font></b> From the day of the Churban, rain
          does not come from Hashem's good storehouse;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Yiftach... Otzaro ha'Tov' - only when Yisrael
               does Hashem's will, we dwell in Eretz Yisrael and
               merit this blessing;
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> One who wants to grow wise should face
          southwards when praying. One who wants to grow rich
          should face northwards when praying.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A way to remember this is that (in the Heichal)
               the Menorah was in the south, and the Shulchan was
               in the north.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(R. Yehoshua ben Levi):</font></b> One should always face
          southwards. Through growing wise, he will grow rich -
          'Orech Yamim bi'Minah bi'Semolah Osher v'Chavod'.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yehoshua ben Levi said that the Shechinah
          is in the west (so one should face west)!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> He faces west, and tilts slightly to the south.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	R. Chanina (to R. Yoshiyah):</font></b> You live (in Bavel), to
          the north of Eretz Yisrael. You should face southwards.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that Bavel is to the
               north?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'Mi'Tzafon Tifasach ha'Ra'ah'.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE'S 'ARROWS'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b>  We must distance a soaking pit from (his
          neighbor's) vegetables, and leeks from onions, and
          mustard from bees.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa - R. Yosi):</font></b> One may grow mustard near bees;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The neighbor cannot tell him 'distance your
               mustard (for it harms my bees)', for he can say back
               'distance your bees, for they harm my mustard!'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven must distance his tree 25 Amos from
          Shimon's pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A carob or sycamore tree must be distanced 50
               Amos.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	This is whether the tree is on ground above the pit or
          even with it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If (the tree is too close and) the pit was there before
          the tree, Shimon may cut the tree without compensating
          Reuven;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the tree was there before the pit, he may not
               cut the tree.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Yosi says, even if the pit preceded the tree, he may
          not cut it. Just like Shimon may dig in his own property,
          Reuven may plant in his own property!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> This is whether the tree is above
          the pit or below it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, if the tree is above the pit, its
          roots will descend and damage the pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if the tree is below, what is the
               problem?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Chaga):</font></b> The roots spread to underneath the
          pit and harm the soil there.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah - R. Yosi):</font></b> Even if the pit preceded the tree,
          he may not cut it. Just like Shimon may dig in his own
          property, Reuven may plant in his own property!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> The Halachah follows R. Yosi.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> R. Yosi admits regarding Girei Dilei (his
          arrows, i.e. damage that comes directly from the person's
          hand).
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Papa Yona'ah was a poor man who became wealthy; he
          built a house. There were people in his neighborhood who
          pressed sesame to make oil; this caused his house to
          shake.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Ashi:</font></b> R. Yosi admits regarding Girei Dilei.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> How much must the house shake to
               obligate the pressers to distance themselves?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> It is so much that if a Keli is on the
               wall (Rashi; Ri - if one holds a Keli), its cover
               will shake.
<br>

sjt:
</p><p>
<font><b>2) DOES ONE FACE NORTH OR SOUTH WHEN HE PRAYS</b></font><b>
<br>OPINIONS:</b> Rebbi Yitzchak states that 'a person who wants to become wise should face south (when praying), and a person who wants to become wealthy should face north.'
</p><p>
Does Rebbi Yitzchak argue with the Halachic opinion expressed in the Gemara in Berachos (30a), that one should face Yerushalayim when he prays (see Tosfos to 25a, DH l'Chol)?
</p><p>
(a) <b>RASHI</b> here writes that the Gemara means that a person may turn his face towards the north or south, while the rest of his body faces Yerushalayim. (The <b>TAZ</b> (OC 94:3) writes that this is preferable to what the <b>REMA</b> suggests, that one's <i>head</i> should face Yerushalayim while his <i>body</i> turns slightly towards the north or to the south, as cited by the <b>MISHNAH BERURAH</b> OC 94:12.)
</p><p>
(b) <b>RAV YEHUDAH TRAGER</b> shlit'a (Rosh Yeshiva of Yeshivas Etz Chaim, Antwerp), the son-in-law of <b>RAV SHLOMO ZALMAN AUERBACH</b> zt'l, relates that Rav Shlomo Zalman explained that the Gemara here means that a person who wants to become wise should turn southward <i>at the time that he prays for wisdom</i> (such as in the blessing of 'Atah Chonen l'Adam Da'as' in the Shemoneh Esreh), and a person who wants to become wealthy should turn northward <i>at the time that he prays for wealth</i>. (Recorded in 'Acharis Davar,' in the end of <b>HALICHOS SHLOMO</b>, a collection of insights and rulings of Rav Shlomo Zalman Auerbach zt'l.)
</p><p>
Rav Trager adds that according to this explanation, on Shabbos -- when one does not pray for his personal needs -- there is no reason to face south or north. (I. Alsheich)
</p><p>


<font><b>3) AGADAH: FACING SOUTH IN ORDER TO BECOME WISE</b></font><b>
<br>QUESTION:</b> Rebbi Yitzchak states that 'a person who wants to become wise should face south (when praying), and a person who wants to become wealthy should face north.' The Gemara says that in order to remember which direction to face for which benefit, one can remember that the Shulchan was in the northern part of the Heichal of the Beis ha'Mikdash, and that the Menorah was in the southern part of the Heichal.
</p><p>
In what way does the Shulchan represent wealth, and in what way does the Menorah represent wisdom?
</p><p>
<b>ANSWER:</b> The Shulchan represents wealth because it held the Lechem ha'Panim, and it was thus the conduit for the Divine blessing of sustenance to the world.
</p><p>
The Menorah represents wisdom because it provides light, and light is compared to wisdom, as in the verse, 'Ki Ner Mitzvah v'Torah Or' (Mishlei 6:23). <b>RABEINU BACHYE</b> (Parshas Terumah) writes that the lighting of the Menorah in the Beis ha'Mikdash served as a conduit for the wisdom of the Torah to reach the Jewish people.
</p><p>
Moreover, the Gemara in Berachos (57a) teaches that when a person sees olive oil in a dream, 'he should anticipate receiving wisdom,' because olive oil is the fuel that is used to produce light in the Menorah. This is also why the days of Chanukah -- which celebrate the rekindling of the Menorah in the Beis ha'Mikdash -- are especially propitious for achieving great depths of understanding in Torah (<b>MINHAGEI HA'CHASAM SOFER</b> 9:1, <b>SEFER MAGEN AVRAHAM</b> Al ha'Torah (Parshas Miketz)). (<b>RAV CHANOCH KARELENSTEIN</b>, zt'l, in <b>SEFER MAR'EI MEKOMOS</b>; see also <b>TORAS CHAIM</b>.) (I. Alsheich)
</p><p>
(See also <b>KLI YAKAR</b> to Shemos 25:10. The Kli Yakar points out that the measurements of the Aron were all fractional numbers (2 1/2 by 1 1/2 by 1 1/2), while the measurements of the Shulchan were part whole numbers and part fractional numbers (2 by 1 by 1 1/2). The Kli Yakar suggests that the measurements of the Aron were all fractional to teach that a person should always view himself as lacking in Torah knowledge, which is represented by the Aron, in which the Luchos and Sefer Torah of Moshe Rabeinu were kept. If a person views himself as lacking in Torah knowledge, he will always strive to learn more. The Shulchan, in contrast, represents material sustenance and gain. Hence, some of the measurements of the Shulchan were whole numbers, to teach that a person should view his financial situation as complete and lacking nothing, and he should be content with his lot, 'Same'ach b'Chelko.' On the other hand, some of the measurements of the Shulchan were fractional, to teach that a person should not try to fulfill all of his desires for material gain, and he should not focus all of his energies and time on attaining material success. Perhaps this, too, is part of the reason why the Shulchan is given as the Siman for facing north when one prays for wealth; the Shulchan reminds a person to be content with his lot, and not to focus all of his energies on material gain.) (Y. Shaw)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DAMAGE THROUGH WIND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	When people of Bar Meryon's house combed flax, the
          chaff would fly off and damage people; people complained.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Ravina):</font></b> R. Yosi admits regarding Giri Dilei, but that
          is when he set the damager in motion. Here, the wind
          takes it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Mar bar Rav Ashi):</font></b> Regarding Shabbos, one is
          liable for winnowing, even though the wind helps him!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Mereimar):</font></b> Indeed, here also, it is due to his
          Ko'ach (impetus, so he must distance his flax).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (against Ravina):</font></b> Why is this different than
          when the wind carries a spark from a hammer? There, the
          smith is liable!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The smith is happy that the spark leave his
          shop (so it will not cause a fire in the shop). The
          owners of the flax do not need the chaff to fly away.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DISTANCING TREES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven must distance his tree four Amos from
          Shimon's field;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Vines have the same law as trees.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If there is a fence in between, each may plant up to
          the fence.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If the roots of Reuven's tree are in Shimon's field,
          Shimon may cut them up to three Tefachim deep, so they
          will not impede his plow;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon digs a pit, he may cut whatever roots
               he encounters. The (cut) roots are his.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> He must distance four Amos, because
          this amount is needed to tend to a vineyard.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #1 (Shmuel):</font></b> This is only in Eretz Yisrael. In
          Bavel, two Amos are enough.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> Reuven must distance his tree two
          Amos from Shimon's field;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction:</font></b> The Mishnah requires him to
               distance four Amos!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah discusses Eretz Yisrael, and
               the Beraisa discusses Bavel.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2 (Mishnah):</font></b> Reuven must distance his tree
          four Amos from Shimon's field;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> He must distance his tree two
          Amos.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Resolution (Shmuel):</font></b> The Mishnah discusses Eretz
          Yisrael, and the Beraisa discusses Bavel. (end of Version
          #2)
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Rava bar Rav Chanan had date trees bordering on Rav
          Yosef's vineyard. Birds came to the trees and descended
          to the vines, and damaged them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> Cut your trees!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> I kept the proper distance!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> A greater distance is required for
               vines.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Rava - Mishnah):</font></b> Vines have the same
               law as trees.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> The same distance is required
               between trees and trees or between vines and vines.
               A greater distance is required between trees and
               vines.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rava:</font></b> I will not cut them, for Rav forbids
               cutting a tree that produces a Kav of dates;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Chanina said that his son died only because
                    his son cut a fig tree prematurely.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If you want to cut, I permit you!
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Rav Papa had date trees bordering on Rav Huna brei
          d'Rav Yehoshua's property. He saw Rav Huna digging and
          cutting the roots; he asked why he was doing this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Huna:</font></b> The Mishnah says, if Reuven's roots in
               Shimon's field, he may cut them up to three Tefachim
               deep, so they will not impede his plow.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Papa:</font></b> You are cutting deeper than three
               Tefachim!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Huna:</font></b> I am digging a pit. The Mishnah says
               'if he digs a pit, he may cut whatever roots he
               encounters, and the roots are his.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rav Papa tried bringing many proofs. Only the
               following dissuaded Rav Huna.
<br>
<br>

sjt:
<font><b>1) THE HALACHAH OF 'GIREI DILEI'</b></font><b>
<br>OPINIONS:</b> The Gemara (25b) rules in accordance with the view of Rebbi Yosi who states that a person is permitted to plant a tree inside his property next to his neighbor's Bor. The only case in which Rebbi Yosi prohibits one from doing a potentially damaging action in one's own domain is when the action involves 'Girei Dilei' (lit. 'his arrows') which directly cause damage to the neighbor's property.
</p><p>
If the Halachah follows the view of Rebbi Yosi, does this mean that the Halachah does not follow the Mishnah earlier (17a) which states that a person must distance his Bor and other potentially damaging agents, such as a water channel (Amas ha'Mayim), olive residue (Gefes), or seeds (Zera'im), from his neighbor's property? That Mishnah does not seem to follow the view of Rebbi Yosi, since those objects are not 'Girei Dilei.'
</p><p>
In the case of a person who digs a Bor next to his neighbor's property, the Gemara (17b) clearly states (according to Rava) that it is considered 'Girei Dilei,' because when he pounds the earth with the shovel as he digs, he weakens the earth of his neighbor's land. What, though, is the Halachah in the case of the other damaging agents, which do not involved striking the ground with a shovel?
</p><p>
Also, if a person does cause damage to his neighbor's property in a manner which is 'Girei Dilei,' is he obligated to pay for the damage or not? (See Insights to 17:3.)
</p><p>
(a) <b>RASHI</b> (22b, DH Leima) writes that 'many of the rulings of the Mishnah' follow the opinion of the Rabanan (who argue with Rebbi Yosi). Rashi seems to refer to the cases in the Mishnah (17a), except for digging a Bor (which the Gemara calls 'Girei Dilei,' as mentioned above).
</p><p>
Rashi in a number of places defines 'Girei Dilei' as 'arrows that damage while coming directly from the body of the person doing the damage' (22b, DH b'Girei; 25b, DH b'Girei; Bava Metzia 117a, DH Modi). According to this explanation, an act can be considered 'Girei Dilei' only when the damage occurs immediately. Accordingly, none of the cases in the Mishnah qualify as 'Girei Dilei' and the Mishnah must be following the opinion of the Rabanan.
</p><p>
With regard to the obligation to pay for damages, since Rashi defines 'Girei Dilei' as arrows that come from the person who is damaging, it seems that Rashi equates a case of 'Girei Dilei' with actually shooting an arrow -- in which case the person is 'Adam ha'Mazik' and is obligated to pay. If the damage was done in a manner which is only a 'Gerama' (such as the case on 22b, where the person merely places the marten in a position that readied it to do damage), then obviously he would be exempt from paying for the damage.
</p><p>
(b) <b>TOSFOS</b> (22b, DH Leima) cites <b>RABEINU CHANANEL</b> who writes that the Mishnah earlier (17a) indeed follows the opinion of Rebbi Yosi. He explains that 'Girei Dilei' means that the process of the damage begins at the time that the person does his act (even though the full damage does not occur until later).
</p><p>
(This is also the opinion of the <b>RIF</b>, the <b>GE'ONIM</b>, and <b>RABEINU YONAH</b> (18b).)
</p><p>
According to Tosfos, if the damage does not begin immediately, then it cannot be considered 'Girei Dilei.' This is why Tosfos (17b, DH Marchikin, and 18a, DH Deika) writes that Rebbi Yosi would permit -- even according to Rava -- placing Gefes or Melach (salt) near the border of one's property before the neighbor builds a wall in his own property. Rava only prohibited doing so according to the Rabanan who argue with Rebbi Yosi.
</p><p>
The Rishonim ask why planting Zera'im next to a neighbor's property should be considered 'Girei Dilei' according to this opinion. The damage that they cause occurs only when their roots grow and soften the dirt and thereby weaken the base of the wall (as the Gemara on 19b says). <b>RABEINU YONAH</b> answers that the damage is not from the growth of the roots, but rather it results from the nourishment that the Zera'im draw from the land and thereby weaken the earth. This damage begins immediately when the seeds are planted.
</p><p>
The <b>RAMBAN</b> cites this explanation and asks that the answer does not suffice, because even the nourishment that the roots draw from the ground does not begin immediately.
</p><p>
(c) The <b>RAMBAN</b> (17b, and in the end of Kuntrus Dina d'Garmi) writes that whenever the damage results directly from the action that the person performed it is called 'Girei Dilei,' even if the damage does not start until a later time. This the reason why the Zera'im are also considered 'Girei Dilei' even though they start to soften the ground only after they are planted. Similarly, 'Girei Dilei' prohibits one from placing Gefes or Melach near the border of one's property even before the neighbor builds a wall on his side of the border, since the damage to the wall will result from the Gefes having been placed in this location.
</p><p>
The only case that is not a case of 'Girei Dilei,' according to the Ramban, is the case of a tree planted next to a neighbor's field. This is because the damage that the tree causes does not come from the tree itself, but rather it comes from the roots, and the roots were not planted by the owner in a place in which they could cause damage.
</p><p>
With regard to the obligation to pay for damages, the <b>RA'AVAD</b> (cited by the Ramban and the Shitah Mekubetzes here) rules that one is exempt from payment, because all of the damages of 'Girei Dilei' are considered 'Gerama,' as the Gemara states in the case of the marten. However, the Ramban himself compares the cases of 'Girei Dilei' -- such as placing a water pit near a neighbor's wall -- to placing a piece of coal on another person's clothing which slowly destroys the clothing. In the case of a coal, it is obvious that the owner of the coal is obligated to pay for the damages. The same applies in the cases of 'Girei Dilei.' He provides support for this from the fact that the Gemara describes the damage as 'Girei,' meaning 'his arrows,' for which a person is obligated to pay (as mentioned above according to Rashi).
</p><p>


