# dafyomi

lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>R. ABA'S LAW OF THE INGOT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	One witness testified in front of R. Ami that Reuven
          grabbed an ingot from Shimon. Reuven said 'yes, I grabbed
          it. It is mine!'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (R. Ami):</font></b> What is the law? We cannot obligate
          Reuven based on one witness, nor can we totally exempt
          him!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashbam):</font></b> We cannot require him to
               swear (to contradict the witness, and say that he
               did not take it), for he admits that he took it!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In this sense he is like a thief, who cannot
                    swear. (However, a thief cannot swear because
                    he is not believed.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Rashba):</font></b> We cannot require him to
               swear that he took his own ingot. Shimon was Muchzak
               in what he was holding. It is as if Reuven admits
               that he stole it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Aba):</font></b> He is obligated to swear, but he
          cannot, therefore he must pay.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WITNESS FOR CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rejection (of Rabanan, Sof 33b - Abaye):</font></b> Our case (one
          witness said that David ate the years of Chazakah) is
          unlike that of R. Aba!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In R. Aba's case, the witness comes to obligate
               Reuven. If a second witnesses were with him, all the
               more so Reuven would have to return it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here, the witness comes to support David. If a
               second witness were with him, David would keep the
               land and Peros! (Therefore, David does not pay for
               the Peros.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Abaye):</font></b> Rather, if one witness testified that David
          ate the fruit for two years, we would learn from R. Aba's
          law. (Since David cannot swear that he did not eat, he
          would pay for the Peros for those years.)
<br>
<br>

sjt:
<font><b>1) THE CASE OF 'NASCHA D'REBBI ABA'</b></font><b>
<br>QUESTION:</b> The Gemara discusses the case of 'Nascha d'Rebbi Aba,' the bullion (bar of silver or gold) that a certain person snatched from another person. One witness testified that he saw the defendant seize the object. The defendant admit that he seized the object, but he claimed that he was merely taking back his own object. The Gemara says that he should have to make a Shevu'ah to counter the testimony of the witness who says that he took the object. However, he cannot make a Shevu'ah since he admits that he took the object. Since he is obligated to make a Shevu'ah which he cannot make, he must pay.
</p><p>
Why can the defendant not make a Shevu'ah that supports his claim ('I seized the object, but it was mine that I seized') and be believed with a Migu that he could have made a Shevu'ah and said that he did not seize any object from the claimant?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> explains that when an Ed Echad, a single witness, testifies against a person, the Torah requires that the person make a Shevu'ah to contradict the testimony of the witness. Any other Shevu'ah will not suffice. This is derived from the wording of the verse (Devarim 19:15). The Rashbam's intention seems to be that the Torah gives full credibility to the witness and his testimony is believed. However, since he is only one witness who contradicts the defendant's claim, the Torah gives the option to the defendant to swear that the testimony of the witness is false. If he does not make such a Shevu'ah, the testimony of the single witness is accepted and it is considered as though two witnesses testified against the defendant. If two witnesses would have said that the he seized an object from someone else, the defendant would not have been believed with a Migu (that he could have said that he did not seize any object), because it would be a Migu against witnesses ('Migu b'Makom Edim'). Therefore, when one witness testifies that the defendant seized the object, the defendant also does not have a Migu to be believed against the single witness, because it is like a 'Migu b'Makom Edim.'
</p><p>
This is also the explanation of the <b>RIVAM</b> cited by <b>TOSFOS</b> (DH Havah), <b>RASHI</b> in Shevuos (47a, DH Lishtaba), and the <b>RASHBA</b> here. This explanation seems to depend on the Machlokes Rishonim cited by <b>TOSFOS</b> (DH v'Chol) here and in Bava Metzia (97b, DH Hacha Nami) between the <b><b><b>RI</b></b></b> and <b>RABEINU TAM</b> regarding the reason why a single witness obligates a person to pay if he does not swear: is it because of the credibility of the witness' testimony, or is it because it looks suspicious when the defendant does not want to swear against the single witness' claim. The Rashbam maintains that the witness is believed because of his own credibility.
</p><p>
The <b>TOSFOS RID</b> questions this explanation. Why does the Gemara say that the defendant cannot swear to uphold his testimony because he is considered a Gazlan since he admits that he seized the object? That is not the reason for why he cannot swear. The reason he cannot swear is that even if he swears that he is not a thief but that he took his own object, it will not suffice to override the testimony of the witness!
</p><p>
Perhaps the Rashbam is consistent with his own view that a person cannot be 'To'en v'Chozer v'To'en' and change his defense even before two witnesses come and testify against him. The Gemara means that even if he changes his mind and says that he is ready to swear that he did <i>not</i> grab the object, Beis Din does not allow him to swear since Beis Din already accepted his earlier defense that he <i>did</i> grab it. (See Insights to 31:2 and 32:1-2.)
</p><p>
(b) <b>TOSFOS</b> here and in Shevuos (32b) answers in the name of the <b><b><b>RI</b></b></b> that the defendant does not have a Migu even if he swears that he took his own object. The reason is as follows. Although a person is not afraid to contradict the word of a single witness with his own word, he <i>is</i> embarrassed to <i>swear</i> falsely when a single witness is aware of the falsehood of his Shevu'ah. Therefore, the defendant is trying to avoid swearing that he did not seize the object, and he would prefer to swear (falsely) instead that he grabbed it but that the object was really his when he grabbed it.
</p><p>
According to this interpretation, when the Gemara says that since he seized the object he is 'like a Gazlan,' it means that he has no credibility for his present claim that the object was really his, since he has no Migu and thus it is as if he did not present a claim that is supported by a Shevu'ah. According to Tosfos, it seems that the same would apply even when a person is obligated to make only a Shevu'ah d'Rabanan (such as when a single witness testifies that a field or a slave does not belong to the defendant, in which case the defendant is required to make only a Shevu'ah d'Rabanan (Tosfos to Bava Metzia 6a, DH Ela)).
</p><p>
(c) The <b>MORDECHAI</b> (#528) cites the <b>RA'AVAN</b> who suggests that the Gemara calls the defendant a 'Gazlan' because both the defendant and the Ed Echad say that he did an act of seizing an object, which is an act that resembles thievery. Consequently, he is unable to make a Shevu'ah to support his claim because a thief is not trusted to make a Shevu'ah ('Chashud a'Mamona Chashud a'Shevu'asa'; see Bava Metzia 5b and Insights there). This is also the explanation of the <b>TORAS CHAIM</b> and <b>MAHARSHA</b> (in Mahadura Basra). According to this explanation, the wording of the Gemara is precise: since he is considered like a Gazlan, he is unable to swear.
</p><p>
<b>RABEINU YONAH</b> (in Aliyos) mentions such an explanation but rejects it because of the rule that 'Ein Adam Mesim Atzmo Rasha' -- a person cannot incriminate himself and disqualify himself from serving as a witness or from making a Shevu'ah (Pasul l'Edus ul'Shevu'ah; Sanhedrin 9b). Similarly, a single witness cannot incriminate a person and disqualify him from testifying or from making a Shevu'ah; it takes two witnesses to disqualify him. The <b>MORDECHAI</b> addresses this question and answers that although the person himself, or a single witness, alone cannot disqualify him, the combination of <i>both</i> can disqualify him.
</p><p>
The Ra'avan cites support for his explanation from another point in the Gemara. Why does the Gemara need to teach the Halachah of Rebbi Aba specifically in a case where the defendant was caught <i>seizing</i> an object from another person? Why does the Gemara not say that a witness saw the defendant <i>receive</i> an object from another person who handed it to him willingly as a <i>loan</i>? Later, the defendant refused to return it, claiming that it was always his object. According to the Rashbam and Tosfos, the same Halachah should apply in that case, since the defendant cannot make a Shevu'ah to contradict the witness and to say that he did not receive it as a loan. It must be that the reason why the defendant loses his credibility is that he took the object in a manner similar to thievery, and he therefore became Pasul l'Edus ul'Shevu'ah.
</p><p>
In defense of the Rashbam and Tosfos, one might propose that if the defendant receives the object with the goodwill of the giver, then perhaps the defendant would win the case <i>without</i> a Shevu'ah. The reason for this is that the witness normally would not hear whether the giver was giving the object to the defendant on loan, or whether he was giving it to him because he was returning something that was not his. Even if two witnesses saw such an act, the defendant can claim that the object was his, because he is Muchzak (he is holding the object) and because the object is not the type of object that is normally lent out ('Ein Asuy l'Hash'il'). That is why the Gemara writes that the defendant <i>seized</i> the object, making it clear that it was not being given to him willingly. The same would apply if the witness heard the giver say, 'I am lending this to you,' and then the defendant refused to return it, claiming that it was his object. Such a case would be another form of grabbing an object. (M. Kornfeld)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>TWO DOCUMENTS OF SALE OR GIFT FOR THE SAME DAY</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If Reuven and Shimon each claimed 'I
               inherited this land (or ship) from my fathers', Kol
               d'Alim Gavar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why is this different than two documents
               with the same date?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav):</font></b> If two documents have the same date, the
                    bearers split the property.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Shmuel):</font></b> We apply Shuda (it is left to the
                    judges' discretion).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kesuvos 93b:</font></b> Rav holds like R. Meir, who says
                    that Edei Chasimah (the witnesses who sign on a
                    document) Karsei (empower it. Therefore, it
                    does not matter which was given first.) Shmuel
                    holds like R. Elazar, who says that Edei
                    Mesirah (the witnesses who see a document given
                    to the recipient) Karsei. (Therefore, the first
                    one given is valid.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> There, we will never know which document was
               given first. Here, perhaps one will bring witnesses
               later (we do not want to give a ruling that might be
               overturned later).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Kesuvos 93b (Mishnah):</font></b> If all the Kesuvos have the
               same date, whichever comes first, even by an hour,
               collects first. In Yerushalayim they used to write
               the hour. If all have the same hour and there is
               only 100 in the estate, they share it equally.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 94b:</font></b> Rami bar Chama's mother wrote her property to
               him in the morning. In the afternoon, she wrote it
               to Mar Ukva bar Chama. Rami went to Rav Sheshes, who
               ruled that Rami bar Chama receives the property. Mar
               Ukva bar Chama went to Rav Nachman, and he ruled in
               his favor.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Sheshes:</font></b> I ruled in favor of Rami because his
               document was written first.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> We care which document was written
               earlier in the day only in Yerushalayim (where they
               write the hour in the document)! The Halachah is
               Shuda. I ruled based on my estimation (or
               preference).
<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 (Kesuvos 53b and 10:13):</font></b> Rav and Shmuel
               discuss documents for land, e.g. purchases or gifts.
               If they were admissions or loans, a Mishnah (93b)
               teaches that they divide the money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ran DH Aval Beis):</font></b> Perhaps Shuda
                    applies even to loans. The Stam Mishnah is R.
                    Meir, therefore it says they divide! Also, the
                    Mishnah does not discuss Shuda at all. It
                    teaches only how to divide, e.g. in a case when
                    all agree that Shuda does not apply and they
                    divide, e.g. they are for the same hour, or a
                    Shali'ach acquired at once for many recipients!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (ibid.):</font></b> If two loan documents have the same
               date, they divide, for both liens begin at the
               beginning of the day after the date, since the
               document does not prove that it starts before this.
               Knyanim take effect immediately. The first one
               acquired totally.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> R. Baruch says that even though
                    the Halachah follows Shmuel against Rav in
                    monetary matters, here the Halachah follows Rav
                    because we hold that when there is a doubt, we
                    divide the money. The Yerushalmi says that the
                    Mishnah of three Kesuvos opposes Shmuel.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif and Rosh (Kesuvos 45b and 9:11):</font></b> Regarding sales
               and gifts, the Halachah follows Shmuel (Shuda). In
               Bava Basra (34b), Rav Nachman taught about two
               people who claim 'I inherited this from my fathers',
               the law is unlike two documents with the same date.
               We answered that there, we will never know which
               document was given first. We asked why Rav Nachman's
               law is different than we do not know whether a cow
               for slave gave birth before or after it was sold. We
               answered that there, each has Drara d'Mamona. In Rav
               Nachman's case, it belongs absolutely to one or the
               other. We did not give this answer regarding two
               documents. This shows that regarding two documents,
               there is not Drara d'Mamona for both. Rather, it
               belongs to one or the other. This shows that it
               cannot refer to loan documents.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rif:</font></b> The case of Rami bar Chama's mother was a gift
               through a document alone, without Kinyan (Chalipin).
               Had there been a Kinyan, all would agree that the
               first recipient receives it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rif (Gitin 47a):</font></b> The Halachah follows R. Elazar for
               Gitin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Ran):</font></b> The Rif rules like R. Meir for
                    monetary documents. However, regarding Shuda he
                    rules like Shmuel, who rules like R. Elazar!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Sefer ha'Zechus):</font></b> The Gemara said that
                    R. Meir would not say Shuda. This is like the
                    opinion that says that witnesses acquire on
                    behalf of the recipient when they sign. Shmuel
                    holds like this. Since the signatures take
                    effect the same moment (the end of the day), it
                    is as if both recipients acquired together,
                    even if one received the document first. We
                    hold that one does not acquire through the
                    signatures, rather, until he gets the document.
                    Therefore, Shuda applies even according to R.
                    Meir. Another prrof is that R. Meir agrees that
                    if one wrote and gave a document, if he writes
                    and gives another document the same the day,
                    the latter is Batel. Since it is possible that
                    this happened, Shuda applies.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Ran):</font></b> There is no proof that Shmuel
                    holds that one acquires through the signatures.
                    We learn from Bava Metzia that he disagrees! If
                    Shmuel could say Shuda even though he holds
                    like R. Meir, what forced the Gemara to say
                    that he says Shuda, like R. Elazar? Do not say
                    that it is because Shmuel rules like R. Elazar.
                    If we could establish Shmuel even like R. Meir,
                    we would, to teach about a case when there were
                    no Kosher Edei Mesirah! (R. Elazar agrees that
                    then it is Kosher due to the Edei Chasimah.)
                    According to R. Meir, even if one gave one
                    document first, since he did not write the hour
                    to clarify this, he made the Kinyan incomplete.
                    It is complete only from when it is clear from
                    the document, i.e. the end of the day. This is
                    the same for both!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Hagahah:</font></b> The Gemara suggested that Shmuel holds
                    that one acquires through the signatures, and
                    never proved otherwise. This shows that it is
                    feasible to say so!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 5:6):</font></b> If there are two sale
               or gift documents for a field, and the dates are the
               same, if it is not the practice to write the hour on
               the document, it is left to the judges' discretion.
               Whomever they lean to leave the field with, he keeps
               it.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rambam (7):</font></b> This is when there is no Kinyan in the
               document; the field was acquired through the
               document. We do not know who received it first. If
               there is a Kinyan, whoever made the Kinyan first
               gets the field. We would ask the witnesses.
               Similarly, if witnesses say that one of them got the
               document first, he gets the field.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mordechai (Bava Metzia 1:255):</font></b> If David wrote
                    to Levi in the morning and to Moshe in the
                    afternoon and Moshe's document was given before
                    Levi's, Moshe acquires. Witnesses acquire for
                    the recipient (from when they sign) only if it
                    is evident from the document that it was first.
                    When we do not know which was given first, we
                    use Shuda, even if we know which was written
                    first.
<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 240:3):</font></b> If there are two sale or
               gift documents for a field, and the dates are the
               same, if it is not the practice to write the hour on
               the document, it is left to the judges' discretion.
               Whomever they lean to leave the field with, he keeps
               it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav v'Eino):</font></b> The
                    Tur says that we do not know which document was
                    given first. He means, if one was given at
                    least a day earlier. If they were given the
                    same day, it does not matter which was given
                    first, like Rav Nachman said (Kesuvos 94b).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DIVIDING AN ESTATE TO PAY KESUVOS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES BEIS DIN SEIZE CONTESTED PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Reuven and Shimon each claimed to own the
          same ship. Reuven came to Beis Din and said 'seize the
          ship until I bring witnesses.' Do we seize it?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Huna):</font></b> We seize it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rav Yehudah):</font></b> We do not seize it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Reuven did not find witnesses. He asked Beis
          Din to release the ship, and Kol d'Alim Gavar (whoever
          overpowers the other (with proofs or physically) gets
          it). Do we release it?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> We do not release it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> We release it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Halachah is, we do not seize it. If we seized it,
          we do not release it.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE DISPUTED BOAT</b></font><b>
<br>QUESTION:</b> The Gemara discusses two cases in which two litigants argue over the ownership of an object (a boat) which neither one of them is holding in his possession. In the first case, one of the litigants asks the court to appropriate the object and hold it until he brings testimony of witnesses to support his claim (so that the other litigant should not seize the object in the meantime and sell it to a third party, from whom the litigant with witnesses will not be able to get it back in court).
</p><p>
In the second case, the Gemara asks who is entitled to keep the object when neither litigant asks the court to hold it. In that case, Rav Nachman rules 'Kol d'Alim Gevar.' The Gemara itself says that the same Halachah, 'Kol d'Alim Gevar,' applies in the first case.
</p><p>
If the same Halachah applies in both cases, why does the Gemara change the other details of the case? In the first case, the Gemara says that each of the litigants claims that the boat is his. In the second case, the Gemara says that each of the litigants claims that the boat was his father's. Why does the Gemara not present the second question as a case in which each litigant claims that the object is his, in which the Halachah is still 'Kol d'Alim Gevar'?
</p><p>
<b>ANSWER:</b> Perhaps the Gemara prefers to give a case in which it is clear that neither defendant expects to find proof to support his claim of ownership, and therefore neither will request from the court to hold the object. When each one says, 'The object is my father's and I received it as an inheritance,' it implies that he does not know how his father obtained it, but just that he left it as part of his estate. If the claimant does not know how his father acquired the object, he will not to be able to prove his ownership. (Although he might be able to prove that the object was seen in the possession of his father, such proof will not suffice to resolve the case, because -- at the present moment -- the object is in the possession of neither litigant, as Tosfos writes on 33b, DH v'Iy Ta'in.)
</p><p>
In addition, the Gemara asks why the Halachah here should differ from that in the case of 'Shtei Shtaros,' where the Halachah is either 'Yachloku' (or 'Shuda d'Dayanei'), and the Gemara answers that 'Yachloku' (or 'Shuda d'Dayanei') applies only when neither litigant can bring proof for his claim. In contrast, in the case here of the disputed boat, it is possible for one of the litigants to prove that the boat belongs to him. Had each litigant said that 'the object is mine,' this answer would have been obvious. The Gemara assumed, however, that when each one says that the object belongs to his father (implying that he has no knowledge about how his father obtained it), one might have thought that the Halachah is 'Yachloku' (or 'Shuda d'Dayanei') since the case will remain unresolved. The Gemara answers that even though, at present, neither litigant expects to find proof to his claim, nevertheless he can search and perhaps find proof of his father's ownership. Therefore, the Halachah in such a case remains 'Kol d'Alim Gevar.' (M. Kornfeld)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WAYS OF DIVIDING CONTESTED PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If Reuven and Shimon each claimed 'I
          inherited this land (or ship) from my fathers', Kol
          d'Alim Gavar.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this different than two documents with
          the same date (for the same field, but one gives it to
          Levi, and the other gives it to Yehudah)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> Levi and Yehudah split the property. (Rav
               holds like R. Meir, who says that signatures empower
               a document. Even if one was given first, the
               signatures of both take effect at the same moment,
               the end of the day (the date on the document).
               Alternatively, he holds like R. Elazar, who says
               that the witnesses who saw a document handed over
               empower it. The first to receive his document
               acquired the property. We do not know which was
               first, and neither is Muchzak, so they divide it.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> The judges use their discretion
               (Rashbam - whom the giver liked more; Tosfos - to
               whom the judges prefer to give it).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> There, we will never know which document was
          given first. Here, perhaps one will bring witnesses
          later! (We do not want to give a ruling that might be
          overturned later).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this (Rav Nachman's law) different
          than the following?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Levi traded his cow for Shimon's
               donkey, or sold his slave to Shimon, and the cow or
               slave gave birth. (The mother was not in front of us
               at the time of the sale.) Levi claims that the birth
               was before the trade or sale (so the child was not
               included), and Shimon claims it was after, and he
               acquired a pregnant mother (so the child is his).
               They divide the value of the child.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> There, each has Drara of money (Rashbam -
          grounds to suspect that it is his, for he owned the
          mother at some point; Tosfos - Beis Din would have a
          doubt even without their claims);
<br>
<br>

sjt:
<font><b>1) THE LOGIC OF 'KOL D'ALIM GEVAR'</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that in a case in which two litigants argue over the ownership of an object (such as a boat) which neither one of them is holding in his possession, the rule of 'Kol d'Alim Gevar' applies, and whichever disputant overpowers the other prevails and may keep the object.
</p><p>
How is the ruling of 'Kol d'Alim Gevar' to be understood? It seems strange and unjust that Beis Din should allow the two disputing parties to fight against each other, and rule that whoever overpowers the other may keep the object in dispute.
</p><p>
(a) The <b>RASHBAM</b> (end of DH Hasam) explains that when it is possible that one litigant will bring proof to support his case, Beis Din does not rule 'Yachloku' or 'Shuda d'Dayanei,' because Beis Din might need to retract its ruling at a future time when proof is brought. Therefore, Beis Din does not get involved, but rather Beis Din leaves the case alone and lets the litigants contend with each other, and whoever is stronger and overpowers the other may keep the object until either one presents to the court proper proof of ownership.
</p><p>
The Rashbam's words imply that 'Kol d'Alim Gevar' is not a Halachic ruling that Beis Din issues based on an analysis of the case. Rather, 'Kol d'Alim Gevar' is a mechanism wherein Beis Din withdraws from the case and issues no ruling.
</p><p>
(b) The <b>ROSH</b> here (3:22), in Bava Metzia (1:1), and in Teshuvos (77:1) writes that there is some logic to the principle of 'Kol d'Alim Gevar.' He explains that it is logical to assume that the true owner probably will bring proof to his ownership soon, as the Gemara explains, and therefore even if one overpowers the other, justice eventually will prevail. Moreover, it is probable that the true owner will overpower his opponent because he will put more effort into claiming the object since he knows that it is truly his. The claimant who is not the true owner will not put forth so much effort to get the object, because he is afraid that the court will take it away from him later and give it to the other party based on proof of ownership that the other party will bring.
</p><p>
The Rosh adds that once one person overpowers the other, Beis Din no longer allows the two of them to physically seize the object from each other without sufficient proof of ownership, in order that they not continually be fighting with each other.
</p><p>
The <b>SHITAH <b><b>LO</b></b> NODA L'MI</b> (cited by the Shitah Mekubetzes) questions the Rosh's explanation. According to the Rosh, why should Beis Din get involved with the case and protect the rights of the first person who seizes the object? The Gemara teaches that Beis Din prefers to stay uninvolved with the quarrel and not pass judgment, and thus even when one litigant seizes the object, Beis Din still should stay uninvolved and not pass judgment! The Shitah therefore rules that Beis Din will <i>not</i> protect the seizure of the object by either party, and even after one party has seized the object the other can grab it back and take it for himself.
</p><p>
It seems that the Rosh, who argues with the Shitah's view, understands the principle of 'Kol d'Alim Gevar' differently. 'Kol d'Alim Gevar' is not a way for Beis Din to withdraw from the case. Rather, Beis Din indeed issues a ruling on the case. As the Rosh explains, Beis Din rules that the one who overpowers his opponent is the true owner. Therefore, after one overpowers the other, Beis Din is entitled to become involved in order to uphold its ruling.
</p><p>
Based on this explanation, the <b>CHASAM SOFER</b> and <b>CHIDUSHEI RABEINU MEIR SIMCHAH</b> present a new way of understanding the Machlokes (on 34b) regarding whether Beis Din is allowed to return the object to the public domain, and allow the litigants to fight over the object, after Beis Din has appropriated the object in order to give time to the true owner to bring proof of ownership. Rav Yehudah, who says that Beis Din may <i>not</i> remove the object from the domain of Beis Din, maintains (like the Rashbam) that 'Kol d'Alim Gevar' means that Beis Din withdraws from the litigation. Beis Din has no right to withdraw, however, once it has already taken the object into its custody, as the Rashbam explains there. Rav Papa, who argues and says that Beis Din can return the object, maintains that 'Kol d'Alim Gevar' is also a form of justice, and therefore Beis Din may take the object out of its custody and say 'Kol d'Alim Gevar,' being assured that justice will be done.
</p><p>
However, there are some questionable points on this understanding of the Rosh. First, the Poskim cite the Rosh's ruling l'Halachah, even though they also rule that 'Lo Mafkinan' -- once the object is in the custody of Beis Din, Beis Din may not take it out of its custody and say 'Kol d'Alim Gevar.'
</p><p>
Second, if the Rosh indeed is proposing a logical reason to explain why the one who grabs the object is probably the true owner, then why should that logic not apply after the first time the object is seized by one of the disputants? If the second disputant later overpowers the first and takes the object from him, then it should show that <i>he</i> is the true owner and not the first one!
</p><p>
Third, the Rosh himself in Teshuvos (loc. cit.) seems to contradict his explanation. Although he repeats what he writes here, he adds that 'Kol d'Alim Gevar' is <i>not</i> a 'Din,' a formal ruling of Beis Din, but rather it is merely the withdrawal of Beis Din from the case ('Histalkus'), whereby Beis Din declines from issuing a ruling! He proves this from the Gemara here which says that the reason why Beis Din rules 'Kol d'Alim Gevar' is that one defendant might eventually bring proof, and therefore it is not necessary for Beis Din to pass a ruling. This implies that 'Kol d'Alim Gevar' is a method of refraining from issuing a ruling. (See also <b>KOVETZ SHI'URIM</b> who asks this question without citing the Teshuvah of the Rosh.)
</p><p>
Moreover, <b>RABEINU CHANANEL</b> (cited by Tosfos and Rashbam, 34b) writes that 'Kol d'Alim Gevar' does not apply when the disputants are holding the object, because Beis Din has no right to take the object out of someone's hands when it does not know who owns the object. This also implies that 'Kol d'Alim Gevar' does <i>not</i> determine the identity of the true owner of the object. The Rosh, based on these proofs, therefore rules that when one party overpowers the other, the losing party is entitled to force the winning party to swear with a 'Shevu'as Heses' that the object is his.
</p><p>
Based on the words of the Rosh in Teshuvos, it seems that the Rosh here should be understood differently. The Rosh agrees that 'Kol d'Alim Gevar' is a means by which Beis Din withdraws from the case. However, the Rosh is bothered by a question: how can Beis Din -- the role of which is to maintain peace and order in the community (Bava Metzia 96b) -- remove itself from the case and refrain from maintaining the peace, and allow chaos to prevail? The Rosh therefore proposes two complementary suggestions. First, the court will stop the free-for-all after the first seizure of the object, and consequently peace will be restored. Second, even the first seizure has some logical basis in determining the ownership of the object, since it is likely that the one who prevails over his opponent is the true owner. (M. Kornfeld)
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DO WE DIVIDE CONTESTED PROPERTY THROUGH AN OATH?</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'> 34b (Rav Nachman):</font></b> If two each claim 'I inherited
               this land (or ship) from my fathers', Kol d'Alim
               Gevar (whoever overpowers takes it).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why is this different than two documents
               with the same date (giving the same field to Levi
               and Yehudah)?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav):</font></b> Levi and Yehudah split the property.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Shmuel):</font></b> The judges use their discretion.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> There, we will never know which document was
               given first. Here, perhaps one will bring witnesses
               later. (We do not want to give a ruling that might
               be overturned later.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Why is Rav Nachman's case different than
               the following?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> Levi traded his cow for Shimon's
                    donkey, or sold his slave to Shimon. (The cow
                    or slave was not in front of us at the time.)
                    Later, we see that it gave birth. Levi claims
                    that the birth was before the sale (so the
                    child was not sold). Shimon claims that it was
                    after, and he acquired a pregnant mother, so
                    the child is his. They divide the value of the
                    child.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> There, each has Drara (grounds to suspect
               that it is his; Alternatively, Beis Din would have a
               doubt even without their claims) of money.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Bava Metzia 100a - Question:</font></b> Why do they divide? The
               one in whose premises the baby lies is Muchzak. The
               other must bring proof to receive!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (R. Chiya bar Avin):</font></b> The case is, the calf is
               in the swamp, and the slave is at the selling-block
               (neither owns the premises).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> The seller is Muchzak. The buyer must
               bring proof to take from him!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah is Sumchus, who says that when
               we are in doubt, we divide the money without an
               oath.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 2a (Mishnah):</font></b> Reuven and Shimon are holding a
               garment. Reuven says 'I found it', and so does
               Shimon; Reuven says 'it is mine', and so does
               Shimon. Each swears that he does not own less than
               half, and they divide it.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 3a - Suggestion:</font></b> Our Mishnah is not like R. Yosi:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Yosi):</font></b> (Reuven and Shimon
                    deposited money with by Levi, who forgot who
                    gave which amount; each claims the larger
                    amount.) We make the liar lose (to induce him
                    to admit). Neither side gets anything until
                    Eliyahu comes and resolves the matter (or one
                    side admits).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> The Mishnah is also unlike Chachamim!
               (They say that each side gets the smaller amount,
               but) they agree that we leave what is contested (the
               rest) until Eliyahu comes. Here, the entire garment
               is contested!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah can be like Chachamim. There,
               all the contested money belongs to one of them, so
               we leave it (until Eliyahu comes). Here, perhaps
               each owns half, so they swear and divide it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  However, R. Yosi says that we leave even the
                    smaller amount, which surely each side is
                    entitled to. Here, perhaps one side is not
                    entitled to anything, all the more so he would
                    say that we leave it!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Rejection:</font></b> Our Mishnah can be like R. Yosi. He
               discusses when one party is surely lying. Here,
               perhaps neither intends to lie. Perhaps they picked
               it up at the same time (and each thinks that he 
               picked it up first)!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 9:7):</font></b> If two were holding one
               Kli, or they are sitting near a stack of wheat in a
               Simta (shoulder of Reshus ha'Rabim) or joint
               Chatzer, and each says 'it is mine', each swears
               while holding a (Kodesh) Chefetz (e.g. Sefer Torah
               or Tefilin) that he does not own less than half, and
               they divide it. The oath is a Rabbinical enactment,
               lest one grab another's garment and receive (half)
               without swearing.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bava Metzia 1:1):</font></b> Since both of them are
               Muchzak in the Talis, we must rule that they divide
               it. We consider anything we see in a person's hand
               to be his, even if another claims 'it is mine.' If
               one was holding something and another grabbed it,
               even though he says that he grabbed his own, we say
               that it belongs to the one who was holding it (Bava
               Basra 33b). Therefore, we cannot rule that Kol
               d'Alim Gevar (whoever overpowers will take it), like
               we say about a contested boat (Bava Basra 34b).
               There, neither is Muchzak, so Beis Din need not
               protest if one seeks to take something that he
               claims is his, and we do not know whose it is.
               Therefore, we do not rule that they divide it, lest
               we improperly make one of them lose (half). It is
               better to say that whoever overpowers with force or
               proofs will take it. It is likely that the owner
               will be able to bring better proofs, and will strive
               harder to keep his own property. The other will not
               try so hard, for he fears lest his opponent will
               later bring a proof and take it away. Here, each is
               Muchzak. If we would say Kol d'Alim Gevar, one would
               steal from the other's hand. This is not only
               regarding a Metzi'ah or sale in which both paid, in
               which it could belong to both of them. Rather, even
               in a sale in which only one paid, or if each claims
               that he wove it, and clearly one of them is lying,
               they divide it. We learn from the case of two
               holding onto a document (Bava Metzia 7a). Even
               though surely one lies, they divide it. Chachamim
               (of R. Yosi) hold that we divide with an oath
               whenever the division could be true, even if there
               is a definite Ramai. The rule is, if both are
               Muchzak, we divide with an oath. If neither is
               Muchzak, Kol d'Alim Gevar. If one is Muchzak, we do
               not take it from him. The only exception is
               different deposits. It is as if both of them are
               Muchzak, for the Shomer holds for both of them, but
               we leave the money (that the larger exceeds the
               smaller), for the Shomer knew from the beginning
               that this money does not belong to both of them.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 138:1):</font></b> If two were holding one
               Kli, or they are sitting near a stack of wheat in a
               Simta or joint Chatzer, and each says 'it is mine',
               each swears (while holding a Chefetz) that he owns
               part, and he does not own less than half, and they
               divide it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1, citing the Tur):</font></b> Since the stack is in
                    a place where they could acquire, and they are
                    next to it, it is as if they are Muchzakim in
                    it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (1):</font></b> This is only if both of them are
                    near the stack. If not, it is not as if they
                    are Muchzakim in it. In Bava Basra, we asked
                    why the argument about the boat is unlike the
                    sale of the pregnant cow or slave, and it is
                    clear from Bava Metzia 100a that the latter is
                    in a Simta or swamp.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Gra (2):</font></b> We learn from a Talis. Even if they merely
               hold the fringes (which is unlike having a true hold
               on the item), they divide it
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> However, if one owns the house, and brought
               the other in to live with him, and they argue about
               property in the house, it is in the Chazakah of the
               one Muchzak in the house.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> This refers to property in the house.
                    If they argue about something Hefker that
                    entered the house, they are equal in it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (2):</font></b> This is even if the one Muchzak does
                    not own the house, rather, he rents it. If both
                    pay rent, they divide what they argue about.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> SMA (6):</font></b> The Tur says that Rashi holds that they
               divide only when it is possible that both acquired
               together. However, if each claims 'I wove it', we
               leave it until Eliyahu comes. The Shulchan Aruch did
               not distinguish. This is like the Ri and Rosh, who
               say that also in this case, we divide it. see Sha'ar
               Mishpat 1 to explain Gra (Sedei Eliyahu?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If one tells the other 'swear
               and take the entire item', we heed him. If also the
               other does not want to swear, they divide without an
               oath.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (6):</font></b> If an enactment was made to benefit a
                    person, he can say 'I do not want the
                    enactment.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (3):</font></b> Since Reuven must swear, Shimon can
                    make him swear through Gilgul (once one must
                    swear, his opponent can make him swear about
                    other matters) that he owns the entire object
                    (since Reuven will receive it all).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>THE OATH TO DIVIDE SOMETHING THAT TWO ARE HOLDING </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, it belongs to one, and the other is simply
               lying.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Chachamim of Neharda'a):</font></b> If a third person grabbed the
          contested property, he keeps it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya - Beraisa):</font></b> One who steals from many
               people (fighting over the property) is not
               considered a thief.
<br> <b>    <b><font color='darkgreen'>(g)</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);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 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.
               Likewise, one who used false measures when selling
               does not know all the people from whom he stole.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>APPLICATIONS OF CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The Chazakah is three years, from day to
          day.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 - Rashbam - (R. Aba):</font></b> If the original owner
          (Reuven) helped the Machazik (Shimon) carry Peros from
          the land, Shimon has a Chazakah immediately.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 - R. Chananel - (R. Aba):</font></b> If Shimon (the
          Machazik) gave Reuven a gift of Peros of the land, Shimon
          has a Chazakah immediately. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Zvid):</font></b> If Reuven claimed that Shimon was renting
          the field, Reuven is believed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is within three years. After this, Reuven is
               not believed.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> What could Reuven have done to
          prevent Shimon's Chazakah (after three years) if he
          really was renting it?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> He should have made a Macha'ah
          (told people that Shimon is only renting it) before three
          years passed (from the beginning, or from the last
          Macha'ah. Had Shimon truly bought it, he would know to
          continue to guard his document carefully.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support:</font></b> If we would not say so, why did Chachamim
          sanction Mashkanta of Sura?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (There, the lender deducts a fixed amount from
               the loan for each year that he eats the Peros.) They
               write, 'At the end of these (allotted) years, the
               land reverts to Ploni (the borrower) for free.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the lender will hide the document after three
               years, he will be believed to say that he bought it
               - Chachamim would not sanction the Mashkanta if it
               can lead to theft!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We must say that the borrower must make a
               Macha'ah within (every) three years. (If he does
               not, he caused his own loss.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Also here, Reuven should make a Macha'ah within
               (every) three years.
<br>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>INVALID CHAZAKOS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If a Yisrael (Shimon) bought property
          from a Nochri, his law is like that of a Nochri;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a Nochri is not believed due to
               Chazakah, he must show a document, also one who
               bought from him (must show a document in which the
               original owner (Levi) sold to the Nochri).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Shimon says that the Nochri told him 'I bought
               it from Levi', he is believed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> The Nochri himself is not believed to
               say this. All the more so Shimon is not believed to
               say this in the Nochri's name!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rava):</font></b> Rather, If Shimon says 'I saw the Nochri
               buy it from Levi', he is believed, Migo he could
               have said 'I bought it from Levi'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If Reuven held reaping tools and said 'I
          am going to reap (Tosfos - this is the correct text, like
          above (33b)) 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'>(c)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> A Chazakah in the land outside a wall
          around a field (which the owner normally seeds and allows
          animals to eat it, so they will not enter his field) is
          not a Chazakah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The owner does not care about what grows there.
          He allows animals to eat it. (This is why he did not
          protest.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #1 (our text, Rashbam) - (Rav Yehudah):</font></b> Eating
          Orlah does not contribute to the years of Chazakah. (The
          owner did not protest because one may not benefit from
          Orlah.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> Eating Orlah, Shemitah or Kilayim
          does not contribute to the years of Chazakah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #2 - Tosfos - (Rav Yehudah):</font></b> Using Orlah (e.g.
          the vines themselves, which are permitted) is valid for
          Chazakah (this is the maximum benefit one can get from
          Orlah).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> Using Orlah, Shemitah or Kilayim is
          valid for Chazakah. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> Reaping (grain prematurely when it is
          still) fodder is not a Chazakah (this is not normal usage
          of a field).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rava):</font></b> In a place where people (have many animals and)
          normally reap fodder, it is a Chazakah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #1 - Rashbam - (Rav Nachman):</font></b> Occupying an
          (unfarmable) field full of cracks is not a Chazakah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Version #2 - R. Chananel - (Rav Nachman):</font></b> Farming a
          field without plowing (rather, allowing wind and sun to
          crack the earth) is not a Chazakah. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	If one harvested the same amount that he seeded, this
          does not make a Chazakah (the owner had no reason to
          protest).
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	People of the Reish Galusa's house cannot make a
          Chazakah against others (others fear to protest), nor can
          others make a Chazakah against them (they are rich, and
          do not mind if others use their land and care for it.
          They know that they can retrieve it when they want.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CHAZAKAH FOR GODEROS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Chazakah for slaves...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Reish Lakish taught that there is no Chazakah
          for Goderos (anything that can walk by itself, i.e.
          animals or slaves)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> They do not have an immediate Chazakah
          (we do not assume that one who holds them owns them), but
          Chazakah applies after three years.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> There is an immediate Chazakah for an infant
          slave in a crib.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious (he cannot walk)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that we are concerned
          lest his mother brought him and left him here. Rava
          teaches that we are not concerned, for she would not
          forget her son.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Some goats were eating peeled barley in Neharda'a. The
          owner of the barley seized the goats, and was claiming a
          large loss.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel's father):</font></b> He can claim up to the goats'
               value, for he could have said that he bought them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Reish Lakish taught that there is no Chazakah
          for Goderos!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Goats are different. A shepherd watches them.
          (They could not walk off by themselves.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Goats walk unattended in the morning (to the
          shepherd's house), and return unattended at night!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> There are many thieves in Neharda'a, so people
          do not leave goats unattended.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IS PLOWING A CHAZAKAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Yishmael says, three months...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion:</font></b> The Tana'im argue about whether or not
          plowing makes a Chazakah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yishmael holds that plowing does not make a
               Chazakah, and R. Akiva holds that it does.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> If so, why does R. Akiva require a month (in
          the first and third years)? One day of plowing should
          suffice!
<br>
<br>

