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Bava Basra, 44

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.


QUESTION: The Gemara explains that Shimon cannot testify that the field 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 be the one who is Muchzak on the property. The RASHBAM 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 what they previously did when they gave it to Yehudah in error when he was in litigation with Levi!

The Rashbam answers that Beis Din rectifies its previous ruling only when their ruling in the *same* case was incorrect. In the case of our 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 court 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).

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 we will tell Yehudah "ha'Motzi me'Chaveiro Alav ha'Ra'ayah."

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 be able to 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 say that the Halachah that Beis Din rectifies its mistake contradicts our Gemara?

In addition, if it is true that Shimon can invalidate the witnesses of Yehudah for all future testimony, why did the Rashbam say, until now, that Shimon gains from his testimony for Levi only because he is preventing Yehudah from occupying the land and keeping it with the claim of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah?" He 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, for he is invalidating the witnesses of Yehudah! (M. Kornfeld. It is perplexing that none of the Rishonim and Acharonim ask this question on the Rashbam.)

ANSWER: Apparently, this is another incident of the Rashbam originally explaining the Gemara in one way, and then changing his explanation, and inserting the new explanation into his commentary before the original explanation (see Insights to 30b). The Rashbam is indeed expressing two contradicting explanations. Originally, he explained the Gemara by saying that Shimon is Noge'a b'Davar because he wants to make Yehudah's witnesses invalid, 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. In addition, even if Yehudah's witnesses *are* accepted, Shimon will be Muchzak, since he will be occupying the field that he obtained from Levy. The Rashbam says 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").

The Rashbam later changed his mind and rejected that explanation. Instead, he explained that Shimon is only trying 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, here, Beis Din *will* 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 *not* remain on the land and *not* win the case against Levy.

Why did 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 (meaning that they will not let Yehudah take the property from Levi), nevertheless it is clear that they will not accept the testimony of Shimon with regard to Shimon himself. Rather, if Shimon later brings Yehudah to court, that very same testimony that was accepted earlier (when he invalidated Yehudah's witnesses) will be totally irrelevant to the case, and we 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. That is, 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. Because of this, we cannot call Shimon a Noge'a b'Davar because he wants to invalidate Yehudah's witnesses, because even 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, we will ignore that testimony completely.

The same applies to the second point that the Rashbam makes in his original explanation, when he writes that Shimon wants Levi to retain the land so that when he (Shimon) sends Levi off of 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 will still 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, the 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 *after* Levi and that Beis Din rejected Yehudah as the owner of the land. Beis Din will respond that "we only rejected Yehudah because of you, Shimon. And now, if you are evicting Levi in order that *you* 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 *you* can now occupy the land. We will not allow you to occupy the land because we will not rely on your testimony for that."

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 just trying 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, and even though Beis Din will not put him (Shimon) on the land, Beis Din also will not put Yehudah on the land. If we ask that Beis Din should not believe Shimon with regard to his case against Yehudah, then we will answer that indeed we will 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 the fact is that in practice Yehudah never actually planted himself on that land. Hence, whether or not we believe Shimon with regard to the case, Yehudah, in practice, is not on the land, and thus Shimon is gaining because Beis Din will not say "let the land remain in the hands of the person occupying it" thereby letting 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.

We might suggest that the difference in understanding between the Rashbam's original explanation and his final explanation is as follows. Originally, the Rashbam maintained that we will not say "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 not valid (based on the testimony of Shimon), it means that Beis Din is accepting that the witnesses of Yehudah are absolutely ineligible, and not that they are ineligible with regard to one case but not with regard to another. Even though we often apply the principle of "Palginan Dibura" and believe 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), that might apply only with regard to Isurim. With regard to cases of Mamonos (monetary matters), if we accept his testimony then we must accept it completely (since he is not making himself a Rasha with his testimony), and therefore we cannot ignore his testimony with regard to its relevance to himself.

The Rashbam later changed his mind and decided that we certainly may accept his testimony only with regard to one case (Yehudah versus Levi) and not with regard to himself, and therefore the Rashbam changed his explanation of the Gemara.

