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Bava Basra, 43

BAVA BASRA 43 - dedicated by an admirer of the work of the Dafyomi Advancement Forum, l'Iluy Nishmas Mrs. Gisela (Golda bas Reb Chaim Yitzchak Ozer) Turkel, A"H.


QUESTION: 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 part of his own share.

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; he should be Pasul because he himself is a defendant -- a "Ba'al Davar" -- in the case!


(a) The RASHBA answers that the Gemara indeed could have said that the partner is a Ba'al Davar. The reason the Gemara calls him Noge'a is because it was anticipating the answer that it gives -- that the partner withdrew his ownership from the field. Once he has withdrawn his ownership, he is no longer a Ba'al Davar.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.

(b) RAV SHMUEL ROZOVSKY (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 Pasul for two separate reasons. First, he is a Ba'al Davar and is Karov to himself, and a Karov (relative) is Pasul l'Edus. Second, we suspect that he might lie in order to gain. The difference between them is evident in a case where 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 (we find such a concept in Sanhedrin 9b, regarding 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 we 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.

In the case of our Gemara, the Gemara 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 is not only a Ba'al Davar (being Karov to himself), but that he is also Noge'a b'Edus (suspected of lying for personal gain).

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 testifying, he is not actually considered a defendant, a Ba'al Davar, in the case. That is why the words "Noge'a b'Edus" imply that the person is Pasul because he is suspected of lying more than the words "Ba'al Davar."

This question, though, is debated at length among the Acharonim. The S'MA (CM 37:1) and SHACH (there) 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. Among these proofs, they cite the CHIDUSHEI HA'RAN and NIMUKEI YOSEF (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 RA'AVAD cited by the Rashba here (DH v'Amai), who writes that in our Sugya the partner is not Pasul because he is a Karov, but because of "Cheshad" -- we suspect him because he is Noge'a b'Edus. See also RASHASH (44a and 159a).

The MACHANEH EFRAIM (Hilchos Edus #1) suggests that according to this reasoning, a Karov, relative, of another person who is Noge'a l'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 would seem that if someone of impeccable honesty (such as Moshe Rabeinu or Aharon ha'Kohen; see Bava Basra 159a) would testify, his testimony would be accepted.

However, the LEVUSH IR SHUSHAN writes that Noge'a b'Edus is not Pasul just because we suspect him of lying, but because he is [also] a Karov to himself (that is, every Noge'a b'Edus is himself a Ba'al Davar since he benefits from his testimony in the case). See also MAHARAM (end of 44a). Indeed, we find no Poskim that 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 to show otherwise, most of the proofs are from cases in which it is evident that if the person does not gain by his testimony, then 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 by his testimony, he certainly is believed to cause a loss to himself because of Hoda'as Ba'al Din.

The RA'AVAD (cited by the Rashba) is saying only that if a person is not only a Karov but 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 are calling 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 *after* he is no longer Noge'a b'Edus or a Karov (see TUMIM 37:22). Accordingly, every Noge'a b'Edus is himself a Ba'al Davar and a Karov, and thus it would have been more accurate for our Gemara to call the partner who testifies a "Ba'al Davar." Perhaps we can still apply the answer of Rav Shmuel Rozovsky if we add that the Gemara is using the words "Noge'a b'Edus" in a different sense that usual, and it 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.

QUESTION: The Gemara asks that if it is correct that a partner -- after withdrawing his ownership from his share of the property -- can testify on behalf of his former partner, then why can 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!

Why is the Gemara suggesting that two people should *judge* the case? Although two people can provide testimony as witnesses about the case, *three* Dayanim are necessary in order to *judge* the case! (MAHARAM and RISHONIM)


(a) The RAMBAN and RASHBA answer that the Gemara means to say that two of the residents should relinquish their ownership of the Sefer Torah, and then three *others* (from outside the city) can judge based on their testimony.

Their Girsa of the Gemara is, "v'Lidainuha" -- "and let them judge *it*." "It" could be referring to the testimony that the two residents of the city presented. Their explanation, though, does not fit will with our Girsa, "v'Lidainu" -- "and let *them* judge."

(b) The RITVA and RAN explain that the Gemara's expression here is abbreviated. The Gemara means to say, "Let two withdraw their rights *and testify, or let three withdraw their rights* and judge." The ROSH (Teshuvos 58:1) suggests a similar explanation.

(c) The TOSFOS RID and MAHARAM suggest changing the Girsa in the Gemara from "v'Lidainu" to "v'Lisahadu" -- "and let them testify."

(d) The YAD RAMAH (#134) explains that the Gemara is discussing the statement of Shmuel. It is Shmuel who maintains (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, our 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 PNEI SHLOMO and CHOSHEN YESHU'OS. (For further elucidation of this answer, see TUMIM 37:22, and Hagahos of RAV NISAN ZAKS to the Tosfos Rid, #190.)