<font><b>2) DAMAGE CAUSED BY SHAKING FLAX</b></font><b>
<br>QUESTION:</b> The Gemara relates a case in which certain people were shaking flax in order to remove the chaff, and the chaff was damaging other people. Ravina ruled that they are permitted to shake the flax, and it is the obligation of the bystanders to distance themselves from harm.
</p><p>
Mereimar argued with Ravina's ruling and said that one is prohibited from shaking the flax if it damages others, because it is his action that is causing the chaff to fly off, just as one who winnows on Shabbos is liable for the act of separating the chaff from the grain.
</p><p>
The Gemara questions Ravina's ruling and asks why this case differs from the case of a spark that flies out due to a hammer-blow and causes damage, for which the person hammering is obligated because of 'Esh.' The Gemara answers that the difference is that the person hammering wants the spark to fly out (so that it not ignite his house, as Rashi explains), whereas the person shaking the flax does not want the chaff to fly outwards.
</p><p>
Why should shaking the flax not be considered an act of Esh? The one who shakes the flax should be obligated, just like a person who places a stone in a place where the wind can blow it down is obligated for damages because of Esh. The person who places the stone there, or the person who lights a fire, does not want the stone to fall or the fire to spread, and yet he is obligated to pay for damages. (<b>TOSFOS</b>)
</p><p>
Similarly, when a person is cutting wood and a piece of the log flies out and causes damage, he is obligated for damages (because of 'Kocho' and 'Adam ha'Mazik'), since his action causes the damage, even though he wanted the wood to remain where it was so that he could use it. (<b>RAMBAN</b> in Kuntrus Dina d'Garmi)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Zika) explains that a person is liable for damages of Esh only when he lights the fire by himself. If the fire is lit only with the help of the wind, he is not liable for Esh according to Ravina.
</p><p>
How does this explain why a person is liable for leaving a stone in a place where the wind will blow it? The stone fell down and caused damage only with the help of the wind!
</p><p>
The <b>MAHARSHA</b> explains that the owner of the stone accomplished what he intended to do by placing the stone where he left it. Therefore, he is comparable to a person who made a fire entirely by himself. However, in the case of the flax (and in the case of a person winnowing), the person shaking the flax had no intention to leave the chaff in the air, but rather he intended that it fall to the ground where it no longer could be blown away by the wind. Since he did not accomplish his goal with the chaff before the chaff was blown away and caused damage, it is not comparable to Esh. This also seems to be the intention of the <b>RAMBAN</b> (in Kuntrus Dina d'Garmi).
</p><p>
(b) The <b>TOSFOS RID</b> writes that the damage caused by the chaff indeed is considered Esh. Nevertheless, Ravina exempts a person from paying for damages caused by his fire when the people who were damaged were aware of the fire and were able to protect themselves. Therefore, if a person places a stone atop his roof next to his neighbor's property in a place where his neighbor certainly sees it, then it is his neighbor's obligation to move his objects away so that they will not be damaged if the stone falls (according to Rebbi Yosi, who maintains that it is the Nizak's obligation to protect himself). The Torah obligates a person for damages caused by his fire (or stone) only when the person who was damaged was innocently walking through Reshus ha'Rabim and was not aware of the fire or the stone such that he could protect himself from it, or when a neighbor was not home (when a fire was lit in the adjacent property), or when it was impossible for him to protect his grain from the approaching fire.
</p><p>
A possible source for the logic of the Tosfos Rid may be the Halachah that one who digs a pit is exempt from damages caused to a person who falls into the pit. According to Rashi (Bava Kama 5b, DH v'Chulu; see also Tosfos, Bava Kama 5b, DH Ki, and Insights there, and see <b>MESHECH CHOCHMAH</b>, Parshas Mishpatim), the reason for this Halachah is that the person (the Nizak) should have been cautious and avoided the pit (even when the pit is in Reshus ha'Rabim).
</p><p>
The same reasoning may apply to damages caused by one's Shor. A person is exempt from damages of Shen and Regel in Reshus ha'Rabim, because the people in Reshus ha'Rabim should expect the Shor to cause such damage and thus they should protect themselves from it. However, one is liable for damages done in Reshus ha'Rabim by his Shor ha'Mu'ad (through Keren), because people do not know that the Shor is prone to cause damage in such a manner since they do not know that the Shor is a Mu'ad. (The owner of a Shor Tam pays Chatzi Nezek because of a Kenas.)
</p><p>
(c) The <b>RAMAH</b> (#107) explains, like the Tosfos Rid, that damage caused by the chaff is comparable to damage caused by Esh. However, he explains that according to Ravina a person is liable only for damages caused by a fire ignited in his domain when he wanted the fire to spread, or when the fire spread by itself without the assistance of the wind. When he lights the fire <i>outside</i> of his domain, he is <i>always</i> obligated to pay for damages, because Rebbi Yosi exempts a person only when he was acting in his own domain.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A PATH THAT THE PUBLIC HAS BEEN USING</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> One may not ruin a path that the
               public has been using.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 11b (Rav Huna):</font></b> If a member of a Mavuy wanted to
               close his opening to the Mavuy, the people of the
               Mavuy can stop him, for this would increase the
               amount they must walk.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rebbi holds that people in a Chatzer open to a Mavuy
               may use the part of the Mavuy from their entrance
               and outwards, but they may not go inwards.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 12a (Rabah bar bar Chanah):</font></b> If a Mavuy is open to a
               road leading to another city, and people of this
               city want to close it, people of the other city can
               stop them, even if another path connects the cities,
               due to Rav Yehudah's law (one may not ruin a path
               that the public has been using).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Anan):</font></b> If a Mavuy is open to the Reshus
               ha'Rabim, and people of the Mavuy want to put doors
               there, people of the city can stop them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Assumption:</font></b> This is forbidden only within four
                    Amos of the Reshus ha'Rabim, due to R. Zeira's
                    law that the four Amos adjacent to the Reshus
                    ha'Rabim are like the Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> No. R. Zeira discusses what is considered
               a Reshus ha'Rabim regarding Safek Tum'ah. Rav Anan's
               law is because sometimes the Reshus ha'Rabim is
               crowded and people enter the Mavuy, even past four
               Amos.
<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 (5a and 1:23):</font></b> A Tosefta (Bava Metzia
               11:9) teaches that if one has an opening in a Mavuy,
               people of the Mavuy cannot force him to put doors at
               the entrance to the Mavuy. He can say 'I want to
               enter carrying my bundle until my house.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (4b DH Masnisin):</font></b> Only people in
                    a Chatzer can force each other to make a door.
                    People in a Mavuy cannot force him, like the
                    Tosefta says. It connotes that he can stop
                    them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nimukei Yosef (7b):</font></b> Rav Huna discusses a Mavuy
                    open to a storage area or valley. If it were
                    open to Reshus ha'Rabim, why did Rav Huna say
                    that people of the Mavuy can stop him? Even
                    people of Reshus ha'Rabim can stop him, like we
                    say on 12a! There, we do not discuss a Mavuy
                    open on both sides, for we say that <i>sometimes</i>
                    people pass through. However, if there is a
                    doorframe and pillars to stop the masses from
                    passing through, they may set up doors even
                    though it is open to Reshus ha'Rabim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Nimukei Yosef (8a DH Garsinan):</font></b> One may not
                    ruin a path that the public has been using only
                    if they initially were permitted to use it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (44):</font></b> The Halachah follows Rebbi. (Since people
               of a Chatzer have no rights further inside the
               Mavuy,) an inner Chatzer may close near its opening.
               Rav Anan taught that people of the city can stop
               them! He discusses a Mavuy open to Reshus ha'Rabim,
               and Rebbi discusses a Mavuy open to a Simta
               (shoulder of Reshus ha'Rabim) or Karmelis. I say
               that for this law, we do not distinguish Reshus
               ha'Rabim from Karmelis or a Simta, since many pass
               through. Rather, Rebbi discusses a Mavuy open to a
               Mavuy open to Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rivash (253):</font></b> A case occurred in which a Beis
               ha'Keneses wanted to make seats for more people. One
               person complained that this will give him less room
               to get to his place. This is a valid claim, just
               like one in a Mavuy can stop them from erecting
               doors, for it will stop him from carrying a bundle
               to his house.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rebuttal (Mas'as Binyamin 4):</font></b> Claims of burden, toil
               and lack of room apply to a commoner's needs. For
               Avodas Hash-m in a Beis ha'Keneses, these are
               preferred. There is more reward for one who is
               cramped or must walk further! Surely one must bear
               inconvenience to allow the Beis ha'Keneses to make
               room for others. Sometimes one must even do a light
               Isur and forfeit money to save others from a great
               Isur, e.g. to free a half slave. For a Mitzvah of
               the Rabim (to enable more to pray in the Beis
               ha'Keneses), we force an individual even if there
               was negligence. Normally, a path must be four Amos
               wide. A path in a vineyard is not needed so much for
               usage, so two and a half Amos suffice. All the more
               so one does not need so much room in a Beis
               ha'Keneses! The Rivash said that the concern is not
               only for a bundle. I say that it is! One may not
               diminish a path of the Rabim. For an individual's
               path, we leave as much as he needs.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'>Rambam (Hilchos Shechenim 5:13):</font></b> If one has an
               opening in the Mavuy, people of the Mavuy cannot
               force him to make a door for the Mavuy. He can say
               'I want to enter carrying my bundle until my house.'
               If a Mavuy is Mefulash (open on both ends) to Reshus
               ha'Rabim, and the residents want to erect doors,
               people of Reshus ha'Rabim can stop them, for
               sometimes they (people in Reshus ha'Rabim) are
               crowded and enter the Mavuy.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 13:24):</font></b> If one recessed
               his property from Reshus ha'Rabim, he may extend a
               ledge at any time. He may never return the walls,
               for one may not ruin a path that the public has been
               using.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Ramban (11b DH Echad):</font></b> The Gemara suggested that if
               a Mavuy is Mefulash to a Reshus ha'Rabim, and people
               of the Mavuy want to put doors there, people of the
               city can stop them only within four Amos of the
               Reshus ha'Rabim. The Ra'avad says that the Mavuy is
               open on only one side to Reshus ha'Rabim. If it were
               open on both sides, why would we think that past
               four Amos is different? Also, why did we answer that
               sometimes the Reshus ha'Rabim is crowded and people
               enter past four Amos? People constantly pass
               through! We find that a Mavuy closed on three sides
               is called Mefulash (Shabbos 117a). This is
               reasonable. However, all Chachmei Sefard says that
               it is Mefulash on two sides. If it is Mefulash on
               one side, it is only for people of the Mavuy. If it
               is Mefulash on two sides, it is open to Reshus
               ha'Rabim, and it is not for use (of people of the
               Mavuy). The Gemara did not say that people (of the
               city) pass through, for even when there is another
               path, they can stop them from making doors.
<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 162:1):</font></b> If people in a Mavuy want
               to put doors at the entrance to the Mavuy, even one
               of them can stop them and say 'I want to enter
               carrying my bundle until my house.' Even if they all
               agree, people of Reshus ha'Rabim can stop them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (2,3):</font></b> The lintel above the door and the
                    door itself would prevent one from carrying a
                    bundle until his house without putting it down
                    first, and this is burdensome. Due to this
                    reason, people of the Mavuy can protest in any
                    case, even if there is a lintel and pillars.
                    The Rema below explains times when people of
                    Reshus ha'Rabim cannot protest.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (4):</font></b> This is whether the Mavuy is open on
                    one side or on two sides.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rema:</font></b> Even if they sold the Mavuy to one who
                    intends to put doors on it, and they announced
                    that anyone who does not protest will lose his
                    rights, still they can protest.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Darchei Moshe (1):</font></b> In Teshuvah 339, the Rashba
                    says that even if they announced that anyone
                    who does not protest will lose his rights, they
                    did not lose their rights, for the opening of
                    the Mavuy announces their rights, so they need
                    not protest.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> (They can stop them) even if
               they want to put the doors far inside the Mavuy, for
               sometimes Reshus ha'Rabim is crowded and people
               enter the Mavuy.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (6):</font></b> On market day it is crowded with
                    people and animals from other cities and they
                    cannot fit in Reshus ha'Rabim, so they enter
                    the Mavo'os. The Tur says that the same applies
                    if it is open to Karmelis or a Simta. This is
                    why the Rema permits a Mavuy open to a Mavuy
                    open to Reshus ha'Rabim or a Simta, i.e. but
                    not a Mavuy open to a Simta.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> However, if a small Mavuy is open to a Mavuy
               open to Reshus ha'Rabim or a Simta (a shoulder of
               Reshus ha'Rabim), people of the small Mavuy may make
               doors for it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (4):</font></b> This is unlike the opinion in the Rosh
                    that distinguishes a Simta for Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that even if it is open to the Reshus
               ha'Rabim and at the opening is noticeable like an
               opening with pillars, they can erect doors.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (7):</font></b> The Tur forbids only when the width of
                    the Mavuy is totally open to Reshus ha'Rabim.
                    If the opening in the fourth wall of the Mavuy
                    is not as wide as the Mavuy, and there are
                    pillars and a lintel to inhibit people of
                    Reshus ha'Rabim from entering, one may erect
                    doors.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> One may not ruin a path that the
               public has been using.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Huna (after Rav Papa left):</font></b> I should have
               answered that the Chazakah is only within 16 Amos
               (the tree is fed from those roots), but past that I
               may cut!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon digs a pit, he may cut whatever
          roots he encounters. The roots are his.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Yakov Hadayva):</font></b> Who gets the roots?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Chisda - Mishnah):</font></b> If Levi's roots enter
          Hekdesh's field, it is forbidden (mid'Rabanan) to benefit
          from them. If one benefited, he did not transgress
          Me'ilah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we say that the roots belong to the tree's
               owner, we understand why there is no Me'ilah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, if they belong to the owner of the
               field, there should be Me'ilah!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If roots of a Hekdesh tree enter
          Levi's field, one may not benefit from them. If one
          benefited, he did not transgress Me'ilah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the roots belong to the tree's owner, there
               should be Me'ilah!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Mishnah discusses what grew after the
          tree was made Hekdash. the Tana holds that Me'ilah does
          not apply to what grows from Hekdesh. (Therefore, we
          cannot settle Yakov's question from the Mishnah of
          Me'ilah.)
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #2 (Ravina):</font></b> The first clause discusses roots
          within 16 Amos, these belong to the tree's owner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The second clause discusses roots beyond 16 Amos,
               they belong to the owner of the field.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE AREA FROM WHICH TREES NURTURE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Ula):</font></b> If Reuven's tree is within 16 Amos of Shimon's
          property, he is a thief (it nurtures from Shimon's
          property), and he does not bring Bikurim from it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is Ula's source?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion (Mishnah):</font></b> (Normally, we add on to
               Shemitah and prohibit some labors in the previous
               year.) If ten saplings are spread over a Beis Se'ah
               (a field in which one seeds a Se'ah), one may plow
               the entire Beis Se'ah for the sake of the trees
               until Rosh Hashanah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> A Beis Se'ah is 2500 (square) Amos,
               i.e. 250 Amos for each tree;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  According to Ula, each tree nurtures from 16
                    Amos in each direction, i.e. a square of 32 by
                    32 Amos, its area is 1024 (square) Amos!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Mishnah):</font></b> If three (adult) trees in a Beis
          Se'ah are owned by three people, we may plow the entire
          Beis Se'ah for the sake of the trees (until Shavuos).
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FROM HOW FAR DO TREES NURTURE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> A Beis Se'ah is 2500 (square) Amos, this is
          833 Amos for each tree;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Ula, each tree nurtures from 1024
               Amos!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Ula was not exact (each tree nurtures from less
          than 16 Amos in each direction).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> We can say that a Chacham was not precise,
          he was more stringent than the actual law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, here Ula exempts from Bikurim (if the
               tree is just under 16 Amos from the border). This is
               a leniency!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Ula did not mean that a tree nurtures from a
          square of 32 by 32 Amos (the corners are more than 16
          Amos from the center), rather from a circle of radius 16
          Amos around the tree;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The area of the circle is three quarters of the
               area of the square, i.e. 768 (square) Amos;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to the Mishnah, there are 833 (square)
               Amos for each tree, it nurtures from a circle of
               radius (about) 16 and a half Amos;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Ula was not exact, he was more stringent than the
               actual law (he obligates bringing Bikurim if the
               tree is just over 16 Amos from the border).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If one buys a tree and the land it
          is on, he brings Bikurim and makes the declaration (which
          includes 'the land that You gave to me').
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This applies if he bought any amount
               of land around the stump!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it is only if he bought 16 Amos around the
          tree.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> One who buys two trees, (he does
          not acquire land with them, therefore) he brings Bikurim
          and does not make the declaration.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If one buys three trees, (he acquires
               land, so) he brings and makes the declaration
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> He acquires only a tiny amount
               outside the trees.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he acquires 16 Amos around the trees.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Mishnah - R. Akiva):</font></b> The following apply to
          even a tiny amount of land: one must leave Pe'ah from it,
          one must bring Bikurim from it, it allows one to write a
          Pruzbul (a document handing his loans over to Beis Din,
          so they will not be cancelled in Shemitah; we can write
          this only if the borrower has land), and Metaltelim
          (movable objects) are acquired with it.
<br>
<br>

sjt:
<font><b>1) A TREE THAT OBTAINS ITS NOURISHMENT FROM ANOTHER PERSON'S FIELD</b></font><b>
<br>QUESTION:</b> Ula says that when one planted a tree within 16 Amos of a neighbor's field, he does not read the Parshah of Bikurim when he brings his first fruits to Yerushalayim, because the tree is a 'Gazlan,' for it obtains its nourishment from the field of someone else. The Gemara attempts to disprove Ula's ruling from the Mishnah in Bikurim (1:11) that teaches that when a person buys a tree with the ground beneath it, he is obligated to bring the first fruits as Bikurim and to read the Parshah of Bikurim ('Mevi v'Korei'). The Mishnah implies that even when a person buys a tree with a minimal amount of land beneath it in someone else's field, he still may read the Parshah of Bikurim. The Gemara asks a similar question from the Mishnah later (81a, and Bikurim 1:6) which teaches that when a person buys two trees in his neighbor's field without buying the land beneath them, he is 'Mevi v'Eino Korei,' he brings Bikurim but does not read the Parshah of Bikurim. This implies that when he buys three trees, he is 'Mevi v'Korei' because the land beneath them is acquired together with the trees by the buyer. It is clear from there that a person can be 'Mevi v'Korei' even when his trees are within 16 Amos of his neighbor's field.
</p><p>
In both cases, the Gemara refutes the proof by saying that the Mishnah means that the buyer can be 'Mevi v'Korei' only when he indeed acquires 16 Amos of land around the tree that he buys.
</p><p>
The reason that Ula gives for not bringing Bikurim when one's tree is near someone else's land is that the tree is a Gazlan -- it grows as a result of obtaining, or 'stealing,' nourishment from another field. However, when a person purchases a tree in another person's field, he certainly is permitted to let his tree take nourishment from that field, because the seller sold to the buyer the right to keep the tree in his land. Why, then, does the Gemara question Ula's ruling from the Halachah of a person who purchases a tree in another person's field?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (26b, DH v'Ein) writes that one does not bring Bikurim from a tree that is a 'Gazlan' because the Torah specifies that Bikurim may be brought only when the fruits grow 'me'Artzecha' (Devarim 26:2), from the person's own land. (See also the Mishnah in Bikurim 1:2, which includes a thief in its list of people who may not bring Bikurim because the verse says that the fruits of Bikurim must come from 'Admascha' -- 'your land' (Shemos 34:26).)
</p><p>
<b>TOSFOS</b> (DH Gazlan) explains that according to this, Ula's reasoning for exempting the owner from Bikurim might not be related to the Aveirah that he did by letting his tree steal nourishment from another field. Rather, even when one is permitted to maintain a tree near another person's field, one still would not bring Bikurim from that tree because the fruit was not nourished from the person's own land, 'me'Artzecha.' Acquiring permission to obtain nourishment from someone else's land does not qualify as 'me'Artzecha.' This is why the Gemara questions Ula's ruling from the case in which a person buys a tree in someone else's field. Even though the buyer is permitted to let his tree derive nourishment from the other person's field, it is not considered 'me'Artzecha' according to Ula.
</p><p>
According to Tosfos, why does Rebbi Yochanan argue with Ula (on 27b) and obligate the owner of the tree to bring Bikurim? Rebbi Yochanan asserts that at the time of the division of Eretz Yisrael, Yehoshua stipulated that people may let their trees nourish from the land of others. Even if the tree nourishes from someone else's land with permission, it still should not be considered 'me'Artzecha,' and the owner should not be able to bring Bikurim from the fruit of that tree!
</p><p>
Tosfos answers that Yehoshua stipulated that having the right to obtain nourishment from someone else's field should be considered as though the tree grows 'me'Artzecha.' Tosfos might mean that while permission establishes a Kinyan which commits the landowner to allow the owner of the tree to obtain nourishment from his land, permission alone is not enough to make the land considered 'me'Artzecha.' Yehoshua instituted that the owner of the tree even has a Kinyan ha'Guf l'Peros -- a Kinyan on the land itself for the purpose of obtaining nourishment from the land. This makes it 'me'Artzecha.'
</p><p>
(b) <b>RABEINU CHANANEL</b> (cited by Tosfos), the <b>YAD RAMAH</b>, and the <b>TOSFOS RID</b> explain that Ula exempts the owner of the tree from Bikurim because of the Aveirah of stealing. Bringing Bikurim from such a tree would be comparable to stealing an animal and bringing it as a Korban, in which case the Korban is invalid (see Sukah 30a).
</p><p>
How does Rabeinu Chananel explain the question of the Gemara from the Mishnah regarding one who buys a tree in someone else's field?
</p><p>
1. Perhaps the Gemara's inference from the case of one who buys a tree in someone else's field is that the Mishnah refers to the minimal land around the tree as 'Karka'o' -- '<i>its</i> land,' implying that this is all the land the tree needs for nourishment, and not more.
</p><p>
The question on Ula from the Mishnah (which implies that when one buys three trees he is 'Mevi v'Korei') is that the Mishnah implies that when a person acquires three trees he also receives the entire amount of land that the trees need, and that amount is only the land between the trees. According to Ula, he should acquire much more land -- 16 Amos around each tree. (M. Kornfeld)
</p><p>
2. The <b>TOSFOS RID</b> and the <b>TORAS CHAIM</b> explain that Rabeinu Chananel is giving a reason for why Ula exempts the owner of the tree even from bringing Bikurim, and not merely from reading the Parshah of Bikurim. Bikurim cannot be brought from stolen land because the verse says 'me'Artzecha,' implying that the owner of the fruit <i>has permission</i> to use the land.
</p><p>
However, even when <i>no</i> Aveirah is involved in the growth of the fruit, the owner of a tree would bring Bikurim but he would not <i>read the Parshah</i> because he is unable to say the verse, '... ha'Adamah Asher <i>Nasata Li</i>' -- 'from the land that <i>You gave to me</i>' (Devarim 26:10), which implies that he not only had permission to grow his fruit on this land, but that the fruit was grown on land that he actually <i>owns</i>. This excludes a person who brings fruit which are nourished from (or planted on) another person's land from <i>reading</i> the Parshah of Bikurim. The Gemara is asking that according to Ula, why must the owner of a tree who also owns the minimal amount of land around it read the Parshah of Bikurim?
</p><p>
This approach requires further explanation. If Ula taught only the first Halachah -- that one does not <i>bring</i> Bikurim from a tree that <i>steals</i>, then how is one to infer from his words the second Halachah -- that the owner of a tree which nourishes from another person's field <i>with permission</i> does not <i>read</i> the Parshah of Bikurim?
</p><p>
The Toras Chaim answers that Ula's main point is that although the tree's theft is only the <i>nourishment</i> -- since it is planted on earth that actually is owned by the owner of the tree, nevertheless the tree is considered a thief and the Bikurim are not considered 'me'Artzecha.' By the same logic, if the nourishment is not from the tree-owner's own land (e.g. when the tree is planted in his land but it obtains its nourishment from a neighbor's land -- even with the permission of the owner of that land), then it should not be considered 'ha'Adamah Asher <i>Nasata Li</i>' because of the nourishment that it receives from another person's field. The tree-owner therefore should not be able to read the Parshah of Bikurim.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>OPENING LEDGES OVER RESHUS HA'RABIM</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'> (Mishnah):</font></b> One may cut a tree overhanging the Reshus
               ha'Rabim up to the height of someone riding on a
               camel;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah allows up to the height of a camel laden
               with flax or bundles of shoots;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon permits cutting any tree to any height,
               for Taharah (lest the tree tower above Tum'as Mes
               and passersby, and make them Tamei).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 60a (Mishnah):</font></b> One may not extend ledges or
               balconies to a Reshus ha'Rabim. He may recess his
               house, and extend ledges up to the Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If one buys a Chatzer with ledges or balconies
               extending to the Reshus ha'Rabim, he has a Chazakah
               (he may keep them).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 23a:</font></b> We claim for him that perhaps the area under
               them was really part of the Chatzer, or the public
               allowed the previous owner to build them.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 60b (Rav Huna):</font></b> If the ledges fell, he may rebuild
               them.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 60a:</font></b> Ploni had a ledge extending into the Reshus
               ha'Rabim. People complained that it was impeding
               them. R. Ami ordered him to remove it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ploni:</font></b> You also have a ledge that juts out!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> R. Ami:</font></b> My ledge extends to an alley. The
                    people pardon it. Yours extends to a Reshus
                    ha'Rabim. How will you get everyone's pardon?!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> R. Yanai had a tree whose foliage hung over a public
               domain. Also Almoni had such a tree. People
               complained that Almoni's tree was impeding them.
               That night, R. Yanai cut his foliage. The next day,
               he ordered Almoni to cut his foliage.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Originally, R. Yanai did not cut his tree, for he
               thought that people preferred the shade. When he
               heard that it impedes people, he cut it.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> If one recessed his house and did not
               extend, may he later extend?
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Version #1 - Answer #1 (R. Yochanan):</font></b> He may.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer #2 (Reish Lakish):</font></b> He may not.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Version #2 (R. Yakov):</font></b> All agree that he may extend
               ledges. They argue about whether he may return the
               walls (of his house) until the original border.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yochanan forbids. This is like Rav Yehudah,
                    who taught that one may not ruin a path in
                    which the public was Machazik.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Reish Lakish permits. He holds that Rav
                    Yehudah's law does not apply here, for there
                    will remain enough room for people.
<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 (32b and 3:77):</font></b> Some permit extending a
               ledge into Reshus ha'Rabim above the height of a
               camel and its rider. We hold that if one recessed
               his house and did not extend, later he may extend
               ledges, but he may not return his walls to the
               original border. This is like Rav Yehudah, who
               forbids ruining a path in which the public was
               Machazik. If the ledges fell, he may rebuild them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 13:24):</font></b> One may extend
               a ledge into Reshus ha'Rabim only if it is above the
               height of a camel and its rider.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> We learn from a tree overhanging
                    Reshus ha'Rabim (27b).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid.):</font></b> This is if it does not darken Reshus
               ha'Rabim. He may recess his house and extend. If he
               recessed and did not extend, he may extend whenever
               he wants, but he may never return the walls to their
               initial place. One may not ruin a path in which the
               public was Machazik.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (25):</font></b> If one bought a Chatzer with ledges or
               balconies extending to the Reshus ha'Rabim, it has
               its Chazakah. If it fell, he may rebuild it like it
               was.
<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 417:2):</font></b> One may extend a ledge
               into Reshus ha'Rabim only if it is above the height
               of a camel and its rider. This is if it does not
               darken Reshus ha'Rabim. He may recess his house and
               extend. If he recessed and did not extend, he may
               extend whenever he wants, but he may never return
               the walls to their initial place. One may not ruin a
               path in which the public was Machazik.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Ela, citing the
                    Rashba (3:165 and 176):</font></b> If Levi opened windows
                    to Reshus ha'Rabim, he merited. His neighbor
                    across Reshus ha'Rabim may not extend a ledge
                    to Reshus ha'Rabim within four Amos of them, or
                    if it will damage Levi through Hezek Re'iyah
                    (invasion of privacy). If there is a custom or
                    government law about this, we follow it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Omar Aval):</font></b> One may
                    extend to a Mavoy if the Bnei Mavoy agree, like
                    the Gemara says. R. Yerucham forbids if the
                    Mavoy is Mefulash (open on both sides to Reshus
                    ha'Rabim).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (5):</font></b> A Mavoy Mefulash is like Reshus
                    ha'Rabim. Why did the Shulchan Aruch omit
                    this?!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Chosav ha'Rivash):</font></b> The Rivash
                    (455) says that if water will drip from the
                    ledge and damage people of the Mavoy, they can
                    protest. Even someone outside the Mavoy can
                    protest if it is below the height of a camel
                    and its rider, or even if it is higher if it
                    damages Reshus ha'Rabim in any way, e.g. it
                    darkens it or deposits water in the middle. If
                    it does not damage Reshus ha'Rabim, only
                    neighbors can Me'akev if it harms them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is only if the Rabim walk there. If not,
               e.g. he built a platform, even if many pass their
               loads over it, he may return the walls.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> If one bought a Chatzer with
               ledges or balconies extending to the Reshus
               ha'Rabim, it has its Chazakah. If it fell, he may
               rebuild it like it was.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav Rabeinu):</font></b> R. Yerucham
                    says that if witnesses say that Reshus was like
                    this from the beginning, we do not claim for
                    the buyer.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH Teshuvah):</font></b> A case occurred in
                    which Shimon claimed that Reuven rebuilt ledges
                    bigger than they were initially. Witnesses
                    testified not in front of Shimon that they were
                    no bigger. If one person from Reshus ha'Rabim
                    was there, the testimony was in front of the
                    litigants, for all are partners in Reshus
                    ha'Rabim. The witnesses need not testify in
                    front of the entire world!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rashba (2:292, cited in Beis Yosef DH v'Chosav
                    ha'Rashba):</font></b> Bava Basra 23a says that explicit
                    pardon of the Rabim helps. However, one could
                    say that one cannot appease the Rabim; and we
                    assume that the seller recessed from Reshus
                    ha'Rabim and build a ledge in his property.
                    Nowadays, everyone makes ledges jutting out
                    over Reshus ha'Rabim. No one refrains from
                    this. Everyone needs to do so, pardons it and
                    wants it. They permitted what is forbidden. The
                    king authorized it. Even Stam, it is permitted,
                    and all the more so if he authorized someone.
                    The rulers may close roads and open new ones in
                    place of them. The roads belong to them. It is
                    as if they withdrew with intent to stick out
                    ledges.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (1):</font></b> Silence of the Rabim does not help,
                    like R. Ami said (about Reshus ha'Rabim) 'how
                    will you get the pardon of everyone?!' However,
                    explicit pardon of the seven leaders of the
                    city, in the assembly of the residents helps,
                    like Tosfos (23a DH Achulei) explains the
                    Gemara there. R. Ami said that silence does not
                    help.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MAKING PITS IN AND UNDER RESHUS HA'RABIM </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, wheat grows there. (If trees grow,
          he brings Bikurim only if he owns 16 Amos around them.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> The Mishnah discusses a tiny amount of
               land (i.e., the thickness of a stalk of wheat).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Beraisa - Rebbi):</font></b> If a tree is partially in
          Eretz Yisrael and partially in Chutz la'Aretz, Tevel and
          Chulin are mixed together;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel says, the fruit that grows
               in Eretz Yisrael is fully Tevel (all tithes must be
               separated from it). What grows in Chutz la'Aretz is
               fully Chulin (exempt from tithes).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They argue only about Bereirah (R. Shimon
               considers the obligation to tithe half the fruits to
               fall on the fruits that grow in Eretz Yisrael; Rebbi
               disagrees), but all consider only where the stump is
               (we are not concerned for nurturing in the
               surrounding 16 Amos)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the ground along the border is
          rocky (and divides the tree into two halves. Each half
          only nurtures from the land in its side.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, why does Rebbi say that Tevel
               and Chulin are mixed together?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Above ground, the halves of the tree
               join;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rebbi holds that the nurturing transfers from
                    one side to the other above ground. R. Shimon
                    ben Gamliel disagrees.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Does a tree nurture only from 16 Amos?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Reuven must distance his tree 25 Amos
               from Shimon's pit;
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The roots spread more than 16 Amos.
          They nurture (and weaken the soil) only up to 16 Amos.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #1 - Rav Dimi - Question (Reish Lakish):</font></b> What
          is the law of a tree within 16 Amos of the border?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> The owner is stealing. He does
          not bring Bikurim.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Version #2 (Ravin citing R. Yochanan):</font></b> If one's tree is
          close to the border, or its foliage hangs over his
          neighbor's property, he brings Bikurim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Yehoshua made the inheritance of Eretz Yisrael
               conditional on this enactment. (Letter of the law,
               he does not bring.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CUTTING OVERHANGING FOLIAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven's tree hangs over Shimon's
          property, Shimon may cut foliage up to the height of a
          plowshare (so it will not impede him when plowing);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may cut foliage of carob or sycamore trees
               (which give much shade, which harms a field) to any
               height.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	In a Beis ha'Shelachin (any shade is harmful), he may
          cut foliage of any tree to any height.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Aba Sha'ul says, he may cut foliage of any barren tree
          to any height.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Does Aba Sha'ul argue with the
          Reisha (in which Chachamim permit only up to the height
          of a plowshare, even regarding barren trees), or with the
          Seifa (Chachamim permit cutting any height of all trees
          in a Beis ha'Shelachin, and he permits this only for
          barren trees)?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Beraisa - Aba Sha'ul):</font></b> In a Beis ha'Shelachin,
          he may cut foliage of any tree to any height, because
          shade is harmful.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that Aba Sha'ul argues with the
               Reisha.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support (Rav Ashi - Mishnah - Aba Sha'ul):</font></b> He may cut
          foliage of any barren tree to any height.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he refers to the Reisha, we understand the
               word 'any'. Chachamim permit only carob and
               sycamore, and he permits also barren trees.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, if he refers to the Seifa, he allows
               less than Chachamim. He should rather say '(only) a
               barren tree is permitted!'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TREES OVERHANGING THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may cut a tree overhanging the Reshus
          ha'Rabim up to the height of someone riding on a camel;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah allows up to the height of a camel laden
          with flax or bundles of shoots;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Shimon permits cutting any tree to any height, for
          the sake of Taharah (lest the tree tower above Tum'as Mes
          and passersby, and make them Tamei).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Who is the Tana of the Mishnah, who
          says that in damages, we assess the current situation?
          (We cut so a rider can pass now, even though later the
          branches will grow again and riders will not be able to
          pass.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Reish Lakish):</font></b> Tana'im argue about this. Our
          Mishnah is R. Eliezer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One may not make a pit under the
               Reshus ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer permits this if a wagon carrying rocks
               can pass over and the ground will not cave in.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (R. Yochanan):</font></b> Our Mishnah is even like
          Chachamim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding a pit, we are concerned lest the cover
               erode (without people knowing), and a wagon will
               fall in;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding a tree we are not concerned. When new
               branches grow, people will cut them!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Yehudah allows cutting up to the height
          of a camel laden with flax or bundles of shoots.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Who allows cutting more, R. Yehudah or
          Chachamim?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Clearly, Chachamim allow more. If not, a camel
          laden with flax or bundles will not be able to pass!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, according to R. Yehudah, someone
          riding on a camel will not be able to pass!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The person can bend down.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Shimon permits cutting any tree to any
          height, for the sake of Taharah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> This is so the tree will not make an Ohel
          above Tum'as Mes and a person.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious. The Mishnah says it is for
          the sake of Taharah!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that the concern is lest
          ravens come and drop Tum'as Mes, and it will get caught
          between the branches;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If this were the concern, it would suffice to
               prune enough branches so there is no place for
               Tum'ah to get caught;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mishnah teaches that this is not so. The
               concern is Tum'as Ohel. All the branches
               (overhanging the Reshus ha'Rabim) must be cut.
<br>