sjt:
<font><b>1) MAKING A CHAZAKAH ON 'AVADIM' AND 'GODROS'</b></font><b>
<br>QUESTIONS:</b> Reish Lakish says that one cannot make a Chazakah (that is, an immediate Chazakah of 'Chezkas Metaltelin' to prove one's ownership) on 'Godros' (domesticated animals that wander by themselves), since they move about by themselves and are easy to steal. The Gemara explains that the same applies to Avadim, slaves. The Gemara concludes, however, that one <i>does</i> have a Chazakah on Godros and Avadim after they have been in his possession for three years, like one has a Chazakah on land after three years, as the Mishnah explains.
</p><p>
What does Reish Lakish teach that is not already known from the Mishnah? The Mishnah says that one cannot make a Chazakah on Avadim until they have been in his possession for three years. Obviously, the reason is that they wander by themselves. (<b>TOSFOS</b> to Gitin 20b, DH Ta Shema)
</p><p>
(One might suggest that perhaps the Mishnah says that one cannot make an immediate Chazakah on Avadim because they are purchased with a Shtar, like land, and, consequently, if the Machzik cannot produce a Shtar within three years, that shows that the Eved is not his. Accordingly, the Mishnah teaches nothing about Godros. However, this answer is not viable. The Gemara says that it is obvious that a person is considered Muchzak on an Eved Katan even when he has not had possession of the Eved Katan for three years. If people write Shtaros for the purchase of Avadim, If it is true that people write Shtaros for the purchase of Avadim, then one should have a Chazakah on an Eved Katan only after three years if he cannot show the Shtar to attest that he bought the Eved Katan.)
</p><p>
Moreover, why does the Mishnah mention only Avadim and not Godros? The Halachah of Avadim and Godros are the same, and thus the Mishnah should mention both of them.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> here and <b>TOSFOS</b> in Gitin explain that from the Mishnah it is not evident that one cannot make a Chazakah on animals. Perhaps only on Avadim -- who have their own minds and who might walk into another person's domain under verbal persuasion or in order to choose a different master -- does one not make a Chazakah in less than three years. Animals, in contrast, do not have their own minds, and the owner can prevent them from wandering into another domain. Reish Lakish teaches that since it is normal for domesticated animals to be allowed to wander freely, one cannot make a Chazakah on animals in less than three years. This answers the first question.
</p><p>
Tosfos and the Ramban do not address the second question. If they agree with the <b>RAMBAM</b> (Hilchos To'en v'Nit'an 10:4) that only Avadim can be acquired with a Chazakah of three years but not animals, then it is clear why the Mishnah does not mention animals. However, Tosfos in Gitin there clearly disagrees with the Rambam and equates Avadim with animals!
</p><p>
Perhaps they understand that since Avadim are often mentioned together with Karka, land, the Mishnah includes Avadim in its list even though the reason why one cannot make a Chazakah on an Eved until he has held the Eved for three years (i.e. because of the reason of Godros, that they move about on their own) is not related to the reason why one cannot make a Chazakah on land until three years have passed. Accordingly, the Mishnah does not mention that the Chazakah on animals must be three years because that Halachah is not related to the Halachah of the Chazakah on land.
</p><p>
(b) The <b>RASHBA</b> and <b>RITVA</b> (28a) explain that the logic that prevents a Chazakah from being made on land in less than three years <i>does</i> apply to an Eved as well. Apparently, they understand that a person <i>does</i> write a Shtar when he sells an Eved. However, when a person sells an animal, he does not sell it with a Shtar. According to this reasoning, it is obvious that the Halachah of Godros cannot be learned from the Mishnah, since the reason why one does not have a Chazakah on an Eved is not related to the reason why one does not have a Chazakah on Godros. It is also obvious why the Mishnah includes the Halachah of Avadim but does not mention that an <i>animal</i> requires a Chazakah of three years. There are two reasons why a slave cannot be acquired through a Chazakah until after three years have passed: an Eved is like Godros, and the Eved was sold to the Machzik with a Shtar. The law of Avadim is included in the Mishnah because of the second reason.
</p><p>
The Rashba and Ritva add that it is possible that Godros can be acquired through a Chazakah in less than three years. The only reason why one needs a Chazakah of three years to acquire an Eved is that the owner would not lose his Shtar within three years. If he cannot present his Shtar, it shows that he did not purchase it. However, in order to acquire Godros, it is enough to hold on to the animal long enough for the owner to have the opportunity to protest, and for that one or two years might suffice.
</p><p>
(The question of the Rashba and Ritva, whether a person protests when someone else uses his property for less than three years or only after three years, seems to depend on the question and answer on 29a; see Insights to 29:1.)
</p><p>
According to the Rashba and Ritva, it seems that an Eved <i>is</i> acquired with a Shtar. Why, then, does the Gemara write that it is obvious that an Eved Katan can be acquired immediately? If the Machzik cannot present a Shtar, the Eved Katan should not be acquired until three years have passed! (<b>KETZOS HA'CHOSHEN</b> 135:2; <b>BIRKAS SHMUEL</b> #26)
</p><p>
The <b>KETZOS HA'CHOSHEN</b> answers that the logic that a 'mother does not forget her son' is such a strong proof that the baby belongs to the Machzik that it overrides the fact that the Machzik cannot produce a Shtar. However, this answer is problematic, as the Acharonim point out (see Birkas Shmuel). The Gemara says that it is obvious that a person can acquire a baby Eved with a Chazakah, <i>before</i> it knows the logic that a mother does not forget her child! Furthermore, perhaps the Machzik stole the baby Eved and that is how the baby entered his domain without its mother.
</p><p>
The <b>BIRKAS SHMUEL</b> and <b>KOVETZ SHI'URIM</b> (#160) answer that the Chazakah that a person makes on a movable object that is in his possession is much stronger than the Chazakah that a person makes on land, since a movable object is totally in his possession to do with it as he pleases. A person can hide the object from its previous owner so that the previous owner will never see it (as Tosfos writes in Bava Metzia 103a, DH Pardisei, and as the Rashbam writes later in Bava Basra 105b, DH v'Rav Nachman). Perhaps the proof of ownership that emerges from a Chazakah on land is not as strong as the counter proof that he does <i>not</i> own the land if he <i>cannot</i> produce a Shtar. However, the proof of ownership that emerges from a Chazakah on Metaltelin is so strong that it can override the counter proof that he does not own the object if he does not produce a Shtar.
</p><p>
Accordingly, even if an Eved is normally sold with a Shtar, a Chazakah on an Eved Katan is sufficient proof of ownership. However, if the Eved is an adult, one cannot make a Chezkas Metaltelin on it (because it is like Godros). Therefore, the fact that the Machzik cannot produce a Shtar proves that the Eved does not belong to him.
</p><p>
There are a number of problems with this explanation. First, why does the Gemara say that it is 'obvious' that an Eved Katan can be acquired with a Chazakah, and that Rava does not need to teach that Halachah? Perhaps Rava's intention is to teach this point itself -- that a Chazakah on Metaltelin is able to override the fact that the Machzik cannot show a Shtar.
</p><p>
Second, the Rashba and Ritva imply that the two reasons for why an immediate Chazakah cannot be made on an Eved are not related to each other. According to the Birkas Shmuel and Kovetz Shi'urim, it is only because an Eved is like Godros that the Chazakah cannot override the absence of a Shtar.
</p><p>
Third, the Gemara earlier (33b) teaches that when a person occupies land for less than three years and claims that he purchased only the fruit and not the land itself, he has a Chazakah and is believed, because a person would not be so brazen as to eat the fruit of another person's land. The Gemara asks why is that proof acceptable? To the contrary, if he purchased the land he would have been able to show a Shtar! The Gemara answers that people do not write Shtaros on the purchase of fruit.
</p><p>
It is clear from the Gemara there that the proof of brazenness is a <i>stronger</i> proof than a normal Chezkas Metaltelin, as Tosfos (33b, DH v'Iy Ta'in) writes. The brazenness premise proves ownership even when the fruits are no longer in his possession (see Insights there), which is <i>not</i> true in the case of a normal Chezkas Metaltelin. (When Tosfos and the Rashbam write that a Chezkas Metaltelin is stronger, they are referring to a case in which the brazenness of the occupant is not relevant (for example, when there is a doubt about the intention of the seller when he sold an object, or when there is a doubt about the Halachah).) Nevertheless, if fruit normally would be sold with a Shtar, the lack of a Shtar would override the brazenness of the Machzik. Consequently, it would certainly override a normal Chezkas Metaltelin (which is weaker than the proof of brazenness). (The <b>BIRKAS SHMUEL</b> alludes to this question and leaves it unanswered.)
</p><p>
Perhaps the reason why a Chazakah works for an Eved Katan is as follows. When the Rashba and Ritva explain that the reason why a person cannot make a Chazakah on an Eved until three years pass is the same as the reason why a person needs three years for the other things mentioned in the Mishnah, they describe that reason as 'Osin Peros Tadir' -- 'they constantly produce fruit.' ('Tadir,' or 'constantly,' clearly is Lav Davka and is not required, because there are items in the Mishnah for which a Chazakah cannot be made in less than three years even though they do not produce fruits constantly, as the Rashba and Ramban in the Mishnah explain, and as the Gemara teaches here (36b) according to the opinion of the Chachamim.)
</p><p>
Why do they say that the production of fruit is what causes the Chazakah not to take effect in less than three years? They should say instead that it is because those items were sold with a Shtar that they do not have a Chazakah immediately!
</p><p>
The answer might be that the two points depend on each other. The reason why it is common practice to write a Shtar for the sale of land is that the purpose of the land is to produce fruit. Since land cannot be used in any other way other than to produce fruit (in contrast to Metaltelin, for which the item itself can be used), when a person buys land it is not clear whether he buys the actual land or whether he buys the fruit alone. In order to prove his ownership, the buyer has a Shtar written. If he purchases only the rights to the fruit of the land, he has no need to write a Shtar, as the Gemara says (33b).
</p><p>
The same logic applies to Avadim. An Eved cannot be used up (since the master has no rights over the body of the Eved, but only for the service of the Eved). Therefore, when one acquires an Eved, he normally has a Shtar written. In contrast, an Eved Katan, who is still unable even to walk, cannot provide any service. Thus, it is clear that when the Eved Katan is in a master's possession, the master must have purchased the Eved himself and not the rights to his services (since the Eved Katan provides no services). Since it is not common to write a Shtar when one purchases an Eved Katan, it is obvious that a Chazakah takes effect immediately. (M. Kornfeld)
</p><p>


<font><b>2) KEEPING A COW BASED ON A CHAZAKAH</b></font><b>
<br>QUESTIONS:</b> Reish Lakish says that one cannot make a Chazakah (that is, an immediate Chazakah of 'Chezkas Metaltelin' to prove one's ownership) on 'Godros' (domesticated animals that wander by themselves), since they move about by themselves and are easy to steal. The Gemara explains that the same applies to Avadim, slaves. The Gemara concludes, however, that one <i>does</i> have a Chazakah on Godros and Avadim after they have been in his possession for three years, like one has a Chazakah on land after three years, as the Mishnah explains.
</p><p>
The Mishnah in Bava Metzia (100a, and cited here on 35a) teaches that if a person bartered a cow for a donkey and the cow gave birth, and it was unclear whether it gave birth before or after the exchange, the buyer and seller split the calf. The <b>RASHBAM</b> (35a, DH u'Mai Shena) quotes the Gemara in Bava Metzia which asks why the rule of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' does not apply. If the cow was in the purchaser's domain at the time of the purchase, he should be entitled to keep the calf. The Gemara answers that the cow was in the domain of neither the buyer nor the seller at the time of the purchase (but rather it was in the swamp).
</p><p>
Why does the Gemara assume that if the cow was in the domain of the purchaser, he should be entitled to keep the calf? Cows are domesticated animals that wander freely, and thus the purchaser should have no Chezkas Metaltelin (on the calf) in less than three years (<b>TOSFOS</b> to Bava Metzia 100a, DH v'Lechzi). The Gemara implies that a Chezkas Metaltelin cannot be made even on a baby animal, because -- unlike a baby Eved -- it walks immediately after birth (<b>TOSFOS RABEINU PERETZ</b> there).
</p><p>
<b>ANSWER: TOSFOS</b> and the <b>TOSFOS HA'ROSH</b> answer that in the case of the Mishnah in Bava Metzia, the reason why the purchaser may keep the calf is not simply that the cow is in his possession, but rather he may keep it because he has a 'Derara d'Mamona' -- a valid reason to support his claim of ownership of the object. The fact that there was a sale is known, and the fact that a calf was born is known, and the doubt is only <i>when</i> the calf was born. In such a situation, the Chazakah of the purchaser gives him the rights even to Godros. The <b>CHIDUSHEI HA'RAN</b> and <b>TOSFOS RABEINU PERETZ</b> give a similar answer.
</p><p>
Tosfos adds, however, that this answer applies only when the purchaser claims with certainty that the calf was born after he purchased the cow. If neither the purchaser nor seller claims with certainty when the calf was born, then they split it.
</p><p>
It seems that Tosfos follows his opinion expressed elsewhere. The <b>RASHBAM</b> earlier (32b; see also Rashbam to 41a, DH Chaishinan) explains that when there is a doubt in Halachah about the ownership of land, the land is given to the person who is occupying it, even if he has been there for less than three years. Tosfos there (DH Hilchasa) argues that just as the occupant does not have a Chezkas Karka (of three years) to claim that he purchased the land, he does not have a Chazakah to allow him to take the land in the event of a Safek. The case that Tosfos is discussing is similar to a case of 'Derara d'Mamona'; in that case as well, there is valid reason to assume that the occupant of the land is the true owner. However, Tosfos says that had the case not involved a 'Derara d'Mamona,' Beis Din would not have given him the land since his Chazakah is not strong enough to establish him as the owner. In a similar manner, Tosfos maintains that since the possession of Godros cannot establish the Machzik to be the owner when there is no 'Derara d'Mamona,' it is not enough of a Chazakah to give him the object (through the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah) even when there <i>is</i> a 'Derara d'Mamona.'
</p><p>
According to the Rashbam, it is possible that even though the possession of Godros does not establish the Machzik as the owner when there is no 'Derara d'Mamona,' it <i>does</i> give him the right to the object when there is a 'Derara d'Mamona,' such as in a case of a Sfeika d'Dina (a Safek what the Halachah is), or when it is not clear when the baby cow was born (even when the Machzik himself does not claim to know when it was born).
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CHAZAKAH OF GODEROS</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 for slaves...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Reish Lakish taught that there is no
               Chazakah for Goderos (things that can walk by
               itself, i.e. animals)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> They have no immediate Chazakah (one
               who holds them is not assumed to be the owner), but
               Chazakah applies after three years.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Some goats were eating peeled barley in Neharde'a.
               The owner of the barley seized the goats, and was
               claiming a large loss.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shmuel's father:</font></b> He can claim up to the goats'
                    value, for he could have said that he bought
                    them.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Reish Lakish taught that there is no
               Chazakah for Goderos!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Goats are different. A shepherd watches
               them. (They could not walk off by themselves.)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Goats walk unattended in the morning (to
               the shepherd's house), and return unattended at
               night!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> There are many thieves in Neharde'a, so
               people do not leave goats unattended.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Metzia 116a:</font></b> Goats are not normally lent or
               rented, therefore the one who seized them has a
               Migo. He could have said that he bought them.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (3:26) bring the Gemara verbatim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Yachol):</font></b> When he claims that
                    the goats damaged him, he is believed only
                    through a Shevu'ah while holding a (Kodesh)
                    Chefetz (e.g. Sefer Torah or Tefilin). Even
                    though there is a Migo to say that he bought
                    the goats, it is not a full Migo. Now he says
                    that they ate barley. This is not brazen (the
                    owner does not know that it is false). To say
                    that he bought hem would be brazen. We do not
                    believe a claim that is not brazen to exempt
                    from an oath, Migo he could have made a brazen
                    claim. This is how Rabah explains why Modeh
                    b'Miktzas swears, even though he could have
                    denied owing anything.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 10:1):</font></b> If a Behemah or Chayah
               (domestic or wild animal) is not guarded, rather, it
               walks everywhere and grazes, it is not in the
               Chazakah of one who seized it, if it had a known
               owner. If Levi brought witnesses that the animal was
               known to be his, and Shimon, who seized it, claims
               'you sold it or gave it to me for a gift', he is not
               believed. Possession is not a proof, for it walked
               by itself and entered his Reshus. Therefore, if he
               does not bring a proof, the animal returns to Levi.
               He swears Heses to refute Shimon's claim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (2):</font></b> If the animal was guarded or given to a
               shepherd to guard it, even if Levi brought witnesses
               that the animal was his, it is Muchzak to belong to
               Shimon, who has it now. If Shimon claims 'you sold
               it or gave it to me', he swears Heses that it is
               his, and he is exempt.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (3):</font></b> Therefore, if Shimon seized Levi's
               animal that was guarded or given to a shepherd, and
               Levi claims 'it went by itself to you', or 'it is a
               deposit with you' or 'you borrowed it', and Shimon
               says 'true, it is not mine. However, you owe me this
               amount' or 'you gave it to for security for a debt
               of this amount', or 'it damaged me, and you must pay
               to me this amount', he can claim up to its value,
               for he could have said 'I bought it.' He swears
               while holding a Chefetz, and receives.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ge'onim say that if one does
                    not claim that the item itself (that he holds)
                    is his, he swears while holding a Chefetz.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (4):</font></b> Similarly, slaves who can walk are not
               in the Chazakah of the one who holds them now. If
               Levi brought witnesses that this slave was known to
               be his, and Shimon claims 'you sold him or gave him
               to me for a gift', he is not believed. The slave
               returns to Levi. Levi swears that he did not sell or
               give him. If Shimon brought witnesses that he has
               the slave for three consecutive years from day to
               day, and used him the way slaves serve masters,
               since Levi did not protest all these years, Shimon
               is believed. He swears Heses that Levi sold or gave
               the slave to him, and keeps him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam did not discuss
                    Chazakah of three years for animals. A support
                    is that the Mishnah mentioned Chazakah only for
                    slaves, but not for animals. The Rashbam says
                    that Chazakah of three years helps also for
                    animals. It seems that the Ba'al ha'Itur holds
                    like the Rambam. Shevu'as Heses applies even to
                    land. Some say that one who has a Chazakah need
                    not swear, like 'Chazakah' connotes.
<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 72:21):</font></b> Chazakah (possession)
               helps to claim a loan up to the value of what was
               seized only if it cannot walk by itself, and it
               stands under the owner's control, e.g. Metaltelim or
               a baby slave who cannot walk, or an animal guarded
               by a shepherd. Adult slaves or an animal not under a
               shepherd, rather, it walks by itself, a shepherd is
               not believed to say that he bought it to it is a
               security. If witnesses say that it is Levi's, it
               goes back to Levi. He swears that he did not sell it
               or give it for security. Seizure of them does not
               help, for the stray by themselves, and they are
               always in the owner's Reshus. If one has witnesses
               that he was Machazik in them for three years, he is
               believed, and he swears Heses that he bought them or
               received them for his debt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (135:1):</font></b> Even though if Shimon
               possesses Metaltelim, he is believed to say that
               they are his, he is not believed about a Behemah or
               Chayah. Since it walks, we are concerned lest it
               walked by itself into his Reshus, or he took it
               while it was walking. Therefore, if Levi brought
               witnesses that it is his, he swears Heses and takes
               it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (1):</font></b> Really, he swears after receiving
                    it, like the Rambam says.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If Levi has no witnesses,
               Shimon swears Heses and keeps it. Where it is normal
               to give animals to the shepherd in the morning and
               to take them from him in the evening, and the
               animals never walk by themselves, they are like
               other Metaltelim. One who possesses them is believed
               through Shevu'as Heses to say that he bought it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> This is even if it was not a security,
                    and he just seized it to collect a debt from
                    it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If he claims that it damaged
               him as much as its value, or that the owner owes him
               such an amount, he swears while holding a Chefetz.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (2):</font></b> The Ra'avad says that if one claims
                    that other Metaltelim are a security, he is
                    believed through Shevu'as Heses, as if he
                    claimed that he bought it. Here, when he claims
                    that it damaged, he agrees that he swears while
                    holding a Chefetz, for this is less brazen than
                    saying that he bought it. Saying that it is a
                    security is no less brazen than saying that he
                    bought it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if he made Chazakah for three
               years, in every case it is a Chazakah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> This opinion does not require an oath,
                    but only when Levi has no witnesses.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (3):</font></b> Chazakah of three years does not help
                    for other Metaltelim, for it is normal to lend
                    them for more than three years, or perhaps the
                    owner forgot to whom he lent them. This does
                    not apply here. The Rambam and Mechaber hold
                    that Chazakah of three years does not help for
                    Metaltelim, for we do not write documents for
                    them. Therefore, it helps for slaves, but not
                    for animals. Here, the Mechaber is like the
                    Rambam. In Siman 72:21, it seems that he
                    equates animals to slaves! There is not the
                    primary place for the law, so he was not so
                    precise. He merely taught that Chazakah of
                    three years helps for living things, but not
                    for Metaltelim. He did not rule like either
                    opinion (about whether it helps only for
                    slaves, or even for animals). Here is the
                    proper place for the law, and he rules like the
                    Rambam.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (3):</font></b> It is clear from the Gemara that all
                    agree to this. We asked from Reish Lakish, who
                    said that there is no Chazakah for Goderos.
                    Rava answered that their Chazakah is not
                    immediate, rather, it is after three years.
                    This implies that Godros have Chazakah of three
                    years. Also, 'Godros' refers to flock, not to
                    slaves, like the Rashbam (DH ha'Godros) says.
                    If slaves were unlike Godros, the Gemara should
                    have said so, instead of explaining Reish
                    Lakish unlike his words connote (that they have
                    no Chazakah at all). The Rashbam, Nimukei
                    Yosef, R. Yerucham and Semag explicitly say
                    that Godros have Chazakah of three years. The
                    Magid Mishneh said that the Rambam disagrees.
                    There is no source to say so. He taught about
                    Chazakah of three years for slaves, and the
                    same applies to animals. He connotes that
                    slaves and animals are the same. The Bach says
                    so, and  Perush ha'Mishnayos and the Bartenura
                    connote like this, unlike the Tosfos Yom Tov
                    said. The Mechaber agrees, like he said in
                    Siman 72. The only source to say that Ba'al
                    ha'Itur disagrees is that he said that Chazakah
                    of three years does not apply to Metaltelim
                    because we do not write documents for them (and
                    this is not a solid proof). Even if the Ba'al
                    ha'Itur disagrees, we rule like the Gemara I
                    brought and all the other Poskim.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (5):</font></b> The Yerushalmi says that there is
                    Chazakah for slaves, even though it holds that
                    there is no Chazakah for Godros.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rather, all agree that plowing does not make a
          Chazakah. They argue about whether one must eat Peros
          that need much time to grow, or if fast-growing Peros
          suffice.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Plowing does not make a Chazakah;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Some say, it is a Chazakah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Who says that it is a Chazakah?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> It is R. Acha;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven plowed a field (without
               seeding it) for two (or one) years and seeded it for
               one (or two) years, this is not a Chazakah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Acha says, this is a Chazakah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Bivi):</font></b> What is R. Acha's reason?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> An owner would not keep quiet if
          he saw someone plow his field.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Bivi):</font></b> Why do Chachamim argue?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> An owner is very happy if others
          plow his field. It will be more fertile when he wants to
          plant!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (people of Fum Nahara):</font></b> Is plowing a Chazakah?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Nachman bar Rav Chisda):</font></b> R. Acha and all
          the Gedolim of our generation say that it is.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Objection (Rav Nachman bar Yitzchak):</font></b> Many Gedolim say
          that it is not, e.g. Rav and Shmuel in Bavel, and R.
          Akiva and R. Yishmael in Eretz Yisrael!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> We concluded above (from the Mishnah) that R.
          Akiva and R. Yishmael say that it is not. What is the
          source that Rav agrees?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Yehudah cited Rav to say 'Chachamim argue
          with R. Akiva and R. Yishmael, and require three years
          from day to day.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What does he come to exclude by saying
               'from day to day'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that plowing is not a
               Chazakah.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that Shmuel agrees?
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Yehudah cited Shmuel to say 'Chachamim
          argue with R. Akiva and R. Yishmael, and require three
          harvests of dates, three olive harvests, or three grape
          harvests.'
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHAT IS NEEDED FOR CHAZAKAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between Rav and
          Shmuel?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 - Rashbam - Answer (Abaye):</font></b> They argue about
          a young date tree (it yields three harvests in less than
          three years. This is enough according to Shmuel, but Rav
          requires three full years.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 - R. Chananel - Answer (Abaye):</font></b> They argue
          about a date tree whose dates fall off. (According to
          Shmuel, he has no Chazakah until he stays three years and
          harvests three harvests; according to Rav, it suffices
          that he worked the field for three years.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah - R. Yishmael):</font></b> This applies to a grain
          field... (regarding trees, a date harvest, an olive
          harvest and a grape harvest makes a Chazakah).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Abaye):</font></b> (Shmuel explained that Chachamim argue with R.
          Yishmael, but only regarding three years); we infer
          Chachamim's opinion from R. Yishmael.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there were 30 trees, 10 per Beis Se'ah (2500
               square Amos), and Reuven ate the fruit of 10 of them
               each year, this is a Chazakah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yishmael says that eating three different
                    fruits is a Chazakah, i.e. a Chazakah on one
                    part of the field (e.g. where the dates grow)
                    is a Chazakah for the whole field;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Here also, eating 10 is like using the
                    entire property!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if only 10 trees produced. If more
               produced and he did not harvest them, this is not a
               Chazakah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It is a Chazakah only if the 10 he ate each year
               are spread among the entire property.
<br>

<p>

sjt:
</p><p>
<font><b>3) MAKING A CHAZAKAH ON 'SMALL FRUITS'</b></font><b>
<br>QUESTIONS:</b> The Gemara explains that Rebbi Yishmael and Rebbi Akiva in the Mishnah (28a) argue about whether a Chazakah can be made on 'small fruits' ('Pera Zuta'). The <b>RASHBAM</b> explains that according to Rebbi Akiva, even if the Machzik harvests fruit that grows in only thirty days it is considered a Chazakah, such as when he harvests 'Shachas' (underdeveloped grain used for animal fodder), or when he harvests a vegetable which grows to maturity in thirty days. Rebbi Yishmael maintains that harvesting such produce is not sufficient for making a Chazakah.
</p><p>
The Rashbam's explanation seems problematic for several reasons.
</p><p>