(e) The TOSFOS RID initially suggests a different approach to the Gemara. Perhaps the Gemara specifically suggests that the residents who relinquish their rights should judge the case as Dayanim, but they are *not* eligible to testify as witnesses. The reason for this is because a person who was not valid to testify at the time that he witnessed the event ("Techilaso b'Pesul") cannot testify later about the event, even if he later becomes a valid witness (Bava Basra 128a; see TOSFOS 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 and was thus unable to testify. Nevertheless, after relinquishing his rights to the Sefer Torah, he is able to *judge* 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 TOSFOS in Nidah (50a, DH v'Rebbi Meir) and TOSFOS RABEINU YEHUDAH cited by the Rosh (Teshuvos 58:1).

This explanation is consistent with the Girsa of the Pizaro manuscript of the Gemara, cited by the DIKDUKEI SOFRIM (#5). Instead of saying "Bei Trei" (two people) should withdraw," this Girsa says "Beis Din should withdraw." The ROSH rejects this explanation, because Shmuel stated that after relinquishing his ownership of his share of the property, a partner *may* testify for his former partner. According to the Tosfos Rid, though, a former partner may not testify, since, originally, he was an invalid witness.

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.

1. The ROSH (in Teshuvos) and the YAD RAMAH explain that the partner saw the event *before* 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.

This answer is also suggested by the MISHNEH LA'MELECH (Hilchos Edus 15:1) and TUMIM (37:22). The Tumim points out that this will not fully explain the Gemara which says that residents of the city may withdraw and testify, since the Beraisa which says that they cannot testify might be referring 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 understood the Gemara in this way, and that is why they wrote that the Gemara's question on the Beraisa was only with regard to *judging* 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.

2. The MORDECHAI (#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 to be "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 to be "Techilaso b'Pesul."

3. TOSFOS writes that it 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.

The intention of Tosfos is not clear. Why should there be a difference between the two? Perhaps he means to say what the RI MI'GASH and the RA'AVAD (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 to be 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 *is* able to testify at the moment that he "becomes" a "witness." (See RASHBA who rejects this explanation.)

4. Others suggest that Tosfos means to explain like the RAMBAN, RASHBA, 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.

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 *the other person*. Rather, he was ineligible because his testimony was affecting *himself*. Since, now, his testimony is no longer affecting himself, he is permitted to testify for the other person.


QUESTIONS: The RASHBAM (DH v'Iy Ba'is Eima) writes that whenever we have a question about the ownership of an object, we leave it with the person who is presently holding the object (because of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah"). The Rashbam asserts that this applies even with regard to land -- we leave the land with the person who is presently occupying it, even if he does not have a Chazakah of three years. The Rashbam cites three proofs for this. First, the Gemara earlier (32b, in the case of "Gachin v'Lachis") says that we leave the land with the person who is presently occupying it, even though he has no Chazakah. Second, the Gemara earlier (34b) says that we rule "Kol d'Alim Gevar" in a case in which two disputants claim that a field belonged to their fathers. Third, he proves this from the case in Kesuvos (20a) of "Bar Shatya," in which two sets of witnesses contradicted each other regarding whether Bar Shatya sold property while he was sane or not, and since the ownership of the property was in doubt, the land was left in his possession.
(a) What proof is the Rashbam bringing from the ruling of "Kol d'Alim Gevar?" What does that have to do with "ha'Motzi me'Chaveiro Alav ha'Ra'ayah?"

(b) How can the Rashbam prove from the case of "Bar Shatya" that we give the land to the person who is Muchzak? The opposite is true in that case -- we gave the land to the Mara Kama (Bar Shatya), and took it away from the person who purchased it! (KOVETZ SHI'URIM #182; see AYELES HA'SHACHAR)

(a) The RASHBAM indeed learns that "Kol d'Alim Gevar" is an application of the rule of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." Beis Din withdraws from judging the case, and, therefore, if one of the disputants takes control of the land, he is allowed to keep it, until the other can bring 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 35a, DH Hasam, and Insights there.) This is also the opinion of TOSFOS in Kesuvos (20a, DH v'Uki). The Rashbam apparently maintains that when Beis Din rules "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," if the claimant seizes the property from the defendant ("Tefisah"), then Beis Din will allow 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 TOSFOS on 2a, DH Lefichach; see Insights to 4a).

(b) In the case of "Bar Shatya," the Gemara teaches that we do not destroy the Shtar that says that Bar Shatya sold it, even though we give the property to Bar Shatya. RASHI in Kesuvos (DH v'Uki) explains that the reason we do not destroy the Shtar, even though the testimony is stalemated, is because if the buyer seizes the property from Bar Shatya, we will allow it to remain in his hands.

According to Rashi, why do we 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.

In either case, according to Rashi it is clear from the Sugya of "Bar Shatya" that if someone seizes property (claiming that it belongs to him), we allow 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).

Tosfos in Bava Basra (32b, DH v'Hilchesa) argues with the Rashbam with regard to these three Gemaras. He is consistent with his own view earlier (on 2a). He explains that in the case of "Gachin v'Lachish" the ruling was *not* "ha'Motzi me'Chaveiro Alav ha'Ra'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'Ra'ayah," but, rather, since there is no one who is Muchzak, Beis Din allows the two disputants to seize the property from each other, even though we would normally not allow them to seize the property from each other after the case is presented to Beis Din. (M. Kornfeld)

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