<p>

sjt:
</p><p>
<font><b>2) PERMISSION FOR A TREE-OWNER TO LET HIS TREE OBTAIN NOURISHMENT FROM ANOTHER PERSON'S LAND</b></font><b>
<br>QUESTION:</b> The Gemara rules that fruit of a tree planted near another person's land must be brought as Bikurim. The tree is not considered as though it steals nourishment from the neighboring land, because Yehoshua stipulated that a person's trees may obtain nourishment from the fields of others (see previous Insight).
</p><p>
If Yehoshua stipulated that one may plant his tree near the field of his neighbor, then why do the Tana'im (25b) argue about whether or not one is permitted to plant a tree within 25 Amos of his neighbor's Bor?
</p><p>
Moreover, why does Rebbi Yosi need to explain that it is permitted because the person plants the tree in his own land? The reason why it is permitted is the stipulation of Yehoshua, which should permit one to plant his tree even within 16 Amos of another person's field!
</p><p>
One might argue that Yehoshua's stipulation applies only in a case in which the neighbor has no Bor within 25 Amos. However, the Gemara earlier (18a) teaches that according to Rava, the Chachamim maintain that even if there is no Bor in the neighbor's property, one is still prohibited from planting a tree within 25 Amos of his property, because when the neighbor eventually digs a Bor the tree will damage it. According to Rava, under what circumstances did Yehoshua permit a person to plant a tree near someone else's property?
</p><p>
According to the opinion that Rava prohibited planting near a neighbor's field only when the field was designated for digging pits, Yehoshua might have permitted planting a tree next to other types of fields. However, according to the opinion that maintains that the Chachamim prohibited planting a tree next to any type of field, the question remains. (<b>RASHBA</b> to 25b)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> answers that the opinion that maintains that Rava prohibits planting a tree next to any type of field must follow the view of Ula who argues with Rebbi Yochanan and maintains that Yehoshua never made such an enactment.
</p><p>
(b) The Rashba cites the <b>RAMBAN</b> who writes that the enactment of Yehoshua applies only to a tree planted within a field of trees. The Rashba interprets this to mean that the enactment applies only to a field that is large enough to plant three trees within it. Accordingly, the Chachamim who argue with Rebbi Yosi might be referring to a smaller field, a field in which there is not enough space for more than two trees.
</p><p>
(c) Even the opinion that prohibits planting a tree near a field that is not designated for pits would admit that one is permitted to plant a tree next to a field which is specifically designated <i>not</i> for pits, such as an orchard. The enactment of Yehoshua applies in such a situation. (M. Kornfeld)
</p><p>
(d) According to <b>TOSFOS</b>, the enactment of Yehoshua does not merely permit one to plant a tree next to the border, but it states that the nourishment that the tree obtains from the neighbor's field is considered as though it comes from the land owned by the tree owner (see previous Insight). Accordingly, the enactment of Yehoshua might apply only with regard to bringing Bikurim, and only in cases in which one is permitted to have a tree next to a neighbor's field (for example, when the neighbor explicitly gave him permission to plant the tree there).
</p><p>
(This might be the intention of the Rashba as well.)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW LONG IS NEEDED FOR CHAZAKAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> To make a Chazakah (to become established to
          be the owner, to be believed to say that he bought the
          property and lost the purchase document) on any of the
          following, one must act like the owner for three complete
          years, to the day: pits of all shapes, caves, dovecotes,
          bathhouses, olive presses, irrigated fields, slaves, and
          anything that constantly produces;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One makes a Chazakah in a field that does not need to
          be irrigated in three incomplete years;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yishmael says, the Chazakah can be made in 18
               months:</font></b> the last three months of the first year, the
               entire second year, and the first three months of
               the third year;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Akiva says, the Chazakah can be made in 14
               months:</font></b> the last month of the first year, the entire
               second year, and the first month of the third year.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	R. Yishmael:</font></b> This applies only to a grain field; but in
          an orchard, if one gathered the grapes, harvested the
          olives, and collected the dates drying in the field, this
          is like a Chazakah of three years.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - R. Yochanan):</font></b> I heard from members of the
          Sanhedrin that was exiled to Usha, that a Chazakah after
          three years of usage is learned from the law of a Mu'ad
          ox (an established gorer).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like an ox that gores three times changes
               its status from Tam to Mu'ad, likewise, if one
               claims that he bought a field and is Machazik
               (benefits from it) for three years, it changes from
               being assumed to belong to the Muchzak (original
               owner), and is established to belong to the
               Machazik.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> We should say that just like an ox
               does not become Mu'ad until the fourth goring, also
               one is not Machazik in a field until the fourth year
               of benefit!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> This comparison is wrong! Once it
               gores three times, it is Mu'ad, just there is
               nothing to pay for until the fourth goring;
<br>
<br>

sjt:
<font><b>1) HARVESTING THREE CROPS IN A SINGLE YEAR</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that the Chazakah of a 'Beis ha'Shalchin' is a full three years ('Shalosh Shanim mi'Yom l'Yom'), as opposed to the Chazakah of a 'Beis ha'Ba'al.' <b>RASHI</b> teaches that since a Beis ha'Shalchin has its own water source, it produces fruits constantly throughout the year, and not just one crop during one part of the year. Therefore, in order to make a Chazakah on the field, the Machzik must occupy and use the field for three full years.
</p><p>
The Gemara (end of 28b) teaches that according to Rebbi Yishmael, a person can make a Chazakah by reaping three crops in a single year, such as by planting and harvesting Aspasta in one month, and repeating that for the next two months. If a Beis ha'Shalchin constantly produces crops one after the other, then Rebbi Yishmael should rule that a person can make a Chazakah on a Beis ha'Shalchin in one year or less! What is the difference between a Beis ha'Shalchin and Aspasta? (<b>RASHBA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> (28b) and <b>ALIYOS D'RABEINU YONAH</b> answer that since the Beis ha'Shalchin constantly produces fruit without interruption, an entire year's harvest is usually taken by the same person and it is not divided up into small sections. Therefore, a Chazakah can be made only by using the field for the entire year, and the year's produce is all considered to be one large crop.
</p><p>
The <b>RASHBA</b> questions this, however, from the Gemara (28b) which says that harvesting the three different parts of the Tzelaf, or harvesting three figs in three days, would be considered a Chazakah if not for the fact that the fruit which is harvested later already exists in a premature, underdeveloped form at the time that the first crop is harvested. Since the fruit planted at the end of the year in a Beis ha'Shalchin was obviously not in existence at all at the beginning of the year when the previous crop was harvested, why should it not be considered a separate crop with regard to Chazakah?
</p><p>
Perhaps the answer is that when the Gemara says that the figs which were harvested later were already there during the first harvest but were not yet mature, it does not mean that the last fig was on the tree at the time that the first fig was harvested. Rather, the Gemara means that the last fig is considered an extension of the crop which bore the first fig, since there was no harvest between them to divide the crop into two. Accordingly, the Gemara itself expresses the logic of the Rashba. (M. Kornfeld)
</p><p>
(b) The <b>GILYON TOSFOS</b> cited by the Shitah Mekubetzes explains that the Beis ha'Shalchin does not produce more than one crop of fruit during one season. However, the field is <i>worked</i> throughout the year, and that is why the Chazakah is a full three years, mi'Yom l'Yom.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A CHAZAKAH WITHOUT A CLAIM</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'> (Mishnah):</font></b> A Chazakah without a claim is invalid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chazakah works because when a Machazik (one who took
               possession) claims that he bought a field and lost
               the document, and the Muchzak denies this, the
               Machazik's claim is more credible, since an owner is
               not silent when a thief benefits from his land for
               three years;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If the Machazik has no claim of ownership, should we
               claim for him?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 33b:</font></b> Levi claimed that he bought David's land, and
               ate the years of Chazakah. He brought witnesses that
               he ate the Peros for two years.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> He returns the land and two years worth
               of Peros.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 34b (Rav Yehudah):</font></b> If David and Levi each claimed to
               own a ship, and Levi asked Beis Din 'seize the ship
               until I bring witnesses', we do not seize it. If
               Beis Din seized it, and Levi asked 'release it, and
               whoever overpowers will get it', we do not release
               it.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 35b (Chachamim of Neharde'a):</font></b> If two were fighting
               over property, and a third person grabbed the
               contested property, he keeps it;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Chiya - Beraisa):</font></b> One who steals from many
                    people is not a thief.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection (Rav Ashi):</font></b> No, he is a thief. (Since he
               has no claim to it, we take it from him). R. Chiya
               meant that one who steals from many people cannot
               (simply) return the theft. (He is Yotzei only if the
               real owner gets it back.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 41a (Mishnah):</font></b> A Chazakah without a claim is
               invalid. If Reuven said 'what are you doing in my
               field?', and Shimon said '(I have been here three
               years.) No one told me 'this is my field'', his
               Chazakah is invalid.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> If he answered 'you (or your father) gave or sold it
               to me', his Chazakah is valid.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Objection:</font></b> Obviously, if Shimon has no claim why the
               land is his, this is not a Chazakah!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that Shimon really
               bought it and lost the document. He did not say
               that, for he fears lest Reuven demand to see the
               document. One might have thought that we ask Shimon
               if this is so, due to 'Psach Picha l'Ilem' (speak on
               behalf of a mute, who cannot speak for himself)! The
               Mishnah teaches that we do not.
<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 Mishnah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Gemara):</font></b> The Rashbam says
                    that if before Shimon left Beis Din, he says
                    that he had a document and lost it, but he was
                    afraid to say so lest they ask him where the
                    document is, he is believed. It seems that R.
                    Yonah agrees.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 14:12):</font></b> Any Chazakah without a
               claim is invalid. If Shimon ate Peros of a field for
               several years, and Reuven said 'what are you doing
               in this field? It is mine!', and Shimon said 'I do
               not know whose it is. Since no one said anything to
               me, I entered it', his Chazakah is invalid, for he
               did not say that he bought it, received it for a
               gfit, or inherited it. Even though he did not claim,
               we do not remove it from him until Reuven brings
               witnesses that it is his. If Reuven brings
               witnesses, he gets the field, and Shimon pays for
               the Peros he ate. We do not suggest to Shimon
               'perhaps you had a document and lost it', unless he
               himself claims this. If he does not claim, he
               returns all the Peros he ate. Similarly, if one ate
               for years of Chazakah due to a document, and we find
               that the document is Pasul, he has no Chazakah. He
               returns the field and all the Peros he ate.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Tosefta (2:1) says that if
                    one ate Peros due to a document, and it was
                    found to be Pasul, his Chazakah is invalid.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Maimoniyos (30):</font></b> The same applies if
                    Shimon says 'I bought it from Ploni, who bought
                    it from you.' The Gemara teaches about one who
                    makes no claim, to teach that we do not ask if
                    he lost his document.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (3:35):</font></b> The Gemara suggested that we ask Shimon
               if he really bought it and lost the document. Even
               though it concludes that we do not, we infer that if
               he himself said so, he explains his initial words.
               He is not like one who retracts and makes a new
               claim. (One may not retract.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Mordechai (534, brought in Darchei Moshe CM 146:2):
               If Shimon was Machazik in land, and Reuven said 'it
               is mine', and Shimon said 'no one said anything to
               me. I will not leave until you bring a proof', R.
               Yakir was unsure whether he must bring a proof. The
               Rashbat said that Shimon's claim is valid. If two
               were fighting about a ship, and Beis Din seized it,
               they do not release it unless one of them brings a
               proof. He brought other proofs that if money came to
               one's hand and there is a Safek, no one else may
               take it without a proof.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Gra CM 146:20):</font></b> How can he learn from
                    the ship? Beis Din holds the ship, and there
                    they have Vadai claims! If one steals contested
                    property, we conclude that he cannot (simply)
                    return it. To be Yotzei, he must pay everyone
                    to ensure that the real owner gets it back.
<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 146:9):</font></b> Any Chazakah without a
               claim is invalid. If Shimon ate Peros of a field for
               several years, and Reuven said 'what are you doing
               in this field? It is mine!', and Shimon said 'I do
               not know whose it is. Since no one said anything to
               me, I entered it', his Chazakah is invalid, for he
               did not say that he bought it, received it for a
               gfit, or inherited it. Even though he did not claim, 
               we do not remove it from him until Reuven brings
               witnesses that it is his. If Reuven brings witnesses
               that it is his, he gets the field, and Shimon must
               pay for the Peros he ate. We do not suggest to
               Shimon 'perhaps you had a document and lost it',
               unless he himself claims this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bedek ha'Bayis:</font></b> The Tur says that when Reuven
                    brings witnesses that it is his, he must swear
                    to get the field. I do not know why an oath is
                    needed.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (18):</font></b> Here, the Shulchan Aruch cites the
                    Rambam, who does not mention an oath. In Siman
                    140 (Sa'if 1), the Shulchan Aruch says that if
                    Shimon does not have three years of Chazakah,
                    the original owner swears and gets back his
                    field, even though the Rambam does not mention
                    an oath there, either. Here, the Shulchan Aruch
                    relies on what he wrote there. However, we can
                    distinguish. There, Shimon has a claim how he
                    received the field. Here, he does not.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (14):</font></b> The Gemara suggested a claim to
                    make for Shimon. Even though we do not claim
                    for him, if he claims we accept it  Due to this
                    concern, Reuven must swear.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Bach (DH v'Yesh):</font></b> Why should he swear? No one
                    claims it! Do not say that there is supporting
                    evidence that he sold it to Moshe, and Moshe
                    went abroad. This is only a Safek, for which we
                    merely make a Stam Cherem, but not an oath.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Shach (5):</font></b> I say that he must swear because he
                    comes to take from one who was Muchzak for
                    three years, so he is like one who receives,
                    who swears even when the opposing side is
                    unsure (Rema 91:3, Shulchan Aruch 357:1). Had
                    the <b>SMA</b> seen Bedek ha'Bayis, he would not have
                    suggested that the Shulchan Aruch relies on
                    what he wrote above.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Gra (21):</font></b> He must pay for Peros he ate, like
                    one who ate for only two years.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Darchei Moshe (2):</font></b> Teshuvas ha'Rashba says that
                    Reuven gets it even if he was Muchzak for only
                    one day before Shimon came.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If he does claim this, we heed him. This is
               not like one who retracts and makes a new claim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Similarly, if one ate for
               years of Chazakah due to a document, and the
               document was found to be Pasul, his Chazakah is
               invalid. He returns the field and all the Peros he
               ate.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (222:4):</font></b> If David says 'I sold my field, but I
               do not know to whom', and Ploni says 'you sold to
               me', he is believed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (10):</font></b> Ir Shushan says that David can make
                    Ploni swear. This is difficult, for one cannot
                    make another swear due to a Safek claim!
                    Perhaps here is different, for Ploni comes to
                    take.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (8):</font></b> It seems that the Magid Mishneh
                    (Hilchos Ishus 9:12), citing the Rashba
                    (Kidushin 63b DH Tanan, citing the Yerushalmi
                    Kidushin 3:7) argues with the Rema. It seems
                    that the Mechaber (146:9) disagrees. Hagahos
                    Ashri (Bava Metzia 3:14) explicitly disagrees.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>THE CHAZAKAH THAT ONE SAID WHAT HE IS USED TO </b></b>(</font><font color='darkblue'>


lvr: 43
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Regarding a field, after three years of
                    benefit, the buyer is Muchzak.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If we learn from a Mu'ad, a Chazakah without
          a claim (of how the field came to his hand) should be
          valid, but this is not so!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A Chazakah without a claim is invalid.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Chazakah works because when a Machazik (one who
          took possession) claims that he bought a field and lost
          the document, and the Muchzak denies this, the Machazik's
          claim is more credible, since an owner is not silent when
          a thief benefits from his land for three years.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if the Machazik has no claim of
               ownership, should we claim for him?!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Avira):</font></b> If we learn from a goring ox, a
          protest (by the Muchzak that the Machazik does not own
          it, which obligates the Machazik to guard his document of
          purchase) should be valid only in front of the Machazik!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like an ox only becomes a Mu'ad (which
               obligates its owner to pay more for its damage) if
               the owner was present three times when witnesses
               testified of its gorings, here also, the Machazik
               must be present at the protest!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Regarding a Mu'ad, the Torah decreed 'v'Hu'ad
          bi'V'alav.' Regarding Chazakah, those who hear the
          protest will tell their friends, who will tell their
          friends, and the Machazik will surely find out.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> R. Meir says that if it becomes Mu'ad for
          goring three times over three days (or more), all the
          more so it becomes Mu'ad for three gorings on one day;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we learn Chazakah from a Mu'ad, he should say
               'if one harvests three times in one day, such as a
               fig tree (different parts of the tree can ripen over
               the course of the day), this should count as a
               Chazakah!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> No, Chazakah must resemble a Mu'ad.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding an ox, at the time of one goring, the
               other gorings are not there. One must eat from three
               harvests, and at the time of each harvest, the
               fruits of the other harvests are not there.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> A caperbush can produce new fruit in three
          days (Rashi; Tosfos - each day; Aruch - three (new)
          fruits in one day). This should enable one to make a
          Chazakah very quickly!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> No. There also, the later fruit is there when
          he eats the first fruit, just it is not finished.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> One can make three harvests of fodder in 30
          days. This should make a Chazakah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How is this possible?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He cuts it after it only grows a little.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Since he is not harvesting the full fruit, this
          does not make Chazakah.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> One can make three harvests of (fully grown)
          fodder in three months. This should make a Chazakah!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan heard his law from members of the
          Sanhedrin that was exiled to Usha, i.e. R. Yishmael;
          indeed, R. Yishmael says that a Chazakah can be made so
          quickly!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Yishmael):</font></b> Three years are needed
               for a grain field; but for an orchard, if one
               gathered the Peros (grapes), the olives, and the
               figs, this is like three years (of Chazakah).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> What is Chachamim's source for three years of
          Chazakah?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yosef):</font></b> 'Sados ba'Kesef Yiknu v'Chasuv
          ba'Sefer v'Chasum.' The Navi told people in the tenth
          year that they will be exiled in the eleventh (and will
          only have two years on the land, which will not suffice
          for a Chazakah.)
<br>