First, how can the Gemara assert that Rebbi Yishmael does not allow a Chazakah to be made by harvesting a fruit that grows in one month? The Gemara says earlier (28b) that according to Rebbi Yishmael, when a person harvests 'Aspasta' three times in three months he has a Chazakah! Whether Aspasta is Shachas (as <b>RASHI</b> explains on 20b, DH Aspasta) or whether it refers to a different type of plant that becomes fully mature in thirty days of growth (as Rashi explains on 28b), in either case it should <i>not</i> be a Chazakah according to Rebbi Yishmael.
</p><p>
Second, why does Rebbi Akiva say that a Chazakah can be made in only 14 months? If he maintains that a one-month harvest suffices as a complete year for a Chazakah, then one should be able to make a Chazakah in three months, as the Gemara says earlier (28b).
</p><p>
Third, the Gemara earlier (36a) cites Rav Yosef who teaches that when a person harvests the field for three years while the grain is still 'Shachas,' it is not a Chazakah because the occupant did not harvest it in the normal manner. (This is true even if the occupant constantly planted and harvested Shachas throughout the three years.) How can the Rashbam write that according to Rebbi Akiva, harvesting the grain while it is Shachas suffices to constitute a Chazakah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b>, <b>RASHBA</b>, and <b>RITVA</b> (28b) explain that Rebbi Yishmael would allow a Chazakah to be made in three months if the field was <i>normally</i> used for planting Aspasta or Shachas. The Mishnah, however, refers to a field which is normally <i>not</i> used for growing Shachas. That is why a one-month harvest of Shachas is not sufficient. Rebbi Akiva argues and maintains that even a harvest of Shachas suffices, since at least <i>some</i> people plant Shachas in their fields (<b>ALIYOS D'RABEINU YONAH</b> on 28b).
</p><p>
To answer the second and third questions, they explain that although the field is sometimes used for growing Shachas, since it is not a field <i>designated</i> for growing Shachas people use it for Shachas only during the alternating fallow years. Therefore, if the occupant plants a full crop in the middle year, and in the first and third years he plants Shachas, he is using the field in the normal manner and he will have a Chazakah. However, if he plants Shachas for three consecutive years, he is not using the field in the normal manner and he will not have a Chazakah. In Mechoza, even if the fields are planted with Shachas for three consecutive years, he will have a Chazakah, because animal fodder is in such high demand there that even fields normally used for growing grain are sometimes used for growing Shachas as their main crop (<b>RITVA</b> to 36a).
</p><p>
(b) <b>TOSFOS</b> (28b) has a different approach to the Sugya. Tosfos explains that when the Gemara says that according to Rebbi Yishmael, one cannot make a Chazakah with 'small fruit,' it does not refer to a person who raises a full crop of fruit in thirty days; such a harvest indeed would be a Chazakah according to Rebbi Yishmael, as the Gemara says earlier (28b). Rather, the Gemara means that if a person lets his grain grow only a small amount, it is not a Chazakah according to Rebbi Yishmael; he must let it grow for three months. This is why Rebbi Akiva does not say that one can make a Chazakah in three months; the Mishnah discusses one who makes a Chazakah on a field of grain and not on a field of vegetables.
</p><p>
Tosfos addresses the third question (why, according to Rebbi Akiva, harvesting the grain while it is Shachas, grain grown for one month, suffices to constitute a Chazakah). Tosfos explains that there are two ways to grow Shachas. One could harvest the grain before it develops seeds, in which case it will grow back and can be re-harvested after another thirty days. Alternatively, one can wait until after the grain develops and then harvest it, in which case it will not grow back. Rav Yosef (on 36a) teaches that harvesting Shachas is not a Chazakah when the occupant lets the Shachas develop seeds and only reaps one harvest of Shachas per year. Rebbi Akiva says that Shachas is a Chazakah when the occupant harvests it before it develops seeds and continues to harvest it throughout the year.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IS LAND ACQUIRED THROUGH A CHAZAKAH ON ITS TREES?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Zvid):</font></b> If Reuven made a Chazakah in the trees, and
          Shimon made a Chazakah in the land, each acquired what he
          was Machazik in. (Rashbam - Levi sold his land to Reuven
          and Shimon; Tosfos - Reuven and Shimon each claim 'I
          bought this field'.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> If so, Reuven does not own any
          land. Shimon can tell him to uproot his trees (when they
          dry up; Tosfos - perhaps, immediately) and leave!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Rather, Reuven acquired the trees and half
          the land (Rashbam - perhaps this means, the land needed
          for them; Tosfos - only the area of the stumps), and
          Shimon acquired the rest of the land.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The following is obvious. If Levi sold his land but not
          his trees, he kept land (for the sake of the trees) for
          himself;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even R. Akiva says that one sells generously only
               when he retains a pit or water cistern for himself
               (he does not retain a path for himself unless he
               specifies), for these do not harm the surrounding
               land, and the buyer will not tell him to remove
               them;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Trees harm the surrounding land. If he did not
               keep land for himself, the buyer would tell him to
               uproot them (when they dry up).
<br>
<br>

sjt:
<font><b>1) A 'KINYAN CHAZAKAH' ON A FIELD</b></font><b>
<br>QUESTION:</b> Rav Zevid rules that when two people acquire a field full of trees by performing an act of Chazakah, with an agreement that one acquires the trees and one acquires the land, the one who acquires the trees receives only trees, and the one who acquires the land receives all of the land. The <b>RASHBAM</b> explains that the Chazakah referred to in this case is not a 'Chezkas Shalosh Shanim,' where each person uses the trees or the land for three years, but rather it refers to a 'Kinyan Chazakah,' an act of Kinyan on the land, such as pruning the trees and plowing the land.
</p><p>
<b>TOSFOS</b> (DH Zeh) asks that according to the Rashbam, since the Chazakah in this case is not that of 'Chezkas Shalosh Shanim' (which serves only as a <i>proof</i> for a Kinyan), but rather a Chazakah which itself is an act of Kinyan, why does the Gemara need to say that the two people made a Chazakah at all? The Gemara could mention any type of Kinyan that two people make on a field, such as a purchase with money or with a Shtar!
</p><p>


<b>ANSWER:</b> The <b>KETZOS HA'CHOSHEN</b> (216:2) answers by citing the opinion of the <b>MISHNEH L'MELECH</b> (Hilchos Mechirah 1:8). The Mishneh l'Melech rules that when a landlord rents out his house and then decides to sell the house, the sale cannot be done through a Chazakah-type of Kinyan, such as by locking the doors. Since the tenant, at the moment, has the right to use the house, it is not possible for someone else to perform a Kinyan Chazakah on the house, because such an act is a demonstration of his sole ownership, but he cannot show his sole ownership when someone else is using the house.
</p><p>
The Ketzos ha'Choshen explains that according to the ruling of the Mishneh l'Melech, the Tosfos' question on the Rashbam is answered. In the case of two people who acquire a field together, where one person acquires the trees and the other acquires the land, the Gemara can discuss only a Kinyan Chazakah and not any other form of Kinyan, for the following reason. Rav Papa asked Rav Zevid that if the tree-owner has no rights in the land, then why can the landowner not force him to remove his trees? This question is based on the fact that Rav Zevid maintains that the tree-owner has absolutely no rights in the land at all. This premise is evident from the fact that the landowner was able to make a Kinyan Chazakah on the land. If the tree-owner would have owned some share of the land, then the landowner would not have been able to acquire the land with a Kinyan Chazakah, since such a Kinyan can be made only where no one else has rights to the field. From the fact that the landowner is able to make a Kinyan Chazakah on the field, Rav Papa proves that the tree-owner has no rights to the field. This is why the Gemara must be discussing a case of a Kinyan Chazakah and not any other form of Kinyan, for otherwise Rav Papa would have no proof that the tree-owner has no rights to the field. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DOES ONE RECEIVE OR KEEP LAND WITH TREES?</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 Zvid):</font></b> If Reuven made a Chazakah in the trees,
               and Shimon made a Chazakah in the land, each
               acquired what he was Machazik in.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection (Rav Papa):</font></b> If so, Reuven does not own any
               land. Shimon can tell him to uproot his trees and
               leave! Rather, Reuven acquired the trees and half
               the land, and Shimon acquired the rest of the land.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Obviously, if Levi sold his land but not his trees,
               he kept land for himself. Even R. Akiva says that
               one sells generously only when he kept a pit for
               himself (he kept a path for himself only if he
               specified), for it does not harm the surrounding
               land, so the buyer will not tell him to remove it.
               Trees harm the land. If he would not keep land for
               himself, the buyer would tell him to uproot them!.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Akiva and Chachamim argue about one who sold
                    trees, but kept the land. R. Akiva says that
                    one sells generously; he sold also land.
                    Chachamim say that one sells stingily, and he
                    kept all the land for himself;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Even Rav Zvid (who said above that each acquired
               what he was Machazik in) could say that R. Akiva
               admits there, but argues here. There, Shimon can say
               'just like I got only land, you got only trees.'
               Here, Levi sells generously (at his own expense).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Even Rav Papa could say that here, Chachamim argue
               and say that the buyer gets no land. When one sells
               everything, he is not generous to one and stingy to
               the other. Rather, he is generous to both. Here, the
               seller kept land for himself. We assume that he was
               stingy and sold only the trees.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 71a (Rav Huna):</font></b> Even though if Reuven buys two trees
               in Shimon's property, he does not acquire land with
               them, if Reuven sold his property and kept two trees
               for himself, he keeps land with them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even R. Akiva says that one sells generously
                    only regarding pits, which endure. Trees
                    weaken. If he would not retain land, the buyer
                    could tell him 'uproot your trees and leave.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Mishnah):</font></b> R. Shimon says, one who was Makdish a
               field was Makdish only (what is included in a sale
               of a field, and) grafted carob and sycamore stumps.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon):</font></b> The reason is, they nurture
               from the surrounding Hekdesh land (he does not want
               to benefit from Hekdesh).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question (against Rav Huna):</font></b> If one leaves land for
               his trees, they nurture from his own property!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #1:</font></b> R. Shimon holds like R. Akiva (one sells
               and is Makdish generously). Rav Huna's law is like
               Chachamim (one sells stingily).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Objection:</font></b> Chachamim say that one keeps a path to
               his pit. There is no need to say that he keeps land
               for his trees!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> Rav Huna teaches that if they fall, he may
               plant new trees.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 72b - Answer #2:</font></b> R. Shimon addresses Chachamim
               according to their reasoning. I say that just like
               one sells stingily, he is Makdish stingily, and
               keeps land for himself. Granted, you say that he is
               Makdish more generously than he sells, but you
               should admit that he is Makdish only grafted carob
               and sycamore stumps (for they will nurture from
               Hekdesh, but not pits,...)'. Chachamim hold that he
               is Makdish as generously as he gives.
<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 (3:26):</font></b> The Halachah follows Rav Papa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> He does not really get half.
                    Whether he buys one or three trees, he acquires
                    rights to plant more after these dry up.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (38a and Rosh 4:17):</font></b> On Daf 37a, we might have
               thought that one keeps land for himself only if he
               kept three trees. Rav Huna teaches that even if he
               kept only two trees, he kept land. The Tana'im argue
               about one who sold trees, but kept the land. R.
               Akiva says that one sells generously, and he sold
               also land. Chachamim disagree. The Gemara rules like
               R. Akiva.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif (ibid):</font></b> This is when he sold three trees.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 24:8):</font></b> If one sold land and
               kept the trees, he kept half of all the land. If he
               would not retain land, the buyer could say 'uproot
               your trees.' Similarly, if he kept only two trees,
               he kept land proper for them. If he would not keep
               land, the buyer could say 'uproot your trees and
               leave.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> The Gemara mentioned
                    keeping half the land only when one sold, at
                    once, the land to one buyer and the trees to
                    another. Each gets half the land, for 'trees'
                    includes the field. I say that even if one
                    bought only two trees, he gets half of all the
                    land. However, if one sold land and kept the
                    trees, he kept only the land under and between
                    them and around them for the width of a
                    harvester and his basket.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam understands that the
                    Gemara literally means half the land. Others
                    say that it means only rights to plant others
                    in place of them. The Ri mi'Gash says that he
                    gets based on the trees, and the width of a
                    harvester and his basket around them. The
                    Rambam says that he keeps half, lest the buyer
                    say 'uproot your trees.' The same applies when
                    he sold land and kept the trees. The Gemara did
                    not say 'half' in this case, but the reason is
                    the same, so we learn from what was explicitly
                    taught. When he kept only two trees, it
                    suffices to say that he gets land proper for
                    them. This is one level above one who buys two
                    trees, who gets no land. We find that one who
                    buys (three) trees gets only what is needed for
                    them, and one who keeps trees gets more, i.e.
                    half the land. However, why must he keep half
                    the land to stop the buyer from saying 'uproot
                    your trees'? One who buys three trees does not
                    get half the land, and he can plant new trees
                    when these die! This is why the others
                    explained differently.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (9):</font></b> If one sold trees, but kept the land,
               the buyer gets land appropriate for the trees, like
               we explained.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (CM 216:6):</font></b> Even if one who sold three trees
               kept the land between them, the buyer gets the
               trees' place, and can plant again if they dry up.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (17):</font></b> This is like the Rif, who says that
                    the Sugya on 37a discusses three trees.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 216:11):</font></b> If one sold land and
               kept the trees, he kept half of all the land. If he
               would not retain land, the buyer could tell him
               'uproot your trees.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Mochar):</font></b> The Rashbam explains
                    that even if he kept only two trees, he kept
                    land needed for them to live and their needs,
                    and if they dry up he can plant others in place
                    of them. Rav Huna explicitly said that if he
                    kept two trees, he kept land.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (36):</font></b> The Magid Mishneh thought that 'lest
                    the buyer say 'uproot your trees'' explains why
                    he needed to keep half for himself. The Rambam
                    did not mean this. It suffices to keep the land
                    needed for them! The Rambam merely adopted the
                    words of the Gemara. The Rema brings the
                    opposing opinion, which equates one who left
                    trees for himself to one who buys trees. This
                    opinion agrees that he keeps what is needed for
                    them even when he keeps only two.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (9):</font></b> The Rashbam holds that one who
                    keeps two trees keeps only land needed for
                    them, but not rights to plant more when they
                    dry up. The Tur says that he has land, i.e.
                    also to plant more when they dry up, just like
                    one who buys three trees. This is like Tosfos.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (26):</font></b> The Rambam holds that 37a discusses
                    one who kept at least three trees, like the Rif
                    (38a) said. Rav Huna could have taught a
                    Chidush about keeping three trees (that he
                    keeps half the land, which is more than one who
                    bought three). He taught about two, that even
                    though one does not keep half the land, he
                    keeps what is needed, unlike one who buys two.
                    He explainss that the Reisha and Seifa on 37a-b
                    discusses three trees. However, the Rashbam
                    (37b DH Plugta) proved that it cannot discuss
                    three, for Chachamim agree that one who buys
                    three trees gets land!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that he kept only land needed for
               them.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (12):</font></b> Similarly, if he kept only two
               trees, he kept land appropriate for them. If he
               would not retain land, the buyer could tell him
               'uproot your trees and leave.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (37):</font></b> Even though this is unlike the 
                    previous law, it says 'similarly', for also
                    here one who kept (two) trees for himself is
                    one level better than one who bought (the same
                    number of) trees.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (28):</font></b> In the conclusion (72b), Rav Huna's
                    law is even like R. Akiva.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Akiva and Chachamim argue about one who sold trees
          (Rashbam - two; Tosfos - at least three) but kept the
          land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Akiva says that one sells generously, and he
               sold also land (for the sake of the trees);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say that one sells stingily, and he
               kept all the land for himself;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even Rav Zvid (who said that when Reuven made a
               Chazakah in the trees, and Shimon made a Chazakah in
               the land, each acquired what he was Machazik in)
               could say that R. Akiva admits there, but argues
               here;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  There, Shimon can say 'just like I got only
                    land, you got only trees.' Here, Levi sells
                    generously (at his own expense).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Even Rav Papa (who said that Reuven acquired also
               land) could say that here, Chachamim argue and say
               that the buyer gets no land;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  There, the seller sold everything. We should
                    not assume that he was generous to one and
                    stingy to the other. Rather, he was generous to
                    both;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Here, the seller kept land for himself. We
                    assume that he was stingy and sold only the
                    trees.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TREES SPACED MORE DENSELY THAN USUAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Chachamim of Neharda'a):</font></b> If one ate the Peros of 30
          trees (end of 35b) that are spaced more densely than
          normal, this is not a Chazakah (for the extra trees are
          destined to be uprooted).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> If so, how is one Machazik in a patch
          used to grow fodder (which is seeded very densely? Here
          also, he will uproot some!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> If one sold trees spaced more densely than
          normal, the buyer does not receive land.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Zeira):</font></b> Tana'im argue about this law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Shimon):</font></b> If the rows of vines in a
               vineyard are less than four Amos apart, this is not
               considered  a vineyard;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, it is a vineyard. We view the
               extra vines as if they were uprooted.
<br>

<p>

sjt:
</p><p>
<font><b>2) HOW CLOSE TO A SINGLE VINE MAY ONE PLANT GRAIN OR VEGETABLES?</b></font><b>
<br>OPINIONS:</b> The Gemara quotes the Mishnah in Kil'ayim (5:2) in which Rebbi Shimon states that a vineyard that takes up less than four Amos of space does not have the status of a vineyard because the plants are too close to each other and thus cannot grow properly.
</p><p>
(a) <b>TOSFOS</b> (DH Eino) explains that since such a formation is not considered a vineyard but rather an isolated vine, one who wants to plant grain or vegetable seeds near the vines does not need to distance them four Amos from the vines in order to avoid transgressing the Isur d'Oraisa of Kil'ayim. Rather, it suffices to distance them three Tefachim.
</p><p>
The <b>RASHASH</b> (82b) points out that in two other places in Bava Basra, Tosfos also mentions that it suffices to distance seeds three Tefachim from a single vine (19a, DH ha'Mavrich, and 82b, DH v'Zore'a). This is the opinion of Rebbi Akiva in the Mishnah in Kil'ayim (6:1). The Tana Kama there, however, maintains that one must plant the seeds at least <i>six</i> Tefachim away from a single vine. Tosfos rules like Rebbi Akiva (even though the Halachah normally follows the majority opinion) because the Yerushalmi rules like Rebbi Akiva in this particular case.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Kil'ayim 7:1) maintains that one must leave a space of six Tefachim, in accordance with the view of the Tana Kama.
</p><p>
The <b>PORAS YOSEF</b> (17b) suggests that perhaps Tosfos rules like Rebbi Akiva only for places <i>outside</i> of Eretz Yisrael, based on the statement of the Gemara in Berachos (36a) which says that in any dispute regarding agricultural Halachos, the Halachah outside of Eretz Yisrael always follows the lenient opinion. Accordingly, Tosfos would agree with the Rambam that in Eretz Yisrael one must leave a distance of six Tefachim between the seeds and the single vine. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHAZAKAH ON LAND UNDER A TREE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Chachamim of Neharda'a):</font></b> If Reuven bought Shimon's
          date tree, he acquires with it the ground underneath, all
          the way down. (Rashbam - if the tree dies, Reuven can
          plant another; Tosfos - Shimon cannot dig there.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> Shimon can say 'I sold to you (like
          people sell) Krug (saffron?) (i.e. until it dies)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> Rather, one who was Machazik three years in a
          tree is believed to say that he bought the ground
          underneath, all the way down.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Mar Kashisha brei d'Rav Chisda):</font></b> If Shimon
          did not sell the ground underneath, all the way down, how
          can he stop Reuven from claiming this?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> He should have made a Macha'ah (told
          people that Reuven bought only the tree. If Reuven truly
          bought the ground underneath, he would know to continue
          to guard his document).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support:</font></b> If we would not say so, why did Chachamim
          sanction Mashkanta of Sura?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (The lender deducts a fixed amount from the loan
               for each year that he eats the Peros.) They write
               'at the end of these (allotted) years, the land
               reverts to Ploni (the borrower) for free.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the lender will hide the document after three
               years, he will be believed to say that he bought it.
               Chachamim would not sanction the Mashkanta if it can
               lead to theft!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We must say that the borrower must make a
               Macha'ah. (If he does not, he caused his own loss.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Also here, Shimon should make a Macha'ah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A CHAZAKAH NOT IN FRONT OF THE ORIGINAL OWNER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> There are three regions regarding Chazakah:
          Yehudah, Ever ha'Yarden and Galil:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the original owner (Reuven) was in a different
               region than the Machazik (Shimon), the Chazakah is
               invalid. If they were in the same region, it is
               valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, it is valid. The reason we require
          three years for Chazakah is in order that Reuven will
          have time to protest, even if he is overseas!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> After Shimon uses the land for one year, people
               start talking about this. It takes one year for word
               to reach Reuven, and another year for Reuven to come
               and protest.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is Chachamim's opinion about
          Macha'ah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they hold that a Macha'ah not in front of the
               original owner is valid, Chazakah in a different
               region than the original owner should be valid!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they hold that a Macha'ah not in front of the
               original owner is invalid, Chazakah in the same
               region (if not in front of the original owner)
               should be invalid!
<br> <b>    <b><font color='darkgreen'>(d)</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;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Our Mishnah discusses a time when there is
               hostility between the regions (so caravans do not
               pass between them, and word does not spread from one
               region to another);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Tana illustrated this with Yehudah and Galil
               to teach that they are considered to have hostility
               with each other even in peacetime.
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN A 'CHAZAKAH SHE'LO B'FANAV' AND A 'MACHA'AH SHE'LO B'FANAV'</b></font><b>
<br>QUESTION:</b> The Mishnah states that a Chazakah (Chezkas Shalosh Shanim) is not effective unless the Machzik (occupant) and the Me'ar'er (the claimant) live in the same country. The Gemara asks that if the Mishnah is of the opinion that a Macha'ah -- a protest against occupancy -- is effective even when it is not done in the presence of the Machzik, then why is it not effective even when it is done from a different country?
</p><p>
The <b>RASHBAM</b> (DH Iy Kasavar) explains that according to the opinion that 'Macha'ah she'Lo b'Fanav' <i>is</i> a valid Macha'ah, when the two litigants live in the same city the Macha'ah is effective even if it is not done in the presence of the Machzik. This implies that according to the opinion that 'Macha'ah she'Lo b'Fanav' is <i>not</i> a valid Macha'ah (but rather the Macha'ah must be in the presence of the Machzik), the Macha'ah is not valid even when they live in the same city.
</p><p>
The Gemara continues to ask that if the Mishnah maintains that a Macha'ah is ineffective when it is not made in the presence of the Machzik, then even when they live in the same country the Chazakah should not be effective. Here, the Rashbam (DH Afilu Hayah) explains that the question of the Gemara applies when the two litigants live in different cities in the same country.
</p><p>
The Rashbam seems to contradict his earlier explanation. Earlier, the Rashbam implies that according to the opinion that the Macha'ah must be made in the presence of the Machzik, this applies even when they both live in the same city. The Rashbam later, however, says that the Macha'ah (that is not made in the presence of the Machzik) is not effective only when they live in <i>different</i> cities, but when they live in the same city the Macha'ah (and hence the Chazakah) is effective!
</p><p>
How these two contradictory explanations of the Rashbam to be reconciled?
</p><p>
<b>ANSWER:</b> The <b>PNEI SHLOMO</b> answers that there is a difference between a <i>Macha'ah</i> made not in the presence of the Machzik, and a <i>Chazakah</i> made not in the presence of the original owner. <b>TOSFOS</b> earlier (29a, DH Ela) writes that according to the opinion that the Macha'ah must be made in the presence of the Machzik, when the two litigants are in different cities a Chazakah made not in the presence of the original owner is ineffective, because the original owner is not aware that someone is occupying his field such that he should protest. However, when they live in the same city, the Chazakah is valid even if the original owner does not actually see the Machzik occupy his property, because it is assumed that he hears about it. In contrast, even when they live in the same city, the original owner must appear in front of the Machzik personally in order to protest, because otherwise the Machzik can claim that he did not hear of the protest.
</p><p>
This explains the apparent contradiction in the words of the Rashbam. The Rashbam, in his second explanation, discusses the act of making a Chazakah. He says that only when the two litigants are in different cities is the Chazakah not effective. In his first explanation, the Rashbam discusses the act of making a Macha'ah, and thus he says that even when the two litigants are in the same city, the Macha'ah (not in the presence of the Machzik) is not effective, because the one who protests is obligated to appear in front of the Machzik to submit his protest. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE WITNESSES FOR MACHA'AH</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 citing Rav):</font></b> One can be Machazik in
               property of one who fled.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection (Shmuel):</font></b> This is obvious, for a Macha'ah
               not in front of the Machazik is valid!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Seemingly, Rav came to teach that a
               Macha'ah not in front of the Machazik is invalid. He
               already taught this. Why must he teach it again?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rav teaches that a Macha'ah is valid even if
               the two who heard it cannot tell the Machazik.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Anan citing Shmuel):</font></b> A Macha'ah is valid
                    only if the two who heard it can tell the
                    Machazik.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Rav disagrees, for the two can tell their
                    friends, those friends can tell their
                    friends... (and the Machazik will hear).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 39a (Rav Zvid):</font></b> If Reuven told the listeners 'do not
               tell Ploni', they will not tell him, so the Macha'ah
               is invalid.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> It is valid. The listeners can tell
               their friends, those friends can tell their
               friends... (and Ploni will hear).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 39b (R. Chiya bar Aba citing R. Yochanan):</font></b> Macha'ah
               must be in front of two.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (R. Avahu citing R. Yochanan):</font></b> Macha'ah must be in
               front of three.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Avahu holds like Rabah bar Rav Huna,
               that if one repeats a matter said in front of three
               people, he does not transgress Lashon Hara. R. Chiya
               bar Aba argues, and holds that a matter said in
               front of even two (will become known), and if one
               repeats it he does not transgress Lashon Hara.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rejection #1:</font></b> No, all agree with Rabah bar Rav Huna.
               R. Avahu holds that a Macha'ah not in front of the
               Machazik is valid. Three are needed to spread the
               word everywhere. R. Chiya holds that a Macha'ah must
               be in front of the Machazik. Surely the Machazik
               will hear. it suffices for two to hear it.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rejection #2:</font></b> Both validate a Macha'ah not in front
               of the Machazik. R. Chiya holds that two suffice,
               for they can be witnesses (and they are likely to
               inform the Machazik). R. Avahu requires three, for
               we want everyone to find out.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rava citing Rav Nachman):</font></b> Macha'ah must be made in
               front of two.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rif and Rosh (3:28):Macha'ah is valid even if the
               two who heard it cannot tell the Machazik. The two
               can tell their friends, those friends can tell their
               friends... Macha'ah must be made in front of two.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Even though Shmuel disqualifies Macha'ah in
               front of two who cannot tell the Machazik, and the
               Halachah follows him against Rav in monetary laws,
               here the latter Amora'im hold like Rav. It seems
               that Rav Papa holds like Rav. One could say that
               even Shmuel holds like Rav Papa, for the witnesses
               could go to the Machazik's city and tell others, who
               will tell the Machazik. Rav Papa could disqualify
               Macha'ah in front of old or sick people. However,
               presumably we do not distinguish. Since your friend
               has a friend, and they will tell others, we do not
               distinguish between the same city and another city.
               Others will make it known in the city of the
               Machazik.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 11:6):</font></b> If one commanded the
               witnesses of Macha'ah 'do not tell the Machazik', or
               on their own the witnesses said 'we will not tell
               him', the Macha'ah is valid. Even though they will
               not tell him, they will tell others, and word will
               reach the Machazik.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (7):</font></b> To make a Macha'ah, one says in front of
               two...
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Lechem Mishneh:</font></b> The Rambam did not need to
                    teach that the witnesses can be old or lame,
                    for he already was Machshir a Macha'ah in which
                    he told them not to tell the Machazik, for they
                    will tell friends...
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (30):</font></b> If Macha'ah was made in front of the
               Machazik, even without witnesses, if the Machazik
               admits, the Macha'ah is valid and it negates the
               Chazakah. Two witnesses are needed only for
               testimony. Since he admits, there is no need for
               this. The Ramban disqualifies Macha'ah even in front
               of the Machazik and one witness, for the Machazik
               has a Migo. This is wrong. He is not believed due to
               a Migo, for he should have been careful with his
               document.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Ramban (39b DH Macha'ah):</font></b> If Macha'ah was made in
               front of the Machazik and one other, perhaps the
               Machazik can say 'I was not careful with my
               document, for I reasoned that if I will not find it,
               I can deny the Macha'ah.' Also, I thought that you
               will not take me to Din, even though you said that
               you will, for you did not protest in front of
               witnesses.' I concluded that the Macha'ah is
               invalid. Migo he would be believed to deny the
               Macha'ah, he is believed to say 'I bought the land.'
               Even though you protested, I was not careful with my
               document.' This is unlike the ingot of R. Aba.
               (There, we say that if one must swear to contradict
               one witness, but he cannot, he must pay.) Here, one
               witness about land is worthless. If the Muchzak
               claimed Peros, there is no Migo (because the witness
               obligates a Shevu'ah). Even so, the Macha'ah is 
               invalid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tumim (146:1):</font></b> If we believe that the Machazik
                    owns the land, why must he pay for Peros? We
                    must say that there are no witnesses of
                    Chazakah. The Muchzak's witness does not help
                    for the land itself (in any case there is no
                    Chazakah). The Macha'ah does not help for Peros
                    if the Machazik denies it and swears to deny
                    it, but if he admits to the Macha'ah, since he
                    cannot swear to contradict the witness, he
                    pays. However, if the Muchzak claims three
                    years of Peros, he admits to the Machazik's
                    Chazakah!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nesivos ha'Mishpat (Bi'urim 1):</font></b> The Tumim
                    himself answered that there are no witnesses of
                    Chazakah. The Muchzak has one witness of
                    Macha'ah, and demands payment for three years
                    of Peros. The Muchzak does not admit to a
                    Chazakah, for he says that he protested! If the
                    Machazik admits to the Macha'ah, he has no Migo
                    to be exempt from the Peros, for he cannot
                    swear to contradict the witness.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chazon Ish (CM Likutim 21 l'Perek 3, DH
                    uvi'Ketzos):</font></b> Indeed, the laws are separate! He
                    swears to keep the land, for he has a Migo, but
                    he cannot swear (mid'Oraisa) about Peros, so he
                    pays for them! However, after we ruled that he
                    keeps the land, all future Peros are his.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Note:</font></b> Perhaps the Tumim says that the Muchzak
                    admitted to a Chazakah, for he admits that he
                    did not protest in front of two witnesses. (The
                    Ramban holds that the Machazik had no need to
                    guard 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 146:1):</font></b> Macha'ah must be in front
               of witnesses. Two witnesses suffice, even if they
               are old or sick and cannot go to inform the
               Machazik, for they will tell others, and others will
               tell others, until the Machazik will hear.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> Macha'ah in front of one, even
               in front of the Machazik, is invalid, even if the
               Machazik admits to the Macha'ah. Since he could have
               denied the Macha'ah, he is believed to say 'I bought
               the land.' This is even if one witness contradicts
               him. Some disagree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (3):</font></b> We do not say that the Machazik must
                    swear (to contradict the witnesses), and since
                    he cannot, he must pay. This is because one
                    witness does not obligate a Shevu'ah mid'Oraisa
                    about land. For an oath mid'Rabanan we do not
                    say 'since he cannot swear, he must pay'
                    (75:14).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (4):</font></b> The Rosh holds that we do not say that
                    he is believed due to a Migo, for he should
                    have been careful with his document. The Ramban
                    holds that he can say 'since you did not
                    protest  in front of two, I thought that you
                    were joking, so I was not careful with my
                    document.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>R. Akiva Eiger:</font></b> According to this, if the
                    Machazik admits that Macha'ah was made in front
                    of two, even though there are no witnesses
                    here, all agree that he has no Migo, for he
                    should have been careful. I do not understand
                    the Rosh. Why is this Migo different than the
                    Migo to say 'I bought it', for he could have
                    said 'you never owned it'? (In CM 140:1, we say
                    that if Reuven cannot prove that he previously
                    owned the land, the Machazik keeps it even if
                    he was not there for three years, even though
                    he should have been careful with his document!)
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (2):</font></b> The latter opinion validates
                    Macha'ah in front of the Machazik even without
                    any witnesses. R. Yerucham rules like this.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'>Gra (8):</font></b> The latter opinion holds that R. Chiya
                    said 'two witnesses' only to argue with R.
                    Avahu (who requires three). A proof is from the
                    Gemara, which says that he requires two for
                    testimony. Witnesses are needed only to refute
                    liars (but not when the parties admit). The
                    first opinion holds that we require testimony
                    to remove the Migo.
<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'>(e)</font></b><font color='darkgreen'>  	Version #1 (Rav Yehudah citing Rav):</font></b> One may not be
          Machazik in property of one who fled.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> One may, for a Macha'ah not in front of the
          Machazik is valid! (The original owner can protest, just
          as if he were here.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What did Rav come to teach?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He teaches that a Macha'ah not in
               front of the Machazik is invalid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> Rav holds that such a Macha'ah is
               valid!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (to both questions):</font></b> Rav explains Chachamim of
          our Mishnah, but he rules unlike them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2 (Rav Yehudah citing Rav):</font></b> One can be
          Machazik in property of one who fled.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Shmuel):</font></b> This is obvious, for a Macha'ah not
          in front of the Machazik is valid!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Seemingly, Rav came to teach that a Macha'ah
          not in front of the Machazik is invalid. He already
          taught this. Why must he teach it again?!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav teaches that a Macha'ah is valid even if
          the two who heard it cannot tell the Machazik.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Anan citing Shmuel):</font></b> A Macha'ah is valid
               only if the two who heard it can tell the Machazik.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav disagrees, for the two who heard it can tell
               their friends, those friends can tell their
               friends... (and the Machazik will hear). (end of
               Version #2)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rava):</font></b> One may not be Machazik in property of one who
          fled. A Macha'ah not in front of the Machazik is valid.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection:</font></b> These two laws contradict each other!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava invalidates Chazakah in property of one
          who fled only if he fled for his life (for he cannot
          protest, lest the authorities hear where he is);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he fled for monetary reasons (e.g. from a
               creditor), he could protest (so one can be Machazik
               in his property).
<br>