The original explanation of the Rashbam also seems to be the opinion of the RAMBAN (43b), the RASHBA (43b, DH v'Amur, and DH uv'ha'Hi), and the NIMUKEI YOSEF, 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 TUMIM (37:19) also points out that this is evident from the Rashbam later (44a, DH Mi Dami), who seems to be following this explanation. On the other hand, RABEINU YONAH (44a) seems to be following the second explanation of the Rashbam, that the testimony of a person who is Noge'a b'Davar is not accept when it is pertinent to him.

It seems, though, that the basis for this difference of understanding goes further than this, as follows. The Tumim and other Acharonim ask how could the Rashbam and these Rishonim write such a thing -- that a person can 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 is Noge'a b'Davar! In addition, what is the source for saying such a thing?

Perhaps the source for this is the Gemara (43b) which says that if Shimon testifies that the field belongs to Levi, then 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 is that? The Rashbam here explains that the reason is because of Hoda'as Ba'al Din. Once Shimon says that it belongs to Levi, it is Hoda'as Ba'al Din, his own admission, that he no longer has any rights to the land. Once we know that he 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 after that, and, therefore, from now on his testimony is accepted.

The other Rishonim, however, such as the Rashba, had 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 that the Rashba and Rishonim understood this way, as we see from the words of the Rashba (DH d'Amar Yadana), Ran, and Nimukei Yosef (on 43b). The Rashba says 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."

What does the Rashba mean? The reason we accept Shimon's testimony when he says that the land belongs to Levi is because he has just admit that the land is not his and thus it is not Noge'a to him and he is not a Noge'a b'Davar! It is not that he is Noge'a b'Davar but Beis Din does not think that his Negi'ah is involved in his testimony!

The TUMIM (end of 37:21) asks this question. He answers, as we have explained, 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 may certainly claim that the land is really his and that he did not really mean that it belonged to Levi when he testified earlier.

Why, then, is the Gemara saying 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 because 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), meaning that once Beis Din accepts the testimony of Shimon (together with another person) 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 another person) who testified earlier that the land belongs to Levi, Shimon cannot say now that the land belongs to him; once the testimony has been accepted, he cannot contradict it. Thus, the Gemara is saying that before the moment that that 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, there is something else that 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.

However, this means that only *after* his testimony is accepted, he is no longer Noge'a b'Davar. How, though, can his testimony be accepted *while* he is Noge'a b'Davar such that *after* his testimony is said he will no longer be Noge'a b'Davar because he cannot change his testimony? It is true that *if* we accept his testimony, then after we accept it he will no longer be Noge'a b'Davar. But how do we 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 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)!

It must be that if Beis Din decides that if it is not because of a Negi'ah that he is giving his testimony (because if we accept it, then after we accept it 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.

That is what the Rashba, Ran, and Nimukei Yosef are saying. We see from this Gemara 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 we accept the testimony of Shimon *before* he is removed from the Negi'ah; we are accepting the testimony while he still can say that the land is his, because after we accept the testimony we know that he will not be able to say that it belongs to him.

Consequently, we also see from this Gemara the second Chidush -- that if Beis Din decides, for whatever reason, that Shimon is not saying his testimony because of a Negi'ah, then that becomes a full-fledged testimony, and it can even be used against Shimon himself! We do not say that his testimony was 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 we do not say that, but rather if, for any reason, Beis Din decides that Shimon is not saying his testimony because of his Negi'ah, they have to accept it absolutely, and once they accept it as a valid testimony, it is accepted for all matters, even for matters that are detrimental to Shimon.

This explains the reasoning behind the words of the Rashbam and Rishonim who say that we accept Shimon's testimony if he says that Yehudah's witnesses are invalid, such that even when Shimon himself has a court case against Yehudah, we still remain with the testimony that Yehudah's witnesses are invalid. Their proof is from our 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 even be brought to bear 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 this testimony.

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.


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