<p>

sjt:
</p><p>
<font><b>2) HALACHAH: DERIVING THE LAWS OF 'CHAZAKAH' FROM 'SHOR HA'MU'AD'</b></font><b>
<br>QUESTION:</b> The Gemara suggests that the source for the Halachah of 'Chezkas Shalom Shanim,' the Chazakah of three years, is the Halachah of Shor ha'Mu'ad. Just as an ox becomes a Mu'ad only after it gores on three separate days, so, too, a person's use of a field proves that he is the owner of the field only when he has used the field for three years. The Gemara asks why three years are necessary to make a Chazakah according to Rebbi Meir, who says that a Shor becomes a Shor ha'Mu'ad even by goring three times on one day. Rebbi Meir maintains that if three gorings on three separate days prove that the Shor is a Mu'ad, then all the more so three gorings on a single day prove that it is accustomed to goring and that it must be a Mu'ad. The Gemara says that, indeed, according to Rebbi Meir if one collects three separate harvests of fruit in the same year he will have a Chazakah.
</p><p>
The Poskim (OC 114:9) derive from Rebbi Meir's ruling a practical Halachah with regard to the laws of Shemoneh Esreh. When a person is in doubt about whether he said 'Morid ha'Geshem' in the summertime (when he was not supposed to say it), he must assume that his tongue said what it was accustomed to saying (which until now was 'Morid ha'Geshem'), and thus he must repeat the Shemoneh Esreh. This Halachah applies during the first thirty days after the beginning of Pesach, when his tongue is still accustomed to saying 'Morid ha'Geshem.' The <b>MAHARAM MI'ROTENBURG</b> proposes that there is a way to accustom one's tongue to saying the appropriate words even before thirty days have passed. By repeating the appropriate phrase of Shemoneh Esreh ninety times, his tongue will become accustomed to saying that phrase based on the logic of Rebbi Meir -- events that occur in proximity affect a person's habits more than events that are separated by time.
</p><p>
How can the Maharam base his ruling on Rebbi Meir's teaching? The Halachah follows the view of Rebbi Yehudah, who maintains that a Shor becomes a Mu'ad only when it gores on three separate days. This implies that events that occur in close proximity do not habituate a person more than events that do not occur with such proximity. (<b>DERISHAH</b>, <b>MAGEN AVRAHAM</b> in the name of the <b>SHELAH</b>, <b>TAZ</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAGEN AVRAHAM</b> suggests that Rebbi Yehudah argues with Rebbi Meir only because of a verse that seems to refute Rebbi Meir's view. The verse (Vayikra 15:25) teaches that a woman becomes a Zavah after she sees blood on three consecutive days, but not after she sees blood three times on one day. This verse seems to refute Rebbi Meir's view. Perhaps with regard to Shemoneh Esreh, however, that Gezeiras ha'Kasuv will not apply.
</p><p>
However, the Magen Avraham rejects this approach. If Rebbi Yehudah derives the Halachos of Shor ha'Mu'ad from Zavah, then why should he not learn all of the Halachos from Zavah?
</p><p>
The <b>DERISHAH</b> and <b>NODA B'YEHUDAH</b> (OC 1:26) answer that Rebbi Yehudah applies the principle learned from Zavah (i.e. that three events are needed to establish the new status) only where an Isur or Tum'ah is involved. The laws of Shemoneh Esreh involve no Isur or Tum'ah, but rather a question of what a person has become accustomed to saying, and it is not derived from a Halachah related to Isur or Tum'ah.
</p><p>
Why, then, does the Gemara say that a Chazakah should work if a person makes three harvests in one year, according to Rebbi Meir? The same should be true according to Rebbi Yehudah, since this Chazakah is not based on a verse but on the nature of a person! The Derishah writes that the Gemara mentions Rebbi Meir only because he is the one who states explicitly that events that are close in proximity have more of an effect than events that take place at larger internals of time. The Halachah, however, should be true according to Rebbi Yehudah as well since he agrees with Rebbi Meir on this point. (This might explain why the Gemara rejects Shor ha'Mu'ad as the source for 'Chezkas Shalosh Shanim' according to the Chachamim who argue with Rebbi Yishmael and say that three harvests in one year do not constitute a Chazakah. Why does the Gemara not say that the Chachamim follow the view of Rebbi Yehudah, and Rebbi Yishmael follows the view of Rebbi Meir? According to the Derishah, Rebbi Meir and Rebbi Yehudah do not argue on this point, and therefore a new source must be found for 'Chezkas Shalosh Shanim' according to the Chachamim.)
</p><p>
However, the Derishah and Magen Avraham question this approach from a Beraisa in Ta'anis (21b) that says that if three people die in three days in a small city, it is considered a dangerous plague, and the residents of the city must fast. The Gemara relates that an Amora decreed a day of fasting when three people died on one day. Rav Nachman bar Yitzchak said that this Amora followed the view of Rebbi Meir, who says that events that take place at smaller intervals have more of an effect. If Rebbi Yehudah argues with Rebbi Meir only with regard to a law derived from a verse, then he should agree with this Halachah. It is possible that the Gemara merely quotes Rebbi Meir because he is the one who stated this principle explicitly, but Rebbi Yehudah indeed agrees with it in this case. However, the <b>RAMBAM</b> (Hilchos Ta'aniyos 2:5) and the <b>SHULCHAN ARUCH</b> (OC 576:2) rule that a Ta'anis is not proclaimed if three people die on one day, because the Halachah follows Rebbi Yehudah. (See Derishah.)
</p><p>
(b) The <b>MAGEN AVRAHAM</b> suggests that Rebbi Yehudah disagrees with Rebbi Meir only in the cases of a Shor ha'Mu'ad and a Zavah since other factors might be involved, aside from the factor of becoming accustomed to a certain type of action. A Zavah might see Dam because of illness, and a Shor ha'Mu'ad might gore because it was in a bad mood that day. The same reasoning applies to the case of a plague in a city, where other factors, such as the weather on that day, might have affected people's health. In such cases, the principle of Rebbi Meir would not apply. However, with regard to saying 'Morid ha'Geshem,' which a person's mouth says by rote when he is not concentrating, and which would not be influenced by other factors, Rebbi Yehudah would agree with Rebbi Meir's principle.
</p><p>
The <b>VILNA GA'ON</b>, however, does not accept the ruling of the Maharam because of the question of the Magen Avraham. The <b>TUR</b> cites <b>RABEINU PERETZ</b> who disagrees with the Maharam for a different reason: even if we accept Rebbi Meir's principle, it might not apply to accustoming one's tongue to pray in a certain way, since time is an important factor and has more of an effect on accustoming a person to say something by rote.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE SOURCE OF THREE YEARS OF CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> Perhaps (a Chazakah can be made in
          less time). That was only good counsel (to keep a signed
          document, since witnesses of Chazakah are not always
          available).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> Yirmiyahu also told them to build
               houses, plant gardens and eat the fruits. Clearly,
               that was merely good counsel!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Similarly, getting signed documents of sale was
               only good counsel.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Also 'u'Nsatem bi'Chli Cheres l'Ma'an Ya'amdu
               Yamim Rabim' is only a good counsel.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> (Human nature dictates that three
          years are needed for Chazakah, for) one pardons someone
          else who uses his property for one or two years, but not
          for three years.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> If so, one who only had one or two
          years of Chazakah, when the land returns to the original
          owner, the one who used the land should not have to pay
          for the fruits!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Nachman taught that he must pay for the
               fruits!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Retraction (Rava):</font></b> Rather, one does not begrudge one
          who uses his property for one or two years (nor does he
          pardon the fruits). He begrudges one who uses it for
          three years.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> People such as those of Bar
          Elyashiv's family begrudge even one who passes by the
          border of their property. According to Rava, someone who
          uses their property should immediately get a Chazakah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If you will say this is correct, the time needed
               for Chazakah varies (based on the original owner)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Rava):</font></b> Rather, one is careful with his
          document (of purchase) only up to three years.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, a Macha'ah (the Muchzak
          announces that the Machazik does not own the land he is
          using) not in front of the Machazik should be invalid!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Machazik can claim, had you told me of your
               claim, I would have guarded my document longer!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The ones who heard the Macha'ah surely
          told their friends, who surely told their friends ...
          (surely, the Machazik found out).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CONDITIONS OF CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> The three years of Chazakah must be
          consecutive.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> We already know this from our Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> The Chazakah is three years, from day
               to day.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that this only comes to
          exclude incomplete years, but the years can be
          intermittent. Rav Huna teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Chama):</font></b> Rav Huna agrees that in a place where
          people normally leave a field fallow every other year,
          intermittent years make a Chazakah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, some people alternate years,
          others do not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that the Muchzak can claim
               'if you really own the field, you should have used
               it every year.' He teaches that this is not so;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Machazik can answer 'I cannot afford someone
               to watch my field alone when all the neighbors are
               leaving their fields fallow.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Alternatively, he can say 'I left it fallow this
               year, so it will produce more next year.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> A Chazakah on houses...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Presumably,) witnesses would know only whether
               someone used the house during the day, but not 
               whether he used it at night! (This is like an
               intermittent Chazakah!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> Neighbors testify to a Chazakah on
          houses, and they know who used it by day and by night.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Renters can testify that they lived
          there three years, by day and night, and paid rent to the
          Machazik.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rav Yemar):</font></b> Renters are invalid as
               witnesses, for they are partial. If they would not
               testify for the Machazik, they would need to pay the
               original owner for having lived there!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> That is true. Only incompetent
               judges would accept such testimony!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, the case is that the renters did not
                    yet pay the Machazik; they are ready to pay
                    whomever Beis Din declares to be the owner.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mar Zutra):</font></b> The original owner can ask the Machazik to
          bring witnesses that he was there day and night; if he
          cannot, the Chazakah is invalid.
<br>
<br>

sjt:
<font><b>1) LAND OWNED BY 'BEI BAR ELYASHIV'</b></font><b>
<br>QUESTION:</b> The Gemara explains the source for the 'Chezkas Shalosh Shanim,' the Chazakah of three years, according to the Chachamim. The Gemara first suggests that the true owner is disturbed (Makpid) only when someone occupies his field for three years, but not when someone occupies his field for less than that time. That is why it takes three years of no protest from the previous owner in order to make a Chazakah. Abaye asks that if this is true, then when someone uses a field that belongs to Bei Bar Elyashiv, who protest immediately even if someone merely passes briefly over their borders, the person should have a Chazakah immediately if the owner did not protest. However, the Halachah makes no distinction with regard to the time it takes to make a Chazakah; it takes three years to make a Chazakah, regardless of the degree of Hakpadah of the owner of the field.
</p><p>
Why does the Gemara not answer simply that when the Chachamim establish a Shi'ur for something, that Shi'ur is an amount that applies to all circumstances without exception (see Gemara 23b)? (<b>RASHBA</b>)
</p><p>
<b>ANSWER:</b> The <b>RITVA</b> answers that the Gemara is not asking merely from a case of landowners like Bei Bar Elyashiv. The Gemara means that there is no rationale for making three years the standard time that it takes a person to protest, since <i>most</i> people will protest in less than three years. (See <b>CHIDUSHEI RABEINU MEIR SIMCHAH</b>.)
</p><p>
(The Gemara answers that a person normally keeps his Shtar for three years because he suspects that the previous owner will take up to three years to protest, or he will claim that he is the type of person that takes a long time to protest. See following Insight.)
</p><p>


<font><b>2) KEEPING A 'SHTAR' FOR THREE YEARS</b></font><b>
<br>QUESTIONS:</b> The Gemara explains the source for the 'Chezkas Shalosh Shanim,' the Chazakah of three years, according to the Chachamim. The Gemara first suggests that the true owner is disturbed (Makpid) only when someone occupies his field for three years, but not when someone occupies his field for less than that time. That is why it takes three years of no protest from the previous owner in order to make a Chazakah. Abaye asks that if this is true, then when someone uses a field that belongs to Bei Bar Elyashiv, who protest immediately even if someone merely passes briefly over their borders, the person should have a Chazakah immediately if the owner did not protest. However, the Halachah makes no distinction with regard to the time it takes to make a Chazakah; it takes three years to make a Chazakah, regardless of the degree of Hakpadah of the owner of the field.
</p><p>
Rava concludes, therefore, that the reason why a Chazakah is made in three years is that a person normally keeps his Shtar for only three years and not more. Therefore, after three years it is no longer necessary for him to present a Shtar in order to support his claim of ownership of the land.
</p><p>
There are a number of questions on this conclusion.
</p><p>
(a) Rava explains only why the <i>lack</i> of a Shtar, after three years have passed, cannot prove that the person on the field is <i>not</i> the owner of the field. However, Rava does not explain what proves that he <i>is</i> the owner of the field. Consequently, the field should be given back to the previous owner, who has proof that he once owned the field (and thus has a Chezkas Mara Kama). (Rishonim)
</p><p>
(b) If the logic of Chazakah is based only on the fact that a person does not keep his documents for more than three years, then what is the meaning of the Gemara that follows, that teaches that in a place where people sow their fields every other year, a person must occupy the field for six years in order to make a Chazakah? Moreover, the Gemara later (36b) teaches that even the Chachamim who argue with Rebbi Yishmael agree that a person can make a Chazakah in less than three years on a 'Dekel Na'arah,' a young tree which bears three crops in less than three full years. If a person normally keeps his Shtar for three years, then why should he have a Chazakah in less time? (See <b>RASHBAM</b> DH b'Asra.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rishonim suggest a number of answers to this question.
</p><p>
1. The <b>RASHBA</b> explains that if the previous owner did not complain for three years, then Beis Din must suspect that he waited three years in order for the Machzik to stop saving his Shtar so that his claim would be effective. This suspicion weakens his Chezkas Mara Kama, and therefore the claim of the Machzik (who is presently on the land) is stronger than the Chezkas Mara Kama.
</p><p>
2. The <b>RAMBAN</b> (42a) and <b>RITVA</b> explain that even in less than three years the fact that the previous owner did not protest immediately is proof that he is not the true owner (as the Rashba says with regard to one who does not protest for three years). A true owner would object <i>immediately</i> when someone occupies his land. However, the fact that the Machzik cannot show a Shtar weakens the Machzik's claim as well. The weakened Chezkas Mara Kama overrides the weakened Chazakah of the Machzik. After three years, on the other hand, the claim of the Machzik is 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.
</p><p>
(c) <b>TOSFOS</b> in Bava Metzia (110a, DH Amar Lei) and the <b>TOSFOS HA'ROSH</b> there explain that the 'Chezkas Shalosh Shanim' is only a Takanah d'Rabanan. Since the Rabanan found that people normally do not keep their Shtaros for more than three years, they instituted that if the previous owner wants to protest when another person uses his field, he must do so within three years, before the Machzik loses his Shtar (if he has one).
</p><p>
This also seems to be the intention of <b>TOSFOS</b> here in Bava Basra (35b, DH v'Iy l'Peira), the <b>ROSH</b>, and the <b>NIMUKEI YOSEF</b> here, as well as the <b>KETZOS HA'CHOSHEN</b> (140:2).
</p><p>
Does this mean that the proof of ownership that comes from a Chazakah is only mid'Rabanan and relies on the principle of 'Hefker Beis Din Hefker'? The <b>SHA'AR HA'MISHPAT</b> (CM 140) writes that once the Rabanan instituted that a person must protest within three years if the field is his, it becomes a valid proof d'Oraisa -- when he does not protest within that time -- that the Machzik is the owner (as the Rasha writes, as cited above).
</p><p>
(b) The <b>RASHBA</b> explains that even according to Rava's conclusion, a Chazakah depends on the amount of time that it takes for the original owner to be disturbed that someone is on his field. Since the owner will protest the presence of a stranger on his field only after three crops have been harvested from the field, in a place where fields are left fallow every other year the owner will have six years within which to protest. Only after six years pass will the Machzik not keep his Shtar anymore, because he is confident that the previous owner will no longer make a claim on the field.
</p><p>
Similarly, when a person is Machzik a 'Dekel Na'arah' he will not keep the Shtar after three crops have been harvested, because if the previous owner intended to protest, he would have protested before the time that it takes the tree to produce three crops.
</p><p>
(This explanation can be used according to all of the explanations mentioned above for how a Chazakah proves ownership.)
</p><p>
According to this explanation, how does Rava answer the question from the case of Bei Bar Elyashiv? The Machzik should assume that he does not need to keep the Shtar if Bei Bar Elyashiv does not protest immediately, and he should have a Chazakah immediately!
</p><p>
The Rashba explains that since the Chazakah is determined by the Machzik's expectation of when the owner should protest (and not by Beis Din's assessment of when the owner should protest) -- a Chazakah needs three years even on the land of Bei Bar Elyashiv. The reason for this is that the Machzik will always keep the Shtar for three years because of his fear that the previous owner will claim that he is not the type of owner who protests in less than three years. (See also <b>NESIVOS HA'MISHPAT</b> CM 140.)
</p><p>
Support for this answer may be found in the Gemara later (57b) which says explicitly that a Chazakah depends on whether or not the previous owner would protest such an action on his property. (See Rashba to 57b who seems to take a different approach to this question.)
</p><p>


<font><b>3) LEAVING LAND FALLOW WHEN MAKING A 'CHAZAKAH'</b></font><b>
<br>QUESTION:</b> The Gemara says that in a place where people normally leave land fallow every other year, a Chazakah can be made in six years (and the lack of use of the land for the alternating three years does not ruin the Chazakah). The Gemara asks that this is obvious, since it is the normal manner to work the land in that place by leaving it fallow every other year. The Gemara answers that this teaching is necessary in a place where some people do not leave their land fallow, and other people do; in such a place, if the Machzik leaves the land fallow he still has a Chazakah. One might have thought that he does not have a Chazakah since the previous owner can claim that if the land truly belongs to the Machzik, then he should have sown it.
</p><p>
Why should the Machzik have sown the land? If some people in that place leave the land fallow, why would he be expected to be among those who do not leave their land fallow?
</p><p>
<b>ANSWER:</b> The <b>NIMUKEI YOSEF</b> answers that since the field is newly acquired (according to the Machzik's claim), the Machzik should have planted it three years consecutively in order to hasten the establishment of his Chazakah.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A CHAZAKAH NOT IN FRONT OF THE MUCHZAK</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'> 28a (R. Yochanan):</font></b> I heard that we learn Chazakah of
               three years from a Mu'ad ox. An ox that gores three
               times changes its status from Tam to Mu'ad.
               Likewise, if one is Machazik (uses a field it) for
               three years, it changes from the Reshus of the
               Muchzak (original owner) to the Machazik's Reshus.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>(Rava):</font></b> One is careful with his document only up to
               three years.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> If so, a Macha'ah (the Muchzak
               announces 'he is stealing my land') not in front of
               the Machazik should be invalid! The Machazik can
               claim 'had you told me, I would have guarded my
               document longer!'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> The ones who heard the Macha'ah
               surely told their friends, who surely told their
               friends... (surely, the Machazik found out).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 29b:</font></b> Shimon claimed that he bought Reuven's house,
               and lived there the years of Chazakah. Reuven denied
               selling it, and said that he was living in the inner
               rooms of the house (so Shimon has no Chazakah).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Shimon must prove that he was alone in
               the house.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> Shimon has a Chazakah. To take the
               house from him, the burden of proof is on Reuven (to
               prove that he lived in the inner rooms)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 30a:</font></b> Moshe claimed that he bought David's house, and
               lived there for three years. David said 'I did not
               sell it. I was doing commerce abroad.'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Moshe:</font></b> I have witnesses that you returned for 30
               days every year!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> David:</font></b> All 30 days, I was busy in commerce.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rava):</font></b> It is normal that one is busy in commerce
               for 30 days.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 38a (Mishnah):</font></b> There are three regions for Chazakah:
               Yehudah, Ever ha'Yarden and Galil. A Chazakah is
               valid only if the Muchzak (Levi) was in the same
               region as the Machazik (Yosef).
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> R. Yehudah says, it is valid in any case. We require
               three years for Chazakah is in order that Levi will
               have time to protest, even if he is overseas!
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> After Yosef uses the land for one year, people talk
               about this. Word reaches Levi in one year, and he
               has another year to come and protest.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Question:</font></b> If Chachamim validate a Macha'ah not in
               front of Levi, Chazakah in a different region should
               be valid! If they disqualify a Macha'ah not in front
               of Levi, Chazakah in the same region should be valid
               only in front of Levi!
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Answer (R. Aba bar Mamal):</font></b> Really, they hold that a
               Macha'ah not in front of the original owner is
               valid. Our Mishnah discusses a time when there is
               hostility between the regions. The Tana mentioned
               Yehudah and Galil to teach that they are considered
               to have hostility with each other even in peacetime.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> (Rava):</font></b> A Macha'ah not in front of the Machazik 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 (15a):</font></b> The Halachah follows Rav Nachman against
               Rava. The Machazik must prove that the Muchzak was
               there.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rambam (Hilchos To'en 11:2):</font></b> If the Muchzak says that
               he he did not protest because he was far away, we
               say that surely he heard within three years.
               Therefore, he should have protested in front of
               witnesses 'Ploni stole from me. Later, I wil take
               him to Din.' Since he did not protest, he caused his
               own loss. Therefore, if there was war or the roads
               between Shimon and Reuven were ruined, even if
               Reuven ate for 20 years, we take it from him and
               give it to Shimon, for he can say that he did not
               know that Reuven was using his land.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If Shimon protested in a distant land,
               Reuven cannot claim 'I did not hear that he
               protested, to be careful with my document longer.'
               We say 'your friend has a friend, and he has a
               friend...  there is a Chazakah that you found out.
               Therefore, you should have been careful with your 
               document. If you were not, you caused your own loss.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (3:6):</font></b> Some learn from the case with David that
               if the Muchzak says that he was away for the three
               years of Chazakah, he is believed, and the Machazik
               must prove that the Muchzak was here. I say that it
               is no proof. Perhaps it was known that David was
               abroad! It seems that the Machazik need not bring a
               proof. Since he made a Chazakah, word spreads even
               to other countries. The Muchzak must prove that he
               was in a place where his protest would not have been
               heard, and therefore he did not protest.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Drishah (CM 143:2 DH v'Chol):</font></b> The Rosh says
                    that since there is no proof that the Muchzak
                    is believed, it is more reasonable to say that
                    he is not believed. Even though we discuss
                    whether he heard about the Chazakah, the Rosh
                    says that he must prove that he was in a place
                    where a Macha'ah would not have been heard, for
                    we assume that he surely heard.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (143:5):</font></b> The Rosh teaches that not only he
                    is not believed to say that he did not hear at
                    all; rather, even if he says that he heard
                    close to the end of three years and there was
                    no time for his protest to be heard, he is not
                    believed.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Ba'al ha'Ma'or (14a):</font></b> Abaye asked 'if so (a buyer is
               careful with his document for three years), a
               Macha'ah not in front of the Machazik should be
               invalid!' He should have asked that a Chazakah not
               in front of the Muchzak should be invalid, which is
               more similar to Shor ha'Mu'ad (it becomes Mu'ad only 
               if witnesses testified about it in front of the
               owner)! He asked about Macha'ah, for Chazakah
               depends on (lack of) Macha'ah. If Macha'ah not in
               front of the Muchzak were invalid, Chazakah not in
               front of the Muchzak would be invalid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Milchamos Hash-m):</font></b> The Sugya refutes
                    this. One opinion disqualifies Macha'ah not in
                    front of the Muchzak, but Chazakah not in front
                    of the Muchzak is valid! We initially
                    understood that Rava asked that if Macha'ah not
                    in front of the Muchzak is valid, he should be
                    able to protest where he is. Rava agrees that
                    Chazakah not in front of the Muchzak is valid,
                    for the Mishnah lists three regions for
                    Chazakah. If the Machazik and Muchzak were both
                    in Yehudah, the Chazakah is valid even if it
                    was not in front of the Muchzak. He should have
                    come to protest! Also, we suggested (38b) that
                    Rav requires Macha'ah to be in front of the
                    Machazik, even though he holds like R. Yehudah,
                    who allows Chazakah not in front of the
                    Muchzak. I explained how we can distinguish
                    them. How can we answer the Ba'al ha'Ma'or's
                    question? Chazakah not in front of the Muchzak
                    is unlike Shor ha'Mu'ad, for Chazakah is prone
                    to become known. One normally asks about who is
                    on his land. If he despaired and did not ask,
                    it left his Reshus. People do not ask if anyone
                    protested, just like one does not ask if his ox
                    gored. If testimony about goring was not in
                    front of the owner, it does not make a Mu'ad;
                    therefore, he was not careful with his ox. One
                    does not find out about Macha'ah not in front
                    of him, and he is not careful with his
                    document.
<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 143:1):</font></b> A Chazakah for three
               years is valid even if the Muchzak was away in a
               different country, if caravans are frequent between
               them. If there was war or the roads were ruined, it
               is not a Chazakah. The Muchzak can say 'I did not
               know that someone is Machazik in my house.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nesivos ha'Mishpat (1):</font></b> The Mechaber
                    disqualifies a Chazakah not in front of the
                    Muchzak because the Muchzak did not know. The
                    Gemara tried to prove from the Mishnah (38a)
                    that Macha'ah not in front of the Machazik is
                    invalid. Tosfos (38b DH Ein) proved from here
                    that we assume that the Muchzak hears, just his
                    Macha'ah would not be heard. The Rosh and Tur
                    hold that we assume that the Muchzak heard, but
                    he is believed to say that he did not hear.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> This is only when we know that
               the Muchzak was not in the country. If it is not
               known, we do not heed his claim that he was not here
               until he clarifies it through witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (9):</font></b> This is like Tosfos (29b DH
                    bi'Schunei), who says that it is unreasonable
                    to require the Machazik to bring witnesses who
                    know that the Muchzak was not there even two
                    days of the three years.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (3):</font></b> We hold like Rav
                    Nachman, who requires the Machazik to clarify 
                    his Chazakah. That is when there is a Safek if
                    he made a proper Chazakah. If one made a
                    Chazakah, the Muchzak must prove that he made a
                    Macha'ah. The Chazakah was heard even far away,
                    but if Macha'ah would not have helped, it is as
                    if he made a Macha'ah. The Muchzak must prove
                    that he made, or it is as if he made, a
                    Macha'ah. If we would say that a Chazakah is
                    not heard far away, the Chazakah would be in
                    Safek, and the Machazik would need to bring a
                    proof.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (146:1):</font></b> A Macha'ah nullifies a
               Chazakah even if it was not in front of the
               Machazik, even if he was in a different country, if
               caravans are frequent between them. It must be in
               front of witnesses. Two witnesses suffice, even if
               they are old and sick and cannot inform the
               Machazik, for they can tell others, who can tell
               others, until the Machazik will hear.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE WHO DID NOT PROTEST DUE TO DISTRACTION </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Mar Zutra agrees that if the Muchzak is a peddler who
          goes from city to city, the Machazik must bring witnesses
          that he was there day and night, even if the Muchzak does
          not request this (for he was not present to see the
          Machazik living there.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Rav Huna admits about a store in a city that it is
          normally used only by day (day usage suffices for a
          Chazakah).
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Rami bar Chama and Rav Ukva bar Chama bought a slave in
          partnership. One of them used her in years one, three and
          five, and the other used her in years two, four and six.
          Someone else claimed that he owned her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> You alternated using her so that neither of
               you would get a Chazakah against his brother (and be
               able to claim he owns her himself). Similarly,
               neither of you has a Chazakah against others!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This applies only if they did not write a
               document of the partnership. If they wrote one,
               people hear about this (and the brothers have a
               Chazakah).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a Machazik used all of a field except for a
          Beis Rova (the area in which one sows a quarter Kav of
          grain, about 104 square Amos), this is a Chazakah in the
          part he used.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> This applies only if
          the unused part is farmable. If not, the Chazakah works
          for the entire field.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Objection (Rav Bivi bar Abaye):</font></b> The only way to make a
          Chazakah on a rocky (unfarmable) field is to graze
          animals or spread fruits on it. Here also, to acquire the
          unfarmable part he must do this!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN IS THE BUYER MUCHZAK IN THE PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Reuven asked Shimon:</font></b> What are you doing in this house?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> I bought it from you, and I have lived
               here the years needed to make a Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reuven:</font></b> (I did not sell it to you.) I have been
               living in the inner rooms of the house (so you do
               not have a Chazakah).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> (To get the house) Shimon must prove that
          he was alone in the house.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> Shimon has a Chazakah. To take the
          house from him, the burden of proof is on Reuven (to
          prove that he lived in the inner rooms)!
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS THE BUYER MUCHZAK IN THE PROPERTY? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Rav Nachman contradicts what he said in
          another case, and so does Rava!
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Levi told Yehudah 'I sell to you all the property of
          Bar Sisin.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There was a certain land called by the name of
               Bar Sisin. Levi claimed that it really was not Bar
               Sisin's property, it was only called that way.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rav Nachman established Yehudah to be the owner.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> Levi was established to be the owner.
          To take the house from him, the burden of proof is on
          Yehudah (that it was Bar Sisin's property)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Summation of contradiction):</font></b> In the first case,
               Rav Nachman considers the seller to be Muchzak when
               in doubt, and Rava says the buyer is Muchzak; in the
               latter case, each holds the opposite!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rava does not contradict himself. In the
          first case, the buyer is known to be living on the
          property (so he is Muchzak). In the second case, the
          seller is on the property, so he is Muchzak.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rav Nachman does not contradict himself. In
          the second case, since the property is called by Bar
          Sisin's name, the seller must prove that it was not
          really Bar Sisin's;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the first case, living in the house for the
               years of Chazakah only supports his claim that he
               had a document and lost it. Even if he had the
               document, he would have to validate it! (Here also,
               he must prove that his Chazakah was valid).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Reuven (to Shimon):</font></b> What are you doing in this house?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> I bought it from you, and I have lived
               here the years of Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reuven:</font></b> (I did not sell it to you.) I have been
               doing commerce abroad. (Your Chazakah was not in
               front of me, so it is invalid.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shimon:</font></b> I have witnesses that you returned for 30
               days every year!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Reuven:</font></b> All 30 days, I was busy in commerce
               (Rashbam - so I did not notice that you were in my
               house; others explain - so I had no time to
               protest).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> It is normal that one is busy in commerce for
          30 days. Reuven's claim is accepted.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Reuven asked Shimon:</font></b> What are you doing on this land?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> I bought it from Ploni. He said that he
               bought it from you.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reuven:</font></b> You yourself admit that it (was) my land,
               and you did not buy it from me. Go away! You have no
               case against me.
<br>
<br>

