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Bava Basra, 33


QUESTION: The Gemara relates that Rav Idi bar Avin had a dispute with his relative about who had rights to inherit the tree of a third relative who died. Rav Idi bar Avin claimed that he was more closely related, and therefore he should inherit the tree. The other relative claimed that *he* was a closer relative and that he should inherit it. Before the case was settled, the other relative took the tree for himself and ate its fruit. Later, he admitted that Rav Idi bar Avin was a closer relative. Rav Chisda ruled that although the tree must be given to Rav Idi bar Avin, the relative does *not* have to pay for the fruit that he ate until then, because he was eating the fruit with his original claim that he was the closer relative. Abaye and Rava argued and said that the relative does have to pay for the fruit, since, by his own admission, he is not the closer relative, and thus he ate the fruits unlawfully.

What was Rav Chisda's logic for not obligating the relative to pay for the fruit? While it is true that he originally claimed to be the rightful heir, he later admitted that his claim was false!


(a) The RASHBAM writes that Rav Chisda understood the admission to be just a guise for giving a present to Rav Idi bar Avin. The relative did not really mean that Rav Idi was the rightful owner of the tree; he just wanted to give a gift to Rav Idi, and therefore he said that Rav Idi was the closer relative and deserved to have the tree.

Why, though, should we not take his admission literally? Apparently, Rav Chisda held that had the relative meant what he said (that Rav Idi was the closer relative), he never would have taken the fruit in the first place. The fact that he ate the fruit until now shows that he sincerely thought that he was the rightful owner of the tree. (TOSFOS changes the Girsa because of this question and writes that the relative did *not* admit openly that Rav Idi was a closer relative.)

(b) The TZAFNAS PANE'ACH (Hilchos Na'arah Besulah 1:1) explains that Rav Chisda held that the credibility of Hoda'as Ba'al Din is not because we trust what the defendant says when it is to his disadvantage. Rather, it is a way of obligating oneself ("Hischaivus") to give something to someone else, just like an act of Kinyan (like a Matanah, a gift). (See Bava Basra 149a; KETZOS HA'CHOSHEN 34:4.)

(c) The CHASAM SOFER explains that Rav Chisda held that Rav Idi bar Avin was not entitled to the fruit, since he despaired of ever receiving them; he did not think that his relative would ever admit that he was the closer relative.


QUESTIONS: The Gemara says that a person who eats the fruit of another person's field and claims that he was a sharecropper (and that is why he ate the fruit) is believed. The Gemara cites proof for this ruling from the statement of Rebbi Yehudah, who says that when a person declares that he is going to harvest the fruit of another person's tree, because the other person sold him the fruit, he is believed. The reason he is believed is because a person is not so brazen ("Lo Chatzif Inish") as to harvest the fruits of a tree which is not his. Similarly, a person is not so brazen as to claim that he was a sharecropper on the field of someone else if he really was not a sharecropper. However, this logic of "Lo Chatzif" does not apply to land; if a person does not have a Chazakah of three years, he cannot claim that he bought the entire land based on the logic that a person would not be brazen to stay in someone else's field (for less than three years) without permission. The reason for this is because if he actually bought the field, then he should have a Shtar to prove his ownership. With regard to fruit, though, people do not write Shtaros, and therefore he is not expected to have a Shtar to prove his ownership.
(a) Why does the Gemara have to present the reason of "Lo Chatzif," that a person is not brazen, in order to give the Machzik the right to keep the fruit? Fruit is like any other Metaltelin, mobile property, for which a "Chezkas Mamon" (or "Chezkas Metaltelin") applies -- we should assume that if the food is in his hands and he claims that he purchased it, then it belongs to him! The only time we find that the Machzik must have possession of the object for three years is with regard to land.

(b) The converse question may be asked as well: why do we normally say that a person has the right of ownership to Metaltelin because he is "Muchzak" and not because of the logic of "Lo Chatzif?" We should say that the reason the object is assumed to be his is because a person is not presumed to be so brazen as to take another person's object!

(a) The Rishonim offer different answers to this question,
1. TOSFOS (DH v'Iy Ta'in) writes that a "Chezkas Metaltelin" is enough to give the right of ownership to the Machzik. The Gemara introduces the new logic of "Lo Chatzif" to explain why the Machzik even has rights to fruits that he picked *and deposited elsewhere* and is no longer holding. Since he is not holding the fruits at the moment, he does not have a "Chezkas Metaltelin."

The Acharonim ask why the Machzik should not have a Chazakah even on the fruit which are not in his hands. Even though they are not in his hands at present, we did see him pick the fruit, and at that point they *were* in his hands! The fruit that he deposited elsewhere should belong to him because of that Chazakah!

RAV NAFTALI TROP zt'l answers that although there is a Chazakah that an object that a person is holding is assumed to be his (because we assume that a person is not a thief), nevertheless that is not a strong enough reason to be *certain* that the object is his. Rather, a doubt remains regarding the true owner of the object (perhaps the one holding the object purchased it from the original owner, and perhaps he stole it), and we rule that the object should stay in its present domain (i.e. the hands of the Machzik). When, however, the Machzik is no longer holding the object, we again say that it should remain where it is, and thus the Machzik is not entitled to keep it, but rather "Kol d'Alim Gevar" applies.