<p>

sjt:
</p><p>
<font><b>2) THE WORDING OF THE 'MACHA'AH'</b></font><b>
<br>OPINIONS:</b> Rav Zevid states that when the claimant protests against the unauthorized use of his field he must declare, 'So and so is a thief, because he is eating from my field through theft, and tomorrow I will summon him to Beis Din!'
</p><p>
Must the claimant use exactly this formula in his protest in order for his protest to be valid?
</p><p>
(a) <b>RABEINU CHANANEL</b> maintains that if the claimant does not declare that he will summon the occupant to Beis Din, the protest is invalid because he does not emphasize that he intends to take action. Those who hear his protest interpret his protest merely as a complaint about the occupant, and therefore they do not bother to tell the occupant about it.
</p><p>
The <b>ROSH</b> disagrees and says that if Rabeinu Chananel is correct, then Rav Zevid should have stated this explicitly.
</p><p>
(b) If the claimant does not say, 'So and so is a thief,' but he says merely, 'So and so is eating from my field through theft, and tomorrow I will summon him to Beis Din,' <b>RABEINU YONAH</b> maintains that this suffices. However, if the claimant says only, 'So and so is a thief,' Rabeinu Yonah maintains that this does not suffice because the claimant does not stress that the occupant is a thief in reference to his field; he might be referring instead to other objects that he accuses the occupant of having stolen from him.
</p><p>
(c) If the claimant declares that the occupant does not own the field but is occupying the field as collateral for a loan, Rabeinu Yonah maintains that he does <i>not</i> have to say that he will soon take the occupant to Beis Din, because in this case the claimant does not accuse the occupant of behaving wrongly. Rather, he simply is declaring that the field does not belong to the occupant, in order that he be able to reclaim his field without difficulty at the expiration of the term of the collateral.
</p><p>
The <b>RAMBAM</b> (Hilchos To'en v'Nit'an 11:7), however, writes that even when the field is being held as collateral, the original owner must declare, 'If the occupant should argue later that I sold it or gave it to him, I will take him to Beis Din.' It appears that the Rambam maintains that if the claimant does not stress at the time of his protest that he is prepared later to contest the ownership of the field in Beis Din, his Macha'ah is not taken seriously. This also seems to be the view of the <b>RASHBA</b>, who writes that the claimant must say, 'Tomorrow I will remove him from the field,' even when the field is being held as collateral.
</p><p>
The <b>S'MA</b> (CM 146:7) says that the Rosh -- who maintains that when the claimant declares that the field is stolen he does not have to say that he will take the thief to Beis Din (as mentioned above) -- certainly disagrees with the Rambam who rules that in the case of a field being held as collateral the claimant must state that later he will summon the creditor to Beis Din if he does not return the field. The Rosh rules like Rabeinu Yonah in this regard. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A VALID MACHA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is a valid Macha'ah?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Zvid):</font></b> If Reuven says 'Ploni is a thief',
          this is invalid (if Ploni hears this, he does not know
          why Reuven said this. He will not guard his document more
          than the usual three years);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He must say 'Ploni is a thief. He is stealing my
               land. I will take him to Beis Din.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If Reuven told the listeners 'do not tell
          Ploni', what is the law?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Zvid):</font></b> Since he told them, they will not
          tell him. It is invalid.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> It is valid!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The listeners can tell their friends, those
               friends can tell their friends...(and Ploni will
               hear).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If Reuven told them 'do not tell anyone',
          what is the law?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Zvid):</font></b> Since he told them, they will not
          tell anyone. It is invalid.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If the listeners told Reuven 'we will not
          tell anyone', what is the law?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> Since they said that they will
          not tell anyone, it is invalid.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rav Huna brei d'Rav Yehoshua):</font></b> Whenever one
          was not commanded to keep something secret (and he will
          not lose if reveals it), he is not careful to keep it
          secret. The Macha'ah is valid.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rava citing Rav Nachman):</font></b> A Macha'ah not in front of
          the Machazik is valid.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rava - Mishnah - R. Yehudah):</font></b> The Chazakah is
          valid. We require three years in order that after Shimon
          uses the land for one year, word will reach Reuven in one
          year, and Reuven will have one year to come and protest.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a Macha'ah not in front of the Machazik is
               valid, why do we allow a year to come and protest?
               Reuven can protest where he is!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> (Really, Reuven can protest where he is. A
          third year is needed anyway to allow time for Shimon to
          hear the Macha'ah.) The Mishnah gives wise counsel to
          Reuven, that he himself return;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven would protest now and return later, it
               will be hard to force Shimon to pay for the Peros he
               ate in the meantime.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Inference:</font></b> Since Rava tried to refute Rav Nachman, Rava
          must hold that a Macha'ah not in front of the Machazik is
          invalid.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Rava said that a Macha'ah not in front of the
          Machazik is valid!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava said that after he heard Rav Nachman's
          answer (and accepted it).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW MANY MUST HEAR THE MACHA'AH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba citing R. Yochanan):</font></b> Macha'ah must be
          in front of two.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Avahu citing R. Yochanan):</font></b> Macha'ah must be in
          front of three.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> R. Chiya bar Aba and R. Avahu argue about
          Rabah bar Rav Huna's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar Rav Huna):</font></b> If something was said in
               front of three people, if one repeats, it he does
               not transgress Lashon Hara.
<br>
<br>

sjt:
<font><b>1) HALACHAH: PERMISSIBLE LASHON HA'RA</b></font><b>
<br>OPINIONS:</b> The Gemara quotes Rabah bar Rav Huna who states that 'anything which is said in front of three people does not involve the prohibition of speaking Lashon ha'Ra.'
</p><p>


Does this mean that one may speak Lashon ha'Ra about another person in front of three people?
</p><p>
(a) <b>TOSFOS</b> (39b, DH Leis) explains that one is permitted to say Lashon ha'Ra in front of three people (in contrast to the view of the Rashbam, see (c) below). However, this does not mean that one may say outright Lashon ha'Ra. Rather, as Tosfos in Erchin (15b, DH Kol) explains, Rabah bar Rav Huna refers to a statement which may be construed in two ways. For example, when one says, 'There is always fire in the oven in Reuven's home,' this could mean that Reuven is very hospitable and always has hot food available for guests. On the other hand, it could mean that Reuven is a glutton who always cooks food for himself. When such a statement is said in front of three people, it is assumed that it will be publicized (by virtue of having been said in front of three) and eventually heard by the person about whom it was spoken. Since the person who made the statement is aware that the subject of his words will hear of the statement, he presumably did not intend to harm or insult the other person but instead intended his statement to be complimentary, not derogatory. In contrast, an unquestionably degrading statement always constitutes Lashon ha'Ra and may not be said even in front of three people.
</p><p>
(b) <b>RABEINU YONAH</b> here, <b>RASHI</b> in Erchin (15b, DH d'Mis'amri), and <b>RABEINU GERSHOM</b> explain that the Gemara does not refer to a negative statement at all. Rather, one is forbidden to divulge to others any information a person disseminates if there is reason to assume that the one who made the remark wants it to remain secret. If, however, the remark was originally made in the presence of three people, and he did not stipulate that the information should be kept confidential, it is assumed that the one who made the statement does not care whether or not the information is made public, and thus it may be said over to others. The Gemara does not refer to damaging or negative statements said about another person.
</p><p>
(c) The <b>RASHBAM</b> here (DH d'Mis'amra) and the <b>RAMBAM</b> (Hilchos De'os 7:5) explain that if a person spoke forbidden words of Lashon ha'Ra in the presence of three people, one of those three people may repeat the statement to others (even though it was forbidden for the first person to tell it initially). The reasoning behind this is that since the statement was made in the presence of three people, it can be assumed that it is already public knowledge. Repeating what was said will not give the statement added publicity, and therefore it does not constitute Lashon ha'Ra.
</p><p>
The Rashbam adds that since it may be assumed that the statement is public knowledge, one of the three people who heard the Lashon Ha'Ra may even tell the subject of the Lashon ha'Ra what was said about him.
</p><p>
The <b>CHAFETZ CHAIM</b> (Hilchos Lashon ha'Ra 2:3) lists five conditions which must be met in order to implement the lenient ruling of the Rambam:
</p><p>
1. The Rambam disagrees with the Rashbam and rules that one is forbidden to quote what was said to the victim of the Lashon ha'Ra himself.
</p><p>
2. If the original bearer of the Lashon ha'Ra told the listeners not to repeat the story, or if any one of the three is known to be a G-d-fearing person who would not gossip, or if one of them is a friend of the victim of the Lashon ha'Ra, then it cannot be assumed that it is public knowledge and it is forbidden to repeat the story.
</p><p>
3. Only <i>one</i> of the original three who heard the story may repeat it.
</p><p>
4. It may be repeated only in the same city where it was originally told.
</p><p>
5. When repeated, the story must be told with perfect accuracy. One may not change even the smallest detail from the original story.
</p><p>
The Chafetz Chaim concludes that in practice, it does not seem appropriate to rely on the lenient ruling of the Rambam because it is almost impossible to meet all the conditions required. Moreover, according to the way the other Rishonim learn the Gemara, there is no source at all to permit Lashon ha'Ra even under these circumstances.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>LASHON HA'RA SAID IN FRONT OF THREE PEOPLE</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> Macha'ah must be in front of
               two.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Avahu):</font></b> Macha'ah must be in front of three.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Chiya bar Aba and R. Avahu argue
               about Rabah bar Rav Huna's law;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rabah bar Rav Huna):</font></b> Lashon ha'Ra does not
                    apply to anything said in front of three
                    people.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Chiya bar Aba says that two suffice for
                    Macha'ah, for he argues with Rabah. R. Avahu
                    holds like Rabah, therefore, he requires three.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> No, all agree with Rabah. R. Avahu allows
               Macha'ah not in front of the Machazik. Three are
               needed to spread the word everywhere. R. Chiya
               require Macha'ah to be in front of the Machazik.
               Surely the Machazik will hear, so it suffices to
               tell two.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Erchin 15b (Rabah):</font></b> It is Lashon ha'Ra to say 'there
               is fire in Ploni's house.' (This implies that they
               are gluttonous, and are always cooking.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Objection (Abaye):</font></b> One may tell people where to find
               fire! To say offensively 'where will you find fire,
               if not in Ploni's house?!' is Lashon ha'Ra.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> .(Rabah):</font></b> Anything said in front of the party
               discussed is not Lashon ha'Ra. This is like R. Yosi;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yosi):</font></b> I never said something and turned
                    around to see if the one I spoke about was
                    there.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rabah bar Rav Huna):</font></b> Lashon ha'Ra does not apply to
               anything said in front of three people.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> This is because your friend has a friend, and he has
               a friend...
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Sanhedrin 31a:</font></b> Once, a matter was said in the Beis
               Medrash, and it became known that a certain Talmid
               revealed it 22 years later. R. Ami expelled him from
               the Beis Medrash, and announced 'this person reveals
               secrets.'
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Shabbos 14a) brings the Gemara in Erchin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (DH Leis):</font></b> One who repeats it does not
                    transgress, for the teller showed that he does
                    not care if Ploni finds out, for in the end it
                    will be revealed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos De'os 7:5):</font></b> One may not speak Lashon
               ha'Ra about Ploni in front of him or in his absence.
               Lashon ha'Ra is saying things that, if they are
               heard through gossip, can cause bodily or monetary
               harm or anguish or fear. If they were said in front
               of three, it is already known, and if one of the
               three retells it, it is not Lashon ha'Ra, provided
               that he did not intend to reveal it more.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Heter is only if he happened
                    to mention the matter. He may not intend to
                    spread it. The Rambam did not need to say that
                    if the one who said it told the listeners not
                    to reveal it that they may not do so, for we
                    cannot say that word will spread.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Maimoniyos (7):</font></b> We learn from Sanhedrin
                    that if the teller said not to reveal a matter,
                    one may not reveal it even if was said in front
                    of many.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question:</font></b> Perhaps R. Ami expelled the Talmid
                    because the Talmid intended to spread the word!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Maharshal on Semag, Sof Lav 9):</font></b> The
                    Gemara says 'he revealed'. This does not
                    connote intent to spread the matter.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Chafetz Chayim (Hilchos Lashon ha'Ra, Be'er
                    Mayim Chayim 2:3):</font></b> Perhaps the Rambam learns
                    the Isur to intend to spread the matter from
                    this case. Alternatively, he learns from the
                    Yerushalmi. It proves that one may speak Lashon
                    ha'Ra about those who make controversy.from
                    Noson's directions to Bas Sheva to tell David
                    about Adoniyahu. Even though it was famous and
                    David was sure to find out, it would have been
                    forbidden to intend to spread the word, if not
                    for the Heter to speak about those who make
                    controversy.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> She'altos (Va'Yeshev 28, b'Sof):</font></b> Normally, one needs
               permission to repeat anything he was told. Rabah bar
               Rav Huna teaches that if it was told in front of
               three, this is like permission.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ha'Emek She'elah:</font></b> Rashi (Erchin Reish 16a)
                    explains similarly.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (Erchin 15b DH Kol):</font></b> Rabah bar Rav Huna
               refers to statements like 'where will you find
               fire...,' which can be said in a positive or
               negative way. Derogatory remarks are Lashon ha'Ra
               even in front of three.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (156:2):</font></b> This is because what is
                    said in front of three is as if it was said in
                    front of Ploni. (Surely, he says it in a
                    positive way, for Ploni will find out.)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Hagahos Ashri (3:30):</font></b> If one talks about Ploni in
               front of three, Lashon ha'Ra does not apply, for
               presumably he is not concerned if Ploni hears. One
               who hears may tell Ploni.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rashbam (39b DH u'Man):</font></b> My Rebbeyim say that
               Macha'ah is Lashon ha'Ra, to say that Ploni is
               stealing the land. This is why (in the Hava Amina)
               Rabah requires it to be in front of three, to permit
               telling others. This is wrong. Macha'ah is meant to
               reach the Machazik, so he will be careful with his
               document! It is a Mitzvah to tell others!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Tosfos (39b DH Leis (1)):</font></b> We say that a loan without
               a document does not become known even if it was in
               front of many witnesses. This is because people
               borrow covertly. Also, the witnesses do not know who
               will buy from the borrower and needs to know about
               the loan. People know that the Machazik must hear
               about the Macha'ah.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Tosfos (39b DH Leis (2)):</font></b> Something said in front of
               three is not Lashon ha'Ra for the one who said it,
               like it says in Erchin.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Magen Avraham (156:2):</font></b> If something derogatory was
               said in front of three, it is already known, and if
               one of the three tells it again, Lashon ha'Ra does
               not apply. This is if he does not intend to spread
               the word.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chafetz Chayim (2:3):</font></b> Some say that if Reuven spoke
               detriment about Shimon in front of three people,
               even though he surely transgressed Lashon ha'Ra, if
               one of the three who heard later tells others, he
               did not transgress, for surely the matter will
               become known, for your friend has a friend... and
               the Torah did not forbid something destined to be
               revealed. If he intends to spread it, even if he
               does not say from whom he heard it, just that he
               heard so about Shimon, he transgresses Lashon ha'Ra.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Chafetz Chayim (4):</font></b> The Heter when he does not
               intend to spread it is only for those who heard it 
               firsthand in front of three, but not for one
               (Yehudah) who heard from Levi, who heard from Reuven
               in front of three, even if he does not mention
               Reuven or Levi, It is permitted only if it is
               already know to everyone. This is not only if
               Yehudah does not know whether Reuven really said so,
               in which case he may not believe Levi that Reuven
               transgressed Lashon ha'Ra. Rather, even if he knows
               that Reuven spoke bad about Shimon, but he does not
               know whether it was in front of three, and Levi says
               that it was, Yehudah may not rely on Levi. Perhaps
               it was not said in front of three, and it is not
               prone to become known. Therefore, Yehudah may not
               tell anyone.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Chafetz Chaim (5):</font></b> If a matter was told to three
               people who fear Hash-m and are careful about Lashon
               ha'Ra, the matter is not prone to be revealed, so
               one may not repeat it. The same applies if even one
               of them fears Hash-m, for then there are not three
               who will publicize it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Chafetz Chayim (6):</font></b> It seems that this Heter is only
               in the city in which iit was heard in front of
               three, but not in another city, even if caravans are
               frequent between them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Chafetz Chaim (7):</font></b> If Reuven told the listeners not
               to repeat the matter, even if it was told to many,
               Lashon ha'Ra applies even if one just happens to
               reveal it. This is even if he sees that one or two
               of the listeners did not obey and repeated it.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Chafetz Chayim (9,10):</font></b> Surely, one may not retell
               more than he heard or embellish the matter, for this
               debases Shimon more than the initial story, and it
               shows that he accepted that the matter is true. All
               agree that one may not do so (he may only be
               concerned lest it is true). One may never tell bad
               things to one who will accept that it is true, and
               possibly retell it and add things, due to Lifnei
               Iver. One must stay far from this leniency, for it
               hardly ever applies, and also it requires
               investigation if the Halachah follows this opinion,
               for many Poskim hold that it has no source in the
               Gemara.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>REVEALING SECRETS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Chiya bar Aba argues with Rabah bar Rav Huna.
               He holds that anything said in front of even two
               (will become known), and if one repeats it he does
               not transgress Lashon Hara.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Avahu agrees with Rabah bar Rav Huna. Only
               something said in front of three will become known.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No, all agree with Rabah bar Rav Huna;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Avahu holds that a Macha'ah not in front of
               the Machazik is valid. Three are needed to spread
               the word everywhere;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Chiya holds that a Macha'ah must be in front
               of the Machazik. Surely the Machazik will hear. it
               suffices for two (witnesses) to hear it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Both hold that a Macha'ah not in front of
          the Machazik is valid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Chiya holds that it suffices to have two, for
               they can be witnesses (and they are likely to inform
               the Machazik);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Avahu holds that we want everyone to find out,
               so three are needed.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IS ONE MACHA'AH ENOUGH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Gidal bar Minyomi made a Macha'ah in front of Rav Huna,
          Chiya bar Rav and Rav Chilkiya bar Tuvi. The next year,
          he came to protest in front of them again.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1:</font></b> They told him that this is not needed, for
          Rav taught that one Macha'ah suffices (for three years).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 (Chiya bar Rav):</font></b> This is not needed, one
          Macha'ah suffices (for three years).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> One must protest at the end of every
          three years.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (R. Yochanan):</font></b> What is the reason? Does a
          thief get a Chazakah?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why does R. Yochanan call him a thief?
               He claims that he bought the land and lost his
               document!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, since he is suspected to be a
               thief, (he knows that he must always guard his
               document, so) one Macha'ah suffices.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah is, one must protest at the end of
          every three years.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Bar Kapara):</font></b> If Reuven made a Macha'ah, then another,
          then another, if the claims are all the same (e.g., he
          always says 'Ploni is stealing my land'), Ploni has no
          Chazakah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the claims are different (first he said 'he is
               a thief', and the next time he said 'the land is a
               Mashkanta with him', proving that his first claim
               was false), Ploni has a Chazakah.
<br>

<p>

sjt:
</p><p>
<font><b>2) INCONSISTENT PROTESTS</b></font><b>
<br>QUESTION:</b> The <b>RASHBAM</b> (DH Im Machmas) explains that when the claimant protested repeatedly within the three-year period from the time that the Machzik occupied the property, the protest is valid and the Machzik does not have a Chazakah. This applies, however, only when all of the claimant's protests during that time contained a single argument (for example, 'So and so is occupying my field because he stole it from me'). If, however, the protests contain different, inconsistent arguments (for example, he first protests that the Machzik stole the field from him, and later he protests that the Machzik is holding his field as collateral for a loan), the contradiction in his arguments nullifies the protests and the Machzik thus has a valid Chazakah. The Rashbam explains that since the claimant's second argument contradicts his first argument, he has established himself to be a 'Kafran,' a liar, whose word is not accepted in Beis Din.
</p><p>
The <b>ROSH</b> (3:29) questions the Rashbam's explanation. A person cannot be proven to be a Kafran unless two witnesses testify that he lied. In contrast, if a person merely presents two contradictory arguments in Beis Din, he may choose one of the arguments and claim that he was mistaken with regard to the other. Why, in the case of inconsistent protests, does Beis Din not let the claimant retract his first argument and claim that he was mistaken?
</p><p>
<b>ANSWER:</b> The <b>BACH</b> (CM 146:11) explains the Rashbam's view. The Bach points out that the Halachah (CM 79) is that a person can be proven to be a Kafran only through the testimony of two witnesses, and that the Rashbam certainly does not dispute this. However, the Rashbam's assertion <i>does</i> apply to the case of protests against the unauthorized occupancy of property. In such a case, the Machzik can argue that because the claimant gave contradictory arguments, he did not bother to keep his Shtar for more than three years. When the Rashbam writes that the claimant establishes himself to be a Kafran, he does not mean that henceforth he will not be believed in Beis Din, but rather that <i>the Machzik</i> considers him a Kafran. Any logical reason which the Machzik can provide for why he did not pay attention to the claimant's protests is valid and his three years of occupancy establish for him a valid Chazakah. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MATTERS THAT REQUIRE TWO PEOPLE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava citing Rav Nachman):</font></b> Macha'ah must be made in
          front of two people. He need not tell them to write (a
          document, they can write it on their own, since this
          benefits him, it gives him proof that he protested);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Moda'ah (one who is being forced to sell or give
               his property informs witnesses beforehand that he
               acts unwillingly, and intends to reclaim his
               property when the Ones no longer applies) must be
               made in front of two people. He need not tell them
               to write it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Admission (I, Reuven, owe Ploni) must be made in
               front of two people. He must tell them to write it
               (for this hurts Reuven. Ploni could use the document
               to 'prove' that he was never paid);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Kinyan (Chalipin) can be done in front of two
               (Tosfos - or even without any onlookers). The giver
               need not tell them to write it;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Validation of documents must be in front of three
               judges.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> How do we understand Chalipin?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If (he need not tell them to write because) it is
               considered an act of Beis Din (Beis Din has the
               power to enact, even if it hurts a party), it should
               require three (like all acts of Beis Din)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is not considered an act of Beis Din, he
               should have to tell them to write it (for this hurts
               the giver)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Really, it is not considered an act of
          Beis Din. He need not tell them to write it, since he
          used Chalipin in order that the receiver will acquire
          immediately, so we assume that he wants the document to
          be written.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MODA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah and Rav Yosef):</font></b> We write a Moda'ah only against
          one who does not obey Beis Din (otherwise, he should ask
          Beis Din to prevent the Ones).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Abaye and Rava):</font></b> Moda'ah may be written against people
          such as ourselves (who obey Beis Din. Sometimes, Beis Din
          is not available to prevent the Ones).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Chachamim of Neharda'a):</font></b> If the witnesses on a Moda'ah
          did not write 'we know the Ones', it is invalid.
<br>
<br>

sjt:
<font><b>1) A HANDWRITTEN NOTE OF DEBT</b></font><b>
<br>QUESTION:</b> The Gemara states that if Reuven admits to Shimon that he owes him money, his word is not legally binding until he makes his declaration in front of two witnesses. Also, a legal document of proof to the debt may be drafted only when Reuven orders that his admission of debt be written in a document testifying that he owes Shimon the money.
</p><p>
The <b>RASHBAM</b> (DH Hoda'ah) writes that once Shimon is in possession of a bill of debt, Reuven is not believed to say that he repaid the loan unless he brings two witnesses to testify in Beis Din that he repaid. The Rashbam adds that even if Shimon shows a handwritten note from Reuven that states that he owes money to Shimon, he may use the note to collect from Reuven's property and Reuven is not believed to say that he already repaid the debt.
</p><p>
What is the Rashbam's source for his ruling that a handwritten note is legally binding?
</p><p>
<b>ANSWER: REBBI AKIVA EIGER</b> explains that the Rashbam derives this Halachah from the Gemara in Kesuvos (21a). The Gemara there says that a person should be careful not to sign his signature on a piece of parchment, lest a dishonest person find it and write above the signature that the undersigned owes a large sum of money to him. The one who signed his name will be obligated to pay, because the Mishnah in Bava Basra (175b) states that if the claimant shows a note written with the defendant's handwriting, he may collect his debt from the defendant's property. From that Gemara the Rashbam infers that the defendant is not believed to claim that he repaid a debt when there is a note written in his own handwriting that states that he borrowed money.
</p><p>
(The Rashbam understands the Gemara in Kesuvos according to its simple interpretation: when the creditor shows a note in the debtor's handwriting, the debtor is not believed to make any claim against it unless he has witnesses to support his claim. In contrast, <b>TOSFOS</b> in Kesuvos (21a, DH Hotzi) cites the <b>RIF</b> who maintains that the creditor may collect with a handwritten note of the debtor only when the debtor completely denies that he ever borrowed money. If he claims that he borrowed money but that he paid it back, then he <i>is</i> believed.) (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>BITUL OF MODA'OS</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'> (Chachamim of Neharde'a):</font></b> If one made a Moda'ah
               (said that he is being coerced, and does not want
               what he will do to be valid) and the witnesses did
               not write 'we know the Ones', it is invalid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This cannot refer to a Moda'ah to invalidate a Get
               or gift. It is a mere Giluy Milsa (reveals that he
               is Anus! Since the giver does not receive anything,
               he would give the document if he does not want it to
               take effect, if not for Ones!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Erchin 21b (Rav Sheshes):</font></b> A Moda'ah about a Get is
               valid (the Get is void).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The case is, he was forced and later consented. One
               might have thought that his consent is a Bitul
               (retraction) of Moda'ah. This is wrong. If it were a
               Bitul, the Mishnah could have said only 'until he
               gives a Get'. Rather, it says 'until he says 'I
               want'', to teach that he must explicitly be Mevatel
               any Moda'ah.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (Gitin 16b and 4:6) bring the
               Gemara in Erchin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Rif (Bava Basra 21a) brings the Gemara on 40b.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Ki):</font></b> R. Yonah says that if
                    one was coerced until he was Mevatel a Moda'ah,
                    his sale is valid, even if he made a Moda'ah
                    that he is coerced to be Mevatel. The same
                    applies to a Get or gift. Amidst the coercion,
                    he resolved to be Mevatel. The Moda'ah on the
                    Bitul is no stronger than the Moda'ah on the
                    sale. However, one should be stringent about a
                    Get.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Beis Yosef EH 134 DH v'Nimukei):</font></b> How
                    can he say that the same applies to a Get or
                    gift? If one was coerced to give or divorce, it
                    is invalid!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gerushin 6:19):</font></b> If one told two 'the
               Get that I write is Batel', and afterwards he wrote
               it and gave it in front of two others, it is Batel.
               This is a Moda'ah on a Get. Similarly, if he said
               'any Get that I write for my wife Plonis is Batel,
               and anything that I will say to be Mevatel this Get
               is Batel', and afterwards he wrote a Get and gave it
               to her, it is Batel. This is even if he was Mevatel
               the Moda'ah before he wrote the Get.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (20):</font></b> The solution is that the witnesses tell
               him before the Get is written 'say to us that any
               words you gave over that would Mevatel this Get,
               those words are Batel.' He says yes, and commands
               them to write, sign and give it to her. They do not
               let him leave until she gets the Get, lest he go and
               be Mevatel it. One who makes a Moda'ah or is Mevatel
               it (a Moda'ah) does not need a Kinyan.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (4:6):</font></b> Even if he made a Moda'ah and said 'even
               if I will Mevatel this Moda'ah, the Bitul (and hence
               the Get) is Batel', if later he was Mevatel Moda'ah
               and Moda'os on Moda'os to the end of all Moda'os,
               they are Batel. Just like Bitul helps for one
               Moda'ah, it helps for many. This is the practice.
               According to the Rambam, how does his solution help?
               Perhaps the man made a Moda'ah about (Bitul of the)
               Moda'ah! Perhaps the Rambam means that Stam Bitul
               Moda'ah does not help for Moda'ah about a Moda'ah,
               unless he is explicitly Mevatel all of them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (Bava Basra 3:51):</font></b> In Erchin, we say that a
               Moda'ah about a Get is valid, even if he was forced
               and later consented. The Mishnah says 'until he says
               'I want'', to teach that he must explicitly be
               Mevatel any Moda'ah. This implies that if he was
               forced to be Mevatel the Moda'ah, it is a proper
               Bitul. Even if when he made the Moda'ah, he said 'if
               I will be Mevatel (this Moda'ah), it should not
               help', these words do not help. He was forced to be
               Mevatel everything he said, and amidst coercion he
               did so.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 134:1):</font></b> One must be Mevatel every
               Moda'ah before giving a Get.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> Therefore, before the Get is
               written he says 'I am Mevatel any Moda'ah I gave on
               this Get, and anything whose fulfillment would
               Mevatel this Get. I testify that I did not say over
               anything that would disqualify the Get. I disqualify
               any witness who will testify that I gave over or
               said anything that will disqualify the Get or weaken
               its power due to that Moda'ah or words.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that it suffices if he is Mevatel
               Moda'ah and Moda'os on Moda'os to the end of all
               Moda'os. This is the custom, but it is good to be
               concerned, and he should say like the first opinion.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav ha'Ran):</font></b> The Ran (Kesuvos
                    41b Sof DH Tanu) says that it does not suffice
                    to write that he is Mevatel all Moda'os 'Ad
                    Olam' (forever). Rather, we must write that he
                    is Mevatel all Moda'os and Moda'os on Moda'os
                    Ad Olam. The Rosh would agree. The Rambam and
                    Rashba do not require this, just that he be
                    Mevatel anything that would disqualify the Get,
                    or disqualify any witness who will testify
                    about a Moda'ah, respectively.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH veha'Rashba):</font></b> The Rashba says
                    that saying 'I am Mevatel all Moda'os' should
                    suffice. However, to avoid doubts one should be
                    Mevatel any witness who will testify about a
                    Moda'ah. If one gave a Get on condition that he
                    will not come, and said that she is believed
                    about this, we believe her (Gitin 76b). He
                    knows that he cannot disqualify the Get b'Yedei
                    Adam, so he does not seek to ruin her b'Yedei
                    Shamayim, and did not come. Similarly, here he
                    resolves to be Mevatel all Moda'os.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Ran, cited in Beis Yosef DH
                    veha'Ran...):</font></b> If he previously gave a Moda'ah
                    that he is coerced to disqualify witnesses on a
                    Moda'ah, the sale is Batel. There is no
                    solution. The Rashba's proof from believing her
                    about a Get is shaky. Chachamim of his
                    generation and the one before us disagreed.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Al):</font></b> The Magid Mishneh says
                    that the Rambam says that let her husband must
                    stay until she gets the Get, for we follow his
                    last words. Therefore, even if he disqualified
                    witnesses on any Moda'ah, but was Mevatel the
                    Get, it is Batel.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (5):</font></b> It is a Mitzvah upon Beis Din in
               every place and at all times to force one who
               divorces to be Mevatel a Moda'ah that he made.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Lashon...):</font></b> The Tur connotes
                    that if one was forced properly, even if he
                    made a Moda'ah, the Get is valid. This is
                    wrong. In Erchin, regarding a properly coerced
                    Get, Rav Sheshes requires explicit Bitul of the
                    Moda'ah. If not, it is not a Get. Rather, the
                    Tur means that if he made a Moda'ah, we force
                    him until he is Mevatel it. For this reason,
                    Tashbatz (1:1) concludes that there is a
                    misprint in the Tur, and also because the Tur
                    connotes that if he was Mevatel the Moda'ah,
                    the Get is valid even if he was forced
                    improperly, which is wrong.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN ONE BE MEVATEL A GET ITSELF? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the Moda'ah about?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is a Moda'ah to invalidate a Get or gift,
               surely he is Anus! (Since the giver does not receive
               anything, Ones is the only reason he would give the
               document if he does not want it to take effect.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is about a sale.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> Rava taught that we do not write a
               Moda'ah about a sale!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, It is about a sale. Rava admits when
          there is an Ones, like the following case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven's orchard was a Mashkanta to Shimon for
               three years. After three years, Shimon threatened
               'if you do not sell it to me, I will conceal the
               Mashkanta document and claim that I bought it.' (He
               would be believed, because he had a Chazakah, i.e.
               Reuven never protested.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> One cannot collect with a concealed gift
          document. (Perhaps it was only intended to be a Moda'ah
          (to invalidate a second document that will be written for
          the same property), or the property was already given to
          someone else).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is a concealed gift document?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #1 - Answer (Rav Yosef):</font></b> The giver told the
          witnesses 'seclude yourselves and write it.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2 - Answer (Rav Yosef):</font></b> He did not tell the
          witnesses 'write it in the market, in public view.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between these answers?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about one who gave no instructions
          where to write it.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rava):</font></b> It does work like a Moda'ah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Rava did not say this explicitly. Rather,
          it was inferred from the following.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven wanted to be Mekadesh Leah. She agreed to
               accept only if he will write all his property to
               her; he agreed. Reuven's oldest son complained to
               him (before the document was written) 'what will I
               inherit?!' Reuven commanded witnesses to hide
               themselves and write his property to his son.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> Neither the son nor Leah acquires the
               property.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Someone heard this ruling, and assumed that it is
               because a concealed gift works like a Moda'ah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> No, Rava ruled like this only in this
               case, for it is evident that Reuven did not want to
               give to Leah;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In a case where the unconcealed gift was given
                    willingly, this shows that the giver wants it
                    to be valid. The concealed gift is not a
                    Moda'ah!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What is the law when he gave no instructions
          where to write it? (I.e. which version does the Halachah
          follow?)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1 (Ravina):</font></b> The document is valid.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> It is invalid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Halachah is, it is invalid.
<br>