sjt:
<font><b>1) THE CLAIM OF THE OCCUPANT WHO BOUGHT THE FIELD FROM A THIRD PARTY</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a person occupied the property of another and claimed that he bought the land from a third party who bought it from the original owner. The original owner claimed, 'You admit that the land is mine, and you also admit that you did not buy it from me, and thus you have no claim to the land!' Rava ruled in favor of the claimant (the original owner).
</p><p>
The <b>RASHBAM</b> explains that the Machzik did not claim that he saw the third party buy it from the claimant, but that the third party <i>told</i> him that he bought it from the claimant. Since the Machzik did not mention that he has a Chazakah, apparently he still had the Shtar that showed that he purchased the field from the third party. Nevertheless, regardless of whether or not he has a Chazakah, he is not entitled to the land because he has not presented a definitive claim to validate his ownership of the property. Even if it is true that he bought the property from the third party, there is no evidence that the third party had the right to sell it to him.
</p><p>
There are a number of important questions on some of the points that the Rashbam makes in his explanation of this Sugya.
</p><p>
First, the Rashbam (near the beginning of DH Amar Lei) explains that the claimant did not have witnesses to testify that he was the original owner of the land. Rather, he relied on the admission of the Machzik to prove his ownership of the land. Why, then, does the Rashbam write later (in DH Amar Lei, and DH v'At) that the Machzik would have won the case had he said, 'I saw the third party buy it from you,' but only if the Machzik had occupied the field for three years? Even if he had not occupied the field for three years, the Machzik should be believed with a Migu that he could have said that the field never belonged to the claimant, since there are no witnesses to contradict that statement! (<b>TOSFOS</b> 30a, DH Lav)
</p><p>
Second, the Rashbam (DH Zil) writes that the claimant won the case because the Machzik did not occupy the field for three years. This seems to contradict what he writes earlier -- that even if the Machzik <i>did</i> occupy the field for three years, he still loses the case because he does not have a definitive claim to validate his occupancy of the field ('Chazakah she'Ein Imah Ta'anah'). (<b>BEIS HA'LEVI</b> 3:36:2), <b>PNEI SHLOMO</b>, <b>KEHILOS YAKOV</b> #20)
</p><p>
Moreover, the Rashbam repeatedly mentions that the Sugya is discussing a case in which the Machzik had not occupied the field for three years (end of DH Amar Lei, DH v'At, DH Zil). If the ruling of the Gemara applies whether or not the Machzik had a Chazakah of three years as the Rashbam initially writes, then why does he later write that in the Gemara's case the Machzik did not have a Chazakah of three years?
</p><p>
<b>ANSWERS:</b>
<br>(a) With regard to the first question, the <b>DERISHAH</b> (CM 146:24) and the <b>BEIS HA'LEVI</b> (3:36) explain that the Machzik would not be believed to say that he saw the third party purchase the field from the claimant (or that he himself purchased the field from the claimant) with a Migu that he could have said that the field never belonged to the claimant, if he did not occupy the field for three years. The reason for this is that it is so uncommon for a person to lose his Shtar within three years of the purchase of a field that the lack of a Shtar is tantamount to testimony of witnesses that he did not purchase the field. Accordingly, the Migu is a 'Migu b'Makom Edim' which is not a valid Migu (as the Gemara says on 31a).
</p><p>
When the Mishnah in Kesuvos (15b) says that a person is believed to say 'this field was your father's and I purchased it from him' because he could have said that the field was always his, the Mishnah must be referring to a person who had occupied the field for three years.
</p><p>
However, the Rashbam does not explain this way (29b, DH Alav, and 34a, DH Ela, as the <b>YOSEF DA'AS</b> points out).
</p><p>
Moreover, in the beginning of his explanation, the Rashbam himself writes that the only reason why the Machzik's claim cannot win the case for him is that he did not witness the third party purchase the field from the original owner. This implies that had he witnessed the purchase, even though he did not have a Chazakah of three years he would have been believed. (<b>SHACH</b> CM 146:13)
</p><p>
Similarly, in the end of the Rashbam's explanation here (DH Amar Lei), when he discusses what the Halachah is in this case (where the Machzik did not have a Chazakah of three years), he writes that even if witnesses testify that the third party occupied the field for at least one day, the Machzik would not win the case since <i>he</i> did not occupy the field for three years. If the Rashbam maintains that the Machzik would not win even if he said that he saw the third party buy the field, then he should have included that point in his statement. The Rashbam should have added that whether the Machzik brings testimony that the third party occupied the field for a day, <i>or</i> whether the Machzik claims that he saw the third party purchase the field, he will not win the case. The Rashbam's omission of this point implies that he agrees with Tosfos' assertion that the Machzik <i>would</i> win in such a case, where he claims that he saw the third party purchase the field, because he has a Migu. (Shach loc. cit.)
</p><p>
With regard to the second question (why does the Rashbam imply that the Machzik would have won had he had a Chazakah of three years), the Beis ha'Levi explains as follows. The reason why the position of the Machzik is considered a 'Chazakah she'Ein Imah Ta'anah,' a Chazakah that has no claim, is that the Machzik does not have personal knowledge that the third party purchased the field from the claimant. The Machzik does have, however, personal knowledge that the third party <i>claimed</i> that he bought the field from the claimant. The Beis ha'Levi points out that later in Bava Basra (135a) Rava and Abaye argue about whether or not a claim based on what was heard from another person is considered a 'Bari' claim, a claim of certainty. Rava rules that it <i>is</i> considered a Ta'anas Bari, while Abaye does not consider it a Ta'anas Bari. The Halachah follows the opinion of Abaye in this regard.
</p><p>
In the beginning of the Sugya, the Rashbam explains the Gemara according to the Halachic opinion (on 135a), that what one hears from a third party is not considered a valid claim. Accordingly, this case is one of a 'Chazakah she'Ein Imah Ta'anah,' and therefore even if the Machzik occupied the field for three years, he would not win the case.
</p><p>
However, later (in DH Zil) the Rashbam is explaining the ruling of Rava. It is Rava who maintains that this would be considered a 'Chazakah she'Yesh Imah Ta'anah,' as he rules later (on 135a). That is why the Rashbam explains that Rava would have ruled differently had the Machzik had a Chazakah of three years.
</p><p>
Another approach to the second question is proposed by the <b>KEHILOS YAKOV</b> (#20). The Gemara does not rule simply that the claimant wins the case. Rather, the Gemara adds that the Machzik is not a 'Ba'al Devarim' of the claimant at all -- he cannot even bring the case to court (as explained by <b>TOSFOS</b> to 30a, end of DH Lav, in the name of <b>RABEINU CHANANEL</b> and the <b>GE'ONIM</b>). Perhaps the Rashbam maintains that if the Machzik occupied the field for three years, then even if his Chazakah is a 'Chazakah she'Ein Imah Ta'anah' he is considered to be at least a party in the case and he has the right to bring the claimant to court. He might lose in court, but the claimant would not be able to ignore his claim entirely. Since the Gemara rules that the Machzik cannot even bring the claimant to court, it must be that he did not have a Chazakah of three years.
</p><p>
This explanation is difficult to understand. Since the reason why the Machzik cannot bring the case to court according to the Ge'onim is that he admits that he does not have a definitive claim to the field, what difference does it make whether or not he had a Chazakah of three years?
</p><p>
Moreover, according to both explanations it is clear from Rava's words that the Sugya is discussing a case in which the Machzik did not have a Chazakah of three years. Why, then, does the Rashbam write at the beginning of the Sugya (DH Amar Lei) and at the end (DH Amar Rava) that the Machzik could have occupied the field for three years?
</p><p>
(b) There are two ways to explain the incident recorded in the Gemara. The simple way is that the reason why the Machzik's claim was not accepted is that he did not know on his own that the third party purchased the field from the original owner.
</p><p>
A second way may to understand the incident may be suggested as follows. Perhaps the Machzik <i>did</i> make a definitive claim that he <i>saw</i> the third party buy the field from the original owner. (The Rishonim did have the words 'd'Amar Li' in their text; see Bach #4). Why, then, was his claim not accepted? Apparently, his claim was not accepted because he did not occupy the field for three years. Why was the Machzik not believed with a Migu that he could have said that the field never belonged to the claimant? It must be that the claimant had witnesses who testified that he once owned the field.
</p><p>
According to this explanation, when the claimant said, 'Lav ka'Modis' -- 'Do you not admit that the field was mine,' he did not mean to base his claim of ownership on the admission of the Machzik. Rather, he meant that the Machzik must admit that the field belonged to him, since the claimant either had witnesses or it was known to all that he once owned the field.
</p><p>
The reason why the claimant won the case is that the Machzik's Shtar was only from the third party, and the third party did not have a Shtar that he bought the field from the claimant. Since the Machzik did not occupy the field for three years, he did not have a Migu and therefore he lost the case.
</p><p>
(This may be the intention of <b>RABEINU GERSHOM</b> on 30a. The <b>ALIYOS D'RABEINU YONAH</b> also gives a similar explanation.)
</p><p>
It seems that the Rashbam originally explained the Gemara according to the second way of understanding it. Later, he changed his mind and explained the Gemara in accordance with the first way of understanding it. (His change was based on the words 'Lav ka'Modis,' which imply that the claimant did not have witnesses to prove his prior ownership of the field.) When Rashi (or the Rashbam) changed his explanation, he often added the new explanation before the original explanation but left the original explanation in place. He removed only the comments that explicitly contradicted the new explanation. (See end of Insights to Bava Kama 18:1.)
</p><p>
The comments of the Rashbam in the beginning of the Sugya (DH Amar Lei) until the words 'Aval Hichzik' (and in DH v'Lo ka'Modis and DH Amar Rava) reflect his final explanation, in which the Machzik <i>did</i> have a Chazakah of three years, but he did <i>not</i> have a valid claim. All of the other comments of the Rashbam reflect his original explanation, in which the Machzik did <i>not</i> have a Chazakah of three years, but he <i>did</i> have a valid claim.
</p><p>
This answers the questions posed above. Why does the Rashbam write that the Machzik would have been believed to say that he saw the third party purchase the field from the claimant, but only if he had occupied the field for three years? Even if he had not occupied the field for three years, the Machzik should have a Migu that he could have claimed that the field never belonged to the claimant! The answer is that the Rashbam at that point was following his original explanation, that the claimant had witnesses who testified about his prior ownership of the field. This is also why the Rashbam does not discuss (at the end of DH Amar Lei) what the Halachah is when the Machzik says that he saw the third party buy the field from the original owner but does not have a Chazakah of three years (as the Shach asks). The Rashbam does not need to discuss this case, because this is the case of the Gemara itself. When the Rashbam (in the beginning of the Sugya, beginning of DH Amar Lei, as quoted above in the name of the Shach) implies that there <i>is</i> a Migu, he is following his later explanation that the claimant had no testimony about his prior ownership.
</p><p>
This approach answers the second question as well. When the Rashbam (end of DH Amar Lei, DH v'At, DH Zil) writes that the Machzik did not occupy the field for three years, and had he occupied the field for three years he would have won the case, he is following his original explanation, that the claimant brought testimony to prove his prior ownership.
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO DID NOT PROTEST DUE TO DISTRACTION</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Moshe claimed that he bought David's house, and
               lived there for three years. David said 'I did not
               sell it. I was doing commerce abroad.' (This is why
               I did not protest.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Moshe:</font></b> I have witnesses that you returned for 30
               days every year!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> David:</font></b> All 30 days, I was busy in commerce.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rava):</font></b> It is normal that one is busy in commerce
               for 30 days.
<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 (15b and 3:6):</font></b> One can say that all 30
               days that he was here, he was busy in commerce and
               did not know that someone else was in his house.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif:</font></b> Rav Hai Gaon says that this episode was at a
               time of Cherem. At other times, the Muchzak need not
               be in the same country, for a protest not in front
               of the Machazik is valid. Presumably, he is correct.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Lamed):</font></b> The Muchzak need not
                    be in a place where where he could protest for
                    all three years. It depends only on the end of
                    the three years. Even if he was in a place
                    where he could protest, and  went (at the end)
                    to a place where he cannot, the Chazakah is
                    Batel, for we can say that he intended to
                    protest when he returns, but did not have time.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh:</font></b> Some learn from here that if the Muchzak says
               that he was not in the country for the three years
               of Chazakah, he is believed, and the Machazik must
               prove that he was. I say that it is no proof.
               Perhaps it was known that he was abroad! It seems
               that he need not bring a proof. Since the Machazik
               made a Chazakah, word spreads even to other
               countries. The Muchzak must prove that he was in a
               place where his protest would not have been heard,
               and therefore he did not protest.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Drishah (CM 143:2 DH v'Chol):</font></b> The Rosh says
                    that since there is no proof that the Muchzak
                    is believed, it is more reasonable to say that
                    he is not believed. Even though we discuss the
                    Muchzak hearing about the Chazakah, he says
                    that the Muchzak must prove that he was in a
                    place where his protest would not have been
                    heard, for we assume that he surely heard.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (143:5):</font></b> The Rosh teaches that not only he
                    is not believed to say that he did not hear at
                    all; rather, even if he says that he heard
                    close to the end of three years and there was
                    no time for his protest to be heard, he is not
                    believed.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'>Rambam (Hilchos To'en 11:3):</font></b> If Reuven brought
               witnesses that Shimon came here for 30 days or less
               every year, we tell Shimon 'why didn't you protest
               when you came? You lost your rights.' If he claims
               'I was distracted with the market and I did not know
               that he is in my Chatzer', we accept this claim.
               (Often) one is distracted with business for 30 days.
               If he tarried more than 30 days and didn't protest,
               he lost his rights. It seems to me that this law is
               only in villages where people are distracted with
               their markets.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> There is more distraction in the
                    city than in the villages! Perhaps he refers to
                    great fairs in which multitudes gather in the
                    villages, for there is more room there than in
                    the city.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (CM 143:3):</font></b> I say that in the city, there
                    is only one market day each week, so there is
                    less distraction.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (DH u'Mah she'Chosav):</font></b> In the city, there
                    is a wall and many rooms (in houses), so it is
                    easy to guard one's money. In the village,
                    people must dwell in tents and they are
                    distracted to guard their money from marauding
                    bandits.
<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 143:1):</font></b> A Chazakah for three
               years is valid even if it was not in front of the
               Muchzak, even if he was in a different country, if
               caravans are frequent between them. If there was war
               or the roads were ruined, it is not a Chazakah. Even
               if witnesses say that the Muchzak came to the market
               here and tarried 30 days at the end of the three
               years, and if he does not protest now he will not be
               able to protest later, he can say that all 30 days
               he was distracted with business and did not know
               that someone is Machazik in his house. This is when
               the Muchzak had another house to stay in. o Some say
               that this law is only in villages where people are
               distracted with their markets.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Afilu):</font></b> The Rashbam says that
                    Reuven can say that all 30 days he was busy in
                    commerce and did not notice that someone was in
                    his house. Others explain that he was busy and
                    had no time to protest. The first opinion is
                    primary; the Rif holds like it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (1):</font></b> The Tur says that it is
                    easy to protest in front of two, so he cannot
                    claim that he was too busy to protest. Tosfos
                    and the Rosh say that Chazakah is heard even in
                    a different country, but Macha'ah is not. If
                    so, why is distraction with the market an
                    excuse? He already heard beforehand! He should
                    have protested when he returned to his city,
                    for it is easy! We must say that he was so
                    distracted with the market that he forgot about
                    the Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that we learn from here that it
               depends on the end of the three years. If at the
               beginning of the three years the Muchzak was in a
               place where he could not protest, and at the end of
               the three years he was in a place where he could
               protest, it is a Chazakah. If at the beginning he
               was in a place where he could protest, and at the
               end he was in a place where he could not protest, it
               is not a Chazakah. He did not protest at the
               beginning because he planned to protest at the end
               and return, but he did not have the opportunity.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> This opinion learns from the need to
                    say that he was distracted with the market. If
                    not, the Chazakah would be valid, even though
                    he was there only at the end of three years. We
                    also infer oppositely, that if he was there
                    only at the end of three years, he has an
                    excuse to say that he planned to protest later.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Chosav Rabeinu
                    v'Hayu):</font></b> The Nimukei Yosef says so. This is
                    only like those who explain that because he was
                    busy, he did not have time to protest.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal #1 (Darchei Moshe 1):</font></b> The Nimukei
                    Yosef says that perhaps he intended to come
                    later (and protest). This applies according to
                    both opinions!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal #2 (Bach DH Kosav):</font></b> The Nimukei Yosef
                    said that he did not know about the Chazakah!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Hagahos Drishah (1):</font></b> The Nimukei Yosef wrote
                    only the Perush that he did not know about the
                    Chazakah!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Hagahos Tur ha'Shalem (7):</font></b> Keneses ha'Gedolah
                    says that the Beis Yosef had a different text
                    of the Nimukei Yosef.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Defense (of Beis Yosef - Shach 1):</font></b> The Beis
                    Yosef means that if Reuven knew that Shimon wil
                    make a Chazakah and Reuven will want to claim
                    that he was distracted and did not know, this
                    is not a claim, and Shimon has a Chazakah.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Ketzos ha'Choshen (2):</font></b> If it depends only on
                    the end, why did the Gemara say that he was
                    away the rest of the time? Even if he was here,
                    there is no Chazakah, for the last 30 days he
                    was distracted! The Nimukei Yosef is like the
                    opinion in the Rashbam that the Chazakah is
                    Batel when he intended to protest at the end,
                    but did not have time. This is like one who
                    intended to pray later, and was unable due to
                    Ones. If there was no Ones, just he did not
                    have free time, what was his excuse for not
                    protesting? The Beis Yosef says that the
                    Nimukei Yosef is like the latter opinion. I
                    explain that the Rashbam explains that he did
                    not protest because he forgot. This is total
                    Ones. This is even if he was here the entire
                    three years! Therefore, we must say that the
                    Nimukei Yosef holds like the other Meforshim.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Nesivos ha'Mishpat (Bi'urim 2):</font></b> The Nimukei
                    Yosef says that even if he could have protested
                    when he came the previous years, since he was
                    distracted at the end of the three years, it is
                    not a Chazakah. The Gemara needed to say the
                    rest of the time he was far away (from where
                    Macha'ah would not be heard), for otherwise he
                    should have realized that he will be distracted
                    with the market, and he should have protested
                    earlier. This is if the problem is inability to
                    protest. According to the opinion that
                    disqualifies the Chazakah because the Muchzak
                    did not know, since he knew beforehand, he was
                    obligated to protest lest he be distracted at
                    the end! This is the Beis Yosef's proof.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A CHAZAKAH NOT IN FRONT OF THE MUCHZAK </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rava):</font></b> The law is like Reuven said.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN DOES ONE FORFEIT HIS CLAIM?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Reuven asked Shimon:</font></b> What are you doing on this land?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> I bought it from Ploni, and I have eaten
               the Peros the years of Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reuven:</font></b> Ploni is a thief (he never had any rights
               to the land)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shimon:</font></b> I have witnesses that you advised me to
               buy it from him!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Reuven:</font></b> True; I wanted you to buy it, for I
               prefer to deal with you (to take back my land) than
               with Ploni. He is a difficult adversary.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> The law is like Reuven said.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Like whom does Rava hold?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He must hold as Admon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah - Admon):</font></b> Levi claims that a certain
               field is his, and he signed on a document in which
               Yehudah sold that field to Yakov. Levi's signature
               is not an admission that the field is not his. He
               can say 'I wanted Yakov to buy it, for I prefer to
               deal with Yakov than with Yehudah. Yehudah is a
               difficult adversary.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, Levi cannot claim that the field
               is his.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> No, Rava can hold even like Chachamim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say that he cannot claim that he signed
               in order to have an easier opponent. Such an
               incentive does not warrant doing a false action.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim could agree that one might give
               misleading advice to obtain an easier opponent.
               People often speak insincerely.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Reuven asked Shimon:</font></b> What are you doing on this land?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> I bought it from Ploni, and I have eaten
               the Peros the years of Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reuven:</font></b> Ploni is a thief (he never had any rights
               to the land)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shimon:</font></b> I have witnesses that last night you
               asked me to buy it from him for you!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Reuven:</font></b> Really, the field is mine; I preferred to
               pay him for it to avoid having to fight him in Beis
               Din.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> It is normal to buy one's own property to avoid
          having to fight about it in Beis Din. (Reuven's claim is
          accepted.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT IS A GOOD CLAIM WITH A CHAZAKAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Reuven (to Shimon):</font></b> What are you doing on this land?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> I bought it from Ploni, and I have eaten
               the Peros the years of Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reuven:</font></b> I have a document showing that I bought
               it from Ploni four years ago. (It was not his when
               he 'sold' it to you!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shimon:</font></b> Do you think that I meant three years of
               Chazakah? My Chazakah is longer than that!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> It is normal for one to say 'years of Chazakah'
          when they are more than three.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon only keeps the field if he has been there
               at least seven years, so that he had a Chazakah
               before Reuven bought the field;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he was there for only six years, Ploni's sale
               to Reuven (which was after Shimon was there only two
               years) is the ultimate protest (so Shimon had no
               Chazakah).
<br>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS A GOOD CLAIM WITH A CHAZAKAH? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Levi and Yehudah both claimed that they a certain field
          was of their fathers. Levi brought witnesses that it was
          his father's, and Yehudah brought witnesses that he used
          the field for the years of Chazakah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rabah:</font></b> Certainly, Yehudah is telling the truth. Why
          should he lie and say that it belonged to his father? If
          he wanted to lie, he could make a better claim, that he
          bought it from Levi, and used it for the years of
          Chazakah!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> The principle 'why should he lie'
          does not override witnesses (who say that it belonged to
          Levi's fathers)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Yehudah later retracted:</font></b> Yes, it belonged to your
               fathers. I bought it from you. I said that it was my
               fathers', for (since I made a Chazakah,) I am
               confident of keeping it like one who inherited his
               fathers' land
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Can one claim, and then change his claim?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Ula):</font></b> One can/
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Chachamim of Neharda'a):</font></b> One cannot.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	In two cases, Ula admits that he cannot change his
          claim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He initially said 'it belonged to my fathers, and
               not to your fathers.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He did not make a claim in Beis Din, and after he
               left Beis Din, he returns and claims.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why is this not allowed?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> We suspect that others instructed him how
               he should claim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	In two cases, Chachamim of Neharda'a admit that he can
          change his claim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He later says 'it belonged to my fathers, who
               bought it from your fathers.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They were discussing the case outside of Beis
               Din, and he did not make any claim, and when he came
               to Beis Din, he made a claim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why is this allowed?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It is normal that one reveals his claims
               only in Beis Din.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> I am from Neharda'a, yet I hold that one may
          change his claim.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	The Halachah is, one may change his claim.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CONTRADICTORY TESTIMONY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Levi and Yehudah both claimed that they inherited a
          field from their fathers. Levi brought witnesses that it
          was his father's and that he has used the field for the
          years of Chazakah, and Yehudah brought witnesses that he
          used the field for the years of Chazakah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The contradictory testimonies about the
          Chazakah cancel each other. We are left with testimony
          that it belonged to Levi's fathers.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> The testimonies contradict each other.
          We cannot rely on either testimony!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> The contradiction is only
          regarding Chazakah, but not regarding to whose fathers it
          belonged.
<br>
<br>

