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Bava Basra, 57

BAVA BASRA 57 & 58 - 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 Mishnah describes acts through which a person is able to make a Chazakah on the property of another person, and that Chazakah serves as proof to his claim that he purchased the rights to use the other person's property for that purpose. The RASHBAM explains that the Mishnah is referring to acts that are done for *three* years on or with the property of the other person, and the Mishnah means that if one does such acts for three years, then he has a Chazakah of three years.

The Rashbam seems to contradict what he writes earlier. The Rashbam earlier (41a, DH Kol Chazakah), as well as RASHI (or the Hagahah in Rashi, 6b) and TOSFOS (6b, DH v'Iy Chavrei), write that a Chazakah made through the usage of someone else's object takes effect immediately, as soon as the owner fails to protest the usage of his object, and the Machzik can claim that he purchased the rights of usage of that object from the owner. Why, then, does the Rashbam here explain that the Chazakah made through the usage of someone's object is only a Chazakah after three years of usage?

ANSWER: The TUR (CM 153) explains that the Rashbam holds that when giving permission to someone to use one's property for small usages, it is not the practice to write a Shtar. Therefore, the Chazakah takes effect immediately if the owner does not protest, and the person using the property is believed to claim that he bought the rights to use the property for that purpose. In contrast, it *is* the practice to write a Shtar for *large* usages, such as those mentioned in our Mishnah. Therefore, the Machzik can only claim that he bought the rights to that usage after he has used the property for three years, because within three years, the owner can demand to see the Shtar.


QUESTIONS: The Gemara cites the verse in Yeshayah (33:15) which praises a person who "closes his eyes from viewing evil." Rebbi Chiya bar Aba explains that this refers to a person who does not gaze at women while they are standing at the wash pool washing clothes (when they have to expose parts of their legs to enter the pool). The Gemara asks what situation Rebbi Chiya bar Aba is discussing. If he is referring to a situation in which there is another route to take, then even if the person closes his eyes, he is a Rasha for taking this route in the first place! If there is no other route to take, then why does he need to close his eyes? He is an "Ones," and the Torah exempts him! The Gemara answers that, indeed, there is no other route to take, and nevertheless he is required to force himself not to look at the forbidden sites and to turn away his head and close his eyes.

(a) The Gemara says that when there is another route for him to take, he is a "Rasha" for taking the path with the forbidden sites, even if he closes his eyes. The CHAFETZ CHAIM (Sefer Chafetz Chaim, Klal 6, Be'er Mayim Chaim #14) asks that the Gemara in Pesachim (25b) rules that prohibited Hana'ah is permitted when a person could have avoided it, as long as he did not have the specific intention of benefiting from it ("Efshar v'Eino Mechaven"). Why, then, does our Gemara call the person a "Rasha" when he could have avoided walking along the path but did not intend to derive pleasure from the forbidden sites there?

(b) The Gemara says that when there is no other route for him to take, he is an "Ones" and thus there is no reason for the verse to require him to close his eyes. RAV MOSHE FEINSTEIN zt'l (Igros Moshe EH I:56) asks why should the Gemara exempt the person with the rule of "Ones?" If there is no other route to take other than the one which contains forbidden sites, then let the person not go at all! Even if he needs to go in order to earn money or for other needs, such necessities do not permit transgressing Isurim!

(a) The CHAFETZ CHAIM answers that the Isur of Arayos is different, because a person has a strong lust for such Isurim (Chagigah 11b, Makos 23b), and therefore a person must be especially stringent to avoid temptation. Even though he feels that right now he has no desire for such pleasure, nevertheless his Yetzer ha'Ra might overcome him later and, Chas v'Shalom, he might have forbidden thoughts because of the sites that he saw. The IGROS MOSHE (loc. cit.) adds that the Torah itself prohibits seeing things which later will cause one to have forbidden thoughts, and warns a person not to rely on himself to say that he will not have such thoughts: "v'Nishmarta mi'Kol Davar Ra."

(b) RAV MOSHE FEINSTEIN answers that the problem here is not that the person, by walking there, will certainly sin, but merely that there is a possibility that the person might have forbidden thoughts. Therefore, since it is not a certainty, when there is no other route to take a person is permitted to rely on himself to remove his mind from the forbidden sites, and he is not obligated to lose his money as a result. Only when there is no pressing need for him to walk there is he prohibited to rely on himself to remove his mind from forbidden thoughts.

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