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Bava Basra, 28

BAVA BASRA 27 & 28 - these Dafim have been dedicated anonymously l'Iluy Nishmas Tzirel Nechamah bas Tuvya Yehudah.


QUESTION: The Mishnah teaches that the Chazakah of a "Beis ha'Shalchin" is a full three years ("Shalosh Shanim mi'Yom l'Yom"), as opposed to the Chazakah of a "Beis ha'Ba'al." RASHI teaches that since a Beis ha'Shalchin comes with its own water source, it produces fruits constantly throughout the year, and not just one crop during one part of the year. Therefore, in order to make a Chazakah on the field, the Machzik must be there using the field for three full years.

The Gemara (end of 28b) teaches that according to Rebbi Yishmael, a person can make a Chazakah by reaping three crops in a single year, such as by planting and harvesting Aspasta in one month, and repeating that for the next two months. If a Beis ha'Shalchin is constantly producing crops one after the other, then Rebbi Yishmael should rule that a person can make a Chazakah on a Beis ha'Shalchin in one year or less! What is the difference between a Beis ha'Shalchin and Aspasta? (RASHBA)


(a) The RASHBA (28b) and ALIYOS D'RABEINU YONAH answer that since the Beis ha'Shalchin is constantly producing fruit without interruption, an entire year's harvest is usually taken by the same person and it is not divided up into small sections. Therefore, a Chazakah can only be made by using the field for the entire year, and the year's produce is all considered to be one large crop. The RASHBA questions this, however, from the Gemara (28b) which says that harvesting the three different parts of the Tzelach, or harvesting three figs in three days, would be considered a Chazakah if not for the fact that the fruit which is harvested later already exists in a premature, underdeveloped form at the time that the first crop is harvested. Since the fruit planted at the end of the year in a Beis ha'Shalchin was obviously not in existence at all at the beginning of the year when the previous crop was harvested, why should it not be considered a separate crop with regard to Chazakah?

Perhaps the answer is that when the Gemara says that the figs which were harvested later were already there during the first harvest but were not yet mature, it does not mean that the last fig was on the tree at the time that the first fig was harvested. Rather, the Gemara means that the last fig is considered an extension of the crop which bore the first fig, since there was no harvest between them to divide up the crop into two. The Gemara itself, then, is saying the logic of the Rashba. (M. Kornfeld)

(b) The GILYON TOSFOS cited by the Shitah Mekubetzes explains that the Beis ha'Shalchin does not produce more than one crop of fruit during one season. However, the field is *worked* throughout the year, and that is why the Chazakah is a full three years, mi'Yom l'Yom.


QUESTION: The Gemara suggests that the source for the Halachah of "Chezkas Shalom Shanim," the Chazakah of three years, is the Halachah of Shor ha'Mu'ad. Just as an ox becomes a Mu'ad only after it gores on three separate days, so, too, a person's use of a field can prove that he is the owner of the field only if he uses it for three years. The Gemara asks why three years are necessary to make a Chazakah, according to Rebbi Meir who says that a Shor can become a Shor ha'Mu'ad even by goring three times on one day. Rebbi Meir maintains that if three gorings on three separate days can prove that the Shor is a Mu'ad, then all the more so three gorings on a single day proves that it is accustomed to goring and that it must be a Mu'ad. The Gemara says that, indeed, according to Rebbi Meir, if one collects three separate harvests of fruit in the same year, it will be a Chazakah.

The Poskim (OC 114:9) derive from Rebbi Meir's ruling a practical Halachah with regard to the laws of Shemoneh Esreh. We know that a person who is unsure whether or not he said "Morid ha'Geshem" in the summertime, when he was not supposed to say it, must repeat Shemoneh Esreh during the first thirty days after the beginning of Pesach and assume that his tongue said what it is accustomed to saying (which, until now, was "Morid ha'Geshem"). The MAHARAM MI'ROTENBURG proposes that there is a way to accustom one's tongue to saying the appropriate words even before thirty days have passed. By repeating the appropriate phrase of Shemoneh Esreh ninety times, his tongue will become accustomed to saying that phrase based on the logic of Rebbi Meir -- events that occur in proximity affect a person's habits more than events that are separated by time.