sjt:
<font><b>1) A 'MIGU' WHEN A PERSON HAS A CHAZAKAH WITH A VALID CLAIM</b></font><b>
<br>QUESTION:</b> The <b>RASHBAM</b> (DH u'Modu) writes that when a person (the Machzik) has a Chazakah of three years on a field and he claims that the field was his father's and that his father purchased it from the previous owner, he is believed because he has a Chazakah with a valid claim. The Rashbam adds that the Machzik has a Migu that he could have said that he bought the field himself directly from the previous owner and he occupied it for three years.
</p><p>
Why does the Rashbam need to add that the Machzik has a Migu? The Machzik should be believed even without a Migu, because he has a Chazakah with a valid claim! Why is the claim that his father purchased it from the original owner weaker than the claim that he purchased it himself from the original owner?
</p><p>
The same question may be asked on the words of the Rashbam earlier (30b, DH Amar Lei) and the Gemara later (41b): when a person has a Chazakah of three years and says that he purchased the field from a third party who purchased it from the original owner in his presence, he is believed because of a Migu that he could have said that he purchased it himself from the original owner. In that case, too, the Machzik's Chazakah is accompanied by a valid claim, and thus the Migu is unnecessary! (<b>KETZOS HA'CHOSHEN</b> 146:12)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>KETZOS HA'CHOSHEN</b> answers that the Rashbam mentions the Migu only for added measure, but in truth the Migu is not necessary for the Machzik to win the case. When the Gemara later says that he is believed with a Migu that he could have said that he bought it directly from the original owner, it means that he is believed <i>just as</i> a person is believed when he makes that claim.
</p><p>
However, this answer is somewhat forced. Moreover, the <b>ROSH</b> (3:13) writes explicitly that in the case of the Gemara later (41b), the Machzik is believed <i>only</i> because of a Migu.
</p><p>
(b) The <b>KEHILOS YAKOV</b> (end of #22) answers that the Migu is necessary because the claim of the Machzik has a weakness ('Re'usa'). The weakness is that no one saw the third party occupy the field even for one day. If the third party really bought the field from the claimant, then undoubtedly someone would have seen him on the field for at least one day.
</p><p>
This answer is also not entirely satisfactory, because the third party might have owned the field for only a few hours. Where does the Gemara ever say that not being seen on the field proves that the field is not his? Also, perhaps there <i>are</i> witnesses who can testify that the third party used the field, but the Machzik merely did not go searching for those witnesses!
</p><p>
(c) The <b>NESIVOS HA'MISHPAT</b> (146:22) writes that the question does not begin. If not for a Migu, a Chazakah would only be effective when it is accompanied by a claim that the Machzik <i>himself</i> acquired the field from the original owner. If the claim of the Machzik is that he purchased it from a third party, then the Chazakah cannot support that claim if not for a Migu that he could have said that he purchased it himself.
</p><p>
The Nesivos ha'Mishpat does not explain why this should be so. Why should a Chazakah support only a claim that the Machzik himself purchased the field?
</p><p>
Perhaps the logic behind this distinction is as follows. If a third party owned the field at one point, then perhaps the original owner protested the third party's use of the field and the Machzik was not aware of that protest. Had the original owner protested in the presence of the Machzik, the Machzik would have known that he needed to keep his Shtar for more than three years. However, since he cannot know whether or not the original owner protested against the presence of the third party, he should be required to keep his Shtar indefinitely, out of doubt. Therefore, his Chazakah should not be able to prove that the field belongs to him, unless he is holding the Shtar. However, since he has a Migu that he could have claimed that he bought the field directly from the original owner and he knows for certain that the original owner did not protest against his occupancy of the field, he does not have to present a Shtar, even if the original owner <i>did</i> protest the occupancy of the third party. (The same Migu allows the Machzik to lose his Shtar three years after the original owner protests the Machzik's occupancy. Since the Machzik can claim that he purchased the field <i>after</i> the protest, he is believed to say that the field was his even before the protest.)
</p><p>


<font><b>2) CHANGING ONE'S CLAIM IN COURT</b></font><b>
<br>OPINIONS:</b> The Gemara mentions a case in which the Machzik first asserted that the field belonged to his father. After the <i>claimant</i> brought witnesses that the field belonged to <i>his</i> father, the Machzik changed his claim and said that the field did not actually belong to his father, but rather he purchased it himself from the claimant's father. It is clear from the Gemara that the Machzik's second claim would not be accepted if not for the fact that he found a way to fit it into the wording of his original claim (he explains that the reason why he said originally that it was his father's field was because he felt that his claim to the field was so strong that it was as if he had inherited the field from his father).
</p><p>
The Gemara presents a similar ruling earlier (6a). The Gemara teaches that if a person first says that he never borrowed money from the claimant, and afterwards witnesses testify that he <i>did</i> borrow money but he paid it back, the defendant cannot claim -- as the witnesses say -- that he borrowed and paid it back. Rather, his first claim is upheld in court, and by saying that he did not borrow he effectively admits that he did not pay back any money. Beis Din therefore obligates him to repay the loan based on his admission that no money was paid back.
</p><p>
In the cases of these Gemaras, the Machzik changed his claim <i>after</i> witnesses came and contradicted his first claim. Is a person allowed to change his claim <i>before</i> any contradictory evidence is presented in court?
</p><p>
(a) <b>TOSFOS</b> (32b, DH Amai) implies that a person cannot change his claim, even when no contradictory evidence has been brought. This also seems to be the opinion of the <b>RASHBAM</b> (33b, DH Meheman).
</p><p>
The logic of Tosfos seems to be that the first claim was an implied admission on the part of the defendant that there is no other evidence to support his position. If the defendant says that his parents acquired the field, it is as if he admits that <i>he</i> did <i>not</i> acquire the field. His admission, the Hoda'as Ba'al Din, overrides his later claim, as the Rashbam writes (end of 30b).
</p><p>
(b) The <b>TUR</b> (CM 80) cites the <b>YAD RAMAH</b> here who maintains that before the defendant's claim is contradicted in court, he may change his original claim and make a different claim to support his case. (For example, if he originally said 'I never borrowed,' he can change his mind and say, 'I borrowed but I paid it back,' as long as no witnesses are brought to testify that he borrowed.) The Tur explains that the defendant's second claim is accepted because of a Migu: had he wanted, he could have remained silent and maintained his original claim, which would have won the case for him. Now that he changes his claim to a different claim, he is believed with a Migu that he could have remained silent.
</p><p>
The <b>MAGID MISHNEH</b> (Hilchos To'en v'Nit'an 7:8) and the <b><b><b>RI</b></b> MI'GASH</b> (see (c) below) cite support for this from the fact that the Gemara makes a point of saying that only after the claim of the Machzik was contradicted by witnesses did the Machzik change his claim ('<i>Hadar</i> Amar Lei'; see also <b>BI'UR HA'GRA</b> CM 79:21 and 80:5, who cites further support from the Yerushalmi in Shevuos).
</p><p>
The Ramah adds that if testimony is brought later to contradict the original claim, the defendant's second claim is no longer accepted. The <b>BEIS YOSEF</b> explains that the reason for this is that the defendant's second claim was accepted only because of a Migu that he could have remained with the first claim. When the first claim is contradicted -- even after the second claim was made -- there no longer is a Migu and the second claim is not accepted (as the Mishnah in Kesuvos 16a and 18b teaches).
</p><p>
The <b>KOVETZ SHI'URIM</b> (#113) asks, why should the second claim be accepted with a Migu? That claim is contradicted by the implicit Hoda'as Ba'al Din of the first claim, and the law is that Hoda'as Ba'al Din is tantamount to testimony of witnesses. Just as a Migu does not give a person credibility to counter the testimony of witnesses, it should also not give him credibility to contradict a Hoda'as Ba'al Din. The Kovetz Shi'urim answers that the second claim does not contradict Hoda'as Ba'al Din because the person is saying that his original claim was mistaken, or that it was based on a misunderstanding or on forgotten facts (or whatever excuse the Ba'al Din gives when he presents his second claim). If a witness would try to change his own testimony in such a manner, Beis Din would <i>not</i> accept his second testimony because of the rule of 'Keivan she'Higid Shuv Eino Chozer u'Magid' (Kesuvos 18b), which teaches that a witness cannot change his testimony even if he gives an excuse to explain why he originally presented different testimony. This rule, however, does not apply to Hoda'as Ba'al Din. Even though Hoda'as Ba'al Din is tantamount to testimony of witnesses, nevertheless the rule of 'Keivan she'Higid' applies only to actual testimony of witnesses and not to Hoda'as Ba'al Din.
</p><p>
According to this approach, why is it necessary for the Tur to mention a Migu at all? The Ba'al Din should be believed for the same reason that his first claim was believed -- simply because he is presenting a valid claim in court! (See Kovetz Shi'urim there, #113.)
</p><p>
The answer seems to be that it looks suspicious when a person retracts a claim that he presented in court because, normally, people think carefully about what they will say in front of the court. For this reason, the defendant's second claim would not be accepted if not for the Migu. (M. Kornfeld)
</p><p>
(c) The <b><b><b>RI</b></b> MI'GASH</b> and the <b>RAMBAM</b> (Hilchos To'en v'Nit'an 7:8) also write that the defendant may change his claim in court before it is contradicted by witnesses. However, they add that if witnesses later come and contradict the original claim, Beis Din still accepts the new claim of the defendant (which is not contradicted by witnesses, since the claimant changed his mind before the appearance of witnesses).
</p><p>
This is difficult to understand. Why should the second claim of the defendant be accepted when witnesses later come and contradict his original claim? The defendant's second claim is accepted only because of a Migu, but when witnesses come -- even <i>after</i> his second claim -- their testimony should render the Migu invalid! This principle in the law of Migu is evident from many Mishnayos (see Kesuvos 16a, 18b, 22a; see also <b>ME'IRI</b> to Kesuvos 16a, who cites and argues with some Rishonim who seem to contradict this principle). (See <b>KETZOS HA'CHOSHEN</b> 80:3. See <b>KOVETZ SHI'URIM</b> #112, who attempts to refute the proofs from the Mishnayos in Kesuvos. However, his words do not address the cases there on 16a and 18b. See also the footnotes of <b>RAV MOSHE SHMUEL SHAPIRO</b> on the Ri mi'Gash.)
</p><p>
The answer is that the Ri mi'Gash and the Rambam apparently maintain that a person may present a second claim and change his first claim even without resorting to a Migu. Rather, just as he is believed to present a first claim, he is believed to present a second claim, as suggested in the question on the explanation of the Yad Ramah above. Since he is believed without a Migu, even if witness come later the second claim remains valid and is accepted. Why is the second claim <i>not</i> accepted if witnesses testify and contradict the first claim <i>before</i> the defendant changes his claim? Why should the second claim not be accepted the same way it is accepted when he changes his mind before witnesses come? The answer is that if witnesses contradict his claim, then the defendant becomes 'Huchzak Kafran'; he becomes confirmed as a liar, and that makes his credibility much worse, such that Beis Din does not accept his second claim after that point, as the Rambam himself writes (Hilchos To'en v'Nit'an 6:6:), and as the <b>RASHBA</b> writes (in Teshuvos 6:38), as well as the <b>SHULCHAN ARUCH</b> (CM 79:9). If a person changes his mind before the witnesses come, he is not 'Huchzak Kafran' and therefore he is believed. If he changes his mind after witnesses come, he is not believed because he is 'Huchzak Kafran,' and not because of the Hoda'as Ba'al Din, as the Rashbam writes (end of 30b). This is also the view of the <b>HAGAHOS MAIMONIYOS</b> (in Hilchos To'en v'Nit'an 7:20).
</p><p>
However, when the <b>TUR</b> (CM 80) quotes the <b><b><b>RI</b></b> MI'GASH</b>, he writes that the Ri mi'Gash accepts the second claim because of the Migu (contrary to the above explanation)! He understands that it is because of the Migu that the Rambam gives credibility to the second claim (as the <b>MAGID MISHNEH</b>, Hilchos To'en v'Nit'an 7:8, writes; see also <b>SHACH</b> CM 79:23). If it is because of the Migu, then why should he be believed after witnesses contradict his first claim?
</p><p>
The <b>KETZOS HA'CHOSHEN</b> answers that the Tur does not really mean that the defendant's second claim is believed because of the Migu. Rather, the Tur means that since the defendant was not yet contradicted in court, his claim is not considered to be Hoda'as Ba'al Din. However, as mentioned above, the wording of the Tur and the Magid Mishneh implies that there is a Migu.
</p><p>
Perhaps the reason why a Migu is necessary is as follows. Both the Tur and the Magid Mishneh write that the second claim is believed even if the defendant left the court after he presented his first claim and then returned and presented the second claim. The Gemara here says that when a defendant leaves the court and comes back with a new claim, Beis Din must suspect that someone outside the court counseled him about what claims to make. Perhaps in such a case Beis Din would only believe the defendant's second claim because of a Migu. In such a case, where the defendant presents his second claim only after returning to the court, when witnesses come later to contradict his first claim his second claim indeed is <i>not</i> accepted (because he no longer has a Migu). The Ri mi'Gash and the Rambam accept the defendant's second claim only when he presented the second claim without leaving the court after his first claim. This fits well with the wording of the Rambam and the Magid Mishneh. (M. Kornfeld)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN CAN ONE RETRACT FROM HIS CLAIM?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Levi and David both claimed that a certain field was
               of their fathers. Levi brought witnesses that it was
               his father's, and David brought witnesses that he
               used the field for the years of Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabah:</font></b> Surely, David is telling the truth. If he
               wanted to lie, he could claim better, that he bought
               it from Levi, and used it for the years of Chazakah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection (Abaye):</font></b> 'Why should he lie' does not
               override witnesses!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> David later retracted:</font></b> Yes, it belonged to your
               fathers. I bought it from you. I said that it was my
               fathers', for (since I made a Chazakah,) I am
               confident of keeping it like one who inherited his
               fathers' land.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Ula):</font></b> One can, and then change his claim.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Chachamim of Neharde'a):</font></b> One cannot.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> In two cases, Ula admits that he cannot change his
               claim. One is if he initially said 'it belonged to
               my fathers, not to your fathers.' The other is if he
               did not claim in Beis Din, and after he left Beis
               Din, he returned and claimed;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We suspect that others instructed him how he
                    should claim.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> In two cases, Chachamim of Neharde'a admit that he
               can change his claim. One is if he later says 'it
               belonged to my fathers, who bought it from your
               fathers.' The other is if they were discussing the
               case outside of Beis Din, and he did not make any
               claim, and when he came to Beis Din, he made a
               claim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It is normal that one reveals his claims only
                    in Beis Din.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> The Halachah is, one may change his claim.
<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> The Halachah is, one may change his claim, but
               only if he gives an excuse why he initially claimed
               differently.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 15:6):</font></b> Levi and David both
               claimed that a field was of their fathers. Levi
               brought witnesses that it was his father's, and
               David brought witnesses of Chazakah, Levi gets the
               field, for David's Chazakah has no claim. If David
               retracted and said 'yes, it was your fathers'. I
               bought it from you. I said that it was my fathers',
               for I rely on it, and it is mine, like my fathers'',
               or 'my fathers bought it from your fathers', this is
               a proper claim. He gave an excuse for his first
               words; we give the field to him. If he initially
               claimed 'it belonged to my fathers, and not to your
               fathers', we do not heed his new claim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (3:9):</font></b> When David saw that he lost through his
               first claim, he fixed his words. His new claim did
               not totally contradict his first claim; it fixed and
               explained his first claim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> When witnesses contradicted his
                    first claim, he cannot make a new claim that
                    contradicts his first claim. If witnesses did
                    not contradict it, he himself may give a
                    different claim to exempt himself, since his
                    first claim did not obligate himself. Now he
                    admits that he sought to exempt himself
                    falsely. All agree that he may retract in this
                    way. He has no need to lie; he could have
                    persisted with his first claim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (10):</font></b> It is normal that one reveals his claims
               only in Beis Din, lest his opponent think of what to
               claim against him. If one admitted in front of
               witnesses, he cannot say 'I was joking.'.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Tosfos (31a DH Mah):</font></b> Why is the Migo (why should he
               lie) against witnesses? The witnesses do not say
               that Levi's fathers never sold it to David's
               fathers! We must say that 'it is of my fathers''
               connotes that it was always theirs.
<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 146:24):</font></b> Levi and David both
               claimed that a field was of their fathers. Levi
               brought witnesses that it was (Rema - always) his
               father's, and David brought witnesses of Chazakah.
               Levi gets the field, for David's Chazakah has no
               claim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (58):</font></b> The Rambam did not say (that it was)
                    <i>always</i> of Levi's fathers. The Rema added for,
                    for the Tur says so; in this case, David cannot
                    say that his fathers bought it from Levi's
                    fathers. The Rema distinguishes when the
                    witnesses did not say 'always.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If the witnesses said only that it was of
               Levi's fathers, but not that they did not sell it,
               if we can interpret David's words to mean that his
               fathers bought it, we heed David. If David initially
               claimed 'it was always my fathers'', he cannot give
               a new claim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (60,61):</font></b> We could interpret David's words
                    to mean that he inherited it from his fathers.
                    'We heed him' means that we claim for him to
                    explain his words, even if he did not.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (23):</font></b> The Tur connotes that had he
                    claimed 'I <i>inherited</i> it from my fathers', we
                    would claim for him. What is his source? Tosfos
                    says that 'of my fathers' connotes that it was
                    always theirs' (if not, we would say that they
                    bought it), for Tosfos holds that if a Machazik
                    says that he saw the seller there for one day,
                    it helps as if witnesses say that he was there
                    one day. If one says 'it was my fathers'',
                    surely he means that they lived there for a
                    day, so we can claim for him that his fathers
                    bought it. However, the Tur requires witnesses
                    that his fathers lived there for a day. Do not
                    say that David means that his fathers bought
                    it. If so, Tosfos would not need to say that
                    he means that his fathers lived there for a
                    day! Also, if so, we should say so also for a
                    buyer. If a buyer says 'I bought from Ploni,
                    who bought from you', the Tur (CM 21) requires
                    him to say 'I saw Ploni buy it from you.' We do
                    not say that this is what he means! Tosfos said
                    'of my fathers' to exclude 'my fathers lived
                    there' (then, we claim for him that they bought
                    it), but all the more so 'I inherited it from
                    my fathers' connotes that they did not buy it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If Levi said 'it is my fathers'', and David
               said 'it is my fathers'', this connotes 'it was not
               your fathers'', so we do not claim for David to
               interpret his words, unless he explicitly does so
               himself. However, if witnesses say that David's
               fathers dwelled there for a day, even if David does
               not interpret his words, we claim for him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (24):</font></b> Tosfos said that 'it is my
                    fathers'', connotes 'it was not your fathers'',
                    to explain why the Migo is against witnesses.
                    We could say that the witnesses testified that
                    his fathers never lived there! Even if one says
                    'my fathers always lived here', perhaps they
                    rented it and later bought it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nesivos ha'Mishpat (Urim 31):</font></b> The Tur says that
                    'it is my fathers'' connotes 'it was not your
                    fathers'', when he repsonds to Levi's claim
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If David retracted and said
               'yes, it was your fathers'. I bought it from you. I
               said that it was my fathers', for I rely on it, and
               it is mine, like my fathers'', or 'my fathers bought
               it from your fathers', this is a proper claim. He
               gave an excuse for his first words; we give the
               field to him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (63):</font></b> The Shulchan Aruch does not discuss a
                    claim 'my fathers bought it from you', for it
                    would require a proof that his fathers were
                    there for a day, since Levi is sure that he
                    himself did not sell it. Levi is not sure that
                    his fathers did not sell it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (25):</font></b> In either case, Levi has a Vadai
                    claim 'it was my fathers'.' David's Chazakah is
                    without a claim unless he proves that his
                    fathers lived there for a day.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> This is if he says so while
               still in Beis Din. If he left Beis Din, returned and
               then claimed, we do not heed him, lest others taught
               him to claim flasely. If he initially claimed 'it
               was of my fathers, and not of your fathers', we do
               not heed his new claim even if he is still in Beis
               Din. One cannot retract and make a new claim when
               his first claim was in Beis Din. One can retract
               from what he claimed outside of Beis Din.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ba'Meh):</font></b> One can retract from
                    Stam claims outside of Beis Din. If one
                    admitted in front of witnesses 'I owe 100 Zuz
                    to Ploni', he admitted, and he cannot retract
                    in Beis Din.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (64):</font></b> Since one reveals his claims only in
                    Beis Din, he can even contradict what he said
                    outside of Beis Din.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some say that if he said 'it
               belonged to my fathers, and not to your fathers',
               even outside of Beis Din, in Beis Din he can say 'my
               fathers bought it from your fathers.' Some disagree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (65):</font></b> R. Yonah (in the Tur) considers this
                    an admission that his father did not buy it
                    from Levi's fathers. Admission takes effect
                    even outside of Beis Din. Normally, if one did
                    not say 'you are witnesses against me', he can
                    say 'I was joking.' Here is different, for he
                    claims for his own benefit, and admist this he
                    admitted to his detriment.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (59,60):</font></b> Tosfos (31a DH u'Modu) was unsure
                    about this. Later, the Shulchan Aruch (80:1)
                    rules like the first opinion.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rava and Rav Nachman argue as Rav Huna and
          Rav Chisda.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If two sets of witnesses contradict
               each other, either set may testify by itself in a
               different case.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> Since we are in doubt which set
               lied, we do not accept the testimony of either set.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> Indeed, Rav Chisda must hold like Rava;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, Rav Huna could hold like Rav Nachman, or
               even like Rava.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Huna said that we accept the testimony of one
               set of witnesses in subsequent cases. He could admit
               that we do not accept their testimony in the case in
               which they were contradicted!
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	After Rav Nachman ruled that the field belongs to Levi,
          Yehudah brought witnesses that he had eaten the Peros the
          years of Chazakah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> We established Levi to be the owner
               of the field. We remove him from it (and whoever is
               stronger will prevail). We are not concerned for the
               disgrace to Beis Din (that we contradict our
               previous ruling).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rava - Beraisa):</font></b> If two witnesses say
               that Leah's husband died, and two say that he did
               not die; or two witnesses say that she was divorced,
               and two say that she was not divorced, she may not
               remarry. If she remarried, we do not force her
               husband to divorce her;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Menachem b'Rebbi Yosi says, he must divorce
               her. This is only if she remarried after the
               witnesses who said that she is still married;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If she remarried before witnesses said that she
                    is still married, she may remain married. (This
                    shows that we are concerned for disgrace to
                    Beis Din!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Retraction (Rav Nachman):</font></b> I was about to rule
               like I taught. Now that you refuted me, I will
               abstain.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rav Nachman reversed the decision of Beis Din, and was
          not concerned for the disgrace to Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An observer thought he erred, but this is not
               true. Rather, he found that Tana'im argue about
               whether or not we are concerned for disgrace to Beis
               Din.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah - R. Yehudah):</font></b> We do not establish a man
               to be a Kohen based on one witness;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Elazar says, this is only if this is
               challenged; if no one argues, we establish a man to
               be a Kohen based on one witness;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon ben Gamliel says, we establish a man to
               be a Kohen based on one witness.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CONCERN FOR THE HONOR OF BEIS DIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> R. Elazar and R. Shimon ben Gamliel say the
          same thing!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Elazar says that even one person
               can challenge his lineage, and R. Shimon ben Gamliel
               requires two.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> R. Yochanan taught that all agree that
               two are needed to challenge.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, they argue in a case when two
          challenged.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, we know that David's father is a
               Kohen. There were rumors that David's mother was
               divorced or a Chalutzah,
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Din put David's status in question until it
               would be researched. One witness said that David is
               a valid Kohen, and he was re-established to be a
               Kohen.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Two witnesses then came and said that his mother
               was divorced or a Chalutzah, so Beis Din declared
               that he is not a Kohen. Another witness came and
               said that David is a Kohen.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> All agree that the first and last witnesses, in
               general, can join. They argue about whether here we
               are concerned for disgrace to Beis Din.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Elazar is concerned. Since Beis Din
               disqualified him, they do not reinstate him;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Shimon ben Gamliel says, they reinstate him.
               We are not concerned for disgrace to Beis Din.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> The Mishnah implies that two
          witnesses always suffice to establish someone to be a
          Kohen;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If R. Elazar is concerned for disgrace to Beis
               Din, even if two witnesses come together (after
               others disqualified him), we would not reinstate
               him!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> Rather, all agree that we are not
          concerned for disgrace to Beis Din;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about when we can join witnesses, like
               R. Noson and Chachamim argue (in the end of this
               Beraisa):
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Two witnesses cannot testify together
               unless they saw the testimony together;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehoshua ben Korchah says, even if they saw
               the testimony at different times, they join.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> We cannot join the testimony of two witnesses
               unless they testify together;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Nasan says, they can testify at different
               times.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A MIGO SUPPORTING A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven challenged Shimon 'what are you doing on my
          field?' Shimon said 'I bought it. Here is the document.'
<br>
<br>

