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Rosh Kollel: Rabbi Mordecai Kornfeld

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Bava Basra 41

BAVA BASRA 41 & 42 - these Dafim have been dedicated anonymously l'Iluy Nishmas Tzirel Nechamah bas Tuvya Yehudah.


(a) (Mishnah): A Chazakah without a claim is invalid:
1. Reuven: What are you doing in my field?
2. If Shimon says '(I have been here three years,) no one told me 'This is my field'', his Chazakah is invalid;
3. If he says you (or your father) gave or sold it to me, his Chazakah is valid.
(b) An heir does not need a claim.
(c) (Gemara) Objection: Obviously, if Shimon has no claim why the land is his, this is not a Chazakah!
(d) Answer: One might have thought, Shimon really bought it and lost the document;
1. He did not say that, for he fears that Reuven will demand to see the document (Shimon does not know the law of Chazakah);
2. Perhaps we should ask Shimon if this is so, this is "Pesach Picha l'Ilem" - the Mishnah teaches, we do not do so.
(e) Rav Anan's land was flooded, the boundaries were washed away. He rebuilt the wall on his neighbor's property. Rabah told him to return to the original border.
1. Rav Anan: But I was Machzik!
2. Rav Nachman: You think that the Halachah follows R. Yehudah and R. Yishmael, that in front of the original owner one becomes Muchzak immediately? The Halachah is not like them!
3. Rav Anan: I can prove that he helped me build the wall (surely, this shows that he conceded to me all the property on my side)!
4. Rav Nachman: He erred, he thought that it really was yours;
i. You yourself would not have built the wall on his side unless you erred!
(f) Also Rav Kahana's land was flooded, he rebuilt the wall on his neighbor's property. The case came before Rav Yehudah. One witness said that he took (the width of) two rows of his neighbor's property, the other witness said three rows.

1. Rav Yehudah: You must return two rows.
2. Rav Kahana: Do you rule like R. Shimon ben Elazar?
i. (Beraisa - R. Shimon ben Elazar): Beis Hillel and Beis Shamai agree that if one pair of witnesses says that Reuven owes 100, and the other says that he owes 200, he must pay 100 (for all agree that he owes at least 100);
ii. They argue when one witness says 100, the other 200: Beis Shamai consider this contradictory testimony (and Reuven is exempt), Beis Hillel obligate him to pay 100.
3. Rav Kahana: I can bring you a letter from Eretz Yisrael that the Halachah is not like R. Shimon ben Elazar (rather, Beis Hillel agree that Reuven is exempt)!
4. Rav Yehudah: Until you bring such a letter, you must return the property.
(g) Shimon was living in the attic of Levi's house for four years.
1. Levi: What are you doing in my house?
2. Shimon: I bought it from Ploni, who bought it from you.
3. R. Chiya: Shimon's Chazakah is valid only if he can prove that Ploni lived there for at least one day.
4. Rav: Doesn't a person sometimes buy and sell the same night?
5. (Rav): I could see that (R. Chiya held that) if Shimon would claim that he saw Ploni buy from Levi, he would be believed, Migo that he could have said 'I bought it from Levi''.
(h) Support (for R. Chiya - Rava - Mishnah): An heir does not need a claim.
1. Inference: He does not need a claim, but he needs a proof (that the one he inherited from lived there for a day)!
(i) Rejection #1: Perhaps he does not need a claim nor a proof!
(j) Rejection #2: Perhaps a buyer is different, he does not spend money for nothing (surely, Shimon would not have bought from Ploni unless Ploni was living there).
(k) Question: What if people saw Ploni on the property (but not living there) for a day?
(l) Answer #1 (Abaye): That is just as good as living there.
(m) Answer #2 (Rava): No, perhaps Ploni considered buying it, but never did!
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