POINT BY POINT SUMMARY
Prepared by Rabbi P. Feldman
of Kollel Iyun Hadaf, Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld
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Previous daf Bava Basra 38
1) CHAZAKAH ON LAND UNDER A TREE
(a) (Chachamim of Neharde'a): If Reuven bought Shimon's date
tree, he acquires with it the ground underneath, all the
way down. (Rashbam - if the tree dies, Reuven can plant
another; Tosfos - Shimon cannot dig there.)
2) A CHAZAKAH NOT IN FRONT OF THE ORIGINAL OWNER
(b) Question (Rava): Shimon can say, I sold you (as people
sell) Krug (saffron?) (i.e. until it dies)!
(c) (Rava): Rather, one who was Machzik three years in a tree
is believed to say that he bought the ground underneath,
all the way down.
(d) Question (Mar Kashisha brei d'Rav Chisda): If Shimon did
not sell the ground underneath, all the way down, how can
he stop Reuven from claiming this?
(e) Answer (Rav Ashi): He should have made a Macha'ah (told
people that Reuven only bought the tree; if Reuven truly
bought the ground underneath, he would know to continue
to guard his document).
(f) Support: If we would not say thusly, why did Chachamim
sanction Mashkanta of Sura?
1. (The lender deducts a fixed amount from the loan for
each year that he eats the produce;) they write, 'At
the end of these (allotted) years, the land reverts
to Ploni (the borrower) for free.'
2. If the lender will hide the document after three
years, he will be believed to say that he bought it
- Chachamim would not sanction the Mashkanta if it
can lead to theft!
3. We must say that the borrower must make a Macha'ah.
(If he does not, he caused his own loss.)
4. Also here, Shimon should make a Macha'ah.
(a) (Mishnah): There are three regions regarding Chazakah:
Yehudah, Ever ha'Yarden and Galil:
1. If the original owner (Reuven) was in a different
region than the Machzik (Shimon), the Chazakah is
invalid; in the same region, it is valid.
(b) R. Yehudah says it is valid, the reason we require three
years for Chazakah is in order that Reuven will have time
to protest, even if he is overseas!
1. After Shimon uses the land for one year, people
start talking about this; it will take one year for
word to reach Reuven, and another year for Reuven to
come and protest.
(c) (Gemara) Question: What is Chachamim's opinion about
1. If they hold that a Macha'ah not in front of the
original owner is valid, Chazakah in a different
region than the original owner should be valid!
(d) Answer (R. Aba bar Mamal): Really, he holds that a
Macha'ah not in front of the original owner is valid;
2. If they hold that a Macha'ah not in front of the
original owner is invalid, Chazakah in the same
region (if not in front of the original owner)
should be invalid!
1. Our Mishnah is at a time when there is antagonism
between the regions (so caravans do not pass between
them, word does not spread from one region to
2. The Tana illustrated this with Yehudah and Galil to
teach that they are considered to have antagonism
with each other even in peacetime.
(e) Version #1 - (Rav Yehudah citing Rav): One may not
Machzik in property of a person who fled.
(f) (Shmuel): One may, for a Macha'ah not in front of the
Machzik is valid! (The original owner can protest, just
as if he was here.)
(g) Question: What did Rav come to teach?
1. Suggestion: A Macha'ah not in front of the Machzik
(h) Answer: Rav explains Chachamim of our Mishnah, but he
2. Rejection: Rav holds that such a Macha'ah is valid!
(i) Version #2 - (Rav Yehudah citing Rav): One may Machzik in
property of a person who fled.
(j) Objection (Shmuel): This is obvious, for a Macha'ah not
in front of the Machzik is valid!
(k) Question: Seemingly, Rav came to teach that a Macha'ah
not in front of the Machzik is invalid - he already
taught this, why must he teach it again?!
(l) Answer: Rav teaches that a Macha'ah is valid even if the
two people who hear it cannot tell the Machzik.
1. (Rav Anan citing Shmuel): A Macha'ah is valid only
if the two people who hear it can tell the Machzik.
(m) (Rava): One may not Machzik in property of a person who
fled; a Macha'ah not in front of the Machzik is valid.
2. Rav disagrees - the people who heard it can tell
their friends, those friends can tell their
friends...(and the Machzik will hear). (End of
(n) Objection: These two laws contradict each other!
(o) Answer: Rava only invalidates Chazakah in property of a
person who fled for his life (for he cannot protest, lest
the authorities here where he is);
1. If he fled for monetary reasons (e.g. from a
creditor), one may Machzik in his property.