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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Basra 28

BAVA BASRA 27 & 28 - these Dafim have been dedicated anonymously l'Iluy Nishmas Tzirel Nechamah bas Tuvya Yehudah.


***** Perek Chezkas ha'Batim *****


(a) To make Chazakah on ...
1. ... a house or on a pit, a trench or a cave - takes three years from day to day.
2. ... a dove-cote, a bath-house, an oil-press or a Sadeh Beis ha'Shalachin - takes three years from day to day.
(b) The commom principle that governs all of the above is - that they provide the owner with ongoing benefit.

(c) The formality that the Chazakah dispenses with is - the need to retain one's document of purchase.

(d) It works - by the current resident claiming that he purchased it but lost his Sh'tar, and the original owner can no longer claim that the former stole it.

(a) A Sadeh Beis-ha'Ba'al is - one that is watered by means of rain.

(b) Its Chazakah does not require a full three years - because it only produces fruit than once a year (and not on an ongoing basis).

(c) According to Rebbi Yishmael, to prove oneself the owner of a Beis-ha'Ba'al requires eighteen months, This is - because by working the land the last three months of the first year, the first three months of the third year and the entire middle year, it is possible to obtain three produces (see Tosfos DH 'Sheloshah)'.

(d) According to Rebbi Akiva - fourteen months will suffice, the middle year together with the month that precedes it and the month that follows it.

(a) According to Rebbi Yishmael, the above Halachos pertain specifically to a Sadeh Lavan - a wheat-field.

(b) In the case of a Sadeh Ilan, he continues - if the current owner harvests the grapes, the olives and the figs in the same year, then that is considered a Chazakah (like three years in a wheat-field).

(c) Rebbi Yochanan heard from the Holchei Usha that they learned the Din of Chezkas ha'Batim ... , from a Shor ha'Mu'ad - inasmuch as they learned the three years from the three times that an ox gores before it becomes a Shor ha'Mu'ad.

(d) The reason that one only pays full damages after the ox has gored a fourth time is - because, although the ox became a Muad after the third goring, there is nothing to pay for until it gores again.




(a) The Mishnah later rules - that a 'Chazakah she'Ein Imah Ta'anah' (where the Machzik claims that the field is his only because no-one stopped him from taking it) is not valid.

(b) Although we learn the Din of Chazakah from Shor ha'Mu'ad, it is not effective in the case of a Chazakah she'Ein Imah Ta'anah - because it is a S'vara that Reuven does not lose ownership of his field, unless Shimon can prove that he bought it by means of a Sh'tar. And if *he* does not claim to have lost the Sh'tar, then there is no reason why we should claim it on his behalf.

(c) The effectiveness of a Chazakah is based on the fact that if Reuven did not sell Shimon his field, then he should have made a Mecha'ah - a testimonial in front of two witnesses that the field Shimon is currently working actually belongs to him (Reuven). This in turn, will have the effect that, if Shimon did indeed purchase it from Reuven, he will now take great care to safeguard his Sh'tar from getting lost.

(a) A Mecha'ah does not need to be made in the presence of the Machzik ('Mecha'ah she'Lo be'Fanav, Havi Mecha'ah').

(b) A Shor on the other hand - cannot become a Mu'ad not in the presence of the ox and its owner.

(c) Despite the fact that the Holchei Usha learn Chazakah from a Shor Mu'ad ...

1. ... a Shor Mu'ad requires warning in the owner's presence - because of the Pasuk in Mishpatim "Im Shor Nagach Hu".
2. ... whereas, the Machzik does not - because of the S'vara 'Chavrech Chavra Is Leih, ve'Chavrech de'Chavrech Chavra Is Leih' (once something is told to two people, they tend to tell others who then tell others ... ).
(a) According to Rebbi Meir - an animal that gores three times in one day becomes a Mu'ad, 'Kal va'Chomer' from one that gored three times in three days.

(b) Nevertheless, the Machzik will not acquire the field if he eats for example, three lots of ...

1. ... figs in one day - because unlike the case of Shor ha'Mu'ad, where each subsequent goring takes place when the previous one was no longer there, here all the fruits are available simultaneously.
2. ... fruit of the caper-bush in three days (some say in one) - because there too (even though the second batch of fruit had not grown when he eats the first as it had in the previous case], it had however, *begun* to grow.
(c) Nor will he acquire the field if he picks three produces Aspasta (a sort of animal fodder that grows quickly) in one month - because that is called 'snatching' (picking it prematurely), and is not the way that one normally eats it.

(d) And if he eats three produces of Aspasta in *three* months - he will indeed acquire the field, since the 'Holchei Usha' are synonymous with Rebbi Yishmael, who learns in our Mishnah that in a similar case (where the Machzik eats three different fruits in a Sadeh Ilan), it is a Chazakah.

(a) The Rabbanan of Rebbi Yishmael (Holchei Usha) clearly have a different source for the Chazakah of Karka. Initially, we cite this source as the Pasuk "Sados ba'Sefer Yiknu ve'Chasuv ve'Chasum ... ". The Rabbanan learn Chazakah from there, we think - since the Navi was speaking to them in the tenth year of Chizkiyah ha'Melech's reign, and warned them to safeguard their documents of sale, because they were destined to go into exile the following year, a proof that two years is insufficient to be considered a Chazakah (from which we can infer that if they would have remained another year in Eretz Yisrael, this would not have been necessary).

(b) Abaye rejects this Pasuk as a possible source, on the grounds - that (even assuming that Chazakah requires only one year) Yirmiyah was merely advising them to safeguard their documents of sale to strengthen their hold over the fields that they had purchased.

(c) And he proves his point from the continuation of the Pasuk "Banu Batim ve'Sheivu ve'Nit'u Ganos ve'Ichlu es Piryan" - which certainly has no Halachic implications, and is merely no more than a sound piece of advice.

(d) And this is borne out still further by the Pasuk there - "u'Nesatem bi'Ch'li Cheres Lema'an Ya'amdu Yamim Rabim", a piece of advice which is nothing more than a means of extending the life of the documents for a long period of time.

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