sjt:
</p><p>
<font><b>2) THE DIFFERENCE BETWEEN BRIBING A MAN TO SELL HIS POSSESSIONS AND BRIBING A MAN TO DIVORCE HIS WIFE</b></font><b>
<br>QUESTION:</b> The Gemara says that when a person gives a Get to his wife, or a document of ownership to his friend declaring that he is giving him a present, and he later decides to nullify the Get or the gift by stating that he gave the Get or the gift under duress, he is believed without witnesses. The <b>RASHBAM</b> (DH Giluy) explains that since a Get or a gift is something that a person gives on his own accord and receives nothing in return for giving them, when he claims that he was forced to give them he is believed without additional proof.
</p><p>
The <b>SHITAH MEKUBETZES</b> challenges the Rashbam's explanation and says that it is possible that his wife's relatives are paying him money to divorce her, even though he actually wants to remain married. He should <i>not</i> be believed to say that he was forced to give the Get, because perhaps he gave it for a different reason even though he did not want to give it.
</p><p>
<b>ANSWER:</b> The <b>RIVASH</b> (Teshuvos #127, DH v'Im Ken) writes that, indeed, in a case in which it is known that someone is giving money to the husband to encourage him to divorce his wife, he may not nullify the Get without witnesses who testify that he issued a valid 'Moda'a' and that he was genuinely coerced to give the Get.
</p><p>
The words of the Rashbam himself seem to support the Rivash's argument. The Rashbam writes that the husband is not receiving money for handing over the Get. This implies that if he <i>is</i> receiving money for handing over the Get, then the witnesses on the 'Moda'a' indeed would need to specify that they are aware of the coercion.
</p><p>
<b>RAV ELCHANAN WASSERMAN</b> Hy'd (Kovetz Shi'urim #168) cites an alternative answer in the name of <b>RABEINU YEHUDAH</b>, the son of the Rosh (#73, DH Teshuvah Techilah), to the question of the Shitah Mekubetzes on the explanation of the Rashbam. There is an essential difference between a sale and a Get. The basic reason for why a person sells an object is that he needs money (see 47b, where the Gemara states that every sale carries with it a certain degree of coercion, because if the seller would not have needed the money he would have retained his possessions. In contrast, when a man receives money to divorce his wife, the money is not the primary impetus for the giving of the Get. If the husband and wife truly cared for each other and were at peace with each other, then even if someone would give the man huge sums of money he would refuse to divorce his wife. Hence, the real reason for the divorce must be coercion, and therefore the husband is believed even if he received money.
</p><p>
However, according to the answer of Rabeinu Yehudah, why does the Rashbam write that the husband does not receive money for handing over the Get? He would be believed even if he <i>does</i> receive money! The answer is that the Rashbam's intention is not to say literally that he did not receive money, but rather to say that even if he <i>did</i> receive money, the money that he receives for giving a Get is not the reason why he gives the Get, as opposed to money a person receives for a sale, which <i>is</i> the reason for why he makes the sale. (Y. Marcus)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHAZAKAH NEEDS A CLAIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Chazakah without a claim is invalid:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 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'>2.  </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'>(b)</font></b></b>  	An heir does not need a claim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) 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'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that Shimon really
          bought it and lost the document;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He did not say that, for he fears lest Reuven
               demand to see the document. (Shimon does not know
               the law of Chazakah.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One might have thought that we should 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 do so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Anan's land was flooded. The boundaries were washed
          away. He rebuilt the wall on his neighbor's property. Rav
          Nachman told him to return to the original border.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Anan:</font></b> I made a Chazakah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Do you think that the Halachah
               follows R. Yehudah and R. Yishmael, that in front of
               the original owner one becomes Muchzak immediately?
               The Halachah is not like them!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Anan:</font></b> I can prove that he helped me to build
               the wall. (Surely, this shows that he conceded to me
               all the property on my side.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> He erred. He thought that it really 
               was yours;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  You yourself would not have built the wall on
                    his side unless you erred!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Also Rav Kahana's land was flooded. He rebuilt the wall
          on his neighbor's property. The case came before Rav
          Yehudah. One witness said that he took (the width of) two
          rows of his neighbor's property, and the other witness
          said that he took three rows.
<br>
<br>

sjt:
<font><b>1) A CHAZAKAH WITHOUT A CLAIM</b></font><b>
<br>QUESTION:</b> The Mishnah states that a Chazakah is a valid proof of ownership of land only when it is accompanied by a claim (such as 'I bought the land from you'). If, however, the Machzik says merely that he has occupied the land for three years and no one told him to leave, his Chazakah does not establish his ownership of the field.
</p><p>
The <b>RAMBAM</b> (Hilchos To'en v'Nit'an 14:12) rules that even though a Chazakah without a claim is not a valid Chazakah, the Machzik cannot be evicted from the property unless the claimant brings two witnesses who testify that the field belongs to him.
</p><p>
The <b>VILNA GA'ON</b> (in <b>BI'UR HA'GRA</b>, CM 146:20) challenges the Rambam's ruling on the basis of the Gemara earlier (35b). The Gemara there discusses a case in which two people dispute the ownership of an object and neither one has proof of ownership (such as witnesses or a Chazakah). The Gemara states that in such a case, Beis Din does not get involved. Rather, whichever one of the disputants is able to seize the object for himself is entitled to do so. The Gemara continues and says that if a third party -- who makes no claim of ownership of the object -- comes and seizes the property, the Halachah is that he is considered a thief and he must return the property to the first two claimants.
</p><p>
The Gemara there seems to contradict the ruling of the Rambam. The Rambam rules that a Machzik who has no claim to the property, but who has a Chazakah, is not evicted, but the Gemara there states that the property <i>is</i> removed from the Machzik who seizes it with no claim, even though the two claimants have no proof of prior ownership!
</p><p>
<b>ANSWER:</b> The <b>NESIVOS HA'MISHPAT</b> (146:9) answers that in the case of the Mishnah, even though the Machzik does not have a valid claim on the field, the claimant also has no proof that the field is his (if he does not bring witnesses that he owned the field). Therefore, this case is comparable to the case of a lost object which belongs to the finder until someone else either brings witnesses that the lost object belongs to him, or is able to describe to the finder identifying marks on the object which would require the finder to give it back to him. Similarly, in this case, the field remains in the possession of the Machzik until someone else brings proof of ownership (such as witnesses). In contrast, in the case of the third party who seizes the property from the two claimants, since each of the two claimants argues with certainty that the property is his, they both have a claim of 'Bari' (even though they have no proof), while the third party has no claim at all and therefore is considered no better than one who has a claim of 'Shema' (an uncertain claim). Therefore, the property is considered the possession of one of the first two claimants, and, consequently, the third party who seized it must return it to them. It is not known with certainty to which of the claimants it belongs, but it <i>is</i> assumed to belong to one of them.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE GET A CHAZAKAH FOR HEZEK RE'IYAH?</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'> 2b (Inference):</font></b> Our Mishnah says that if partners
               build a wall in the middle if (both) <i>wanted</i>. If
               not, one could not force the other. This teaches
               that Hezek Re'iyah (invasion of privacy) is not
               considered damage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 23a:</font></b> Rav Yosef had date trees. Bloodletters sat
               under them. Ravens came to eat the blood of their
               Kelim, and damaged the dates. Rav Yosef ordered the
               bloodletters to leave. Abaye said that they are
               Muchzak to sit there.
<br>       <b>   <b><font color='darkgreen'>3.  </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'>4.  </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 privy. (It
               does not apply to other things!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> I am very sensitive. The ravens bother me
               like smoke and a Beis ha'Kisei.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 41a:</font></b> Rav Anan's land was flooded. The boundaries
               were washed away. He rebuilt the wall on his
               neighbor's property. Rav Nachman ruled that he must
               return to the original border.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rav Anan:</font></b> I made a Chazakah!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rav Nachman:</font></b> The Halachah does not follow R.
                    Yehudah and R. Yishmael, who says that in front
                    of the original owner, one gets a Chazakah
                    immediately!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rav Anan:</font></b> I can prove that he helped me to
                    build the wall. (This shows that he conceded to
                    me all the property on my side.)
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rav Nachman:</font></b> He erred. He thought that it
                    really was yours. You yourself would not have
                    built the wall on his side unless you erred!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 58b (Mishnah):</font></b> One gets a Chazakah for a Mitzri
               window, but not for a Tzuri window. A Mitzri window
               is one which a person's head does not fit.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 59a (Shmuel):</font></b> A window made for light (surely, it is
               meant to be permanent) gets a Chazakah regardless of
               its size.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 59b (Mishnah):</font></b> One may not open a window into a
               jointly owned Chatzer.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Beraisa):</font></b> A case occurred in which Reuven opened a
               window into a joint Chatzer. R. Yishmael b'Rebbi
               Yosi said that he has a Chazakah. R. Chiya ordered
               him to close the window.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If Shimon built a wall blocking light
               from entering Levi's window, Shimon is immediately
               Muchzak. If Levi was truly Muchzak in his window, he
               would never allow someone to block it.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Ramban (2b DH Alma):</font></b> In a Teshuvah, the Rif asked
               what is the proof (on 2b) that Hezek Re'iyah is not
               Hezek. Perhaps it is Hezek, and here the partners
               are Muchzak to live without a wall, with Hezek
               Re'iyah! We say so about two roofs (without walls)
               on opposite sides of Reshus ha'Rabim. The Rif
               answers that if Hezek Re'iyah is Hezek, there is no
               Chazakah, like we say about smoke or a privy. The Ri
               mi'Gash asked that there is a Chazakah for a Tzuri
               window! We must say that this is when there is no 
               Hezek Re'iyah. Whenever there is Hezek Re'iyah, one
               can say 'I thought that I could bear it, but I see
               that I cannot.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (2b DH Ta'ama):</font></b> The Halachah is,
                    Hezek Re'iyah is Hezek.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (1:2):</font></b> Chazakah is when one side damages and is
               not harmed. When both sides are damaged, one can say
               'why should I protest? I thought that you would
               request a wall! Also, Hezek Re'iyah of a window is
               not constant, for it is for light, not for looking
               into the neighbor's Chatzer. One may not look at
               what his neighbor does! People go in and out of a
               Chatzer. One cannot avoid seeing what his neighbor
               does. If witnesses say that he pardoned, he cannot
               retract.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Shechenim 2:14):</font></b> If partners split a
               Chatzer or one may force the other to split, one can
               force the other to build a wall in the middle, lest
               the other see him using his share. Hezek Re'iyah is
               Hezek, and there is no Chazakah for it in a Chatzer.
               Even if they were without a wall for many years, one
               can force the other.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam holds like his Rebbi
                    (the Ri mi'Gash), that there is no Chazakah
                    only in a Chatzer, for they damage each other
                    without an action. Therefore, even after three
                    years one can force the other. They hold that
                    if one did an act, e.g. opened a window, there
                    is a Chazakah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (7:6):</font></b> If Reuven opened a window to Shimon's
               Chatzer and Shimon pardoned this, or showed that he
               allows this, e.g. he helped Reuven or knew about the
               damage (Hezek Re'iyah), Reuven has a Chazakah for
               the window. Shimon cannot later demand that he close
               it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (11:4):</font></b> One can make a Chazakah in Nezek,
               except for four things: a privy, dust, shaking the
               land, and Hezek Re'iyah. One can force his neighbor
               to make a wall at any time.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> One must bring a proof for all of
                    these. Chazakah does not Mevatel (the right to
                    force one's neighbor to help make) a wall,
                    because each damages the other. Each can say
                    'this is why I didn't protest.' Also, he can
                    say 'I pardoned due to the expenditure that I
                    would incur.'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (3:73):</font></b> Some say that 'does not have a Chazakah
               ' means that David (his neighbor) can build opposite
               it, but David cannot force him to close the window
               due to Hezek Re'iyah, for he has a Chazakah. This is
               unreasonable. Since he does not have a Chazakah,
               David can force him to close it, for sometimes David
               is harmed by it!
<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 154:7):</font></b> If Reuven opened a window
               to Shimon's Chatzer and Shimon pardoned this, or
               showed that he allows this, e.g. he helped Reuven or
               knew about the damage, Reuven has a Chazakah for the
               window. Shimon cannot later demand that he close it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ul'Divrei):</font></b> According to those
                    who say that there is a Chazakah for Hezek
                    Re'iyah, immediately or after three years, the
                    Gemara is straightforward. We discuss a window
                    to which Hezek Re'iyah applies. The Rashbam,
                    Rosh and Tur hold like this. It seems that the
                    Rambam agrees. The Rif and Ra'avad hold that
                    there is no Chazakah to Hezek Re'iyah. They
                    must say that we discuss a window without Hezek
                    Re'iyah, e.g. it opens to a place that is not
                    used. If so, what is R. Zeira's Chidush that he
                    cannot protest?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Be'er ha'Golah (6):</font></b> The Magid Mishneh explained
                    that the Rambam holds that there is Chazakah
                    for Hezek Re'iyah, except for a Chatzer. Also
                    they explain that 58b discusses a widow with
                    Hezek Re'iyah!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (19):</font></b> The Rambam and Shulchan Aruch hold
                    that it suffices that Shimon knew and did not
                    protest. The Rosh (1:2) and others require
                    three years even if Shimon helped; the Shulchan
                    Aruch brings his opinion at the end of Siman
                    142. If he explicitly pardoned, all agree that
                    he has a Chazakah immediately.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (39):</font></b> The Rambam and Shulchan Aruch hold
                    that we discuss whether one may build opposite
                    the window, but in any case Shimon cannot force
                    him to close the window after he built it.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (40):</font></b> Bava Basra 41a shows that if Shimon
                    helped, Reuven has a Chazakah, and all the more
                    so if Shimon explicitly pardoned.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> It is proper to rule like this, since he made
               a Chazakah on the window, even though many argue and
               say that Chazakah does not help for Hezek Re'iyah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (43,44):</font></b> The Rema agrees that there is a
                    Chazakah for Hezek Re'iyah. However, he holds
                    that when there is no Chazakah, Shimon can
                    force Reuven to close the window. We learn from
                    R. Chiya.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (45):</font></b> The opposing opinion learns from 2b.
                    41a proves that helping gives a Chazakah, but
                    not for Hezek Re'iyah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> Even the opinion that holds that it
               helps, this means that Shimon cannot close the
               window or protest, but Reuven may not stand in the
               window and look at the Chatzer, lest he damage
               through Hezek Re'iyah. Chazakah does not help for
               this. Shimon can protest against it. Before Reuven
               has a Chazakah, Shimon can protest and Reuven must
               close it, even though Shimon does not want to build
               near it now.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>FOR WHICH WINDOWS DOES ONE GET A CHAZAKAH? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Yehudah:</font></b> You must return two rows.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Kahana:</font></b> Do you rule like R. Shimon ben
               Elazar?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Shimon ben Elazar):</font></b> Beis Hillel
                    and Beis Shamai agree that if one pair of
                    witnesses says that Reuven owes 100, and the
                    other says that he owes 200, he must pay 100
                    (for all agree that he owes at least 100);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> They argue when one witness says 100, and
                    the other says 200:</font></b> Beis Shamai consider this
                    contradictory testimony (so Reuven is exempt).
                    Beis Hillel obligate him to pay 100.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Kahana:</font></b> I can bring you a letter from Eretz
               Yisrael that the Halachah is not like R. Shimon ben
               Elazar! (Rather, Beis Hillel agree that Reuven is
               exempt.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Yehudah:</font></b> Until you bring such a letter, you
               must return the property.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Shimon was living in the attic of Levi's house for four
          years.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Levi:</font></b> What are you doing in my house?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shimon:</font></b> I bought it from Ploni, who bought it
               from you.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Chiya:</font></b> Shimon's Chazakah is valid only if he
               can prove that Ploni lived there for at least one
               day.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav:</font></b> Doesn't a person sometimes buy and sell the
               same night?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav):</font></b> I could see that (R. Chiya held that) if
               Shimon would claim that he saw Ploni buy it from
               Levi, he would be believed, Migo that he could have
               said 'I bought it from Levi''.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support (for R. Chiya - Rava - Mishnah):</font></b> An heir does
          not need a claim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> He does not need a claim, but he needs
               a proof (that the one he inherited from lived there
               for a day)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Perhaps he does not need a claim nor a
          proof!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Perhaps a buyer is different, for he does
          not spend money for nothing. (Surely, Shimon would not
          have bought from Ploni unless Ploni was living there.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If people saw Ploni on the property (but not
          living there) for a day, what is the law?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> That is just as good as living
          there.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> No. Perhaps Ploni considered buying
          it, but never did!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DO WITNESSES CAUSE PUBLICITY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Shimon bought Reuven's field and sold it to Levi after
          a year. Levi sold it to Yehudah after a year. Once
          Yehudah has been there for a year, he has a Chazakah
          (because Reuven has not protested for three years).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> This is only if Shimon and Levi wrote documents
          of sale.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav holds that a document publicizes a matter,
               but witnesses do not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction (Rav):</font></b> If David bought Moshe's field with
          (only) witnesses (with Achrayus, and the field was taken
          by Moshe's creditor), David can collect his money from
          property Moshe sold after this. (We must assume that the
          buyers knew to beware!)
<br>

<p>

sjt:
</p><p>
<font><b>2) DISPUTED TESTIMONY</b></font><b>
<br>QUESTION:</b> The Gemara relates that a flood in Rav Kahana's field washed away the fence around his field. Rav Kahana replaced the fence, but it was not clear where the original fence had stood. Rav Kahana's neighbor brought two witnesses before Rav Yehudah. One witness testified that Rav Kahana had taken two rows of land from the neighbor's field and annexed them to his own field. The second witness testified that Rav Kahana had taken three rows from the neighbor's field. Rav Yehudah ruled that Rav Kahana must return two rows of land to his neighbor. The Gemara states that this ruling is in accordance with the view of Beis Hillel, who says that when one witness says that a debtor owes 100 Zuz and another witness says that he owes 200 Zuz, the Halachah is that the debtor must pay 100 Zuz, because the two witnesses are in agreement about the first 100 Zuz.
</p><p>
The <b>SHACH</b> (CM 31:1) cites the 'Chochmei Brisk' who discuss the Halachah in a case in which there is conflicting testimony from the witnesses. Are those witnesses believed to give testimony in a different case? Perhaps they may not testify as witnesses in a different case, since each witness has been contradicted by the other, and thus he has the label of a liar. The Shach cites proof from the <b>RAN</b> in Kesuvos (10a of the pages of the Rif, DH Ed) who writes that both witnesses are disqualified from future testimony because each one has been contradicted.
</p><p>
Why does the Shach not cite proof from the Gemara here to the contrary? When one witness testified that Rav Kahana owed his neighbor two rows, and the other testified that Rav Kahana owed three rows, Rav Yehudah ruled that Rav Kahana must return two rows, and the witnesses were <i>not</i> rendered invalid as a result of contradicting each other!
</p><p>
<b>ANSWER:</b> The <b>MINCHAS CHINUCH</b> (end of #37) writes that proof for the Shach's ruling is found in the <b>NIMUKEI YOSEF</b> here (22a of the pages of the Rif). The Nimukei Yosef asks why the witnesses are believed at all if one of them is certainly a liar. The Nimukei Yosef answers that in this case it is possible that neither of the witnesses is lying deliberately. Rather, one of the witnesses is merely making a mistake, because it is easy to err between two rows and three rows of land. Similarly, a person could make a mistake about whether a borrower owes 100 Zuz or 200 Zuz.
</p><p>
The words of the Nimukei Yosef imply that in a case in which it is <i>not</i> possible to justify the conflicting testimony of both of the witnesses, and it is clear that one of them is lying (but it is not known which one), the Halachah is that they are both disqualified from future testimony. Hence, the Gemara is actually a proof for the Shach's ruling that both witnesses are disqualified. (In fact, the Minchas Chinuch writes that he is perplexed that the Shach himself does not cite this proof from the Nimukei Yosef.) (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DO WITNESSES CAUSE PUBLICITY? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> (Really, witnesses do not cause publicity.)
          There, the buyers caused their own loss. (Had they
          researched well, they would have found out about the
          sale.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Did Rav really say that one who bought
          without a document may collect from sold property?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One who lent money with a document may
               collect from sold property; if he lent without a
               document, he only collects from unsold property.
               (The laws of a sale and a loan should be the same,
               it depends whether or not witnesses publicize
               things.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Rav argues with the Mishnah,
               for he is a Tana.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Rav and Shmuel):</font></b> One who lent money 
               without a document may not collect from heirs or
               from sold property.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Loans and sales are different.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A person borrows discreetly (and asks the
               witnesses not to publicize it), lest his property
               decline in value (if people would know that he needs
               money);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A person announces when he sells land, so that
               potential buyers will hear.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>JOINT CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven used a field for a year, and his
          son used it for two years, or vice-versa, or each used it
          for a year and a buyer used it the third year, this is a
          Chazakah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Inference:</font></b> One who buys from an heir can make a
          Chazakah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> Shimon used (what was Muchzak
          to be) Levi's field for three years, uncontested. Levi
          died after the first or second year. If Levi's son Kehas
          (who stood to inherit the field) did nothing, or he sold
          it one year after Levi's death (and the buyer was quiet
          in the third year), Shimon has a Chazakah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one who buys from an heir can make a Chazakah,
               we must say that there is publicity to a sale. If
               so, when Kehas sold it, this should be considered a
               Macha'ah!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The Beraisa discusses when Kehas
          wrote a document selling all his fields. (Shimon did not
          know that he contests the field, therefore it was not a
          Macha'ah.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CHAZAKAH OF PARTNERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Craftsmen, partners, sharecroppers, and
          overseers cannot make a Chazakah (in property they work
          on, share or oversee);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	A man cannot make a Chazakah in his wife's property,
          nor vice-versa. A father cannot make a Chazakah in his
          son's property, or vice-versa.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	This refers to Chazakah to prove ownership;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Locking the fence, fencing or breaching any
               amount in a wall is a Chazakah to acquire a gift, to
               divide an inheritance, or to acquire Hefker
               property.
<br>
<br>

sjt:
<font><b>1) THE REASON WHY A CHAZAKAH NEEDS THREE YEARS</b></font><b>
<br>OPINIONS:</b> The Gemara states that in a case in which a person occupied a field for one year and then died, and his son inherited it and occupied it for two years, the combined years of occupancy combine to make a Chazakah of three years, and the field is established to be the property of the son.
</p><p>
The Rishonim and Acharonim discuss the nature of how a Chazakah of three years works, based on this Gemara.
</p><p>
(a) The <b>RAMBAN</b> questions whether the son must be an adult over the age of thirteen, or whether he can make a Chazakah even if he is a minor. He cites an opinion that maintains that only an adult son can make a Chazakah with the accumulated years of his occupancy and his father's occupancy, because if the son is a minor it is not possible for the original owner to submit an effective protest against him. Even if he would protest, it is not possible to require a minor to keep the Shtar that attests to the purchase (since the manner of minors is to lose things of value), and therefore the original owner does not bother to protest.
</p><p>
The Ramban disagrees with this view. He states that the reason why a Chazakah of three years is effective is not merely that the Machzik is not expected to keep the Shtar for three years. Rather, when a person occupies a field he essentially creates a Chazakah immediately, because the owner of a field does not allow a stranger to occupy his field even for one moment without objecting. However, for the first three years after the sale, the original owner is entitled to demand that the Machzik show his Shtar, and if the Machzik cannot show the Shtar this creates a weakness in his claim and suggests that the field does not belong to him. After three years, however, the fact that the Machzik does not possess the Shtar does not weaken his claim of ownership, because a genuine owner does not bother to keep his document of ownership for more than three years.
</p><p>
Why, then, according to the Ramban, does a minor not acquire a Chazakah immediately? Since, for a minor, the lack of a Shtar is not a flaw in his claim (for he is not expected to look after it), he should be able to make a Chazakah immediately! The Ramban answers that it is not logical that a minor should benefit as a result of not being mature enough to be responsible. The <b>KEHILOS YAKOV</b> (18:8) explains that since the true owner is entitled to wait up to three years to challenge an <i>adult</i> who occupies his field, the Chachamim did not want to institute a shorter time period in which the original owner must protest the occupancy of a minor (as such a Takanah would benefit the minor for being irresponsible).
</p><p>
(b) The <b>KETZOS HA'CHOSHEN</b> (140:2) gives a different reason for why the Chazakah of three years is effective. He explains that it is a Takanas Chachamim for the good of the world. Most purchasers do not keep their Shtaros for more than three years. They assume that since they have been living on the field for three years and no one has challenged their ownership, they no longer need to fear that anyone will challenge them. If the Halachah would require buyers to keep proof of purchase for more than three years, people would be very apprehensive about purchasing property, and this would have a detrimental effect on the economy. Therefore, the Chachamim instituted that a Machzik is believed to say that he purchased the property when he has a Chazakah of three years. If someone has a claim against the Machzik, he has the option of protesting within three years, since the Machzik must keep his Shtar for three years from the date of the protest.
</p><p>
In summary, according to the Ramban, the Chazakah of three years is effective because once three years have passed, his lack of possession of a Shtar is not considered a weakness in his argument. According to the Ketzos ha'Choshen, the Chazakah of three years is a Takanas Chachamim that a buyer does not need to keep his Shtar for more than three years, which was instituted for the benefit of buyers and sellers of land.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE BE MAKNEH WHAT IS NOT IN HIS RESHUS?</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'> (Shmuel):</font></b> Reuven can testify for his partner Shimon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why is this permitted? The testimony
               affects Reuven!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, Reuven wrote to Shimon 'I have
               no claim to this field (and did a Kinyan Chalipin
               and accepted Achrayus if his creditor will collect
               it).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> If the Sefer Torah of a city was
               stolen, people of the city cannot judge or testify
               about it (since it affects them. We do not say that
               one can be Mesalek (forfeit his share in it) and
               judge the case!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> A Sefer Torah is different, for everyone 
               must hear it read.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Kidushin 56a (Mishnah):</font></b> One may not buy a Tamei
               animal, slaves or land with Ma'os Ma'aser, even in
               Yerushalayim. If he bought, he must set aside money
               equal to what he paid and consume it like Ma'aser.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> A Beraisa says that the sale is undone!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Shmuel):</font></b> The Mishnah discusses when the
               seller fled.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Kama 68a (Rava):</font></b> If Reuven stole an animal and
               sold it, and (before despair) then Shimon stole it,
               Shimon pays only principal.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 68b (Mishnah #1):</font></b> Tzenu'im (pious people, who were
               concerned lest people taking Shemitah produce
               mistakenly take Revai fruits of a tree in its fourth
               year, which must be eaten in Yerushalayim or
               redeemed)) would say 'whatever (Revai) was gathered
               from my field is redeemed on these coins.'
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 69a (R. Yochanan):</font></b> Tzenu'im and R. Dosa hold like
               each other:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Yehudah):</font></b> In the morning, the
                    owner says 'what the poor will gather today
                    (mistakenly, thinking that it is Leket) is
                    (now) Hefker';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Dosa says, at evening he says 'what the poor
                    gathered is Hefker'.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> R. Yochanan taught that if something was stolen, and
               the owner did not despair, the thief cannot make it
               Hekdesh, for it is not his. Also the owner cannot be
               Makdish it, for it is not in his Reshus. He holds
               like a different Stam Mishnah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah #2):</font></b> One who steals from a thief does
                    not pay Kefel. If he then slaughters or sells
                    it, he does not pay four and five.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> He doesn't pay the thief, for it is not the
                    thief's. He doesn't pay the owner, for it was
                    not in his Reshus.
<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 (Bava Basra 23a and 3:39,40):</font></b> Reuven
               can testify for his partner if he wrote to him 'I
               have no claim to this field', and did Chalipin and
               accepted Achrayus. If the Sefer Torah of a city was
               stolen, people of the city cannot judge or testify
               about it, for everyone must hear it read. If it was
               something from which they can be Mesalek, they can
               do so and judge the case. This is the Halachah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Rif (Bava Kama 27a) brings R. Yochanan's law.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Erchin 6:22):</font></b> One cannot be Makdish
               something not in his Reshus. If Ploni had a deposit
               with Shimon who denied having it, Ploni cannot be
               Makdish it. If Shimon did not deny it, it is in
               Ploni Reshus whenever it is.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> One who bought land with Ma'aser coins
               must eat in Yerushalayim corresponding to them. How
               can he redeem coins out of his Reshus?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1 (Tosfos Bava Kama 68b DH Hu):</font></b> The seller
               is like a thief. If he were here, he would have to
               return it. The Mishnah is like Tzenu'im, who say
               that one can be Makdish (or redeem) what is in a
               thief's hands. Alternatively, the buyer does not
               redeem the money. It is a mere fine to eat equal to
               the money he paid.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2 (Ritva Kidushin 56a DH Maskif):</font></b> The seller
               did not intend to steal the coins. If he were here,
               he would obey Beis Din! He just does not know.
               Therefore, the coins are like a deposit with him,
               and the buyer can redeem them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ketzos ha'Choshen (354:4):</font></b> Tosfos' opinion is
                    primary. R. Yochanan taught that Tzenu'im and
                    R. Dosa hold like each other: Aniyim err about
                    what is Leket, yet what they took is considered
                    not in the owner's Reshus. It is like a deposit
                    only when the owner can get it back whenever he
                    wants. Also, if one stole an animal and sold
                    it, and then (before despair) Shimon stole it,
                    Shimon pays only principal. This is because it
                    is not considered to be in the owner's Reshus,
                    even though the buyer erred and would return it
                    if he knew.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (Tosfos ibid.):</font></b> How can we learn about
               Hekdesh from Chilul? Chilul is advantageous for the
               own with the Peros, and Zachin l'Adam she'Lo
               Befanav!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Tosfos Kidushin 56a DH Maskif):</font></b> One who took
               what is not really Leket does not own it, so he
               cannot redeem it. Zechiyah works due to Shelichus;
               one cannot do for someone what he cannot do himself.
<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 354:6):</font></b> If Shimon openly or
               covertly stole Metaltelim from Levi, and Levi did
               not despair, neither of them can make it Hekdesh.
               This is even if witnesses saw the theft, and Levi
               can recover it in Beis Din.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ketzos ha'Choshen (123:1 DH mi'Dina):</font></b> One
                    version (70a) says that one cannot write a
                    power of attorney for Metaltelim, due to R.
                    Yochanan's law. Rashi says that we discuss a
                    Shomer. I.e., the Shomer has a claim against
                    the owner and refuses to return the deposit
                    before Beis Din rules about his claim.
                    Therefore, the owner cannot be Makneh it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rashba (70 DH veha'Ramban):</font></b> Hekdesh is a
                    Gezeras ha'Kasuv, but one can be Makneh
                    something even if it is not in his Reshus.
                    According to the opinion that a loan is not
                    given to be spent, one can be Mekadesh a woman
                    with it, even though it is not in his Reshus!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question (Ketzos ha'Choshen 123:1 DH Ayen):</font></b> We
                    learn from Hekdesh that one cannot be Makneh
                    something not in his Reshus! One cannot even be
                    Mafkir it, for R. Yochanan said that Tzenu'im
                    and R. Dosa hold like each other! If a loan is
                    not given to be spent, one can retract, so it
                    is like a deposit, therefore it can be
                    Mekadesh. Even if it were considered theft, one
                    can be Makneh it to the thief. If one stole
                    from a woman and was Mekadesh her with it, she
                    is Mekudeshes, for she is Makneh it to him (
                    Kidushin 13a).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> R. Akiva Eiger (YD 258:7):</font></b> If Shimon wants to
                    return the theft, Tosfos (Bava Metzi'a 6a DH
                    Hikdisho) and the Ba'al ha'Ma'or (Bava Kama
                    18a) say that Ploni can be Makdish it now.
                    Milchamos Hash-m disagrees. The Ramah (in
                    Shitah Mekubetzes Bava Kama 33a) says that if
                    he was Makdish it, it takes effect after he
                    receives it through Beis Din.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gilyon Maharsha:</font></b> R. Akiva Eiger asked, how can
                    we say (Bava Basra 43a) that one can be Mesalek
                    and then judge the case? One cannot be Makneh
                    what is not in his Reshus! I answered according
                    to the Ramah (the pardon helps after it is
                    returned). The Rashba says that one can pardon
                    not only to the thief, rather, even to his
                    partner. Perhaps this is like he holds, that
                    one can be Makneh something even if it is not
                    in his Reshus. The Rashbam says that the thief
                    claims that he bought it. Since he agrees to
                    return it, just he wants to be paid for it, it
                    is considered in the owners' Reshus. Some
                    Rishonim do not require witnesses to be Kosher
                    from the beginning for monetary cases. Why
                    didn't the Gemara ask that witnesses be Mesalek 
                    and testify? The Rashbam mentions 'testimony
                    that he stole.' I.e. when he refuses to return
                    the object, Siluk does not help.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN ONE BE MAKDISH WHAT IS NOT IN HIS RESHUS? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Shmuel's father and Levi):</font></b> The Mishnah does
          not mention a craftsman. We learn (that he cannot get a
          Chazakah) from a Kal va'Chomer from a partner.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The Mishnah says that a craftsman does not
          get a Chazakah, but a partner may.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Shmuel taught elsewhere.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> A partner can make a Chazakah against
               his partner, he can testify for him (we shall
               explain when), and he is considered a Shomer Sachar
               when watching the common property.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Aba):</font></b> Did Shmuel really say that a partner
          can make a Chazakah?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Shmuel):</font></b> A partner is like one who
               uses another's field with permission.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> This teaches that he cannot make a
               Chazakah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> Shmuel's teachings apply to
          two different cases, when he makes a Chazakah in the
          entire property, and when he makes Chazakah in half (and
          claims that they agreed that he will receive this half).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This can be understood either way.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Version #1:</font></b> A Chazakah in the entire property
                    is valid. One would not allow his partner to
                    use the entire field for three straight years.
                    Surely he sold his share;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> A Chazakah in half the property is invalid,
                    for it is normal for each partner to use the
                    same half for several years, and then they
                    switch.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Version #2:</font></b> A Chazakah in the entire
                    property is invalid, for it is normal for a
                    partner to let the other use the entire field
                    for three years, and then he will get it for
                    three years;
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b> A Chazakah in half the property is valid.
                    Had they not divided, and they wanted to share
                    the fruits every year, they would work the
                    entire field together.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Ravina):</font></b> In both cases he made a Chazakah in
          the entire property;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the field is destined to be divided (it is big
               enough for each to get a field of proper size), the
               Chazakah is valid, for one would not allow his
               partner to use the entire field for three straight
               years;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the field is not destined to be divided, the
               Chazakah is invalid. It is normal to allow a partner
               to use the same half for several years, and then
               switch.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> A partner is like one who uses another's
          field with permission.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If Shmuel's Chidush is that he cannot make a
          Chazakah, he should say this explicitly!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rabah bar Avuha):</font></b> He teaches that he receives
          Peros that are Magi'a l'Kesafim (Rashbam - ready to
          harvest; R. Tam - they came through exertion).
<br>

