ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Basra 31
BAVA BASRA 31 & 32 - these Dafim have been dedicated anonymously l'Iluy
Nishmas Tzirel Nechamah bas Tuvya Yehudah.
(a) In a case where Reuven and Shimon both claimed that a certain field had
belonged to their respective fathers and where Reuven brought witnesses to
that effect, whereas Shimon brought witnesses that he had been working in
the field for three years, Rabah believed the latter - because he had a
'Migu', since he could have claimed that he bought the field from Reuven and
had now made a Chazakah on it.
(b) Abaye disagreed with him on the grounds - that it was a 'Migu be'Makom
Eidim', since there were witnesses who refuted his claim, who testified that
the field had belonged to Reuven's father. Consequently, it was 'a Chazakah
she'Ein Imah Ta'anah'.
(c) Shimon subsequently conceded - that the field had indeed belonged to
Reuven's father and that he had purchased it from him. And when he initially
claimed that it had belonged to his own father, he meant - that it was
established by him as if he had inherited it from him.
(d) Ula accepted his second argument. The Neherda'i ruled -'Ein To'en
ve'Chozer ve'To'en' (a litigant does not have the right to amend his initial
(a) Had Shimon originally added that the field had belonged to his father
*and not to Reuven's*, Ula would not have accepted his second claim -
because it is only in the previous case, where Shimon's second claim clashed
slightly with his first, that Ula holds 'Chozer ve'To'en', but not where it
contradicts it completely.
(b) In the earlier case, Ula did not require Shimon to bring a proof that
his father had owned the field at least for one day, like a Yoresh who
proved that he had worked in the field that he (claimed to have) inherited
from his father for three years - because unlike the latter case (where the
Yoresh did not make any other claim to substantiate his Chazakah), Shimon
did (when he claimed to have purchased the field from Reuven's father).
(c) Ula would have also conceded that Shimon is not believed, had he left
the courtroom before returning and amending his original statement - because
then we would suspect that friends or relatives prompted him to amend his
original statement and how to amend it.
(a) For the Neherda'i to have accepted Shimon's second statement, he would
have had to claim - that his father had purchased the field from Reuven's
father (because that would hardly clash at all with his initial statement).
(b) And they would have also accepted Shimon's second statement if his first
statement had been made outside Beis-Din (even if his second claim
completely contradicted the first one) - because a person is fully justified
in declining to reveal all his arguments outside Beis-Din (so as not to
assist his disputant in presenting his case).
(c) This would not be the case however - if Shimon were to actually admit
liability in front of two witnesses, in which case Beis-Din would obligate
him to pay.
(d) Bearing in mind that Ameimar supports Ula in the latter's Machlokes with
the Neherda'i, it is hardly surprising that the Halachah is like Ula. What
is strange about Ameimar's ruling is - the fact that he was from Neherda'a.
(a) In a case where Reuven and Shimon both claimed that the field belonged
to their respective fathers, Reuven brought witnesses that he had worked in
the field for three years, and so did Shimon, only Shimon's witnesses also
bore out his original claim. Rav Nachman would have placed the field in the
possession of Shimon - on the grounds that although the two testimonies as
to who made the Chazakah would cancel each other out, the testimony that the
field had originally belonged to Shimon's father would remain intact.
(b) Rava's objected to Rav Nachman's ruling - inasmuch as seeing as one of
the pairs of witnesses had been proven false, Beis-Din could no longer
accept any aspect of their testimony?
(c) Rav Nachman however insisted - that since Shimon's witnesses had
presented two separate pieces of testimony, the one which was not
contradicted would remain acceptable.
(a) In a case where two pairs of witnesses contradict each other, Rav Huna
authorises each pair to testify in other lawsuits. The case is - if the
first pair testifies that Reuven lent Shimon a Manah on a specific date,
whilst the second pair claims that Reuven was with them that entire day and
that no such loan took place.
(b) The Torah would have believed the latter pair of witnesses and declared
the former pair 'Eidim Zomemin' - if the second pair had refuted the
testimony of the first pair on the grounds that *they* were with them on
that day (and not the debtor).
