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Bava Basra 45

BAVA BASRA 44-55 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for the Torah and for those who study it.

1) [line 1] ALEI DIDEI HADAR - he (the creditor) will come back to him (the seller) [because as long as the seller (i.e. the debtor) has properties or possessions that do not have a lien on them ("Benei Chorin," as opposed to Meshu'abadin), and all the more so properties or possessions that he has sold, the creditor must collect his debt from those Benei Chorin before anything else

2) [line 4] "LOVEH RASHA V'LO YESHALEM [V'TZADIK CHONEN V'NOSEN.]" - "The wicked borrows, and does not pay back; [but the righteous man gives with good loving kindness.]" (Tehilim 37:21)

3) [line 6] MACHRIZ RAVA - Rava [taught and] proclaimed [the following Halachah] in public

4) [line 7] D'SALKIN L'EILA UD'NACHASIN L'SATA - those who go up [from Bavel to Eretz Yisrael] and those who go down [from Eretz Yisrael to Bavel] (i.e. everyone)

5) [line 9] V'ANIS LEI MINEI - and he robs it from him
6) [line 10] MEFATZI LEI MINEI - (a) he must rescue it from him [by taking the idol worshipper to court and bringing witnesses who saw the robbery] (RASHBAM); (b) he must compensate him for the loss [where the idol worshipper won a court decision against the buyer in a court of idol worshippers] (TOSFOS)

7) [line 13] UCHPA - a pack saddle
8) [line 16] "[PETZENI V'HATZILENI MI'YAD BENEI NECHAR,] ASHER PIHEM DIBER SHAV, V'YMINAM YEMIN SHAKER." - "[Rescue and save me from the hand of strangers,] whose mouth speaks vanity, and their right hand is a right hand of falsehood." (Tehilim 144:11)


9) [line 4] RA'AH AVDO B'YAD UMAN - a person [who, along with witnesses,] saw his slave in the hands of a craftsman (who was teaching the slave his trade) [after the slave had been in the hands of the craftsman for more than the three years of a Chezkas Shalosh Shanim]

10) [line 5] KOVES - a clothes washer
11) [line 5] MAH TIVO ETZLECHA? - What is he doing with you (i.e. in your possession)?

12) [line 7] BEFANAI AMARTA LO L'MOCHRO V'LITNO (LO) [LI] B'MATANAH - [a third party who is now in possession of the slave states,] "In front of me you (the previous owner, now the Me'ar'er) told him (the craftsman) to sell him [to me] or to give him [to me] as a gift." (this is the Girsa in the early printings of the Gemara, Rashi to the Rif and the Nimukei Yosef. Similarly, the word "Lo" in Rashbam DH Befanai Amarta should also read "Li."

13) [line 19] HADRI VI - I hereby retract my opinion
14) [line 21] SHTAYIM KATZATZTA LI - you fixed [my wage] at two [Sela'im]
15) [line 21] V'HALAH OMER - and the other one (the owner of the Talis) says...

(a) All Shevu'os d'Oraisa, oaths of Torah origin, involve making a Shevu'ah to *exempt* oneself from payment or liability, and not making a Shevu'ah to *extract* payment from someone. This is derived from the verse, "An oath of HaSh-m shall be between the two of them... and the owner shall accept it and *he shall not pay*" (Shemos 22:10). The Rabanan instituted certain oaths that do not follow this rule, where the person who swears *collects* his claim after he takes his oath (Mishnah Shevu'os 44b).
(b) One of those people who are "Nishba'in v'Notlin" ("who swear and collect") is an Uman, a craftsman who has completed his work. The Rabanan reasoned that employers may be too busy to distinguish one worker for another, and may mistakenly think that they have paid a certain worker who has not in actuality received his wages. The Uman therefore swears and collects his wages.

17) [line 24] AVAR ZEMANO, HA'MOTZI ME'CHAVEIRO ALAV HA'RE'AYAH - if the time his payment was due has passed, he is governed by the Halachah of ha'Motzi me'Chaveiro Alav ha'Re'ayah (HA'MOTZI ME'CHAVEIRO ALAV HA'RE'AYAH)
The general rule in monetary claims is that the burden of proof rests with the one who wishes to extract payment or other items of value from the other person. Hence, when ownership is in doubt, all money or real estate remains with the one who has possession.

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