An alternate approach could be that even though the earlier Chazakah that the Machzik had on the fruit shows that he *did* purchase the fruit from the original owner, nevertheless once the fruit is no longer in the Machzik's possession, the original owner can claim that he *never* sold it to the Machzik, based on a Migu: he could have said that he purchased the fruit back from the Machzik, and therefore he is believed to say that the fruit always belonged to him. Unless the Machzik can prove that he deposited the fruit in the other field, he is not presumed to be the rightful owner, and we apply the principle of "Kol d'Alim Gevar." (M. Kornfeld)

How, then, does the logic of "Lo Chatzif" override this Migu and give the rights of ownership to the Machzik? The answer is that the logic of "Lo Chatzif" is considered to be so strong that a Migu that counters it is like a "Migu b'Makom Edim," a Migu that counters witnesses, which is not a valid Migu, as the RAMBAN writes (see RASHASH and CHIDUSHEI RABEINU MEIR SIMCHAH; see also TOSFOS 35b, DH v'Iy Dali, who suggests, similarly, that sometimes a logical reason (Sevara) can make a Migu into a "Migu b'Makom Edim").

2. The HAGAHOS MAIMONI (Hilchos To'en v'Nit'an 9:5), in the name of the RITZBA, cited by the KETZOS HA'CHOSHEN (137:1) answers that a Chazakah works because we assume that the Machzik took the object with the consent of the previous owner. However, if we witness the Machzik entering the property of the previous owner and removing the object while the previous owner is not present, he will not have a Chazakah. The fact that he took the object from inside someone's home while the owner was not present is enough to cast doubt on the legitimacy of his claim of ownership of the object. Since in the case of our Gemara the Machzik was collecting the fruit while the previous owner was not present, he will not be entitled to the fruit through the normal Halachos of "Chezkas Metaltelin" if not for the logic of "Lo Chatzif."

The Ritzba cites support for this principle from the case of "Nascha d'Rebbi Aba," in which case we say that the one who seized the object does not have a Chazakah on the object. (Tosfos apparently differentiates between grabbing, which is clearly done without the owner's consent, and taking something from the owner's house when he is not present.)

Many Rishonim rule, like the Ritzba, that taking an object when the owner is not present does not create a Chazakah (see RAMBAM, Hilchos Gezeilah v'Aveidah 4:12, RIF and ROSH in Shevuos 46a, and SHULCHAN ARUCH CM 90:14). This also seems to be the intention of the RITVA (22a, DH Minayin).

(b) Regarding why we do not apply the logic of "Lo Chatzif" in every case of doubt regarding the ownership of Metaltelin, it seems that the logic of "Lo Chatzif" applies only to an object which is outside of one's home and which a person uses over a period of time in front of the eyes of the public. In such a case, we assume that a person would not have taken the fruit from the field unless the fruit was actually sold to him or given to him. In contrast, other types of Metaltelin, which a person uses in the privacy of his own home, can be taken surreptitiously from inside the owner's home, and are used inside the Machzik's home in private while no one is watching. Consequently, the logic of "Lo Chatzif" does not apply. Rather, the logic that a person is not assumed to be a thief applies, and we assume that the Machzik is the rightful owner of the object and that he did not steal it (he has a "Chezkas Kashrus" that he is not a thief). Such a Chazakah is less powerful than the Chazakah of "Lo Chatzif Inish."

(Aside from the logic that a person is not assumed to be a thief, there is a second element implicit in a "Chezkas Metaltelin:" When we are in doubt about the ownership of an object, we leave the object where it is and do not take it out from its present domain without definitive proof ("ha'Motzi me'Chaveiro Alav ha'Ra'ayah"). This element of the Chazakah applies even when the doubt about who owns the object has nothing to do with whether the Machzik is a Ganav, such as in a case where both litigants have a "Ta'anas Shema," a claim of uncertainty, or, like the case on 32b, where there is a Safek in Halachah and the ruling is "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." This element of the Chazakah applies to land as well, according to the Rashbam (see Tosfos there), and that is why the Rashbam there says that even if a person does not have a Chazakah of three years on a field, he is considered to be the Machzik with regard to "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," and he may remain on the land.)

We see from this Gemara that the reason why the logic of "Lo Chatzif" does not allow us to grant the land to the person who is occupying it is because of the counter logic of "Achvi Shtarach" -- "show your Shtar." This perhaps gives us a key to understanding what the difference is, in general, between the laws of ownership of Karka and the laws of ownership of Metaltelin. Why do we not say that the Chazakah on Karka is immediate, just like it is immediate on Metaltelin? We should rule, as we do in the case of Metaltelin, that when a person is holding the land we assume that he is not a thief and that it belongs to him! Our Gemara says that the reason we do not apply such logic is because with regard to land, there is a strong counter claim of "Achvi Shtarach" -- if the Machzik is the true owner then he should still be holding the Shtar. If he does not have the Shtar, then we must suspect that something is not right. That is such a strong logic that it overrides even the logic of "Lo Chatzif Inish." Accordingly, it certainly overrides the logic that we do not assume a person to be a thief. The reason why a person *does* have a Chazakah for an object of Metaltelin is because a person usually does not write a Shtar for the sale of Metaltelin. This is also evident from the Rashbam later (42a, DH Ein Lahem Chazakah). (See also Insights to 36:1:b.) (M. Kornfeld)

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