(c) Rav Huna does not however, permit one witness from each pair to testify
as one pair in other lawsuits - because one of the witnesses is definitely a
swindler, unlike the former case, where one of the pairs is honest, so as
long as they do not testify together, we place them on a Chezkas Kashrus.]
(d) Rav Chisda says - that once a pair of witnesses has been contradicted,
they can no longer be accepted under any circumstances.
(a) We reconcile Rava (who discounts the testimony of witnesses who have
been contradicted completely) with Rav Huna - by drawing a distinction
between accepting part of the same testimony on which they were contradicted
(Rava) and their acceptance in other lawsuits (Rav Huna).
(b) We cannot reconcile Rav Nachman (who validates that part of the
witnesses' testimony that was not contradicted) - with Rav Chisda.
(a) When Reuven (whose witnesses had only testified on his Chazakah)
subsequently brought witnesses that the field had belonged to his father -
Rav Nachman retracted from his previous ruling (from placing the property
fairly and squarely in Shimon's Reshus, to a Safek (see Tosfos DH 'Anan
(b) Rava (or Rebbi Zeira queries Rav Nachman from a Beraisa). In a case
where two witnesses testified that Reuven had died and two other witnesses
testified that he was still alive, or the same two pairs of witnesses argue
over whether his wife is divorced or not - the Tana Kama forbids his wife to
marry Lechatchilah, but permits them to remain together if they are already
(c) The two ramifications of the latter case are - either to exempt her from
Yibum, in the event of Reuven's death, and to permit her to get married, or
to get married immediately, even in Reuven's lifetime.
(d) In the former case, despite the fact that their marriage involves a
Safek Kareis, which carries with it an Asham Taluy, we permit ...
1. ... the man to remain with a Safek Eishes Ish - only if he is one of the
witnesses who testified that her husband died.
2. ... the woman to remain married - because she claims to be sure that her
husband is dead.
(a) Rebbi Menachem b'Rebbi Yossi rules that even if they are already
married, she must leave her husband - which he then qualifies by restricting
it to where the second pair of witnesses testified before they got married,
but in the reverse case, they may remain married ...
(b) ... to avoid making a mockery of Beis-Din (who one minute permit her to
marry, and then rescind their permission).
(c) This Kashya initially affected Rav Nachman's imminent ruling in the
previous case - causing him to reconsider his second ruling (retracting from
the initial one).
(d) He then acted strangely - by leaving Beis-Din and going ahead with his
original intention of placing the property before both Reuven and Shimon (as
Tosfos explained there). The Chachamim thought that he must have made a
mistake and forgotten the Beraisa.
(a) Rav Nachman did not make a mistake however. He went ahead with his
original plan - because he found other Tana'im who argued with Rebbi
Menachem b'Rebbi Yossi and who were not concerned about 'Zilusa de'Bei Dina'
(as we shall now see).
We cannot establish the Machlokes (between Raban Shimon ben Gamliel quoting
Rebbi Shimon ben ha'Segan and Rebbi Elazar) in a case when the 'Orerin' of
Rebbi Elazar consists of only one witness, which Rebbi Elazar accepts Raban
Shimon be Gamliel discounts - because Rebbi Yochanan has taught that it is
unanymously agreed that Ir'ur must consist of at least two witnesses in
order to be effective.
(b) Rebbi Yehudah rules 'Ein Ma'alin li'Kehunah al-Pi Eid Echad'. This
statement incorporates not eating Terumah, not serving in the
Beis-Hamikdash - and not Duchening (Birchas Kohanim).
(c) Rebbi Elazar confines Rebbi Yehudah's ruling to where there are Orerin -
protestors, witnesses who claim that he is not a Kohen. Otherwise, he holds
'Ma'alin li'Kehunah ... '.
(d) Raban Shimon ben Gamliel quoting Rebbi Shimon ben ha'Segan states -
'Ma'alin li'Kehunah al'Pi Eid Echad' (which obviously speaks when there are
no Orerin), seemingly duplicating Rebbi Elazar's ruling.