<p>

sjt:
</p><p>
<font><b>2) MAKING A CHAZAKAH ON ONE'S PARTNER'S SHARE OF THE FIELD</b></font><b>
<br>QUESTION:</b> Shmuel states that when a field is owned jointly by two partners, one partner can make a Chazakah on the other's share by occupying it for three years (and claiming that he bought it). The <b>RASHBAM</b> (DH Aval) explains that he is believed with a Chazakah and a claim, because had his partner not sold him part of the property, they both certainly would have worked on the land together and taken the produce together.
</p><p>
The Gemara asks that there is an apparent contradiction between two statements of Shmuel. Ravina resolves the contradiction by saying that both statements of Shmuel refer to where the partner making the Chazakah is occupying all of the field. However, when the field is large enough to be divided, the partner's presence there establishes a Chazakah, because had he not owned the entire field, his friend would not have allowed him to occupy all of the field but would have insisted on dividing it. In contrast, when the field is not large enough to be divided, the partner's presence does not establish a Chazakah, because in such a case it is normal for one partner to use the whole field for three or four years consecutively even while the partnership is still intact.
</p><p>
The <b>RAMBAM</b> (Hilchos To'en v'Nit'an 13:8) rules that two conditions must be fulfilled in order for one of the partners to establish a Chazakah. First, the field must be large enough to be divided. Second, the partner must use all of the field.
</p><p>
The <b>RASHBA</b> cites <b>RABEINU CHANANEL</b> who says that even if only the first condition is met (the field is large enough to be divided), the partner is able to make a Chazakah on the field even without fulfilling the second condition (he does not use the entire field). Rabeinu Chananel maintains that if the other partner would not have sold the field previously, he would not have permitted his partner to use even part of the field for three years without protesting, since it is possible to divide it (and dividing it would have enabled each partner to claim sole ownership on his half.)
</p><p>
According to Rabeinu Chananel, who requires only the first condition to be fulfilled, why does Ravina state that Shmuel's ruling refers to when the partner occupied the entire field? Ravina should say that establishing a Chazakah depends merely on whether or not the field is large enough to be divided!
</p><p>
<b>ANSWER:</b> The <b>BEIS YOSEF</b> (CM 149:1) answers that Ravina says that the partner occupied all of the field because he wants to teach a Chidush. Even though the partner uses the entire field, one might have thought that this is sufficient proof that the field belongs to him. Therefore, Ravina teaches that the Chazakah does not depend on this factor at all, but rather the Chazakah depends on whether or not the field is large enough to be divided. If it is not large enough to be divided, then a partner's usage of the field is never able to establish a Chazakah, because the other partner would not object to his friend's use of the entire field, since he would not use the field simultaneously with his partner under such crowded conditions. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO MAY GAIN FROM HIS TESTIMONY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Reuven can testify for his partner Shimon.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this permitted? The testimony affects
          Reuven!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Reuven wrote to Shimon 'I have no
          claim to this field' (the one he testifies about).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Levi wrote to Yehudah 'I have no
          claim to this field', 'I have no business in it', or my
          hand is removed from it', this has no effect.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Shimon made a Kinyan (Chalipin) to
          make Reuven's pardon binding.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Still, the testimony affects Reuven! If we
          establish that the property used to belong to them,
          Reuven's creditor (from before he pardoned his share) can
          collect from it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ravin bar Shmuel):</font></b> If one sells his field
               without Achrayus, he cannot testify about it (to
               establish ownership), since this can enable his
               creditor to collect it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Reuven accepted Achrayus for his
          share. (Therefore, it does not matter to him whether or
          not a creditor takes it, for then he will owe Shimon).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> For whom (that might take the field) did
          Reuven accept Achrayus?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he accepted for anyone who claims 'this was my
               field', the testimony saves Reuven from having to
               compensate Shimon!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, Reuven accepted Achrayus if his
          creditor will collect it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> This does not enable him to testify!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If the Sefer Torah of a city was
               stolen, people of the city cannot judge or testify
               about it (since it affects them).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If obligating oneself (so he will not benefit)
               helps, two should forfeit their shares in it and
               judge the case!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> A Sefer Torah is different, for everyone (who
          will remain in the city) must hear it read.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven (allegedly) pledged to
          give a Maneh (money) for needs of the city, people of the
          city cannot judge or testify about it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why don't we say that two can forfeit their
               shares in it and judge the case?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he pledged to give the Maneh to
          buy a Sefer Torah (all must hear it).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven (allegedly) pledged to
          give a Maneh for poor people of the city, people of the
          city cannot judge or testify about it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Only the poor would receive it. Why is
               everyone disqualified?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> The Beraisa should say that poor
               people of the city cannot judge or testify about it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Why don't we say that two can forfeit their
               shares in it and judge the case?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, he pledged to give the Maneh to
          buy a Sefer Torah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The Beraisa says that he pledged to
               give the poor!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> People without a Sefer Torah are
               considered poor.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2 (to Questions (n) and n:1):</font></b> Really, he
          pledged to give to the poor. This would benefit even the
          rich, for it lightens their responsibility to support the
          poor.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If everyone was assigned to give a certain amount
               for the poor, one can give his quota, and then judge
               the case (for he does not stand to gain)!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, it was not assigned how much
          each person must give.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer #2:</font></b> It was assigned how much each person must
          give. Still, the judges gain if the poor will receive a
          Maneh, for then they are less likely to need more
          Tzedakah later.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>PARTNERS WHO GUARD FOR EACH OTHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> A partner is considered a Shomer Sachar when
          watching the common property.
<br>
<br>

sjt:
<font><b>1) TESTIFYING ON BEHALF OF ONE'S PARTNER</b></font><b>
<br>QUESTION:</b> The Gemara discusses Shmuel's statement that when two people own property in partnership, one partner may testify on behalf of the other partner. The Gemara asks that the partners should not be allowed to testify for each other because they are 'Nog'in b'Edusan' -- the one testifying will benefit personally by his testimony for his partner, since he thereby will not lose his own share in the property.
</p><p>
Why does the Gemara refer to this as 'Noge'a b'Edus,' meaning that the partner's testimony has some relevance to himself? The problem is much greater than that. The partner's testimony is not valid because he is a defendant himself, a 'Ba'al Davar,' in the case!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> answers that the Gemara indeed could have said that the partner is a Ba'al Davar. The reason why the Gemara calls him 'Noge'a' is that it anticipates the forthcoming answer -- that the partner withdrew his ownership from the field. Once the partner has withdrawn his ownership, he no longer is a Ba'al Davar. Rather, he is only 'Noge'a b'Edus' since he gains indirectly by having his former partner keep the land, because as long as it is in his partner's hands it can be collected by his creditors for loans that he owes.
</p><p>
(b) <b>RAV SHMUEL ROZOVSKY</b> zt'l (Shi'urim #38, Chidushim #23) suggests another reason for why the Gemara does not emphasize that the partner is a Ba'al Davar. Every Ba'al Davar is disqualified from testimony for two independent reasons. First, he is a Ba'al Davar and is Karov (related) to himself, and a Karov (relative) is Pasul l'Edus. Second, Beis Din suspects that he might lie in order to gain. The difference between the two reasons is evident in a case in which the Ba'al Davar's testimony involves both himself and someone else. The Pesul of being a Karov would invalidate him to testify about himself, but the part of his testimony that pertains to others would be accepted. (Such a concept of 'dividing' one's testimony may be found in Sanhedrin 9b, with regard to a person who testifies (with another witness) that he willingly participated in the Aveirah of 'Mishkav Zachor.' He is not believed to incriminate himself, but he is believed to incriminate the other person.) However, if Beis Din suspect that the person is lying because he is Noge'a b'Edus and benefits from the testimony, then his testimony should not be accepted even for others, since his entire testimony might have been given merely for his own personal gain.
</p><p>
The Gemara here is asking that one partner should not be believed to testify even with regard to the portion of the other partner. To ask this question, the Gemara must emphasize that he not only is a Ba'al Davar (and related, Karov, to himself), but that he is also Noge'a b'Edus (suspected of lying for personal gain).
</p><p>
This explanation seems to be based on the assumption that when the Gemara uses the term 'Noge'a b'Edus' it means that although the person can gain indirectly from his testimony, he is not actually considered a defendant, a Ba'al Davar, in the case. That is why the words 'Noge'a b'Edus' imply a suspicion of fabrication more than the words 'Ba'al Davar.'
</p><p>
This question is debated at length among the Acharonim. The <b>S'MA</b> (CM 37:1) and <b>SHACH</b> (ibid.) indeed point out this difference between the Pesul of Ba'al Davar and the Pesul of Noge'a b'Edus, and they cite numerous proofs to support this. They cite among these proofs the <b>CHIDUSHEI HA'RAN</b> and <b>NIMUKEI YOSEF</b> (23b of the pages of the Rif), who write that the Pesul of Noge'a b'Edus is not similar to the Pesul of Karov because a Karov cannot testify at all for his relative, whereas a Noge'a b'Edus may testify as long as he does not benefit from his testimony. They also cite numerous places where it is evident that one who is Noge'a is Pasul because he derives personal benefit from his testimony. This also seems to be implied by the words of the <b>RA'AVAD</b> cited by the Rashba here (DH v'Amai), who writes that in the case of the Gemara here the partner is not Pasul because he is a Karov but because of 'Cheshad' -- he is suspected of lying because he is Noge'a b'Edus. See also <b>RASHASH</b> (44a and 159a).
</p><p>
The <b>MACHANEH EFRAIM</b> (Hilchos Edus #1) suggests that according to this reasoning, a Karov, relative, of another person who is Noge'a b'Edus would be allowed to testify, even though a Karov of a Ba'al Davar is not allowed to testify. According to these opinions it seems that if a person of impeccable honesty (such as Moshe Rabeinu or Aharon ha'Kohen; see Bava Basra 159a) would testify, his testimony would be accepted.
</p><p>
However, the <b>LEVUSH <b><b>IR</b></b> SHUSHAN</b> writes that Noge'a b'Edus is not Pasul just because he is suspected of lying, but because he is [also] a Karov to himself (that is, every Noge'a b'Edus is a Ba'al Davar since he benefits from his testimony in the case; the <b>TUMIM</b> (end of 37:21) comes to the same conclusion as the Ir Shushan). See also <b>MAHARAM</b> (end of 44a). Indeed, no Poskim allow the testimony of a person who is Noge'a b'Edus even when he is of impeccable honesty. Regarding the proofs that the Acharonim cite that indicate otherwise, most of the proofs are from cases in which it is evident that if the person does not gain by his testimony, his testimony is valid. However, when the witness does not gain by his testimony, he is no longer Noge'a b'Edus (as the Shach himself writes); if he loses as a result of his testimony, he certainly is believed to cause a loss to himself because of Hoda'as Ba'al Din.
</p><p>
The <b>RA'AVAD</b> (cited by the Rashba) says only that if a person is not only a Karov but is also suspected of lying because he is a defendant in the case, then he is not considered a witness at all (and therefore he is not comparable to a relative who cannot testify even after he becomes unrelated to the litigant; see Insights below). The words of the Chidushei ha'Ran and Nimukei Yosef are not clear, because according to the Shach's way of understanding they call a person 'Noge'a b'Edus' even when the testimony is no longer relevant to him. It is possible that they, too, are simply differentiating between one who is Noge'a b'Edus and a Karov with regard to <i>after</i> he is no longer Noge'a b'Edus or a Karov (see <b>TUMIM</b>, end of 37:21 and 37:22). Accordingly, every Noge'a b'Edus is a Ba'al Davar and a Karov, and thus it would have been more accurate for the Gemara to call the partner who testifies a 'Ba'al Davar.' Perhaps the answer of Rav Shmuel Rozovsky still applies if one explains the Gemara's usage of the words 'Noge'a b'Edus' in a different sense than usual: the Gemara means to emphasize that aside from the fact that the partner is a Karov to himself, he is also suspected of lying, as Rav Shmuel Rozovsky suggests.
</p><p>


<font><b>2) LET TWO JUDGE THE CASE</b></font><b>
<br>QUESTION:</b> The Gemara asks that if it is true that a partner, after he withdraws his ownership from his share of the property, may testify on behalf of his former partner, then why may the residents of a city not testify or adjudicate in the case of a thief who stole a Sefer Torah from the city? Two of the residents of the city should relinquish their rights to the Sefer Torah and judge the case!
</p><p>
Why does the Gemara suggest that two people should <i>judge</i> the case? Although two people can provide testimony as witnesses about the case, <i>three</i> Dayanim are necessary in order to <i>judge</i> the case. (<b>MAHARAM</b> and <b>RISHONIM</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> and <b>RASHBA</b> answer that the Gemara means that two of the residents should relinquish their ownership of the Sefer Torah, and then three <i>others</i> (from outside the city) can judge based on their testimony.
</p><p>
Their Girsa of the Gemara is, 'v'Lidainuha' -- 'and let them judge <i>it</i>.' 'It' may refer to the testimony that the two residents of the city present. This explanation, however, does not fit will with the Girsa of our texts, 'v'Lidainu' -- 'and let <i>them</i> judge.'
</p><p>
(b) The <b>RITVA</b> and <b>RAN</b> explain that the Gemara's expression here is abbreviated. The Gemara means to say, 'Let two withdraw their rights <i>and testify, or let three withdraw their rights</i> and judge.' The <b>ROSH</b> (Teshuvos 58:1) suggests a similar explanation.
</p><p>
(c) The <b>TOSFOS RID</b> and <b>MAHARAM</b> suggest that the Girsa in the Gemara be emended from 'v'Lidainu' to 'v'Lisahadu' -- 'and let them testify.'
</p><p>
(d) The <b>YAD RAMAH</b> (#134) explains that the Gemara is discussing the statement of Shmuel. It is Shmuel who maintains (in Sanhedrin 3a) that a court can be comprised of two judges. Although Shmuel allows such a court to judge a case only b'Di'eved, this case is considered b'Di'eved because no more than two residents of the city are willing to relinquish their rights to the Sefer Torah, and nobody else is available to judge the case. Since the case is considered to be b'Di'eved, it may be judged by two judges. A similar answer is suggested by the <b>PNEI SHLOMO</b> and <b>CHOSHEN YESHU'OS</b>. (For further elucidation of this answer, see <b>TUMIM</b> 37:22, and Hagahos of <b>RAV NISAN ZAKS</b> to the Tosfos Rid, #190.)
</p><p>
(e) The <b>TOSFOS RID</b>, in his first explanation, writes that perhaps the Gemara suggests that the residents who relinquish their rights should judge the case specifically as Dayanim because they are <i>not</i> eligible to testify as witnesses. The reason for this is that a person who was not fit to be a witness at the time he saw the event ('Techilaso b'Pesul') cannot testify later about the event, even if he later becomes a valid witness (Bava Basra 128a; see <b>TOSFOS</b> here, DH v'Lisalku). For this reason, a resident of the city who witnessed the event (such as the theft of the Sefer Torah) is not able to testify, even if he later relinquishes his rights to the Sefer Torah. Since the beginning of his testimony (the moment at which he witnessed the event) occurred when he owned a share of the Sefer Torah, he is not a valid witness. Nevertheless, after he relinquishes his rights to the Sefer Torah, he is able to <i>judge</i> the case, because he only begins to judge the case after he has given up his rights to the Sefer Torah. This is also the understanding of <b>TOSFOS</b> in Nidah (50a, DH v'Rebbi Meir) and <b>TOSFOS RABEINU YEHUDAH</b> cited by the Rosh (Teshuvos 58:1).
</p><p>
This explanation is consistent with the Girsa of the Pizaro manuscript of the Gemara, cited by the <b>DIKDUKEI SOFRIM</b> (#5). In place of the words 'Bei Trei' ('*two people* should withdraw'), that Girsa reads, '*Beis Din* should withdraw.'
</p><p>
The <b>ROSH</b> rejects this explanation because Shmuel stated that after a partner relinquishes his ownership of his share of the property, he <i>may</i> testify for his former partner. According to the Tosfos Rid, a former partner may not testify since he originally was an invalid witness.
</p><p>
The Rishonim suggest a number of approaches to answer this question on the Tosfos Rid and to explain why the witness is allowed to testify about what he saw while he was still a partner.
</p><p>
1. The <b>ROSH</b> (in Teshuvos) and the <b>YAD RAMAH</b> explain that the partner saw the event <i>before</i> the partnership started. Therefore, when he withdraws from the partnership he is a valid witness, because both at the beginning of his testimony (the moment of the event) and at the end of his testimony (the moment that he testifies in court) he was a valid witness.
</p><p>
This answer is also suggested by the <b>MISHNEH L'MELECH</b> (Hilchos Edus 15:1) and <b>TUMIM</b> (37:22). The Tumim points out that this answer does not fully explain the Gemara which says that residents of the city may withdraw and testify, since the Beraisa which says that they may not testify might refer to residents of the city at the time of the theft, and thus even if they later relinquish their rights to the Sefer Torah they will not be eligible to testify. (Perhaps the Tosfos Rid and Tosfos in Nidah indeed understand the Gemara in this way, and that is why they write that the Gemara's question on the Beraisa is only with regard to <i>judging</i> the case, but not with regard to testimony, even though Shmuel himself permitted the partner to testify in his case.) This answers the question of the Rosh.
</p><p>
2. The <b>MORDECHAI</b> (#539) answers that if, at the time that he witnesses the event, the witness is able to remove the Pesul that invalidates him from testifying, then he is not considered 'Techilaso b'Pesul.' Alternatively, the witness was eligible to testify about his partner for everything other than events involving their ownership of the property, and therefore he is not considered 'Techilaso b'Pesul.'
</p><p>
3. <b>TOSFOS</b> writes that the partner is not considered 'Techilaso b'Pesul' since the Pesul of the witness was not in his person, but it was because of the property that he owned.
</p><p>
The intention of Tosfos is not clear. Why should there be a difference between the two causes for the disqualification? Perhaps Tosfos means to say what the <b><b><b>RI</b></b> MI'GASH</b> and the <b>RA'AVAD</b> (cited by the Rashba) say. They explain that when a person is Noge'a b'Edus because he stands to gain monetarily, he is not considered a witness altogether. Rather, he is a Ba'al Davar, a defendant in the case (see previous Insight). He becomes a witness only at the moment he relinquishes his rights to the property. Consequently, he is not considered 'Techilaso b'Pesul' since he <i>is</i> able to testify at the moment that he 'becomes' a 'witness.' (See <b>RASHBA</b> who rejects this explanation.)
</p><p>
4. Others suggest that Tosfos means to explain like the <b>RAMBAN</b>, <b>RASHBA</b>, and other Rishonim. They explain that a witness is considered 'Techilaso b'Pesul' only if he once was related to the person for whom he is testifying, which would have made him ineligible to present testimony about that person. The relationship of the past might affect what he says now about his former relative.
</p><p>
In contrast, if a witness was once ineligible to testify about another person because that testimony might cause the witness personal benefit, then the witness was never really ineligible to present testimony about <i>the other person</i>. Rather, he was ineligible because his testimony was affecting <i>himself</i>. Since now his testimony is no longer affecting himself, he is permitted to testify for the other person.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES DESPAIR HELP FOR LAND?</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):</font></b> If Reuven sold a house or field, he
               cannot testify about it, for there is Achrayus (a
               guarantee of compensation if it will be taken,
               therefore, he is partial) If he sold a cow, he can
               testify about it, for there is no Achrayus.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> In the Reisha, Reuven stole Shimon's
               field and sold it to Levi, and Yehudah claims that
               it was his. The Tana teaches that Shimon cannot
               testify for Levi, for this will help Shimon to get
               back his field.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We could establish the Beraisa more
               simply! Reuven stole Shimon's field (and did not
               sell it), and Yehudah claims that it was his. Shimon
               cannot testify for Reuven, like we explained above.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> We establish the Reisha regarding a sale for
               consistency with the Seifa. The case of a cow must
               discuss a sale, for Reuven keeps it only if the
               original owner despaired <i>and</i> there was Shinuy
               (change of Reshus). If it were not sold, it would
               revert to the owner, so Shimon could not testify
               about it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Sukah 30a - Rav Huna (to Hadasim vendors):</font></b> When you
               buy Hadasim from Nochrim, do not cut them
               yourselves. Let the Nochrim cut them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> This is because Stam Nochrim steal land, and land
               cannot be stolen. If they cut the Hadas, the owner's
               despair takes effect when it is in the Nochri's
               hands, and there will be Shinuy Reshus when you get
               it (so you acquire).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 26b (Rava):</font></b> If one saw a coin fall from Shimon, and
               he picked it up before Shimon despaired, intending
               to steal it, even if he returns it after Shimon
               despaired, this is only a gift. It does not correct
               his transgressions.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> If he picked it up before despair, intending to
               return it, and after Shimon despaired, he intended
               to steal it, he transgresses 'Hashev Teshivem.'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Kama 117b (Mishnah):</font></b> (If Reuven stole Shimon's
               field and) the river flooded it, Reuven can say
               'your field is in front of you.'
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> (If Reuven stole Shimon's
               field and) the river flooded it, he must give him
               another field;
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Chachamim say, he can say 'your field is in front of
               you.'
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> They learn what can be stolen from a Kelal u'Frat
               u'Chlal. 'He will deny his neighbor' is a Kelal
               (general term). 'About a deposit' is a Perat
               (specific term). 'Anything that he will swear about'
               is a Kelal. We include only what is like the Perat,
               i.e. Metaltelim with intrinsic value, but not land,
               slaves or documents.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Gitin 39b:</font></b> R. Yehoshua ben Levi said in the name of
               Rebbi that if a master despairs of his slave, the
               only solution for the slave is through a Get.
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> Since the master despaired, redemption does not
               apply.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> 58b (Rav Yosef):</font></b> The law of extortion does not apply
               in Bavel.
<br>        <b>  <b><font color='darkgreen'>16. </font></b></b> This is because there is an official with whom
               complaints may be filed. If one did not complain,
               this shows that he pardoned the land to the Nochri.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Kesuvos 109b (Mishnah - Admon):</font></b> If Levi went
               overseas and returned, and the path to his field was
               lost, he gets a short path to his field;
<br>        <b>  <b><font color='darkgreen'>18. </font></b></b> Chachamim say, he must pay whatever his neighbor
               charges for a path, or else he must fly (i.e. he may
               not walk) to his field.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 8:14):</font></b> A thief can never
               acquire land. It is always in the Reshus of the
               owner, even if it was sold 1000 times and the owner
               despaired, it returns to him for free. Whomever it
               was taken from demands his money back from the one
               who sold to him, and the seller demands his money
               back from the one who sold to him, until the first
               buyer claims from the thief.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (3:41):</font></b> Despair applies to land. If an
               extortionist stole land and planted Kilayim and the
               owner got it back, he uproots the Kilayim. The
               Yerushalmi says that if people forgot who is the
               true owner but he did not despair, it is forbidden
               mid'Oraisa. If people forgot the owner and he
               despaired, it is forbidden mid'Rabanan. Even though
               land cannot be stolen, despair applies.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (4):</font></b> The Yerushalmi holds
                    that despair takes effect  on land. The Bavli
                    disagrees; it is primary.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (CM 371:1):</font></b> Hagahos Maimoniyos refers to
                    Chachamim in the Beraisa (Bava Kama 117b). The
                    Stam Mishnah is like them.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (2):</font></b> In Bava Basra, Tosfos and the Rosh
                    say that despair takes effect on land. The Tur
                    rules like the Rambam, Rashbam, Rashi and
                    others who disagree. Chachamim in Bava Kama say
                    only that land cannot be stolen. The Yerushalmi
                    also says so! Rather, the Sugyos in Bava Basra
                    and Sukah show that despair does not take
                    effect on land. Tosfos explained differently,
                    but his Perush is not primary.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rashbam (44a DH u'Farkinan):</font></b> The Beraisa discusses
               despair with Shinuy Reshus, for in this case we
               distinguish land from Metaltelim. The buyer acquires
               the Metaltelim, but not land, for it cannot be
               stolen.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (44a DH Davka):</font></b> The Yerushalmi says that
               despair helps for lamd, even though it cannot be
               stolen! We find that despair helps for slaves (Gitin
               39b), even though they are equated to land! Gitin
               58b also proves that despair helps for land. Rather,
               the Reisha discusses when there was no despair (from
               land, and the Seifa discusses when there was despair
               from Metaltelim). We could have distinguished
               between before and after despair or Metaltelim. The
               Beraisa discusses land, for normally one does not
               despair from land. Even if the thief does not heed
               Beis Din, perhaps his son will, and the owner will
               get it from his son.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rashi (Sukah 30b DH v'Karka):</font></b> Land is not acquired
               to a thief through any despair, like we learned in
               Bava Kama. Peros can be acquired through despair
               after they are detached.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Milchamos Hash-m (Bava Metzia 14b):</font></b> If one took an
               Aveidah with intent to steal it, it is as if it is
               on the ground, and it is acquired through despair,
               like an Aveidah. If he took it with intent to return
               it, he is like a Shomer of the owner. It is as if it
               is in the owners' Reshus, therefore, despair does
               not help.
<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 371:1):</font></b> Land can never be stolen.
               It is always in the owners' Reshus. Even if it was
               sold 1000 times and the owner despaired, it returns
               to him for free. Whomever it was taken from demands
               his money back from the one who sold to him, and the
               seller demands his money back from the one who sold
               to him, until the first buyer claims from the thief.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Beis Yosef (DH u'Mah she'Omar ba'Meh):
                    Admission of land is not Heilach (returning
                    what one admits that he owes, to exempt from
                    the oath of partial admission) in a case when
                    he dug pits (for he must pay for the loss -
                    Bava Metzia 5a).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (1):</font></b> Land always belongs to the owner.
                    There is no enactment that a buyer gets what he
                    paid for land when the owner takes it back, for
                    a buyer can easily find out whose it is.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Nesivos ha'Mishpat (Bi'urim 1):</font></b> The Torah
                    taught that land cannot be stolen, but why
                    shouldn't despair work? We learn about despair
                    from an Aveidah. Why shouldn't it apply to
                    land, slaves and documents? Kapos Temarim
                    (Sukah 30b DH ul'Inyan) proves from Gitin 58b
                    that despair applies to land. (Note: he cites
                    the Gemara to say 'he despaired'. Our text says
                    'he pardoned.') The Terumas ha'Deshen (310)
                    says that Chachamim hold that if the path to
                    one's field was lost, he does not get any path
                    because he despaired. Also, why does the
                    Yerushalmi say that despair acquires alone?
                    Even Metaltelim require Shinuy Reshus with
                    despair! Milchamos Hash-m explains that despair
                    helps only for something not in his Reshus. If
                    one's land was stolen and he did not despair,
                    he cannot be Makdish it for it is not in his
                    Reshus (Bava Metzia 7a). If one's land was
                    stolen he can be Makdish it, for it is in his
                    Reshus. Therefore, despair does not apply to
                    land, i.e. when he could get it through Beis
                    Din. The Halachah is that one loses the path to
                    his field when different neighbors surrounded
                    him, and he cannot prove who took his path. The
                    Yerushalmi says that despair helps when the
                    owner was forgotten and he cannot get it back.
                    If there was despair but no Shinuy Reshus,
                    there is a Mitzvah to return it. Since land is
                    not stolen, there is no Mitzvah to return it,
                    therefore, despair helps without Shinuy Reshus.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TAKANAS MARISH </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why is he liable? (Each guards part of the
          common property for the other, so) this is Shemirah
          b'Ba'alim (for one's employee. One is exempt for this!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The case is, they alternate. Each
          day, one partner watches all the property.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TESTIMONY THAT MAY HELP THE WITNESS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven sold a house or field, he cannot
          testify about it, for there is Achrayus (therefore, he is
          partial);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he sold a cow or garment, he can testify about
               it, for there is no Achrayus.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between the clauses?
          (Why does the Tana assume that there is Achrayus for a
          house or field, but not for a cow or garment?)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Sheshes):</font></b> In the Reisha, Reuven stole
          Shimon's field and sold it to Levi, and Yehudah claims
          that it was his;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Tana teaches that Shimon cannot testify for
               Levi, for this will help Shimon to get back his
               field.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If he testifies that it is Levi's, he
               cannot later claim that it is his!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> He testifies, 'I know that Yehudah does
               not own the field'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If Shimon can (bring proof to) get his
               field back from Levi, he could also get it from
               Yehudah. Why would he prefer that Beis Din give the
               field to Levi?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> Perhaps Yehudah is powerful, and it is
               easier to oppose Levi in Beis Din than Yehudah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> Shimon and Yehudah each have witnesses
               supporting his claim to the field;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In such a case, the land remains with the
                    Muchzak. Therefore, Shimon does not want
                    Yehudah to become Muchzak.
<br>