sjt:
<font><b>1) WINNING THE CASE WITH A FORGED 'SHTAR'</b></font><b>
<br>QUESTION:</b> The Gemara records a case in which a defendant presented a Shtar to support his claim that he bought the field from the original owner. When the original owner claimed that the defendant's Shtar was forged, the defendant whispered to Rabah that his Shtar indeed was forged, but that he did have an authentic Shtar but it was lost. Rabah ruled that the defendant is believed with a Migu (since he could have maintained his original claim and not admitted that the Shtar was forged). Rav Yosef argued and said that a Migu is ineffective in this case, because the Shtar is worthless based on the admission of the bearer of the Shtar himself.
</p><p>
The <b>RASHBAM</b> explains that according to Rav Yosef, the Migu in this case is like a 'Migu b'Makom Edim,' a Migu that counters the testimony of witnesses, because the defendant himself admitted that the Shtar is forged, and 'Hoda'as Ba'al Din k'Me'ah Edim Dami' -- the admission of the defendant is tantamount to testimony of a hundred witnesses.
</p><p>
What does the Rashbam mean? Why should this Migu be considered a Migu that counters witnesses? The defendant is not contradicting his claim that the Shtar is forged and now saying that it is not forged. Rather, he is saying that although it is forged, he has another reason why his claim that the field is his should be believed -- because he had another, genuine Shtar which he lost. Why, then, should he not be believed with a Migu, and how is his second claim contradicted by Hoda'as Ba'al Din? This Migu is the same as every other Migu; the defendant, by his own admission, says that one claim (the claim of the Migu) is not what he is claiming, and that he instead is making a different claim! This is the way every Migu works. Why should the defendant who is holding the Shtar not be believed in this case? (<b>ROSH</b> 3:12)
</p><p>
<b>ANSWERS:</b>
<br>(a) Perhaps the Rashbam means that the Migu of the defendant is not similar to an ordinary Migu. Normally, the claim of the Migu which a defendant <i>could</i> have said is that his opponent does not have sufficient proof to support his claim. Since his opponent does not have a strong argument, the defendant is able to present another argument to defend his position in which he admits that the claimant <i>does</i> have a good claim, but that the object nevertheless still belongs to him, the defendant. In this case, however, the claim of the Migu which the defendant could have said is that the claimant indeed has a valid claim -- because he was the previous owner of the land and the defendant does not have a Chazakah -- but nevertheless he (the defendant) is entitled to the land because he has a new proof of ownership (the Shtar) to contradict the claim of the original owner. Perhaps a Migu can be used only against a claim which is inherently weak; one cannot override a valid claim with a Migu (that he <i>could have</i> brought a proof to contradict the opponent's claim).
</p><p>
(The <b>KOVETZ SHI'URIM</b> (2:3:12) suggests a similar approach. However, he writes that the Rashbam can be understood only if a Migu gives the person's claim the credibility of the alternative claim (which he did not say, but which he could have said), and not if a Migu is merely based on the logic that if the person wanted to lie, he would have said a more effective lie. According to the above approach, the Rashbam's comments can be understood even if the mechanism of Migu is based on this logic.)
</p><p>
(b) Alternatively, the Rashbam may have understood the Gemara as <b>TOSFOS</b> (end of DH Amai) does. Tosfos writes that Rav Yosef did not accept the defendant's new claim that his Shtar is forged and that he lost the original Shtar, because he maintains that a person cannot change a claim presented in court (see Insights to 31:2). This indeed seems to be the opinion of the Rashbam (33b, DH Meheman).
</p><p>
Accordingly, when the Rashbam (32b, DH Amai) writes that this is not comparable to an ordinary Migu because in the case of an ordinary Migu both claims can be true -- the one that the person could have claimed and the one that he actual claims -- he does not mean that the claim that the person could have claimed is not true in this case, but rather he means that the claim that he <i>is</i> claiming (i.e. that he had another Shtar which he lost) is not true, since it is contradicted by his previous admission that this Shtar is the original Shtar. This seems to be the way the <b>HAGAHOS MAIMONIYOS</b> (Hilchos Malveh v'Loveh 14:40) understands the Rashbam. The <b>ROSH</b>, who argues with the Rashbam, follows the view of the <b>RAMAH</b> and others who maintain that a person <i>is</i> permitted to change his defense in court as long as his original defense is not contradicted by witnesses.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAY ONE WITH A DOCUMENT COLLECT THROUGH A MIGO?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven challenged Shimon 'what are you doing on my
               field?' Shimon showed his document of purchase.
               Reuven said 'it is a forgery!' Shimon whispered to
               Rabah (who was judging the case) 'indeed, it is a
               forgery, but I had a proper document and lost it.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabah:</font></b> Shimon is believed. If he wanted to lie, he
               could have insisted that it is a proper document!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> We cannot rule in Shimon's favor due to
               the document, for we now know that the document is a
               forgery!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> (In another case,) Levi asked Yehudah to pay the
               money he owes, and showed the loan document. Yehudah
               said that it is a forgery. Levi whispered to Rabah
               'indeed, it is a forgery, but I had a proper
               document and lost it.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rabah:</font></b> Levi is believed, for he could have insisted
               that it is a proper document!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> We cannot rule in his favor due to the
               document, for we now know that it is a forgery!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Idi bar Avin):</font></b> The Halachah follows Rav Yosef
               regarding money. We leave the money where it is
               (with Yehudah). The Halachah follows Rabah regarding
               land. Shimon is now on the land, so we leave him
               there.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Shevuos 42a:</font></b> Reuven claimed a Maneh from Shimon, and
               showed the loan document. Shimon claimed that he
               paid him. Reuven said 'that was Sitrai (you paid a
               different debt).'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> The Halachah is, if he paid without witnesses, Migo
               that Reuven would be believed to say that he was not
               paid, he is believed to say that he collected a
               different debt.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Kesuvos 87b - Question:</font></b> If she admits that she is
               not entitled to the amount written in her Kesuvah,
               must she swear about what she says that she is
               entitled to, in order to receive it?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If this is like admitting to partial payment,
                    she must swear. Or, perhaps it is different,
                    for she does not admit to any partial payment?
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Beraisa):</font></b> One who admits that she is not
               entitled to the amount written in her Kesuvah
               receives the rest without an oath. If the Kesuvah
               says 1000, he says that he paid it, and she denies
               this but she admits that she accepted that it be
               only 100, she is paid without swearing.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> Why does she receive (100)? Her document
               is invalid!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer (Rava brei d'Rabah):</font></b> She says that he
               authorized the witnesses to write a Kesuvah for
               1000, and she promised to claim only 100.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Basra 16b):</font></b> The forged document was not a
               total forgery. If it were, Rabah would agree that it
               is totally invalid! Rather, it was Amanah (the
               borrower gave it to the lender before borrowing, and
               trusted him not to demand payment before he lends
               the money) He could have validated it in Beis Din.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bava Basra 3:12):</font></b> This is like Rav Hai Gaon
               and R. Chananel. The Rashbam says that the same
               applies to a total forgery that he could have
               validated, i.e. witnesses signed Sheker for him, or
               he himself forged so well that witnesses thought
               that it was their signatures. This is reasonable,
               for Amanah is as Pasul as a forgery. Surely, Rabah
               would not have honored the document without
               validation, for Reuven claimed that it was forged.
               The Rashbam says that once he admitted that it was a
               forgery, Rav Yosef considers this like a Migo
               against witnesses, for it is as if witnesses
               testified that it is Pasul. He holds that 'I bought
               it from you' and 'this is my document' are like one
               claim, for his entire claim is based on the
               document. This is wrong. His primary claim is 'I
               bought it from you.' The document is a mere proof.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Shevuos 6:19):</font></b> Why do we need a Migo to say
               Sitrai? Why is this different than saying 'you did
               not pay me at all'? It seems that Sitrai is not such
               a clear claim, for there is a Chazakah that one pays
               a loan with a document before paying a Milveh Al
               Peh. Therefore, we require a Migo that he did not
               pay at all, which is a strong claim. Ri ha'Levi says
               that if witnesses do not know why he gave the money,
               the lender can say that it was Sitrai, Migo he could
               say that it was a gift. Sitrai is not considered
               taking through a Migo. The document is valid in any
               case. The Migo enables him to keep the money he
               received without invalidating his document. The
               Ramban says that this is not a Migo. If we do not
               believe that he paid a Milveh Al Peh before a loan
               document, surely he did not give a gift to the
               lender before paying his loan! I agree.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 15:9):</font></b> Reuven had witnesses
               that a field was his. Shimon showed a validated
               document of purchase from Reuven. Reuven said that
               it was forged. Shimon said 'yes, it was forged, but
               I had a proper document, and I took this to scare
               him into admitting that he sold it to me.' Since he
               could have persisted that his document is valid, he
               is believed. We take the field from Reuven; Shimon
               must swear Heses.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 14:6):</font></b> Shimon showed a
               validated loan document against Reuven. Reuven said
               that it was forged, or was Amanah. Shimon said 'yes,
               but I had a proper document.' Even though he ruined
               his own document, for he could have denied that it
               is forged, he does not collect with it. Reuven
               swears Heses and he is exempt, for the document is
               worthless.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam explains that in the
                    episode n Bava Basra 32b, the document was
                    validated. This is like the Ge'onim and R.
                    Yonah. The Ramban and Rashba say that the
                    document was not validated when he claimed his
                    Migo, therefore, we do not honor his claim. Had
                    he validated it beforehand, he would have
                    collected.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Ramban (Bava Basra 32b DH Amai):</font></b> Shimon's document
               was not validated. Rabah ruled that he will be
               believed through Migo only if he validates it. Rav
               Yosef said that since he admitted that the document
               is worthless, we do not validate it. He was foolish
               to admit before validating it, and loses. The Gemara
               was unsure whom we follow, and ruled that we leave
               the money or land where it is. In Kesuvos (87b we
               ask 'how can she collect with a Pasul document?' We
               ask according to the conclusion here (like Rav Yosef
               regarding money). Alternatively, we asked according
               to everyone, for we understood that she cannot
               validate her document. In Shevuos (42a) we believe
               one to collect through a claim of Sitrai. This is no
               proof that one may take through a Migo. Sitrai is
               regarding the money he received and is Muchzak in,
               just it helps to collect the document
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Tosfos (Bava Basra 32b DH v'Hilchesa):</font></b> Normally, we
               do not take through a Migo. We do take through
               Sitrai, for there is a document.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rashba (Teshuvah 100, attributed to Ramban):</font></b> Even
               though one may not take through a Migo. Sitrai works
               because it is as if the bearer of a document is
               Muchzak in the money. It is like a Migo to avoid
               paying.
<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 83:4):</font></b> Shimon showed a validated
               loan document against Reuven, who said that it was
               forged, or was Amanah. Shimon said 'yes, but I had a
               proper document.' Reuven swears Heses and he is
               exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH To'an):</font></b> The Tur discusses when
                    Reuven said that it was Amanah or paid. All the
                    more so, Reuven swears Heses and he is exempt
                    if he said that it was forged.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (9):</font></b> The Tur did not discuss a forgery, for
                    it is rare that one claims that a validated
                    document is a forgery.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Drishah (5):</font></b> Here the Tur teaches that even
                    though the document is validated, if Reuven
                    said that it was Amanah or paid and Shimon
                    admits, Shimon is not believed through a Migo.
                    In Siman 146 (regarding a document of sale) the
                    Tur teaches the Chidush that even if it was not
                    validated, if Reuven validates it later he is
                    believed through a Migo.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (10):</font></b> Even those who say that we may take
                    through a Migo (Rema 82:12) admit that here we
                    do not, for Shimon admits that his initial
                    claim was with a false document. Migo is only
                    to prove that his claim was true. Why does Ir
                    Shushan say that the reason is because one may
                    not take through a Migo? Meforshim argue about
                    taking through a Migo, but the Shulchan Aruch's
                    law is explicit in the Gemara!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rebuttal (Shach 7):</font></b> Ir Shushan is correct.
                    Tosfos said that <i>Rav Yosef</i> rejects the Migo
                    because his initial claim was with a false
                    document. This is unlike Rav Idi, who ruled
                    like Rabah regarding land! Rather, even if the
                    initial claim was false, Migo helps to avoid
                    paying, but not to take. All the Poskim rule
                    like this. The Gemara brings the Shulchan
                    Aruch's law, but it did not say that the
                    document was validated. The opinion that we may
                    take through a Migo holds that it was not
                    validated, but if it were, he would collect.
                    The Rema relied here on what he wrote in the
                    previous Siman. The Darchei Moshe explicitly
                    says that the Ramban and Rashba argue here.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b> Question (Gidulei Terumah, brought in Shach 9):
                    The Ramban and Rashba hold that Shimon is
                    believed, because his document was validated.
                    They hold that regarding land he is believed
                    even though his document was not validated when
                    he admitted. This is difficult. We say in
                    Kesuvos (87b) that one cannot collect with an
                    invalid document!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Answer (Shach):</font></b> They hold that after he
                    validates his document, he is believed through
                    his Migo.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Shach (87:29):</font></b> Maharshach asked that even
                    Tosfos, who holds that one may not take through
                    a Migo, proved from Sitrai that we may take
                    when there is a document! Sefer ha'Terumos
                    answered that this is only when there is a
                    Kosher document, and a document on Tanai is
                    like a Pasul document. I disagree (87:28). Also
                    the Ramban (see Teshuvas ha'Rashba above)
                    allows one with a Kosher document to take
                    through a Migo. According to this, according to
                    the Mechaber (58:2, 70:4) one cannot claim
                    Sitrai with a Milveh Al Peh even if he
                    stipulated that he must be paid in front of
                    witnesses.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Ketzos ha'Choshen (82:10):</font></b> If one admitted that
                    her Kesuvah was partially paid, she swear. R.
                    Yonah (Shitah Mekubetzes Kesuvos 87b) says that
                    she is not believed due to a Migo, for it is to
                    take. R. Yerucham asked that one with a Kosher
                    document is believed to take! Perhaps R. Yonah
                    disagrees. The Ramban rejected the proof from
                    Sitrai. It is not a Migo to take, rather, to
                    keep the money he received without
                    disqualifying his document. Or, we take with a
                    Migo only if the document can collect from
                    Meshubadim; one cannot do this with a partially
                    paid document (<b>SMA</b> 55:6).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN MAY WE TAKE THROUGH A MIGO? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Reuven:</font></b> That is a forgery!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Shimon whispered to Rabah (who was judging the case)
          'indeed, it is a forgery, but I had a proper document and
          I lost it.' (The case is, Shimon could have validated the
          document.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rabah:</font></b> Shimon is believed. Had he wanted to lie, he
          could have insisted that it is a proper document!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rav Yosef:</font></b> We cannot rule in Shimon's favor due to the
          document, for now we know that the document is a forgery!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Levi asked Yehudah to pay the money he owes, and showed
          the loan document.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Yehudah:</font></b> That is a forgery!
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Levi whispered to Rabah 'indeed, it is a forgery, but I
          had a proper document and I lost it.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rabah:</font></b> Levi is believed, for he could have insisted
          that it is a proper document!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rav Yosef:</font></b> We cannot rule in his favor due to the
          document, for now we know that it is a forgery!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Idi bar Avin):</font></b> The Halachah follows Rav Yosef in a
          dispute over money. The Halachah follows Rabah in a
          dispute over land. (Rashbam - we are in doubt whom the
          Halachah follows, so we leave the property where it is;
          Tosfos - we apply Migo only to keep property, but not to
          take it.)0
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Halachah follows Rabah in a dispute over
               land. Shimon is now on the land, we leave him there;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Halachah follows Rav Yosef in a dispute over
               money. We leave the money where it is (with
               Yehudah).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BORROWING BACK MONEY THAT WAS PAID UP</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven, the Arev (guarantor) for a loan, told Shimon
          (the borrower) 'I paid up your loan. Here is the
          document. Pay me back.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Shimon:</font></b> I already paid you back!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Reuven:</font></b> You borrowed the money back again!
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Shimon denied this.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Idi bar Avin):</font></b> What is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> Why do you ask? You yourself
               said that the Halachah follows Rabah regarding land,
               and Rav Yosef regarding money! (This is a case of
               money, so) we leave the money where it is (with
               Shimon)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if Reuven claims that Shimon
               borrowed the money again. If Reuven says that he
               returned the coins because they were rubbed out or
               reddish (and he demands to receive good coins), the
               document is still in force, and Shimon must pay.
<br>

<p>

sjt:
</p><p>
<font><b>2) VALIDATING AN INVALID 'SHTAR'</b></font><b>
<br>QUESTION:</b> The Gemara records a case in which a defendant presented a Shtar to support his claim that he bought the field from the original owner. When the original owner claimed that the defendant's Shtar was forged, the defendant whispered to Rabah that his Shtar indeed was forged, but that he did have an authentic Shtar but it was lost. Rabah accepted the defendant's second claim, based on a Migu that he could have remained quiet and won the case with his original claim (that the Shtar he was holding was a valid Shtar).
</p><p>
Why would he have won the case? When a litigant claims that his opponent's Shtar is forged, the bearer of the Shtar must be Mekayem (validate) the Shtar. This Shtar obviously was not validated earlier, because if it had been the claimant would not have been able to claim that it was forged.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> writes that Rabah did not give unconditional credibility to the defendant. Rather, he ruled that if the Shtar is so well forged that the defendant succeeds in bringing witnesses to validate the Shtar, then he will be believed with a Migu.
</p><p>
If witnesses would validate the Shtar, why would Rabah believe the defendant to say that this is not the original Shtar and that he had another Shtar? Making such a claim would contradict the witnesses whose signatures on the Shtar have been validated and who claim that this Shtar <i>is</i> the genuine, valid Shtar that was written for the sale. Consequently, the defendant's Migu would contradict the testimony of witnesses and should not be believed!
</p><p>
It is true that Rabah himself suggests that a Migu is believed against the testimony of witnesses (31a). However, the Rashbam there writes that Rabah changed his mind. In addition, Rav Yosef in the Gemara here does not argue with Rabah based on the rule that a Migu is not believed against witnesses, but rather he presents a different argument against Rabah's ruling.
</p><p>
Perhaps the Rosh maintains that even though witnesses testify that the Shtar is an original bill of sale, nevertheless the defendant's claim that he had another Shtar which was lost does not contradict the witnesses because it is possible that the seller wrote two Shtaros for the same sale.
</p><p>
(This approach might be an additional reason for why the Rosh does not accept the Rashbam's explanation that the defendant was presenting a second claim in court ('To'en v'Chozer v'To'en'; see previous Insight). The Rosh maintains that the second claim is not considered a separate, different claim, because it is not contradicted by the first claim. The first claim (that this is the genuine Shtar) does not preclude the second claim (that there is another Shtar that was lost, which was the genuine Shtar), because it is possible that the seller wrote two Shtaros for this sale.)
</p><p>
(b) The <b>RASHBAM</b> cites <b>RABEINU CHANANEL</b> who explains that the Shtar was not a complete forgery. Rather, it was a 'Shtar Amanah,' a 'Shtar of trust' written before any transaction was made. Since the Shtar is actually signed with the witnesses' handwriting, it is clear that the defendant would have been able to be Mekayem the Shtar.
</p><p>
The Rashbam adds that it is possible that the Shtar <i>is</i> a complete forgery, but the defendant claims that it is such a good forgery that the witnesses themselves would be fooled by it (and think that the forged signatures in the Shtar are indeed their signatures) and be Mekayem it. (It seems that the witnesses were brought to validate the Shtar, and they were about to validate it when the defendant whispered his admission to Rabah.) Therefore, had he wanted, he would have been able to be Mekayem the Shtar.
</p><p>
(c) The <b>RAMBAN</b> and <b>RASHBA</b> write that this question is the basis for Rav Yosef's reason for rejecting the claim of the defendant. The Shtar was not Mekuyam, and therefore the defendant had no Migu. Rabah maintained that the Shtar could be validated even <i>after</i> the defendant admitted that it was false (as the Rosh maintains). Rav Yosef argues that once the defendant admits that the Shtar is false, validating in court will be a farce. Since the court does not allow the defendant to validate the Shtar, he does not have a Migu and Beis Din believes the claimant who says that the sale never took place.
</p><p>