How can the Maharam base his ruling on Rebbi Meir's teaching? The Halachah follows the view of Rebbi Yehudah, who maintains that a Shor only becomes a Mu'ad when it gores on three separate days! This implies that events that occur in close proximity do not habituate a person more than events that do not occur with such proximity! (DERISHAH, MAGEN AVRAHAM in the name of the SHLAH, TAZ)


(a) The MAGEN AVRAHAM suggests that Rebbi Yehudah may be arguing with Rebbi Meir only because of a verse that seems to counter Rebbi Meir's view. The verse (Vayikra 15:25) teaches with regard to a Zavah that a woman becomes a Zavah after seeing blood on three consecutive days, but not after seeing blood three times on one day. Perhaps with regard to Shemoneh Esreh, that Gezeiras ha'Kasuv will not apply.

However, the Magen Avraham refutes this. If Rebbi Yehudah learns the Halachos of Shor ha'Mu'ad from Zavah, then why should he not learning all Halachos from Zavah?

The DERISHAH and NODA B'YEHUDAH (Mahadura Kama OC 26) answer that Rebbi Yehudah only applies the principle of learned from Zavah (i.e. that three events are needed to establish the new status) to where an Isur or Tum'ah is involved. The laws of Shemoneh Esreh involve no Isur or Tum'ah, but rather there is simply a question of what a person becomes accustomed to saying, and it is not learned from a verse describing a Halachah related to Isur or Tum'ah.

Why, then, does our Gemara say that a Chazakah should work if a person makes three harvests in one year, according to Rebbi Meir? The same should be true according to Rebbi Yehudah, since this is not dependent on a verse but on the nature of a person! The Derishah writes that our Gemara mentions Rebbi Meir only because he is the one who states explicitly that events that are close in proximity have more of an effect than events that take place at larger internals of time. The Halachah, though, should be true according to Rebbi Yehudah as well since they both agree on this point. (This might explain why the Gemara rejects Shor ha'Mu'ad as a source for "Chezkas Shalosh Shanim" according to the Chachamim who argue with Rebbi Yishmael and say that three harvests in one year are not a Chazakah. Why did the Gemara not say that the Chachamim hold like Rebbi Yehudah and Rebbi Yishmael holds like Rebbi Meir? According to the Derishah, Rebbi Meir and Rebbi Yehudah do not argue on this point, and therefore a new source must be found for "Chezkas Shalom Shanim" according to the Chachamim.)

However, the Derishah and Magen Avraham question this from the Gemara in Ta'anis (21b) which quotes a Beraisa that says that if three people die in three days in a small city, it is considered a dangerous plague, and the residents of the city must fast. The Gemara relates that an Amora decreed a day of fasting when three people died on one day. Rav Nachman bar Yitzchak said that this must be like Rebbi Meir, who says that events that take place at smaller intervals have more of an effect. If Rebbi Yehudah only argues with Rebbi Meir regarding a law derived from a verse, then even he should agree to this Halachah. It would be possible to suggest here, too, that the Gemara quotes Rebbi Meir because he is the one who stated this principle explicitly, and Rebbi Yehudah would agree to it in this case. However, the RAMBAM (Hilchos Ta'aniyos 2:5) and the SHULCHAN ARUCH (OC 576:2) rule that we do not proclaim a Ta'anis if three people die on one day, because the Halachah follows Rebbi Yehudah. (See Derishah.)

(b) The MAGEN AVRAHAM suggests that Rebbi Yehudah argues only with Rebbi Meir in the cases of a Shor ha'Mu'ad and a Zavah, since -- aside from the factor of becoming accustomed to a certain type of action, other factors might be involved. A Zavah might see Dam because of illness, and a Shor ha'Mu'ad might gore because it was in a bad mood that day. The same would apply with regard to a plague in a city, where other factors, such as the weather on that day, might have affected people's health. In such cases, the principle of Rebbi Meir would not apply. However, with regard to saying "Morid ha'Geshem," which a person's mouth says by rote when he is not thinking, and which would not be influenced by other factors, Rebbi Yehudah would agree with Rebbi Meir's principle.

The VILNA GA'ON, however, does not accept the ruling of the Maharam, because of the question of the Magen Avraham. The TUR cites RABEINU PERETZ who argues with the Maharam for a different reason -- even if we accept Rebbi Meir's principle, it might not be applicable to accustoming one's tongue to pray in a certain way, since time is an important factor and has more of an effect on accustoming a person to say something by rote.

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