<p>

sjt:
</p><p>
<font><b>3) PROVING THAT THE 'MUCHZAK' KEEPS LAND WHEN ITS OWNERSHIP IS IN DOUBT</b></font><b>
<br>QUESTIONS:</b> The <b>RASHBAM</b> (DH v'Iy Ba'is Eima) writes that whenever a question arises about the ownership of an object, the object is left with the person who is presently in possession of it (because of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'). The Rashbam asserts that this applies even with regard to land; the land is left with the person who presently occupies it, even if he does not have a Chazakah of three years. The Rashbam cites three proofs for this:
</p><p>
First, the Gemara earlier (32b, in the case of 'Gachin Lachish') says that the land is left with the person who presently occupies it, even though he has no Chazakah.
</p><p>
Second, the Gemara earlier (34b) rules that 'Kol d'Alim Gevar' in a case in which two disputants claim that a field belonged to their fathers.
</p><p>
Third, the Gemara in Kesuvos (20a) discusses the case of 'Bar Shatya,' in which two sets of witnesses contradicted each other regarding whether Bar Shatya sold his property when he was of sound mind. Since the ownership of the property was in doubt, the land was left in his possession.
</p><p>
(a) What proof does the Rashbam bring from the ruling of 'Kol d'Alim Gevar'? That ruling seems to be unrelated to the rule of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.'
</p><p>
(b) How does the Rashbam prove from the case of 'Bar Shatya' that the land is left in the hands of the person who is Muchzak? The opposite is true in that case: the land was <i>taken away</i> from the person who purchased it and it was given to the Mara Kama (Bar Shatya)! (<b>KOVETZ SHI'URIM</b> #182; see <b>AYELES HA'SHACHAR</b>.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> indeed understands that 'Kol d'Alim Gevar' is an application of the rule of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' Beis Din withdraws from judging the case, and, consequently, if one of the disputants takes control of the land he is allowed to keep it until the other brings proof that it is his. If the other one takes it away from the first through force, then he is allowed to keep it, and this process can repeat itself indefinitely. (See Rashbam to 35a, DH Hasam, and Insights there.) This is also the opinion of <b>TOSFOS</b> in Kesuvos (20a, DH v'Uki). The Rashbam apparently maintains that when Beis Din rules 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' if the claimant seizes the property from the defendant ('Tefisah'), then Beis Din allows the claimant to keep it even though he seized it after Beis Din became aware of the doubt. (This is in contrast to the view of <b>TOSFOS</b> to 2a, DH Lefichach; see Insights to 4a.)
</p><p>
(b) In the case of 'Bar Shatya,' the Gemara teaches that Beis Din does not destroy the Shtar that says that Bar Shatya sold the land, even though the property is given back to Bar Shatya. <b>RASHI</b> in Kesuvos (DH v'Uki) explains that the reason why the Shtar is not destroyed that even though the testimony is stalemated, if the buyer seizes the property from Bar Shatya Beis Din allows it to remain in his hands.
</p><p>
According to Rashi, why does Beis Din return the property to Bar Shatya and not allow the buyer -- who is presently occupying the property -- to remain on the property? Apparently, in that case Bar Shatya was still occupying the property.
</p><p>
In is clear from the Sugya of 'Bar Shatya' (according to Rashi) that if someone seizes property (and claims that it belongs to him), Beis Din allows him to keep it even though he does not have a three-year Chazakah and someone else has a Chezkas Mara Kama. This is also the opinion of Tosfos there (DH v'Uki, in his first answer).
</p><p>
Tosfos in Bava Basra (32b, DH v'Hilchesa) argues with the Rashbam's proofs from these three Gemaras. He is consistent with his own view earlier (on 2a) where he explains that in the case of 'Gachin Lachish' the ruling was <i>not</i> 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' In the case of 'Bar Shatya,' the buyer was evicted from the property in favor of Bar Shatya who had a Chezkas Mara Kama. Finally, according to Tosfos, the principle of 'Kol d'Alim Gevar' is not the same as 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' Rather, since there is no one who is Muchzak, Beis Din allows the two disputants to seize the property from each other, even though normally they would not be permitted to seize the property from each other after the case has been presented to Beis Din. (M. Kornfeld)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TESTIMONY THAT MAY HELP THE WITNESS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> We could establish the Beraisa more simply!
          Reuven stole Shimon's field (and did not sell it), and
          Yehudah claims that it was his. Shimon cannot testify for
          Reuven, like we explained above.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> We establish the Reisha of the Beraisa
          regarding a sale for parallel structure with the Seifa,
          regarding a cow or garment;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case of a cow or garment must discuss a sale,
               for the buyer keeps it only if the original owner
               despaired and there was change of Reshus;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it were not sold, it would revert to the 
               owner, so Shimon could not testify about it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Regarding a cow or garment, even if he
          despairs from getting back the stolen object, he does not
          despair of getting back his money! (Since he can gain
          from his testimony, why can he testify?)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the thief (Reuven) died;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If David stole from Moshe and fed the
               stolen object to his sons, or left it to them and he
               died, they need not return it to Moshe or pay Moshe
               (if Moshe despaired before David died (so the sons
               acquire through despair and change of Reshus), or if
               they already ate it).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If Reuven died, even if he did not sell it,
          Shimon can testify for Reuven's heir!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> According to the opinion that an heir's
          Reshus is unlike a buyer's Reshus, the heir would have to
          return it. This explains why Shimon could not testify.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question #1:</font></b> According to the opinion that an heir's
          Reshus is like a buyer's Reshus, also the heir need not
          return it, so the question remains;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question #2 (against Rav Sheshes - Abaye):</font></b> The Beraisa
          explains that the difference between the cases is whether
          there is Achrayus (i.e. the seller must compensate the
          buyer if the land is taken). According to Rav Sheshes,
          the difference is whether or not Shimon gets back his
          property!
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Answer #2 (to Question 3:c, 43b - Ravin bar Shmuel):
          The Beraisa says, if Reuven sold a house or field (even
          without Achrayus), he cannot testify about it, for this
          will enable his creditor to collect it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he sold a cow or garment, he can testify about
               it, for a creditor cannot collect it (from the
               buyer);
<br>
<br>

sjt:
<font><b>1) THE TESTIMONY OF ONE WHO IS 'NOGE'A B'DAVAR'</b></font><b>
<br>QUESTION:</b> The Gemara explains that Shimon cannot testify that the field which Levi is holding does not belong to Yehudah, because he is 'Noge'a b'Davar.' He does not want Yehudah to win the case against Levi because that will make Yehudah the one who is Muchzak on the property.
</p><p>
The <b>RASHBAM</b> asks, why will Yehudah become Muchzak if he wins the case? If Shimon eventually takes Yehudah to court, and Yehudah's witnesses cannot override those of Shimon, Beis Din will take the field away from Yehudah in order to rectify the error they made when they gave it to Yehudah when he was in litigation with Levi!
</p><p>
The Rashbam answers that Beis Din rectifies its previous ruling only when their ruling in the <i>same</i> case was incorrect. In the case of the Gemara, though, there are two court cases -- the first case was between Yehudah and Levi, and the second case was between Shimon and Yehudah. Since the ruling in the first case was valid and not in error, Beis Din will not rectify it and take the field away from Yehudah, even though the second ruling affects the outcome of the first (that is, had Beis Din known that there was a doubt whether Shimon or Yehudah owned it, they would not have given it to Yehudah in the first place).
</p><p>
The Rashbam then writes that Shimon is Noge'a b'Davar in the case of Yehudah versus Levi because he wants Levi to win so that he will be able to bring Levi to court later and take the property from him. After that point, Yehudah will not be able to take the property from Shimon even if he brings witnesses who contradict Shimon's witnesses, for two reasons. First, Shimon already invalidated Yehudah's witnesses, and that testimony of invalidation remains in effect even after Yehudah takes Shimon to court to claim the land from him. Second, after Shimon wins his case against Levi, he will occupy the land, and thus Beis Din will tell Yehudah, 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.'
</p><p>
The Rashbam's concluding statement contradicts his original statement. If it is true that Shimon is not merely trying to remove Yehudah from the land but he is also trying to settle himself on the land through intervening in the case of Yehudah versus Levi, then there is no question from the Gemara which says that Beis Din rectifies its previous mistake. Even if Yehudah wins the case because of Beis Din's mistake and Beis Din removes him from the land, Shimon will not be as satisfied as he would be if Levi were to win the case. If Levi wins, then Shimon will have rights to the land, either because he has already invalidated Yehudah's witnesses or because he will already be occupying the land when he takes the land from Levi. Why, then, does the Rashbam write that the Halachah that Beis Din rectifies its mistake contradicts the Gemara?
</p><p>
Moreover, if it is true that Shimon can invalidate the witnesses of Yehudah for all future testimony, why does the Rashbam explain earlier that Shimon gains from his testimony on behalf of Levi only because he prevents Yehudah from occupying the land and keeping it with the claim of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'? Shimon has a much greater gain: by testifying now to prevent Yehudah from taking the land, he will actually win the court case later against Yehudah because he now invalidates Yehudah's witnesses! (M. Kornfeld) (It is perplexing that none of the Rishonim or Acharonim ask this question on the Rashbam.)
</p><p>
<b>ANSWER:</b> Apparently, this is another incident wherein the Rashbam originally explained the Gemara in one way and then changed his explanation, and he inserted the new explanation into his commentary before the original explanation (see Insights to 30b). The Rashbam indeed expresses two contradictory explanations. Originally, he explained the Gemara by saying that Shimon is Noge'a b'Davar because he wants to invalidate Yehudah's witnesses so that if Yehudah later wants to have a court case against him (Shimon), Yehudah's witnesses will not be accepted and Shimon will win the case. Even if Yehudah's witnesses <i>will</i> be accepted, Shimon will be Muchzak since he will be occupying the field that he obtained from Levi. The Rashbam said this in order to explain the Gemara in its most simple sense, without having it contradict the Gemara (31b) that says that Beis Din needs to rectify its mistaken ruling ('Anan Achsinei, Anan Maskinan Lei').
</p><p>
The Rashbam later changed his mind and rejected his original explanation. Instead, he explained that Shimon is trying only to keep Yehudah from occupying the land. Even though this creates a problem with the Gemara that implies that even if Yehudah wins the case, Beis Din will rectify its mistake and remove Yehudah from the land, the Rashbam gives an answer to explain why, in this case, Beis Din <i>will</i> allow Yehudah to stay on the land if Shimon does not testify, and therefore Shimon is Noge'a b'Davar because he is trying to make Yehudah <i>not</i> remain on the land and <i>not</i> win the case against Levi.
</p><p>
Why does the Rashbam reject his original explanation, that Shimon is trying to invalidate the witnesses of Yehudah? That seems to be a very straightforward benefit that Shimon gets from testifying! The answer is that even if Beis Din would accept the testimony of Shimon with regard to Yehudah (that is, Beis Din will not let Yehudah take the property from Levi), nevertheless it is clear that Beis Din will not accept the testimony of Shimon with regard to Shimon himself. Rather, if Shimon later brings Yehudah to court, the very same testimony that was accepted earlier (when Shimon invalidated Yehudah's witnesses) will be totally irrelevant to the case, and Beis Din will assume that no testimony was ever presented to invalidate the witnesses of Yehudah, since Shimon is a Noge'a b'Davar for that testimony. In other words, Shimon's testimony is believed only insofar as Yehudah's case against Levi is concerned, but not with regard to Yehudah's case against Shimon. With regard to the case between Yehudah and Levi, Shimon is <i>not</i> considered Noge'a b'Davar as a result of his desire to invalidate Yehudah's witnesses, because even if he does want to invalidate Yehudah's witnesses in the case of Yehudah versus Levi, it will not benefit him in any way; in the later case of Yehudah versus Shimon, Beis Din will ignore that testimony completely.
</p><p>
The same applies to the second point that the Rashbam made in his original explanation. The Rashbam wrote that Shimon wants Levi to retain the land so that when he (Shimon) ousts Levi from the land, he (Shimon) will be Muchzak. He wants to be Muchzak so that even if Yehudah brings more witnesses (besides the original ones), Shimon still will win the case because it will be a case of 'Trei u'Trei' (two witnesses against two witnesses), in which case the one who is Muchzak (i.e. Shimon, who obtained the land from Levi) gets to keep the land. The Rashbam later decided that this is incorrect. Even though Shimon removes Levi from the land by showing that the one who sold it to Levi was a thief, Beis Din will not allow Shimon to remain on the land because Beis Din will say that perhaps the land is Yehudah's. Shimon will claim that Yehudah had the land <i>after</i> Levi and that Beis Din rejected Yehudah as the owner of the land. Beis Din will respond that 'we rejected Yehudah only because of you, Shimon. And now, if you are evicting Levi in order that <i>you</i> can occupy the land, as far as you are concerned we must ignore your previous testimony, and again it will be a Safek whether the land was Levi's or Yehudah's, with regard to whether <i>you</i> can now occupy the land. We will not allow you to occupy the land because we will not rely on your testimony for that.'
</p><p>
That is why the Rashbam changed his mind. The Rashbam explained instead that Shimon is not trying to let himself have the land. Rather, he is trying merely to keep Yehudah off of the land, and that is something that he will accomplish regardless of whether the case is between Shimon and Yehudah or between Levi and Yehudah. If Shimon is believed to keep Yehudah off the land when it is Yehudah versus Levi, then later when it becomes a case of Shimon versus Levi, Shimon will be able to evict Levi from the land. Even though Beis Din will not put him (Shimon) on the land, Beis Din also will not put Yehudah on the land. If one asks that Beis Din should not believe Shimon with regard to his case against Yehudah, the answer is that indeed Beis Din does not believe Shimon, but that does not mean that Yehudah is now able to occupy the land. Yehudah is still not on the land, because in practice Yehudah never actually occupied that land. Hence, whether or not Beis Din believes Shimon with regard to the case, Yehudah in practice is not on the land, and thus Shimon gains because Beis Din will not say 'let the land remain in the hands of the person occupying it' and thereby let Yehudah keep it. Shimon has accomplished his goal of keeping Yehudah off the land by testifying in the case of Yehudah versus Levi. That is the Rashbam's conclusive explanation.
</p><p>
Perhaps the difference in understanding between the Rashbam's original explanation and his final explanation is as follows. Originally, the Rashbam maintained that Beis Din does not apply 'Palginan Dibura.' If Beis Din accepts Shimon's testimony with regard to Yehudah versus Levi, it must accept it completely, because once Beis Din rules in the case of Yehudah versus Levi that the witnesses of Yehudah are invalid (based on the testimony of Shimon), it effectively accepts that the witnesses of Yehudah are absolutely ineligible, and not that they are ineligible with regard to one case but are still valid with regard to another. Even though the principle of 'Palginan Dibura' often applies such that Beis Din accepts a person's testimony with regard to how it affects others but not with regard to how it affects himself (if he is making himself a Rasha with his testimony), perhaps it applies only with regard to Isurim. With regard to cases of monetary matters, if Beis Din accepts his testimony for one matter, it must accept it completely (since he is not making himself a Rasha with his testimony), and therefore Beis Din cannot ignore his testimony with regard to its relevance to himself.
</p><p>
The Rashbam later changed his mind and decided that Beis Din certainly may accept his testimony with regard to only one case (Yehudah versus Levi) and not with regard to himself, and therefore the Rashbam gave a different explanation for the Gemara.
</p><p>
The original explanation of the Rashbam seems to be the opinion of the <b>RAMBAN</b> (43b), the <b>RASHBA</b> (43b, DH v'Amur, and DH uv'ha'Hi), and the <b>NIMUKEI YOSEF</b>, who all explain that Shimon's benefit through his testimony against Yehudah is not just that he is taking the land away from Yehudah but that he is giving it to himself. The <b>TUMIM</b> (37:19) also points out that this is evident from the Rashbam later (44a, DH Mi Dami), who seems to follow this explanation. On the other hand, <b>RABEINU YONAH</b> (44a) seems to follow the second explanation of the Rashbam, that the testimony of a person who is Noge'a b'Davar is not accepted when it is pertinent to him.
</p><p>
It seems, however, that the basis for this difference of understanding goes even further. The Tumim and other Acharonim ask, how can the Rashbam and these Rishonim suggest that a person may give testimony which is pertinent to him in part, and once he is believed with regard to the person about whom he is testifying, he is believed as well with regard to himself? Why should he be believed for the part that relates to himself? He certainly is Noge'a b'Davar! What is the source for saying that he is believed with regard to himself?
</p><p>
Perhaps the source for this is the Gemara (43b) which says that if Shimon testifies that the field belongs to Levi, he may no longer claim the field for himself, and therefore he is not Noge'a b'Davar and should be able to give testimony that it belongs to Levi. Why does Shimon no longer have a claim to the field? The Rashbam here explains that it is because of Hoda'as Ba'al Din. Once Shimon says that it belongs to Levi, he has given his Hoda'as Ba'al Din, his own admission, that he no longer has any rights to the land. Once Beis Din establishes that Shimon has no rights to the land, it makes no difference whether it belongs to Levi or to Yehudah; Shimon will never be able to claim it for himself. That is what the Gemara means when it says that if he says that it belongs to Levi, Shimon cannot take it away from Levi afterwards, and, therefore, from now on his testimony is accepted.
</p><p>
The other Rishonim (such as the Rashba), however, have a different Girsa there. Instead of the Girsa, 'if he testifies that it belongs to Levi, can he later take it away from Levi?' their Girsa reads, 'if he testifies for Levi, can he later change his mind?' It seems that according to that Girsa, the Gemara is not saying that there is a Hoda'as Ba'al Din here and that is why Shimon cannot claim the field for himself later, but rather it is saying that Shimon is not allowed to change his mind about the testimony that he gave. If he testified for Levi, he cannot change that testimony. It is not because Shimon admits that the field does not belong to him, and that is why he cannot take it away from Levi. Rather, Shimon cannot remove the testimony that he already said against himself, because it was already accepted as testimony. It is clear from the words of the Rashba, Ran, and Nimukei Yosef (on 43b) that this is how the other Rishonim understand the case. The Rashba (DH d'Amar Yadana) writes that 'we see from our Sugya that a person who is Noge'a b'Davar can testify if Beis Din determines that he does not have any Negi'ah in this testimony; that is why we accept the testimony when Shimon says that the land belongs to Levi.'
</p><p>
What does the Rashba mean? The reason why Beis Din accepts Shimon's testimony when he says that the land belongs to Levi is that he has just admitted that the land is not his and thus his testimony is not relevant to himself, and he is not Noge'a b'Davar. It is not that he <i>is</i> Noge'a b'Davar but Beis Din does not think that his Negi'ah is involved in his testimony.
</p><p>
The <b>TUMIM</b> (end of 37:21) asks this question. He answers, as explained above, that the Rashba learns that the Gemara is not saying that there is a Hoda'as Ba'al Din. When Shimon 'admits' and testifies that the land belonged to Levi, he certainly may come back later and claim that the land belongs to him and that he did not really mean it when he said that it belonged to Levi, because he has a perfect excuse for why he said earlier that it belongs to Levi: he simply did not want Yehudah to get hold of the land. He testified that the land belonged to Levi only because he did not want Yehudah to get it, since he would not have been able to get it from Yehudah. Hence, later, he certainly may claim that the land is really his and that he did not really mean that it belonged to Levi when he testified earlier.
</p><p>
Why, then, does the Gemara say that if Shimon testifies that the land belongs to Levi, he may no longer change his mind and say that it belongs to him? The reason is that it is a rule in the laws of testimony that 'he may not change his mind' (as the Rashba's Girsa in the Gemara reads). This means that once Beis Din accepts the testimony of Shimon (together with another witness) that the land belongs to Levi, Shimon cannot come later and change that testimony and say that the land really belongs to him. Since there were two witnesses (Shimon and the other witness) who testified earlier that the land belongs to Levi, Shimon cannot say now that the land belongs to him. Once his testimony has been accepted, he cannot contradict it. Thus, the Gemara says that before the moment at which he originally gave testimony for Levi, Shimon still was Noge'a b'Davar. Even though his testimony was not a Hoda'as Ba'al Din and he could later claim that the land belongs to him, something else prevents Shimon from changing his testimony, and that is the rule that after a person's testimony has been accepted he cannot change that testimony.
</p><p>
However, this means that only <i>after</i> his testimony is accepted he is no longer Noge'a b'Davar. How can his testimony be accepted <i>while</i> he is Noge'a b'Davar such that <i>after</i> his testimony is said he no longer will be Noge'a b'Davar because he cannot change his testimony? It is true that <i>if</i> Beis Din accepts his testimony, then afterwards he will no longer be Noge'a b'Davar. How, though, does Beis Din accept it in the first place, while he is still Noge'a b'Davar? If there is a rule that the testimony of a person who is Noge'a b'Davar is like the testimony of a Karov (relative) and is not acceptable, then Shimon's testimony cannot be accepted in the first place to create a situation in which he will not be Noge'a b'Davar (by taking away his Negi'ah by preventing him from changing his mind)!
</p><p>
It must be that if Beis Din decides that if it is not because of a Negi'ah that Shimon is giving his testimony (because if Beis Din accepts it, then afterwards he no longer will be able to gain anything from the testimony), then Beis Din may accept his testimony and make him no longer Noge'a b'Davar.
</p><p>
This is the intention of the Rashba, Ran, and Nimukei Yosef. This Gemara teaches that Beis Din may accept the testimony of a Noge'a b'Davar as long as Beis Din determines that it is not because of the Negi'ah that he is saying the testimony. That is why Beis Din accepts the testimony of Shimon <i>before</i> he is removed from the Negi'ah; Beis Din accepts the testimony while he still can say that the land is his, because after Beis Din accepts the testimony he will not be able to say that it belongs to him.
</p><p>
This Gemara also teaches the second Chidush, that if Beis Din decides, for whatever reason, that Shimon is not saying his testimony because of a Negi'ah, then his testimony becomes a full-fledged testimony and it can be used even against Shimon himself. One might have thought that his testimony is accepted only with regard to Yehudah, but not with regard to himself (to say that the land does not belong to him), since a person cannot testify against himself. If there is no Hoda'as Ba'al Din, then his testimony against himself certainly should not be effective. This Gemara teaches that this reasoning is incorrect; rather, if, for any reason, Beis Din decides that Shimon is not saying his testimony because of his Negi'ah, Beis Din must accept it absolutely, and once Beis Din accepts it as valid testimony it is accepted for all matters, even for matters that are detrimental to Shimon.
</p><p>
This explains the reasoning behind the words of the Rashbam and other Rishonim who say that Beis Din accepts Shimon's testimony if he says that Yehudah's witnesses are invalid, such that even when Shimon himself has a case against Yehudah, the testimony that Yehudah's witnesses are invalid remains. Their proof is from the Gemara (according to their Girsa and their understanding), which says that accepting the testimony of a person is subject to the decision of Beis Din, and once Beis Din accepts it, it can be brought to bear even against the witness himself. His own testimony can be used against him. This is the strongest proof that once Beis Din accepts testimony, that testimony affects even those people who originally were Noge'a b'Davar to the testimony.
</p><p>
The Rashbam is saying that if Beis Din decides that Shimon's testimony to invalidate Yehudah's witnesses was genuine and was not because of his Negi'ah (in having the land not go to Yehudah), then even though it is possible that his testimony will affect Shimon himself in the future, such as when Yehudah brings those witnesses against Shimon, nevertheless Shimon's testimony is accepted absolutely, even when it has a bearing on Shimon.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>LAND CANNOT BE STOLEN</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 43b (Beraisa):</font></b> If Reuven sold a house or field, he
               cannot testify about it, for there is Achrayus (a
               guarantee of compensation if it will be taken,
               therefore, he is partial) If he sold a cow, he can
               testify about it, for there is no Achrayus.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 44b (Rav Papa):</font></b> If one sold land without Achrayus,
               the buyer has no claim against the seller if it is
               taken by a creditor, but he has a claim if the
               seller did not own it (and the owner takes it).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Zvid):</font></b> He has no claim even if the seller did
               not own it. The seller can say 'this is why I sold 
               it without Achrayus!'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Kama 117b (Mishnah):</font></b> (If Reuven stole Shimon's
               field and) the river flooded it, Reuven can say
               'your field is in front of you.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> (If Reuven stole Shimon's
               field and) the river flooded it, he must give him
               another field;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Chachamim say, he can say 'your field is in front of
               you.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> They learn (what can be stolen) from a verse. 'He
               will deny his neighbor' is a Kelal (general term).
               'About a deposit' is a Perat (specific term).
               'Anything that he will swear about' is another
               Kelal. From the Kelal u'Frat u'Chlal we include only
               what is similar to the Perat, i.e. Metaltelim with
               intrinsic value, but not land, slaves (which are
               equated to land) or documents.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 97a (Rav Daniel citing Rav):</font></b> If Reuven grabbed
               Shimon's slave and made the slave work for him, he
               is exempt.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> If slaves are like land, the slave always
               belonged to Shimon. Shimon should own the labor!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Gitin 48b (Mishnah):</font></b> (If a field was stolen,) one
               does not collect for the Peros from Meshubadim
               (property that was sold).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Bava Metzia 14b (Rava):</font></b> If one stole a field laden
               with Peros, and ate the Peros and dug pits in the
               field, the owner collects principal (the damage due
               to the pits) even from Meshubadim, and the value of
               the Peros from Bnei Chorin.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 15b (Rav):</font></b> If Reuven bought a stolen field, even if
               he knew that the seller stole it, he gets back what
               he paid, but not Shevach (improvements);
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> (Shmuel):</font></b> He does not get back even what he paid.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> Rav holds that Reuven intended that the
               money be a deposit. Shmuel holds that he gave the
               money for a gift.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Question:</font></b> According to both Rav and Shmuel, Reuven
               may use the land and eat the Peros. He reasons 'I
               will use the land like the thief would have used it.
               When the owner comes, I will return the land' (and,
               according to Rav, get back his money).
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> (Rava):</font></b> The law is, whether or not he knew that the
               field was stolen, he gets back his money.
<br>        <b>  <b><font color='darkgreen'>17. </font></b></b> Achrayus Ta'os Sofer (if a document does not mention
               Achrayus), this is a mistake of the scribe (really,
               there is Achrayus) for a loan or sale.
<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 (Bava Basra 24b and 3:44):</font></b> The Halachah
               follows Rav Zvid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 8:19):</font></b> If one sold land and
               explicitly stipulated that he has no Achrayus, even
               if it will became known that it was stolen, and the
               true owner took it from the buyer, the seller is not
               liable at all. We need not say that he is exempt if
               his creditor took it, for every monetary stipulation
               is binding.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (9:1):</font></b> If one stole land and ruined it, e.g.
               he dug pits, cut trees, ruined the springs or
               destroyed the building, he must provide another
               house or field like at the time he stole, or pay for
               the loss he caused. If the land became ruined by
               itself, e.g. a river flooded it or it was burned by
               fire that came from Shamayim, he says 'your land is
               in front of you.' Land is in the Chazakah of its
               owner, so the thief is not liable for its ruin
               unless he overtly ruined it. This is unlike
               Metaltelim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Edus 16:4):</font></b> If Reuven sold a cow to
               Shimon, and Yehudah claims that it was his, Reuven
               may testify for Shimon. He does not benefit from his
               testimony, for in any case Reuven's creditor cannot
               collect from it. This is when Shimon knows that it
               was Reuven's. If not, Reuven would have to pay back
               Shimon if Yehudah proved that it was his and took
               it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur (CM 37:9):</font></b> The Rambam rules like Rav Papa.
                    The Rosh rules like Rav Zvid.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Beis Yosef DH she'Ein):</font></b> This cannot
                    be. The Rambam rules like Rav Zvid in Hilchos
                    Mechirah! Rather, he holds that Rav Zvid argues
                    only when he explicitly stipulated that there
                    is no Achrayus. Normally, Achrayus Ta'os Sofer
                    (for a sale of land). There is no Achrayus in a
                    Stam sale of Metaltelim. Rav Zvid agrees that
                    the seller must compensate the buyer if it was
                    taken.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (DH Yir'eh):</font></b> The Tur understands that the
                    Rambam discusses when he specified that there
                    is no Achrayus. The Beis Yosef holds that he
                    discusses a Stam sale. This is difficult. If
                    so, why did the Beraisa distinguish a cow from
                    a house? In either case, the seller must
                    compensate unless he specified that there is no
                    Achrayus! The Rambam rules like Rav Zvid, but
                    regarding testimony even Rav Zvid agrees that
                    the seller is partial, for he does not want the
                    buyer to have claims and grievances against him
                    (even though the Halachah is that there is no
                    compensation).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Nimukei Yosef (Bava Metzia 8b DH v'Achrayus):</font></b> We say
               Achrayus Ta'os Sofer not only regarding documents.
               Even if one sold a field in front of witnesses, (if
               it was taken) the buyer collects from Meshubadim
               (Bava Basra 41b), even if there was no mention of
               Achrayus (Bava Basra 43b). There are three kinds of
               Achrayus, in ascending order. One Achrayus is from
               himself, i.e. if he will take back the property
               (based on other rights he has to it - Kesuvos 91b).
               A second is due to himself, e.g. if his creditor
               will take the property. A third is from elsewhere,
               e.g. if it will be found that it was not his. Rav
               Hai Gaon says that even though Achrayus Ta'os Sofer,
               and if he did not specify, all are included, if he
               specified that he accepts due to himself, he
               excludes what is above this, i.e. from elsewhere. If
               he specified from elsewhere, this includes from
               himself and due to himself, which are below it.
<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 225:5):</font></b> If one sold land and
               explicitly stipulated that he has no Achrayus, even
               if it will became known it was stolen, and the true
               owner takes it from the buyer, the seller is not
               liable at all. We need not say that he is exempt if
               his creditor took it, for every monetary stipulation
               is binding.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (6):</font></b> Semag says that the Ri rules like Rav
                    Papa. The seller must return the money, for it
                    is not a sale at all; the owner takes the land
                    and Peros. A creditor does not take Peros,
                    therefore, until he takes it, it is considered
                    a sale. If one bought a field and knew that it
                    was stolen, Rav and Shmuel argue about whether
                    what he paid is a deposit or a gift. If so, it
                    was sold without Achrayus. This implies that in 
                    a similar case in which he did not know that it
                    was stolen, all agree that he gets back his
                    money.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 371:1):</font></b> Land can never be stolen.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> Therefore, if the land became
               ruined by itself, e.g. a river flooded it, the thief
               is not liable, for it belonged to the owner. He says
               'your land is in front of you.' If the thief overtly 
               ruined it, e.g. he dug pits, cut trees, ruined the
               springs or destroyed the building, he must provide
               another house or field like at the time he stole, or
               pay for the loss he caused.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Just like is land is in the Reshus of the
               owner (for his detriment) to allow the thief to say
               'your land is in front of you', it is in the owners'
               Reshus for his benefit. Regarding Metaltelim, the
               thief pays only like at the time of the theft. If a
               thief used land and ate the Peros, he pays for his
               benefit.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH uch'Shem):</font></b> We learn from Gitin
                    48b and Bava Metzia 14b.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> The Rambam (Hilchos Malveh 21:1) explains
                    Gitin 48b to discuss collecting for Peros from
                    the thief. Rashi (Gitin 48b DH Ein) holds that
                    if discusses one who bought a stolen field. The
                    owner took it back with its Peros, and the
                    buyer collects their value from the seller.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (5):</font></b> Likewise, if he lived there or
                    rented it out, he pays what he benefited.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TAKANAS MARISH </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is even if the loan document empowers the
               creditor to collect 'from the shirt off his back.'
               These words apply only when the borrower still owns
               it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is even if Reuven made the cow or garment an
               Aputiki from which the loan will be collected, due
               to Rava's law;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rava):</font></b> If one made his slave an Aputiki and
                    sold him, the creditor collects him. If an
                    animal was made an Aputiki and it was sold, the
                    creditor does not collect it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer:</font></b> A sale of a slave has publicity,
                    but a sale of an animal does not (so the buyer
                    did not know to beware).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> We should be concerned lest Reuven gave his
          creditor a lien on the cow or garment Agav (along with)
          land (for then the creditor can collect from them, so
          Reuven gains from his testimony)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> Metaltelim (movable objects) are
               acquired Agav land (not only absolutely, but also
               regarding a lien).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> This is only if the document says
               'this is not Asmachta (an exaggerated, insincere
               promise) nor a mere form document (from which one
               copies the text).'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he sold a cow or garment right
          after buying it (surely, he did not borrow in between).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he (borrowed before he bought it,
          and) gave the creditor rights to collect from 'd'Ikni
          (what I will acquire)'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This teaches that a stipulation
               'd'Ikni' does not enable the creditor to collect the
               property from one who bought or inherited it from
               the borrower! (Rather, he collects only as long as
               the borrower owns it)!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> No, the case is that witnesses say that Reuven
          never owned land (so we need not worry that he gave a
          lien Agav land).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Papa taught that even though one who
          sells land without Achrayus, the buyer has no claim
          against the seller if it is taken by a creditor, he has a
          claim if the seller did not own it! (Therefore, Reuven
          profits from his testimony!)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the buyer admits that Reuven owned
          the cow or garment.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Rav Zvid):</font></b> If one sells land without Achrayus, the
          buyer has no claim against the seller even if the seller
          did not own it (and the true owner takes it from the
          buyer);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The seller can say 'this is why I sold it without
               Achrayus!
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>RESPONSIBILITY OF A SELLER FOR WHAT HE SOLD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Ravin bar Shmuel):</font></b> If Reuven sold his field without
          Achrayus, he cannot testify about it, since this can
          enable his creditor to collect it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven has other land, the creditor must
               collect from it, and not from what Reuven sold!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven has no other land, it makes no
               difference to him whether or not the creditor
               collects from the sold land. In any case the
               creditor has nothing to take from Reuven himself!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, Reuven has no other land. He wants the
          creditor to collect, lest Reuven be considered 'Loveh
          Rasha v'Lo Yeshalem.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Even if the creditor collects, Reuven will be
          like one who borrowed (from the buyer) and does not pay!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he sold it without Achrayus to evade any
          liability to compensate the buyer.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Shimon bought Levi's donkey, and a Nochri
          seized it, Levi must take the Nochri to Beis Din to
          restore it to Shimon (Rashbam; Tosfos - he must
          compensate Shimon for his loss), so he will not be 
          considered a borrower who does not repay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if Shimon does not know whether the
               Nochri really owned it. If he admits that Levi owned
               the donkey, Levi is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if the Nochri took the donkey
               without the saddle (this shows that he is not
               stealing, rather, he truly owns it). If he also took
               the saddle, (presumably he is stealing, so) Levi is
               exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> In every case, Levi is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Nochrim are established robbers - 'their mouth
               speaks falsely....'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A CRAFTSMAN HAS NO CHAZAKAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A craftsman does not get a Chazakah...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah):</font></b> This is only if witnesses saw Reuven (the
          owner) give to Shimon (the craftsman) the Kli;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If not, Migo that Shimon would be believed if he
               denied ever receiving it, he is believed to say that
               he bought it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, even if witnesses saw him give
          it, Migo that Shimon could say that he returned it, he
          can say that he bought it!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> You think that one who accepts a
          deposit in front of witnesses need not return it with
          witnesses. This is wrong. Rather, he must return it in
          front of witnesses.
<br>
<br>

sjt:
<font><b>1) HOW TO AVOID BEING CALLED A 'RASHA' WHO DOES NOT PAY BACK LOANS</b></font><b>
<br>QUESTION:</b> The Gemara here discusses Shmuel's statement that one who sells land to a buyer (without Achrayus) may not testify that the land belongs to the buyer because he is Noge'a b'Edus. The Gemara explains that the reason why the seller may not testify is that he does not have any other land from which his creditor could collect the debt, and thus he benefits if his former field remains in the hands of the buyer. The creditor will collect the field from the buyer, and the seller will not be considered a Rasha who does not pay back his loans.
</p><p>
Similarly, the Gemara earlier (43a) discusses Shmuel's statement that when two people own property in partnership, one partner may testify on behalf of the other partner. The Gemara asks that the partners should not be allowed to testify for each other because they are 'Nog'in b'Edusan' -- the one testifying will benefit personally by his testimony for his partner, since he thereby will not lose his own share in the property. The Gemara answers that the testifying partner was Makneh his share of the property to his partner, and thus he no longer gains from his testimony. The Gemara asks that he still is Noge'a b'Edus, since he gains indirectly by having his former partner keep the land. As long as the land is in his partner's hands it can be collected by his creditors for loans that he owes. The <b>RASHBAM</b> there cites the Gemara here which explains that he is Noge'a b'Edus because he wants his loan to be paid back so that he will not be called a Rasha who does not pay back his loans.
</p><p>
If the person is worried about avoiding the Aveirah of not repaying a loan, then certainly he should be afraid of transgressing the much more severe Aveirah of testifying falsely! Why is he suspected of lying in order to avoid being called a Rasha who does not pay back his loans, when lying in court is a much greater Aveirah? (<b>RAMBAN</b> (45a) in the name of the <b><b><b>RI</b></b> MI'GASH</b>)
</p><p>
<b>ANSWER:</b> The <b><b><b>RI</b></b> MI'GASH</b> answers that the witness is afraid of what other people say about him. If he does not pay back his loans, then everyone will call him a Rasha for not paying back. If, on the other hand, he gives false testimony, no one will know that he lied.
</p><p>
(The <b>MAHARAM</b> on 44a, cited by the <b>SHACH</b> (CM 37:1), suggests the same answer and adds that if someone who is Noge'a b'Edus is disqualified because he is considered a Karov, then perhaps even if Beis Din is convinced that he is telling the truth, his testimony is still invalid.
</p><p>
However, this answer is difficult to understand. If the witness is more worried about testifying falsely than about not paying back his loans, then he is no longer Noge'a b'Edus in the first place and his testimony should be accepted!)
</p><p>