<font><b>3) AN 'AREV' WHO DEMANDS PAYMENT FROM THE BORROWER</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which an Arev, a guarantor, came to collect 100 Zuz from the borrower whose loan he guaranteed and which he paid to the lender on behalf of the borrower. He presented a Shtar to the borrower to prove that he paid the loan. The borrower rejoined that he had already repaid the Arev. The Arev then claimed that it is true that the borrower repaid him, but that he gave the money back to the borrower as a loan, and it is that money which the Arev now demands from the borrower.
</p><p>
Abaye ruled that the Arev is <i>not</i> believed with a Migu that he could have claimed that the money was never repaid to him, since he admits that it was repaid and that the Shtar he is holding is not a valid Shtar for the debt that he claims is owed to him.
</p><p>
The <b>RASHBAM</b> (DH d'Parati) explains that the Arev was an 'Arev Kablan' (a guarantor who commits himself to pay back the debt even when the borrower has money with which he can repay), or that the lender stipulated at the time of the loan that he has the right to collect the money from the Arev first if he wants without first claiming it from the borrower.
</p><p>
How does the Rashbam know that this incident involved an Arev Kablan? Perhaps he was a normal Arev who paid the debt because the borrower had no money with which to pay; the borrower later obtained some money, and the Arev went to collect from him! (<b>SHITAH <b><b>LO</b></b> NODA L'MI</b> cited by the Shitah Mekubetzes; see his answer there.)
</p><p>
Moreover, why does the Gemara need to point out that the case involved an Arev who was collecting from the borrower? The Gemara could have related the same Halachah in a case where the lender himself (and not an Arev) comes to collect money from the borrower. The borrower claims that he repaid, and the lender agrees to the borrower's claim but asserts that he loaned the money a second time to the borrower.
</p><p>
<b>ANSWER:</b> The Gemara says that the Arev presented the Shtar to the borrower. The implication of the Gemara is that he presented to the borrower the original Shtar that the borrower had written for the lender. That is, when the Arev paid the lender, he took the Shtar from the lender in order to use it to collect the money from the borrower, as the Rashbam (DH v'Ha Shtara) explains (in contrast to the explanation of the <b>RASHBA</b>). A normal Arev does not take the place of the borrower, but rather he guarantees the loan and pays it back for the borrower in the event that the borrower cannot pay. Therefore, the lender would not give his Shtar to the Arev, since the Arev is a third party and is not the one who borrowed the money (see Bava Metzia 77b). Instead, the lender writes to the Arev a new Shtar saying, 'I received money from the Arev as repayment for the borrower's loan.' Since, in the case of the Gemara, the lender gave the original Shtar to the Arev, it must be that he is an Arev Kablan who himself is considered a borrower (as the Gemara in Bava Metzia there says). Upon payment, he receives the original Shtar from the lender, and he now becomes a lender and collects the money from the borrower. That is why the Rashbam explains that the Arev in this case is an Arev Kablan.
</p><p>
The reason why the Gemara specifically chooses this case is as follows. Had the case involved a normal lender it would have been obvious to Rav Idi bar Avin that Abaye is correct, and that this case is comparable to a case in which the lender admits that the Shtar is forged. Even if the lender gave a new loan to the borrower, the old Shtar is invalid because the loan of that Shtar was repaid, and this is a new loan. If this would have been the original loan, then there would have been no point in having the lender take the money only to give it back to the borrower. However, in the case of an Arev Kablan, it is possible that the Arev asked for the money because he thought that the borrower had money with which to pay back. Conversely, the borrower paid the Arev Kablan because the Arev Kablan never loaned money to him, and therefore he did not know that the Arev Kablan would agree to let him pay back later. In such a case, when the Arev Kablan returns the money to the borrower as a loan, it is possible that it is not a new loan, but rather he is allowing the borrower to hold on to the money until later. Hence, the Shtar of the original loan is still a valid Shtar. That is why Rav Idi bar Avin thought that specifically in the case of an Arev, the Arev might be believed with a Migu. (M. Kornfeld)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A MIGO TO COLLECT A DEBT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	People were saying that Rava bar Sharshom was eating
          the Peros of orphans' land.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> What actually happened?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> I took the land for Mashkanta from their
               father, who owed me also other money as well. I did
               not want to return the land after the Mashkanta
               expired, for then I would need to swear (like anyone
               who wants to collect from orphans);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, I concealed the Mashkanta document, in
                    order to continue eating the Peros until I
                    collect the other loan as well;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Migo that I would be believed to say that I
                    bought the land, I am believed to say that they
                    owe me the money.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Abaye:</font></b> You have no Migo to say that you bought
               it, for people know that it belongs to the orphans;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, you must return the land to them. When
                    they grow up, you will claim your debt from
                    them.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DO WE CONSIDER A CONCESSION TO BE AN ADMISSION?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rav Idi bar Avin's relative died, and left a date tree.
          Rav Idi and another relative (Reuven) each said 'I am the
          heir.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 (Tosfos):</font></b> Eventually, Reuven conceded (the
          tree) to Rav Idi. Rav Chisda ruled that Rav Idi owns the
          tree.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Idi:</font></b> He must return the fruit that he ate all
               this time!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> You have the tree only based on his
               admission. He says that he is the heir (and he just
               gave it to you for a gift)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Abaye and Rava):</font></b> Rav Idi is right. Reuven's
               admission is that Rav Idi is the true heir.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 (R. Chananel):</font></b> Eventually, witnesses came
          and testified that Rav Idi was a relative. Since Reuven
          could not prove that he was a relative, Rav Chisda ruled
          that Rav Idi owns the tree.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Idi:</font></b> He must return the fruit that he ate all
               this time!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> You have no witnesses that he ate
               fruit, only his admission. He says that it is his
               (and you cannot disprove this)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Abaye and Rava):</font></b> Rav Idi is right. Since Reuven
               admitted that he ate the fruit, once we rule that
               Rav Idi owns the tree, Reuven must pay.
<br>
<br>

sjt:
<font><b>1) THE DISPUTE BETWEEN RELATIVES OVER AN INHERITANCE</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rav Idi bar Avin had a dispute with his relative about who had rights to inherit the tree of a third relative who had died. Rav Idi bar Avin claimed that he was more closely related to the deceased relative, and therefore <i>he</i> should inherit the tree. The other relative claimed that <i>he</i> was more closely related and that <i>he</i> should inherit it. Before the case was settled, the other relative took the tree for himself and ate its fruit. Later, he admitted that Rav Idi bar Avin was a closer relative. Rav Chisda ruled that although the tree must be given to Rav Idi bar Avin, the relative does <i>not</i> have to pay for the fruit that he ate until then, because he was eating the fruit with his original claim that he was the closer relative. Abaye and Rava argued and said that the relative does have to pay for the fruit since, by his own admission, he is not the closer relative, and thus he ate the fruit unlawfully.
</p><p>
What was Rav Chisda's logic for not obligating the relative to pay for the fruit? While it is true that he originally claimed to be the rightful heir, he later admitted that his claim was false!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> writes that Rav Chisda understood the admission to be merely a guise for giving a present to Rav Idi bar Avin. The relative did not really mean that Rav Idi was the rightful owner of the tree; he just wanted to give a gift to Rav Idi, and therefore he said that Rav Idi was the closer relative and deserved to have the tree.
</p><p>
Why, though, did Rav Chisda not take his admission literally? Apparently, Rav Chisda maintained that had the relative meant what he said (that Rav Idi was the closer relative), he never would have taken the fruit in the first place. The fact that he ate the fruit until now shows that he sincerely thought that he was the rightful owner of the tree. (<b>TOSFOS</b> changes the Girsa because of this question and writes that the relative did <i>not</i> admit openly that Rav Idi was a closer relative.)
</p><p>
(b) The <b>TZAFNAS PANE'ACH</b> (Hilchos Na'arah Besulah 1:1) explains that Rav Chisda maintained that the credibility of Hoda'as Ba'al Din is not based on the defendant's trustworthiness when he says something to his disadvantage. Rather, it is a way of obligating oneself ('Hischaivus') to give something to someone else, like an act of Kinyan (such as a Matanah, gift). (See Insights to 6:2, Bava Basra 149a, and <b>KETZOS HA'CHOSHEN</b> 34:4.)
</p><p>
(c) The <b>CHASAM SOFER</b> explains that Rav Chisda maintained that Rav Idi bar Avin lost his title to the tree since he despaired of ever receiving it ('Ye'ush'), and he did not think that his relative would ever admit that he was the closer relative. Consequently, the other relative became the legal owner of the tree and indeed was entitled to eat the fruit.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ONE WHO LOSES LAND PAY FOR THE PEROS HE ATE?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Idi bar Avin's relative died, and left a date
               tree. Rav Idi and another relative (Reuven) each
               said 'I am the heir.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Eventually, Reuven admitted that Rav Idi is a closer
               relative. Rav Chisda ruled that Rav Idi owns the
               tree.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Idi:</font></b> He must return the fruit that he ate all
               this time!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> You have the tree only based on his
               admission. He says that he is the heir (and he just
               gave it to you for a gift)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Abaye and Rava):</font></b> Rav Idi is right. Reuven's
               admission is that Rav Idi is the true heir.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 33b:</font></b> Yehudah claimed that he bought Levi's land, and
               ate the years of Chazakah. He brought witnesses that
               he ate the Peros for two years.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> He must return the land and two years
               worth of Peros.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 34b (Rav Nachman):</font></b> If Reuven and Shimon each claimed
               'I inherited this land from my fathers', Kol d'Alim
               Gevar (whoever overpowers will take 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 (3:19):</font></b> The Halachah follows Abaye and
               Rava.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ba'al ha'Ma'or:</font></b> Likewise, if Moshe says 'I
                    bought this land from Ploni, who bought it from
                    you', if he cannot bring witnesses that Ploni
                    lived there for a day, like the case of R.
                    Chiya, he is not believed to say that he saw
                    Ploni live there. He is believed only if he
                    says that he saw Ploni buy it from the seller
                    (but not through a Migo). We say 'if you saw
                    him there for a day, surely also others did. It
                    should have a Kol (hearsay). Bring witnesses!'
                    The only time we use Migo is when one witness
                    says that he ate for three years, for testimony
                    about three years of Chazakah is difficult to
                    bring. Therefore, he gives back the land, but
                    he is exempt for Peros that he ate.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal #1 (Ra'avad):</font></b> If one was Machazik for
                    three years, there is a Kol. It is harder to
                    find testimony about one day! R. Chiya does not
                    accept a Migo (he could have said that he
                    himself bought it from the seller) because we
                    do not belittle Chazakah to allow two
                    leniencies, i.e. to claim on behalf of a buyer
                    and Migo.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal #2 (Milchamos Hash-m):</font></b> It is harder to
                    find testimony about one day than about three
                    years! Since it is a short time, it is not
                    known. Even if two or three people saw that
                    day, Moshe cannot chain them to his leg so he
                    can bring them to Beis Din years later! Even if
                    Ploni was there for a night, this suffices. The
                    Ba'al ha'Ma'or says that we do not say Migo
                    when it should be easy to bring witnesses. We
                    asked that one should be believed about his
                    Bechor due to a Migo (that he could give an
                    extra share to him before death - Bava Basra
                    127b). One is believed to say 'I have children'
                    to exempt his wife from Yibum, Migo he could
                    divorce her. It is easy to find witnesses about
                    these!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Reuven had seized the tree through Kol d'Alim
               Gevar. Some say that Rav Idi brought witnesses that
               he was a closer relative; some say that Reuven
               admitted that Rav Idi is a closer relative.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Reuven has a Migo. Since he
                    could say that he did not eat Peros, he should
                    be believed to say that he ate his own! 
                    However, since the land goes to Rav Idi, also
                    the Peros do, for Reuven admitted. The same
                    applies to one who ate the Peros for two years.
                    Peros of the third year do not go back. If
                    there were no witnesses that he ate Peros, he
                    would not return any Peros. If we would believe
                    that he ate for three years, we would give the
                    land to him! If a scribe said that he wrote the
                    names of Hash-m in a Sefer Torah Lo Lishmah,
                    the scribe is believed to forfeit his wages,
                    but not to disqualify the Sefer, even though
                    these depend on each other (Gitin 54b)! All the
                    more so we should believe him only to obligate
                    himself, for perhaps he ate three years even
                    though he did not buy it! There is different.
                    Since the buyer has the Sefer Torah, it is as
                    if witnesses say that it was written Lishmah.
                    He is believed to forfeit his wages because
                    admission is like 100 witnesses.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 15:3):</font></b> If Levi took possession
               of a field, under the assumption that he is the
               heir, and ate the Peros, and it was found that David
               is really the heir, whether witnesses said so or
               Levi admitted, he must return all the Peros he ate.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Lechem Mishneh:</font></b> There is a bigger Chidush
                    according to R. Chananel's text, that even
                    though we are unsure whether or not Reuven is
                    an heir, he must return the Peros. Surely, had
                    the Rambam agreed to this Chidush, he would
                    have taught it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Ramban (33a DH v'Hahu):</font></b> If the witnesses only said
               that Rav Idi is a relative, all should agree that
               Reuven is believed (about the Peros) through a Migo!
               We say such a Migo for one who had no witnesses of
               Chazakah! If the witnesses said that Rav Idi is a
               closer relative, why did Rav Chisda exempt Reuven?
               This is like Rav Chisda said elsewhere, that Migo is
               believed against witnesses. Had he said 'I meant
               that I am closer regarding the Peros, for I bought
               them from Rav Idi' he would be believed. Therefore,
               he is believed, Migo he could have said this. Abaye
               and Rava do not say Migo against witnesses. The
               Gemara did not say so, for here the witnesses did
               not obligate Reuven; his admission did. I say that
               the text says only that he claimed to be a relative;
               he was unsure whether or not he also inherits. The
               witnesses said that the deceased died childless (so
               Rav Idi surely inherits). We did not know if Reuven
               was a nephew or cousin. Rav Chisda held that (for
               Peros) he is believed to say that he is a nephew and
               he ate his share, Migo he could have denied that ate
               Peros. Abaye and Rava say that a Safek cannot take
               from a Vadai, even through a Migo.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH l'Sof):</font></b> Had witnesses said
                    that Rav Idi is a closer relative, Rav Chisda
                    would have agreed that Reuven must pay for the
                    Peros. Had Reuven claimed that he inherits
                    alone, Abaye and Rava would have agreed that he
                    need not pay.
<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 139:4):</font></b> If two were arguing about
               a field, and neither was Muchzak, e.g. the owner
               died and David and Levi came to inherit him and each
               claims 'I am a relative, and I inherit', and neither
               has witnesses, Kol d'Alim Gevar (whoever overpowers
               will take it). If Levi overpowered and ate the
               Peros, and afterwards David brought witnesses that
               David is a relative, and the witnesses do not know
               whether or not Levi is a relative, we take it from
               Levi, who is a Safek relative, and give it to David,
               who is a Vadai relative. The same applies if David
               brought witnesses that David is a closer relative.
               Levi must return all the Peros that he ate, even if
               our only source that he ate is his admission.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Im):</font></b> The Ri prefers R.
                    Chananel's text, which says that later,
                    witnesses testified that Rav Idi was a
                    relative. Before this, Reuven took it for he
                    was stronger. When each of two people claims
                    that he inherited a field from his fathers, we
                    say Kol d'Alim Gevar. Rav Chisda gave the field
                    to Rav Idi, for he was a Vadai relative, and
                    Reuven was a Safek. It seems that the in
                    Rambam's text, the witnesses testified that Rav
                    Idi was a closer relative. The Magid Mishneh
                    says that all agree to the Rambam's law. Since
                    he admitted that he ate, and witnesses said
                    that Rav Idi is the heir or Reuven admitted to
                    this, we force him to pay what he ate.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (8):</font></b> This is even if Levi ate for three
                    years. Since he did not say that he bought it,
                    three years does not prove that it is his. His
                    only right to eat the Peros was due to (his
                    claim of) owning the land. Since the witnesses
                    say that the land is not his, he has no Migo,
                    therefore, he must pay.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (7):</font></b> This is unlike when Yehudah
                    claimed that he ate Peros for three years, and
                    witnesses testified that he ate the Peros for
                    two years. He pays only for the two years.
                    There, if we will believe that he ate for three
                    years, he has a Chazakah and the entire land
                    belongs to him. We do not apply Shuda (the
                    judges' discretion) here, for it is possible to
                    clarify the matter. Therefore, we say Kol
                    d'Alim Gevar.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (5):</font></b> We can explain the Shulchan Aruch
                    and Tur like the Ramban, who says that Reuven
                    himself is unsure (if he is an heir),
                    therefore, he is not believed through a Migo.
                    However, in Siman 145 the Tur holds like Tosfos
                    (that the Migo was against witnesses). The
                    Rivash, Nimukei Yosef, Rashbam and Ba'al
                    ha'Ma'or hold like the Ramban; this is primary.
<br>

<p>


lvr: 43
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PARTIAL TESTIMONY OF CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven and Shimon both claimed 'I inherited this land
          from my fathers'. Two witnesses testified that it
          belonged to Reuven's fathers, and two testified that
          Shimon ate it the years of Chazakah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> Shimon is believed, Migo he could
               have said that he bought it from Reuven and ate the
               years of Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Abaye and Rava:</font></b> No. Migo is not believed against
               witnesses. (Rashbam - the witnesses said that
               Reuven's fathers never sold it to Shimon's fathers;
               Tosfos (31A) - saying 'the land was from my fathers'
               implies that it was always theirs.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Levi (to Yehudah):</font></b> You are on my land!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Yehudah:</font></b> I bought it from you, and I ate the years of
          Chazakah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Yehudah brought witnesses that he ate the Peros
               for two years.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> He must return the land and two
               years worth of Peros.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rav Zvid:</font></b> Had Yehudah originally claimed that rented
          the land, he would be believed (he would not have to pay
          for the Peros). We learn from Rav Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If Reuven held reaping tools and
               said 'I am going to reap Shimon's tree. I bought it
               from him', he is believed, for one is not so brazen
               to reap another's Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here also, Yehudah is not so brazen to eat
               another's Peros.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, when he claims the land, we should
          believe him, for he would not be so brazen to eat
          another's Peros!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Had he bought the land, he would have a
          document.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Also if he rented the land, he should have a
          document!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> People do not write documents for Peros.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Yosef challenged David:</font></b> You are on my land!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	David:</font></b> I bought it from you, and I ate the years of
          Chazakah!
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	David brought one witness who said that David ate the
          years of Chazakah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rabanan:</font></b> This is like R. Aba's (coming) law of the
          ingot! (Tosfos - since David cannot swear that he did not
          eat, he must pay for the Peros for those years.)
<br>

<p>

sjt:
</p><p>
<font><b>2) A PERSON IS NOT SO BRAZEN</b></font><b>
<br>QUESTIONS:</b> The Gemara says that a person who eats the fruit of another person's field and claims that he was a sharecropper (and that is why he ate the fruit) is believed. The Gemara cites proof for this ruling from the statement of Rebbi Yehudah, who says that when a person declares that he is going to harvest the fruit of another person's tree because the other person sold him the fruit, he is believed. The reason he is believed is that a person is not so brazen ('Lo Chatzif Inish') as to harvest the fruit of a tree which is not his. Similarly, a person is not so brazen as to claim that he was a sharecropper on the field of someone else if he really was not a sharecropper. However, this logic of 'Lo Chatzif' does not apply to land; if a person does not have a Chazakah of three years, he cannot claim that he bought the entire land based on the logic that a person would not be brazen to stay in someone else's field (for less than three years) without permission. The reason for this is that if he actually bought the field, then he should have a Shtar to prove his ownership. In contrast, people do not write Shtaros for fruit, and therefore one is not expected to have a Shtar to prove his ownership.
</p><p>
(a) Why does the Gemara need to present the reason of 'Lo Chatzif,' that a person is not brazen, in order to give the Machzik the right to keep the fruit? Fruit is like any other Metaltelin, mobile property, for which a 'Chezkas Mamon' (or 'Chezkas Metaltelin') applies. If the food is in his hands and he claims that he purchased it, then it may be assumed to belong to him! Only with regard to <i>land</i> must the Machzik have possession of the disputed object for three years.
</p><p>
(b) The converse question may be asked as well: why does the law say that a person has the right of ownership to Metaltelin because he is 'Muchzak' and not because of the logic of 'Lo Chatzif'? The object should be assumed to be his not because he is 'Muchzak' but because a person is not so brazen as to take another person's object!
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rishonim offer different answers to this question,
</p><p>
1. <b>TOSFOS</b> (DH v'Iy Ta'in) writes that a 'Chezkas Metaltelin' suffices to give the right of ownership to the Machzik. The Gemara introduces the new logic of 'Lo Chatzif' only to explain why the Machzik has the rights even to fruit that he picked <i>and deposited elsewhere</i> and is no longer holding. Since he is not holding the fruit at the moment, he does not have a 'Chezkas Metaltelin.'
</p><p>
The Acharonim ask why the Machzik should not have a Chazakah even on the fruit which is not in his hands. Although they are not in his hands at present, people saw him pick the fruit, and at that moment they <i>were</i> in his hands. The fruit that he deposited elsewhere should belong to him because of that Chazakah.
</p><p>
<b>HA'GA'ON RAV NAFTALI TROP</b> zt'l answers that although there is a Chazakah that an object in a person's possession is assumed to be his (because of the assumption that a person is not a thief), that is not a strong enough reason to be <i>certain</i> that the object is his. Rather, a doubt remains about the true ownership of the object (perhaps the person who is holding the object purchased it from the original owner, or perhaps he stole it). The Halachah says that in a case of such doubt, the object should stay in its present domain (i.e. in the hands of the Machzik). When, however, the Machzik is no longer holding the object, the Halachah also says that it should remain where it is, and thus the Machzik is not entitled to keep it, but rather 'Kol d'Alim Gevar' applies.
</p><p>
An alternate approach may be as follows. Although the earlier Chazakah that the Machzik had on the fruit shows that he <i>did</i> purchase the fruit from the original owner, once the fruit is no longer in the Machzik's possession the original owner may claim that he <i>never</i> sold it to the Machzik, based on a Migu: he could have said that he purchased the fruit back from the Machzik, and therefore he is believed to say that the fruit always belonged to him. Unless the Machzik can prove that he deposited the fruit in the other field, he is not presumed to be the rightful owner, and the principle of 'Kol d'Alim Gevar' applies. (M. Kornfeld)
</p><p>
How, then, does the logic of 'Lo Chatzif' override this Migu and give the rights of ownership to the Machzik? The answer is that the logic of 'Lo Chatzif' is considered so strong that a Migu that counters it is like a 'Migu b'Makom Edim,' a Migu that counters witnesses, which is not a valid Migu, as the <b>RAMBAN</b> writes. (See <b>RASHASH</b> and <b>CHIDUSHEI RABEINU MEIR SIMCHAH</b>. See also <b>TOSFOS</b> to 35b, DH v'Iy Dali, who suggests similarly that sometimes a logical reason (Sevara) can transform a Migu into a 'Migu b'Makom Edim.')
</p><p>
2. The <b>HAGAHOS MAIMONIYOS</b> (Hilchos To'en v'Nit'an 9:5) in the name of the <b>RITZBA</b>, cited by the <b>KETZOS HA'CHOSHEN</b> (137:1), answers that a Chazakah works because it is assumed that the Machzik took the object with the consent of the previous owner. However, if people witness the Machzik as he enters the property of the previous owner and removes the object when the previous owner is not present, he will not have a Chazakah. The fact that he took the object from inside someone's home when the owner was not present is enough to cast doubt on the legitimacy of his claim of ownership of the object. Since in the case of the Gemara here, the Machzik was collecting the fruit when the previous owner was not present, he is not entitled to the fruit through the normal law of 'Chezkas Metaltelin' if not for the logic of 'Lo Chatzif.'
</p><p>
The Ritzba cites support for this principle from the case of 'Nascha d'Rebbi Aba,' in which case the one who seized the object does not have a Chazakah on the object. (Tosfos apparently differentiates between grabbing, which is clearly done without the owner's consent, and taking something from the owner's house when he is not present.)
</p><p>
Many Rishonim rule, like the Ritzba, that taking an object when the owner is not present does not create a Chazakah (see <b>RAMBAM</b>, Hilchos Gezeilah v'Aveidah 4:12, <b>RIF</b> and <b>ROSH</b> to Shevuos 46a, and <b>SHULCHAN ARUCH</b> CM 90:14). This also seems to be the intention of the <b>RITVA</b> (22a, DH Minayin).
</p><p>
(b) Why does the logic of 'Lo Chatzif' not apply in every case of doubt about the ownership of Metaltelin? It seems that the logic of 'Lo Chatzif' applies only to an object which is outside of one's home and which a person uses over a period of time in front of the eyes of the public. In such a case, it is assumed that a person would not have taken the fruit from the field unless the fruit was actually sold or gifted to him. In contrast, other types of Metaltelin, which a person uses in the privacy of his own home, may be taken surreptitiously from inside the owner's home and are used inside the Machzik's home in private while no one is watching. Consequently, the logic of 'Lo Chatzif' does not apply. Instead, the logic that a person is not assumed to be a thief applies, and it is assumed that the Machzik is the rightful owner of the object and that he did not steal it (he has a 'Chezkas Kashrus' that he is not a thief). Such a Chazakah is less powerful than the Chazakah of 'Lo Chatzif Inish.'
</p><p>
(Aside from the logic that a person is not assumed to be a thief, there is a second element implicit in a 'Chezkas Metaltelin': When there is a doubt about the ownership of an object, the object is left where it is and is not taken out of its present domain without definitive proof ('ha'Motzi me'Chaveiro Alav ha'Re'ayah'). This element of the Chazakah applies even when the doubt about who owns the object has nothing to do with whether the Machzik is a Ganav, such as in a case in which both litigants have a 'Ta'anas Shema,' a claim of uncertainty, or, like the case on 32b, where there is a Safek in Halachah and the ruling is 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' This element of the Chazakah applies to land as well, according to the Rashbam (see Tosfos there), and that is why the Rashbam there says that even if a person does not have a Chazakah of three years on a field, he is considered the Machzik with regard to 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' and he may remain on the land.)
</p><p>
It is evident from this Gemara that the reason why the logic of 'Lo Chatzif' does not allow Beis Din to grant the land to the person who presently occupies it is the counter logic of 'Achvi Shtarach' -- 'show your Shtar.' This idea provides a key to understanding the difference, in general, between the laws of ownership of land and the laws of ownership of Metaltelin. Why is the Chazakah on land not immediate, as it is on Metaltelin? Why is it not assumed that when a person is in possession of land, he owns that land and is not a thief? The Gemara says that the reason why such logic does not apply to land is that in the case of land there is a strong counter claim of 'Achvi Shtarach'; if the Machzik is the true owner, then he should still be in possession of the Shtar. If he does not have the Shtar, then we must suspect that something is not right. That logic is so strong that it overrides even the logic of 'Lo Chatzif Inish.' Accordingly, it certainly overrides the logic that a person is not assumed to be a thief. The reason why a person <i>does</i> have a Chazakah for an object of Metaltelin is that a person usually does not write a Shtar for the sale of Metaltelin. This is also evident from the Rashbam later (42a, DH Ein Lahem Chazakah). (See also Insights to 36:1:b.) (M. Kornfeld)
</p><p>



</p><p>


