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Bava Basra, 122

BAVA BASRA 122 - This Daf has been dedicated by Rabbi Dr. Eli Turkel of Ra'anana, Israel, to the memory of his father, Reb Yisrael Shimon ben Shlomo ha'Levi Turkel (Yarhzeit: 10 Av).


QUESTIONS: The Gemara states that the original division of Eretz Yisrael, in the times of Yehoshua bin Nun, was done with the augmentation of monetary payments. Rebbi Yehudah explains that one Se'ah of land in the region of Yehudah was worth five Se'ah of land in the region of Galil. Consequently, one who received his portion in Yehudah was required to pay money one who received his portion in Galil to compensate for the lower value of his portion.

The Gemara states that the advantage of receiving land of greater value cannot be that one received land of high quality, and the other received land of low quality, because certainly no one would agree to forego a land of high quality as his family inheritance for all generations to come in return for a mere one-time monetary payment. Rather, the Gemara explains, the advantage of land in Yehudah over land in Galil is that Yehudah is closer to the Beis ha'Mikdash. The RASHBAM (DH l'Krovah) explains that one who received property near Yerushalayim was obligated to pay a monetary sum to one who received his portion far from Yerushalayim.

The CHASAM SOFER (Teshuvos OC 29) questions the Rashbam's explanation.

(a) First, the Gemara is discussing the division of Eretz Yisrael at the time of Yehoshua. At that time, the Mishkan was not in Yerushalayim, but rather in Shilo, where it remained for 369 years (see Zevachim 118b)! The identity of the future location of the permanent Beis ha'Mikdash would be revealed hundreds of years after the division of the land, in the times of David ha'Melech! What advantage, then, did Yerushalayim have over any other city at that time? The Rashbam should have explained that one who received property near *Shilo* was required to compensate one who received property far from Shilo!

(b) Second, being near to Yerushalayim is not entirely advantageous. The Gemara in Sotah (22a, see Insights here) cites a dispute between Rav and Rebbi Yochanan with regard to whether it is better to live near a Beis ha'Kneses or to live farther away. Rebbi Yochanan, who says that one should live farther away from a Beis ha'Kneses, explains that one receives "Sechar Pesi'os" as reward for walking a longer distance to get to the Beis ha'Kneses. Accordingly, those living father away from Yerushalayim receive more reward for walking the greater distance, and thus *they* should have to pay those living *closer* as compensation!

(a) The CHASAM SOFER answers that, indeed, at the time of the division of Eretz Yisrael, the Shevet which received land near Shilo needed to pay money to the Shevet which received land far from Shilo. Later, though, when Yerushalayim was revealed as the permanent place of the Beis ha'Mikdash, the Shevet which received land near Yerushalayim needed to pay money to the Shevet which received land far from Yerushalayim.

(b) The Chasam Sofer explains that the advantage (or disadvantage) in having property near to Yerushalayim was not in that the distance in traveling to the city is shorter. Rather, the advantage is that a place closer to Yerushalayim is a more *important* place due to its proximity to the city. Since a place closer to Yerushalayim is more important, those living there receive more honor and respect, and therefore they have to compensate those living farther away.


QUESTION: The Mishnah states that a son and a daughter are equal with regard to inheritance. Rav Ashi explains that the meaning of the Mishnah is that when a man has several sons, or when a man has several daughters (and no sons), he is able to declare that one of his children should receive all of his possessions when he dies. The Gemara objects to this explanation, saying that this is the opinion of Rebbi Yochanan ben Beroka, cited by the Mishnah later (130a), and thus it would be unnecessary for the Mishnah here to express his opinion again. The Gemara continues and says that it is not reasonable to suggest that the Mishnah here is expressing his opinion anonymously in order to teach that the Halachah follows his opinion (in accordance with the general rule that the Halachah follows the opinion of an anonymous Mishnah), because in this case, the anonymous Mishnah (here) is followed by a Mishnah later (130a) in which the Chachamim disagree with Rebbi Yochanan ben Beroka. In such a situation -- when an anonymous Mishnah is followed by a Machlokes regarding the topic of the anonymous Mishnah -- the Halachah follows the dissenting opinion expressed in the later Mishnah.

TOSFOS (DH Stam) asks that there is another rule, though, which states that even though the fact that the anonymous Mishnah is followed by a dispute means that the Halachah does not automatically follow the anonymous Mishnah, nevertheless the anonymous Mishnah still gains the status of being the opinion of *several* Tana'im, rather than being a single, minority opinion. The MAHARAM explains that this means that even though several Tana'im disagree later with Rebbi Yochanan ben Beroka, the Machlokes should not be considered to be a Machlokes between a single, isolated opinion, and a majority opinion (Yachid v'Rabim). Rather, the Machlokes should be considered to be a Machlokes between two groups of Tana'im (of equal numbers). Consequently, it is possible, although not certain, that the Halachah follows Rebbi Yochanan ben Beroka. How, then, can the Gemara here say with certainty that the Halachah does not follow Rebbi Yochanan ben Beroka?

ANSWER: The RASHASH in Beitzah (28b, to Tosfos DH Gabei) suggests that the later Mishnah to which our Gemara refers is not the Mishnah on 130a, but rather it is the Mishnah on 126b. There, an anonymous Mishnah discusses the case of a deathly ill person who decides to give away his property, and he gives more of his property to one son than to another, or he gives to the firstborn son and equal portion as he gives to the other brothers. The Mishnah states that if the father articulates that he is giving away his property as an *inheritance* (and not as a *gift*), his declaration is not binding because he is contradicting the Torah, which says that "inheritance" means that the firstborn son receives a double share, and the other sons all receive equal shares. The RASHBAM there (126b, DH v'Im Amar) says that the Mishnah there does *not* follow the opinion of Rebbi Yochanan ben Beroka, because Rebbi Yochanan ben Beroka maintains that if the person receiving an extra portion has the status of an heir (even if, according to the priority of inheritance, he is preceded by heirs with a higher priority), the father's declaration is valid even as an inheritance.

According to this, the Rashash asserts that the Mishnah here (122b) and the Mishnah there (126b) should be considered an anonymous Mishnah followed by another anonymous, but opposing, Mishnah. In such a case, the Halachah always follows the second anonymous Mishnah (and the first Mishnah is considered an isolated opinion, and not the opinion of several Tana'im).

It seems that the logic behind this is that when Rebbi compiled the Mishnayos, by writing the second Mishnah anonymously he intended to show that he did not accept the opinion expressed in the first Mishnah. This is why it is obvious to the Gemara here that the Halachah follows the later Mishnah and does not follow Rebbi Yochanan ben Beroka's opinion which is expressed in the Mishnah here. (See Tosfos, who gives a different answer to this question.) (Y. Marcus)

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