<font><b>2) THE CRAFTSMAN'S CLAIM OF OWNERSHIP</b></font><b>
<br>QUESTIONS:</b> The Mishnah (42a) teaches that an Uman, craftsman, cannot make a Chazakah on an object that he is holding and claim that the object in his hands belongs to him. Abaye and Rabah argue about the application of this Halachah. According to Rabah, if the claimant does not have witnesses to testify that he handed over the object to the Uman to fix, then the Uman <i>is</i> believed to claim that he bought the object because he has a Migu that he could have said that he never received anything from the claimant. Abaye argues that even when there are no witnesses to testify that the object was given to the Uman to fix, the Uman cannot make a Chazakah on the object and is not believed to claim that the object is his.
</p><p>
According to Rabah, what is the alternate claim (the claim of the Migu) that gives the Uman credibility when he claims that he bought the object? The <b>RASHBAM</b> explains that the Uman could have said that the claimant sold the object to a third party, who then sold it to the Uman. (The Uman does not need to specify who that third party is, and therefore he does not have to worry that the third party will eventually come to court and contradict his claim.)
</p><p>
(a) Why does the Rashbam not give a much more basic explanation for the Uman's Migu-claim? The Uman could claim that he received the object from the claimant by purchasing it from him, and not in order to fix it! When he says that he received the object to fix but then he purchased it from the owner, he should be believed with a Migu that he could have said that he purchased it from the owner directly. (<b>TOSFOS</b> (DH Aval), in fact, gives both examples of Migu. The <b><b><b>RI</b></b> MI'GASH</b> and <b>RABEINU YONAH</b> also suggest the second Migu. See also <b>TOSFOS RID</b>.)
</p><p>
(b) The Rashbam himself seems to contradict his own explanation of what the Migu is, because in other places he implies that the claim of the Migu is, as Tosfos explains, that the Uman could have said that he bought the object directly from the claimant. First, the Rashbam asks why the Uman should be believed according to Rabah; he should not have a Chazakah, just as a person does not have a Chazakah on objects that are normally rented or loaned to others. If the Migu is that the Uman could have said that he purchased the object from a third party (who is not an Uman), then this case cannot be compared to one of an object that is normally borrowed or rented, because he is claiming that he received it from a person who is <i>not</i> an Uman and who had a legitimate Chazakah. When the object is normally borrowed or rented, a person cannot claim that he purchased it from a third party because the Chazakah of the third party does not prove ownership any more than the Chazakah of the Machzik, the one holding the object. (See <b>AYELES HA'SHACHAR</b>.)
</p><p>
Second, the Rashbam answers that the case of the Gemara is not comparable to a case of an object normally borrowed or rented, because the Uman claims that he usually does not receive objects from this claimant to fix. Therefore, his Chazakah is a valid Chazakah against the claimant. If the Chazakah of the Uman is a valid Chazakah, then he should be believed to say that he purchased it directly from the claimant, and he does not have to say that he purchased it from a third party! (<b>AYELES HA'SHACHAR</b>)
</p><p>
Third, the Rashbam (beginning of 45b, DH Amar Lei) explains that Abaye disagrees with Rabah because he compares the case of the Gemara with the case of an object that is normally borrowed or rented. If the Rashbam learns like Tosfos, who explains that Rabah gives the Uman a Migu because he could have said that he purchased the object from the claimant, then the Rashbam's words are easy to understand: Abaye is arguing that the Uman cannot claim that he purchased it, since a person gives his objects to any Uman to fix, even if that person never gave objects to this Uman to fix in the past. However, if the Migu is that the Uman could have said that he bought the object from a third party, then the argument of Abaye that this case is comparable to a case of an object that is normally borrowed or rented is irrelevant. Even if an object being held by an Uman is assumed to have been given to him to fix, he should be able to claim that he purchased the object from a third party, and the third party had a valid Chazakah since he was not an Uman! The Uman will not have to return the object to the third party, since the third party is not contradicting the claim of the Uman that the object was purchased. The Rashbam would need to explain that according to Abaye, the Uman does not have a Migu to say that he purchased it from a third party, perhaps because he is embarrassed to claim that a third party was involved without identifying that party. On the other hand, he is also embarrassed to identify the third party, because that third party might then contradict his claim.
</p><p>
These three comments of the Rashbam imply that the Rashbam understands the Migu as Tosfos explains it -- that the Uman could have claimed that he purchased the object directly from the claimant. How is this apparent contradiction in the words of the Rashbam to be reconciled?
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rashbam does not accept the explanation of the Ri mi'Gash that the Uman is believed with a Migu that he could have said that he purchased the object directly from the claimant because, according to that explanation, Abaye (who compares this case to a case of an object that is normally borrowed or rented) and Rabah argue not only about a case in which the Uman claims that he received the object to fix and then later purchased it, but they argue even about a case in which the Uman claims that he purchased it directly from the claimant. Why, then, does Rabah state his ruling in the case of an Uman who is believed with a Migu? He should have said simply that an Uman is believed to say that he purchased the object from the claimant, because that is the case in which he and Abaye argue! In fact, the <b>TOSFOS RID</b> rejects the explanation of the Ri mi'Gash for this reason.
</p><p>
Moreover, if people normally give their objects to one Uman in particular, and that is why this case is not comparable to a case of an object that is normally borrowed or rented, then why should Abaye argue and compare it to such a case? Abaye should say that the Uman's believability depends on whether the practice of the person is to give his objects that need repair to one particular Uman or to give it to any Uman!
</p><p>
The Rashbam, therefore, prefers to explain that the Migu is that the Uman could have claimed that he purchased the object from a third party. Both Rabah and Abaye agree that the Uman would not be believed to claim that he purchased it from the claimant himself, if not for the Migu, because a person indeed gives his objects to any Uman to fix, and therefore it would be comparable to an object that is normally borrowed or rented. (This is the same as the logic of Abaye, according to the Rashbam's explanation (45b) that Abaye and Rabah argue about whether the case of an object in the hands of an Uman is comparable to the case of an object that is normally borrowed or rented.)
</p><p>
The Tosfos Rid rejects the Rashbam's explanation as well. He asserts that the Uman's claim that he purchased the object from a third party should be no stronger than the claim that he purchased it from the claimant himself. With either claim, if the object in the hands of the Uman is considered like an object that is normally borrowed or rented (since people normally give such objects to an Uman to fix), then the Chazakah of the Uman should be worthless.
</p><p>
The Rashbam, on the other hand, apparently follows his own opinion in this regard as expressed earlier. The Rashbam (32b, DH Hilchesa, and 43b, DH v'Iy Ba'is Eima, see Insights there) explains that even when a person occupies a field for less than three years, if Beis Din has a doubt about who the owner of the land is, and the Chezkas Mara Kama cannot be used to resolve the doubt (for example, in a case of 'Trei u'Trei,' or when there is a Safek about the Halachah), then the person occupying the land is allowed to keep the land because of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' Apparently, a Chazakah that does not provide proof of purchase is still sufficient to give that person the object when there is no Chezkas Mara Kama opposing his possession, in which case Beis Din rules 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' Similarly, when the Uman claims that he purchased the object from a third party, the Chezkas Mara Kama of the claimant is no longer pertinent, since the Uman claims that there is another person who had a Chazakah on the object <i>after</i> the claimant (thus harming the Chezkas Mara Kama of the claimant). Even though the Chazakah of the Uman is not enough to prove that the object is his (because it is like an object that is normally borrowed or rented), nevertheless since his Chazakah is not opposed by a Chezkas Mara Kama, Beis Din leaves the object with the Uman (instead of saying 'Kol d'Alim Gevar'). (Even those who argue with the Rashbam -- and maintain that 'Kol d'Alim Gevar' or 'Yachloku' does apply in such a situation -- agree that in the case of the Uman, the Uman has a stronger claim since there is no person to contradict his claim that he bought the object from the third party (since the third party is unidentified).)
</p><p>
(b) The Acharonim suggest that the Rashbam maintains that neither Migu is sufficient by itself for the Uman to win the case. The Migu that he could have said that he purchased the object from a third party is not a strong Migu, for the reason mentioned above. The Migu that he could have said that he purchased the object from the claimant is also a weak Migu, since it should be similar to a case of an object that is normally borrowed or rented. The strength of the combination of the two Migus, however, enables the Uman to be believed and to win the case. Consequently, Abaye only needs to argue with one of the Migus by saying that an object in the hands of an Uman <i>is</i> comparable to an object that is normally borrowed or rented, and thus the Uman cannot say that he purchased it. Since only one weak Migu remains, the Uman does not win the case with his claim.
</p><p>
The Acharonim do not explain exactly why the Rashbam assumes that Rabah's opinion relies on two Migus, when the Rashbam could have explained that the Gemara is discussing one Migu (that the Uman bought it from someone else who bought it from the claimant).
</p><p>
Another possibility is that the Rashbam's first explanation -- that the Uman could claim that he purchased the object from a third party who purchased it from the claimant -- indeed differs from what he writes later. His first explanation is a later addition that the Rashbam added because of the question that he had on the explanation of the other Rishonim (see (a) above). The Rashbam added this explanation at the beginning of his comments, but did not remove his original explanation which was based on his original understanding of the Gemara (see Insights to 30b and 44a).
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SOMETHING NORMALLY LENT OR RENTED</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 craftsman does not get a Chazakah...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rabah):</font></b> This is only if witnesses saw the owner
               (Reuven) give Shimon (the craftsman) the Keli. If
               not, Migo (Since) that Shimon would be believed if
               he denied ever receiving it, he is believed to say
               that he bought it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rav Nachman bar Yitzchak):</font></b> The Mishnah
               says that a craftsman does not get a Chazakah. This
               implies that others get a Chazakah! If witnesses saw
               it deposited, the Shomer would not get a Chazakah!
               Rather, there are no witnesses, and even so a
               craftsman does not get a Chazakah!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This refutes Rabah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Bava Metzia 116a:</font></b> Reuven took a butchers' knife for
               a security from Shimon.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Abaye:</font></b> Since it is used for food, you must return
               it. You can claim your loan in Beis Din (if you have
               witnesses, or if Shimon will admit.)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rava:</font></b> Since witnesses did not see Reuven take it, he
               need not return it until Shimon pays.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> Abaye should agree to Rava like the
               following case!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Some goats ate peeled barley in Neharde'a. The
                    owner of the barley seized the goats, and was
                    claiming a large loss.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Shmuel's father):</font></b> He can claim up to the
                    goats' value.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> Goats are not normally lent or rented, so
               one who seized is believed, Migo (since) he could
               have said that he bought them. A knife is normally
               lent or rented. One would not be believed to say
               that he bought it.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Huna bar Avin):</font></b> If Ploni holds an item normally
               lent or rented, and claims that he bought it (if we
               know that it was David's), he is not believed.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> Does Rava disagree?! Rava took shearing
               scissors and a Sefer of Agadata from orphans,
               because these are normally lent and rented!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> A butchers' knife can get blunted, so people
               do not normally lend or rent 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 (Bava Metzia 70a):</font></b> The Halachah follows Rava. We
               learn from our Sugya that if Ploni deposited or lent
               to Levi, even without witnesses, something often
               lent or rented, and witnesses know that it was
               Ploni's, Levi is not believed to say that he bought
               it or took it for a security. Even if Levi died and
               his children claimed this, they are not believed,
               just like he was not believed. Rava took scissors
               and a Sefer from orphans, for they are normally lent
               and rented! This teaches that if Ploni deposited or
               lent to Levi with witnesses, even if the deposit is
               not normally lent or rented, Levi is not believed to
               say that he later bought it. We needed R. Chanina
               (our text - Rav Huna) bar Avin's law only for a
               deposit not in front of witnesses. If Ploni holds an
               item normally lent or rented, and claims that he
               bought it, (if we know that it was David's) he is
               not believed. In Bava Basra we explicitly say that
               If witnesses saw the object deposited, even one who
               is not a craftsman would not get a Chazakah. Some
               Rabanan say that Rav Chanina's law and Rava's ruling
               (that the orphans must return the items) refer to
               claiming items under the person's garment. Our Sugya
               refutes them. We asked, and did not answer that they
               discuss only items under the person's garment! This
               teaches that Rav Chanina's law always applies. The
               Halachah follows it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 8:3):</font></b> Something often lent or
               rented, even if one did not borrow or rent it in
               front of witnesses, is in the Chazakah of its owner.
               E.g. if Reuven had a Kli often lent or rented, and
               witnesses know that it was his, and it was seen with
               Shimon, and Reuven claims that he lent or rented it
               to him, and Shimon claims that Reuven sold it or
               gave it to him for a gift or security, Shimon is not
               believed. Reuven takes his Kli and swears Heses.
               Even if Shimon died, Reuven takes his Kli. The
               Ge'onim say that he swears Heses, for we claim on
               behalf of orphans.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Metzia 9:48,49):</font></b> The Halachah follows
               Rava. If witnesses know that Ploni owned something
               often lent or rented and it was found in Levi's
               Reshus, or if Ploni deposited something not normally
               lent or rented with Levi in front of witnesses, Levi
               is not believed to say that he bought it or took it
               for a security if witnesses saw that he has it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Ploni takes it without an oath.
                    This is only if he often lends, Levi often
                    borrows, and the level of love between them,
                    like the judges assess.
<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 72:18):</font></b> In any case when Reuven
               (the lender) could not claim 'I bought it (the
               security)' or 'it was never yours' or 'I returned it
               to you', Shimon (the borrower) swears that he
               borrowed only a Shekel, pays it, and takes his
               security. Even if something is often lent or rented,
               he can say that he returned it or 'nothing ever
               happened' (he never took it from Shimon) if
               witnesses did not see Shimon give it to him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (57):</font></b> This refers to what was said above,
                    that witnesses did not see it with him now. If
                    they did, he could not say that he returned it
                    or 'nothing ever happened.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (87):</font></b> Gidulei Terumah asked why the
                    borrower swears Heses that it is not a security
                    if witnesses saw him lend it. I say that if so,
                    it is difficult even regarding something often
                    lent or rented! Since Chazakah helps to take
                    money from one who borrowed or rented, it
                    should exempt from a Shevu'ah! Rather, the
                    Chazakah, or witnesses, only help so that the
                    lender is not Muchzak. Perhaps afterwards he
                    lent and accepted that it will be a security!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If something often lent or
               rented and witnesses saw it now with Reuven, he
               cannot say that he bought or returned it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (58):</font></b> This is when the witnesses know
                    clearly that it belonged to Shimon. If they
                    merely saw that Reuven has a similar Kli to
                    what Shimon claims, we do not force Reuven to
                    show it to Beis Din (CM 297).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (89):</font></b> This is even if he did not tell the
                    witnesses how he got it. This is even if the
                    witnesses do not recognize it absolutely, only
                    through Simanim, for Reuven fears to say lhd.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that the witnesses need not see it at
               the time he claims in Beis Din, rather, they saw it 
               beforehand, and he claimed that he bought it or
               another reason why he need not return it. He has no
               Migo to say that he returned it, for we can testify
               that he did not! Similarly, if it was well-known
               that he had it, even if there are no witnesses, he
               cannot say that he bought it, for there is no Migo
               to say that he returned it, for he fears to
               contradict what is known. Even if when the witnesses
               saw it he said 'he owes me such and such ', like he
               claims now in Beis Din, he is not believed. This is
               only if witnesses saw before he was claimed from in
               Beis Din. If they saw only after the claims and
               dispute in Beis Din, he did not lose his Migo, and
               is believed to say that he bought or returned it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (133 DH Kosav, citing Hagahos
                    Maimoniyos Mishpatim, Teshuvah 32):</font></b> The
                    witnesses need not see it at the time he claims
                    in Beis Din, rather, they saw it beforehand,
                    and he claimed that he bought it or another
                    reason why he need not return it. He has no
                    Migo to say that he returned it. Even if he
                    will explicitly say that he returned it, he is
                    not believed. If one denied owing, and after
                    witnesses testified that he has he claimed that
                    he paid, he is established to be a denier
                    regarding that money.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH Kasuv):</font></b> If witnesses saw it only
                    after the claims were made, he was believed at
                    the time through the Migo. Even if we see it
                    later, he does not lose his credibility.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (90):</font></b> The Rema discusses something often
                    lent or rented. His initial claim that he
                    bought it did not help. Surely he did not
                    return it, for he claimed that it is his!
                    Regarding something not normally lent or
                    rented, he was believed to say that he bought
                    it, so later he is believed to say that it is a
                    security and he is owed such and such for it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (91):</font></b> If in Beis Din he also claimed that
                    he bought it, he is believed, Migo (since) he
                    did not need to show it to witnesses from the
                    beginning, and he persists with that claim.
                    Also, if not, no one would ever buy something
                    often lent or rented, lest the seller later
                    claim that he lent it. If he initially claimed
                    that it was a security and he was owed for it,
                    since he admitted that it is not his, he is not
                    believed, for witnesses saw that he has
                    another's property.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (90:12):</font></b> Reuven is believed about
               something often lent or rented when witnesses know
               that it was his and saw it now with Shimon. If
               witnesses did not see that Shimon has it, he is
               believed, Migo he could say that he returned it.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>SOMETHING NOT NORMALLY LENT OR RENTED </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye - Beraisa):</font></b> If Levi saw his slave with
          a craftsman (who teaches his trade), or his garment with
          a launderer, and Yehudah (the craftsman or 1aunderer)
          claims that he bought or received it (or him) for a gift,
          he is not believed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he claims that he saw Levi tell him to sell or
               give it (or him), he is believed. (We immediately
               explain the Seifa, even though the question against
               Rabah is from the Reisha.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the difference between the
               Reisha and Seifa?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> In the Seifa, Ploni (a third
               party) has the garment or slave, and he claims 'I
               saw Levi tell Yehudah to sell or give it (or him) to
               me';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Migo that Ploni would be believed to say that
                    he bought it from Levi, he is believed to say
                    that Levi told Yehudah to sell it to him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (The question against Rabah):</font></b> The Reisha teaches
               that when Levi sees his property with Yehudah,
               Yehudah is not believed;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If witnesses saw Levi give it to Yehudah, even
                    if Levi does not see it with him, Yehudah is
                    liable (according to Rabah, the deposit must be
                    returned in front of witnesses)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, he did not give it in front of
               witnesses, and the Beraisa says that when Levi sees
               it with Yehudah, Yehudah is not believed!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> Rather, Levi gave it to Yehudah in
          front of witnesses, and still, Yehudah is liable only if
          Levi sees it with him.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Abaye:</font></b> You yourself said that a deposit given in front
          of witnesses must be returned in front of witnesses!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rabah:</font></b> I retracted from that teaching.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (against Abaye, and support for Rabah - Rava -
          Beraisa):</font></b> Reuven gave his garment to Shimon (a
          craftsman). Shimon said 'you hired me for two', and
          Reuven said 'I hired you for one.' If Shimon has the
          garment, Reuven must bring proof (or pay two);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he returned the garment to Reuven, if it is
               within the time to claim his wages, Shimon swears
               that he was not paid and collects;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is after the time to claim his wages,
               Shimon must bring proof in order to collect.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he gave the garment in front of witnesses,
                    we ask the witnesses what the wage was!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, he did not give it in front of
               witnesses, and the craftsman is believed;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Migo he is believed to say that he bought it,
                    he is believed that he was hired for two.
<br>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>RABAH IS REFUTED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, he did not give it in front of
          witnesses. Reuven did not see his garment by Shimon,
          therefore Shimon is believed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Nachman bar Yitzchak - Mishnah):</font></b> A
          craftsman does not get a Chazakah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Someone else gets a Chazakah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If witnesses saw that the object was deposited,
                    why would someone else get a Chazakah?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, there aren't witnesses that saw
               the object deposited, and even so a craftsman does
               not get a Chazakah!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	This refutes Rabah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO GOT BACK THE WRONG GARMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven took back his garment from the
          craftsman, and saw that it is someone else's, Reuven may
          use it until the owner comes for it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he took back someone else's garment from a
               mourner's house or a drinking house, he may not use
               it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between the cases?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav citing R. Chiya):</font></b> A person often tells a
          craftsman to sell his garment. (Rashbam - we assume that
          Ploni did so, and the craftsman mistakenly sold Reuven's,
          and knowingly gave Ploni's garment to Reuven until he can
          get Reuven's garment back to him; Tosfos - he intended
          that Reuven keep Ploni's garment in place of his own.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Chiya brei d'Rav Nachman):</font></b> This is only if the
          craftsman returned another's Kli, but not if the
          craftsman's wife or children did so;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even when the craftsman returns it, this is only
               when he said '(take this) garment', but not if he
               said 'your garment.' (Then, surely he thinks that he
               is returning Reuven's.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A SWINDLING CRAFTSMAN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Abaye):</font></b> This is a ruse of swindlers of Pumbedisa.
          Shimon claims his garment from Levi (a swindling
          craftsman), who denies that he ever received it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> I have witnesses who saw it by you. It is
               mine! (The witnesses are unsure about this.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Levi:</font></b> That was another's garment.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shimon:</font></b> Show it, and we will see whose it is!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Levi:</font></b> I refuse.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> Levi justifiably refuses! The Beraisa says that
          Shimon gets his garment only if witnesses saw it (and
          knew that it was Shimon's) with the craftsman.
<br>
<br>

sjt:
<font><b>1) ONE WHO RECEIVES THE WRONG GARMENT FROM THE TAILOR</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which a person gave his garment to a tailor to fix, and after he picked up the garment from the tailor he realized that the tailor gave him someone else's garment. Is he allowed to use the garment that he was given? The Beraisa says that he may use it. However, if he went to a Simchah and took home the wrong coat, he may not use it. What is the difference between the two cases?
</p><p>
Rav Chiya explains that since a person sometimes asks a tailor to sell clothing for him, it is conceivable that the tailor accidently sold his garment instead of fixing it, and the tailor is giving him a replacement garment which he may use until the tailor retrieves the original garment that he accidentally sold. This reasoning clearly does not apply when a person accidentally takes home the wrong coat from a Simchah, and thus the person is not allowed to use the coat he mistakenly took.
</p><p>
The Gemara adds two conditions to the allowance to use someone else's garment which the tailor gave him. The first condition is that it must be that the tailor himself gave the garment to the customer, not his wife or children. The family members of the tailor do not know which garment belongs to whom, and they gave him this garment based on their mistaken assumption that it was his. The second condition is that when the tailor gave the customer the garment, he must have said to him, 'Take this garment,' and not, 'Take <i>your</i> garment.' The latter wording implies that the tailor made a mistake. (The <b>CHIDUSHIM</b> U'VI'URIM writes that if the tailor said nothing when he gave the garment to the customer, the customer is allowed to use the garment.)
</p><p>
The <b>RITVA</b> has difficulty with this Gemara. What is the basis for the leniency to assume that the tailor gave him a replacement garment, and not that he simply made a mistake and gave him the wrong garment?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> answers that when a merchant sells garments, he offers a potential customer any garment that he has for sale in the store. However, when a customer comes to pick up his garment from a tailor, the tailor knows that he must give the correct garment to its owner. This is why the Gemara assumes that the tailor knew what he was doing when he gave the customer the wrong garment.
</p><p>
(b) The <b>AYELES HA'SHACHAR</b> suggests a different answer. If the Gemara would assume that the tailor gave back the wrong garment, then it would have to assume that the tailor made two mistakes: he returned the wrong garment to the customer, and he mishandled the garment which was given to him to fix. However, if the Gemara assumes that the tailor is merely giving his customer a temporary, replacement garment, then it assumes that he made only one mistake: he sold his customer's garment which was meant to be fixed. It is more reasonable to assume that a professional makes less mistakes in his work, and thus the Gemara assumes that the tailor gave his customer a replacement garment. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO GOT BACK THE WRONG GARMENT</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):</font></b> If Shimon took back his garment from a
               craftsman, and saw that it is someone else's, Shimon
               may use it until the owner comes for it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he took back someone else's garment from a
               mourner's house or a drinking house, he may not use
               it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the difference between the cases?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav citing R. Chiya):</font></b> One often tells a
               craftsman 'sell my garment.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (R. Chiya brei d'Rav Nachman):</font></b> This is only if the
               craftsman returned another's Keli, but not if the
               craftsman's wife or children did so;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Even when the craftsman returns it, this is only
               when he said '(take this) garment', but not if he
               said '<i>your</i> garment.' (Then, surely he thinks that
               he is returning Shimon's.)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Bava Kama 114a (Mishnah):</font></b> If tax collectors or
               Listim (thieves) took Reuven's donkey or garment and
               gave him a different one, Reuven may keep it,
               because the owner despairs.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 6:6):</font></b> If Shimon
               (mistakenly) took back another's garment from a
               mourner's house or a drinking house, he may not use
               it until the owner comes and takes it. If he
               received back another's garment from a craftsman's
               house, if the craftsman's wife or children gave it
               to him, or the craftsman returned it and said 'take
               your garment', he may not use it until the other
               will return and take his. If the craftsman said
               'take this garment', he may use it until the owner
               comes and takes his. Perhaps it is the craftsman's,
               or the owner told the craftsman to sell his garment.
               The same applies to all similar cases.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (3:47):</font></b> We assume that Reuven told the
               craftsman to sell his garment, and the craftsman
               mistakenly sold Shimon's garment. When Shimon claims
               his garment, the craftsman realized his error and
               gave to him Reuven's. Therefore, Shimon may use it,
               like a buyer uses what he bought.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why may Shimon use Reuven's garment? If
               the buyer will not like Shimon's garment, he can
               return it (and Shimon will get it back), and Shimon
               used Reuven's without his Da'as (consent)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rosh):</font></b> Since Reuven sorely needed money and
               sold his garment, he agrees that others use it, for
               also Reuven used the money.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Nimukei Yosef (25a DH v'Su and Rashbam DH Omar):</font></b> We
               assume that someone (Reuven) told the craftsman to
               sell his garment, and the craftsman mistakenly sold
               Shimon's, and knowingly gave Reuven's garment to
               Shimon until he can get Shimon's garment back to
               him.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Terumas ha'Deshen (319):</font></b> A Nochris launderer
               received garments from Reuven and Shimon. Reuven got
               back the correct number of garments, but later
               noticed that one sheet is not his, and Shimon said
               that he is missing two sheets. She says that she
               returned everything. Shimon told Reuven 'the sheet
               that is not yours, it is mine', and he gave superb
               Simanim. Reuven says 'she gave it to rne in place of
               mine. I will give it to whoever returns mine to me.'
               We do not accept his claim. Since he knows that it
               is not his, and Shimon gave Simanim, surely she
               stole Reuven's and gave to him Shimon's in place of
               it, intentionally or mistakenly. This is like the
               Mishnah in which Listim took Reuven's garment and
               gave to him a different one. He may keep it only
               because the owner despairs. When there is no
               despair, like in this case, if the Gazlan gave
               compensation, the victim may not keep it. Also, if a
               craftsman returned to Ploni another's garment, he
               may use it until he gets back his, because one often
               tells a craftsman to sell his garment (Bava Basra
               46a). Rashi says that we assume that the craftsman
               sold the garment of David, who requested this, and
               mistakenly gave to the buyer the garment of Ploni,
               who did not request this. When Ploni demanded back
               his garment, the craftsman realized his mistake, and
               intentionally gave to him David's garment, for Ploni
               to use it until the craftsman will return Ploni's
               garment from the buyer. We do not say so about a
               garment switched in a mourner's house or drinking
               house, or if the craftsman's wife or children
               returned the garment, or even if the craftsman
               returns it, but he said 'your garment.' The Rashbam
               never allows one who got another's garment
               mistakenly to use it. All the more so he may not
               keep it! This is when it was mistakenly switched,
               and all the more so if a Gazlan took it! Here,
               perhaps the launderer ruined Reuven's garment, and
               stole Shimon's and gave it to Reuven because she
               likes or fears him more. Do not say that one may use
               it until getting his back, but the Beraisa forbids
               when it was a mistake, for then he must wait to get
               back his own. If so, the Reisha should have said
               'Shimon may use it until the owner comes and he will
               return his (Shimon's) to him.' Rather, it says
               'until the owner comes to take it', which connotes
               that he takes it whether or not he returns Shimon's.
               This is not only if Reuven knows that the sheet is
               not his, rather, even if he is unsure and Shimon
               gave superb Simanim. The Simanim show that Reuven's
               got Shimon's garment through a mistake or theft, and
               he may not keep it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Bach CM 136 DH uv'Trumas and Shach
                    1):</font></b> The simple reading of the Sugya connotes
                    that Shimon may use the garment until he gets
                    back his. Tosfos (DH v'Chi) says so. The
                    Terumas ha'Deshen's Diyuk (it says 'until the
                    owner comes to take it', not 'until... he will
                    return his to him') is invalid. However, this
                    is only when Shimon knows that his own garment
                    was not lost, rather, someone else has it. If
                    Shimon's was lost or stolen, surely he may not
                    keep (until he gets back his) what he got in
                    place of it
<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 136:1):</font></b> If Shimon took back his
               garment from a craftsman, and saw that it is not
               his, he may use it until the owner comes for it.
               This is only if the craftsman returned another's
               Keli, but not if the craftsman's wife or children
               did so. Even when the craftsman returns it, this is
               only when he said Stam 'here is (a) garment', but
               not if he said 'here is your garment.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> When the craftsman said Stam 'here is
<br><b><font color='darkgreen'>                <b>    (a)</b> garment', this shows that he knows that it</font></b>
                    is not Shimon's. We do not permit this when the
                    craftsman's wife or children returned it, even
                    if they said Stam 'here is (a) garment', for
                    presumably they do not know that someone asked
                    to sell his garment, and they were merely
                    imprecise (they meant 'your garment').
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (2):</font></b> The Tur explains that if Shimon
                    received a garment worth more than his own,
                    when the owner comes, Shimon gives to him the
                    excess, or he returns the garment and receives
                    the value of Shimon's garment that was sold.
                    Shimon decides, for the owner told the
                    craftsman to sell it and did not demand that he
                    keep it. If the owner says that he did not ask
                    him to sell it and he was not paid for it, he
                    is believed to take it back if he has witnesses
                    that it was his or he gives a Siman. We assume
                    that he asked the craftsman to sell it when it
                    is a Safek, but not if the owner makes a Vadai
                    claim. Shimon demands the value of his garment
                    from the craftsman. The owner gets his even if
                    Shimon's garment was lost. The Rema's comment
                    (in Sa'if 2) applies also to this case.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (2):</font></b> The owner takes it back through
                    witnesses even if witnesses did not see that
                    Shimon has it, and we know only through
                    Shimon's admission, even though the craftsman
                    would have been believed to say that he bought
                    it because he has a Migo to say that he
                    returned it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> If he took back someone else's
               garment from a mourner's house or a drinking house,
               he may not use it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> When the owner comes, he must return the
               garment, even though his was lost. The same applies
               to a Nochris who launders for the Rabim and returned
               to someone another's garment.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mordechai (Bava Kama 140):</font></b> One may not keep
                    what a launderer returned to him, because the
                    owner did not despair. He pursued the launderer
                    to return his! There was no enactment for the
                    market (to allow a buyer to keep what he bought
                    even if it is found that it was stolen) when a
                    thief paid a debt with theft. There is an
                    enactment if the launderer gave the stolen
                    garment for collateral.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz:</font></b> According to this, if one received
                    another's sheet from a launderer and does not
                    know whose it is, and it was with him so long
                    that the owner should have sought it, surely we
                    conclude that he despaired and the launderer
                    gave to him something in place of his. The
                    Terumas ha'Deshen discusses only when someone
                    else claims that Shimon received his.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Ketzos ha'Choshen 2):</font></b> One acquires
                    through despair only if Shinuy Reshus cam
                    afterwards! Even if the launderer gave to the
                    owner something in place of his, the owner gets
                    back his initial garment. Also, perhaps the
                    launderer claimed that Ones occurred, and did
                    not give anything to the owner! The Mordechai
                    means that the owner did not despair before
                    Shimon got it.
<br>

<p>


