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Bava Basra 34

BAVA BASRA 34 (11 Iyar) - dedicated by the Feldman family in memory of their mother, ha'Rabbanit Sara Dvosya bas Rav Mordechai (of Milwaukee).



(a) When Reuven, who claimed that he had purchased a field from Shimon and that he had worked in it for three years, was only able to bring one witness to that effect, the Rabbanan wanted to rule - that he was obligated to return the field, since his exemption depended on the Shevu'ah that he made to counter the witness' testimony, something that he was unable to do due to the fact that he agreed with the witness' testimony.

(b) They took their cue from 'Naska de'Rebbi Aba', where, after Reuven grabbed a piece of silver from Shimon - he countered the one witness testimony y admitting that he had grabbed it, but added that the silver was his to begin with.

(c) Had ...

1. ... two witnesses testified that they saw him grabbing the silver - he would have been obligated to pay, since no-one is believed to take anything from the established owner without clear proof that the object is his.
2. ... no witnesses had been present, but the knowledge that he had grabbed it came through the admission of Reuven himself - then he would have been believed on account of a 'Migu' (that he could have denied grabbing it altogether, and rather said that the object had been in his domain all along).
3. ... Reuven countered the testimony of the one witness with a denial of having grabbed the object - he would have had to swear a Shevu'ah d'Oraysa that he was telling the truth.
(d) The problem in that case was - that Reuven could not ...
1. ... on the one hand, swear to counter the witness - since his testimony did not counter that of the witness.
2. ... be absolved due to his 'Migu' - since his 'Migu' was weakened by the testimony of the witness.
(e) Rebbi Aba ruled there - that seeing as he was unable to refute the witness' claim, he would have to pay ('Kol ha'Mechuyav bi'Shevu'ah ve'Eino Yachol Li'shava, Meshalem').
(a) It is obvious that in our case, Reuven was obligated to return the field, seeing as he did not have two witnesses and the necessity to cite the case of 'Naska de'Rebbi Aba' was - because of the fruit, which the Rabbanan were obligating him to pay.

(b) Abaye objected to the Rabbanan's comparison between the two cases on the grounds - that whereas there, the witness testified against him (had a second witness been found, he would have lost the case outright), here the witness was brought to testify on his behalf (and had he managed to bring a second witness, he would have won the case).

(c) Abaye therefore concluded 'Ela I Damya Ha de'Rebbi Aba, le'Chad Sahada u'le'Tarti Sh'ni u'le'Peiri. If Reuven, who claimed that he had worked in the field for three years and had purchased the field for its Peiros, brought two witnesses that he had established a Chazakah on it ...

1. ... who also testified that he had eaten the fruit during those two years - he would have to pay for it.
2. ... and he himself admitted that he had eaten the fruit during those two years - he would be absolved from paying (with a Shevu'as Hesses) due to a 'Migu' (since he could have said that he did not eat any fruit during that time).
3. ... and one witness testified that he had eaten the fruit during those two years - then he would have had to swear that he did not eat, and since he was unable to do so, he would had to pay, as we just explained.
(a) Rav and Shmuel (in Shevu'os) disagree with Rebbi Aba. In the case of 'Naska de'Rebbi Aba' - they would have absolved Reuven for paying for the fruit (due to the S'vara 'Chazrah Shevu'ah le'Sinai', meaning that the Shevu'ah is only Lechatchilah, and not a condition by which the defendant becomes Patur. Consequently, there where the Shevu'ah cannot be made, the defendant is Patur from paying.

(b) They rule (with regard to the Mishnah in Shevu'os 've'Chein Yesomim min ha'Yesomim Lo Yipar'u Ela bi'Shevu'ah') in a case where the debtor died before the creditor, that the creditor's Yesomim are Patur from paying - on the basis of the principle 'Ein Adam Morish Shevu'ah le'Banav', meaning that the creditor cannot bequeath to his heirs any claim that requires a Shevu'ah (and the Shevu'ah that their father did not instruct them that the debt had been paid, is not the Shevu'ah that he had not been paid, which he had became obligated to make before his death.

(c) Had the debtor's Yesomim been able to swear that the debt had been paid - Rav and Shmuel would have switched the debt to them.

(d) Whereas Rebbi Elazar (who holds like Aba) rules - that the creditor's Yesomim swear the Shevu'as Yesomim (that their father did not leave them any instructions that the debt had been paid) and claim from the debtor's Yesomim.

(a) Regarding that Machlokes - the Sugya in Shevu'os rules 'de'Avad ke'Mar Avad, u'de'Avad ke'Mar Avad' (whichever way one rules is acceptable).

(b) We nevertheless rule like Rebbi Aba in the case of 'Naska de'Rebbi Aba' - due to the fact that Abaye (who was a later opinion) based the previous ruling upon it.

(c) We reconcile the ruling in Shevu'os with the ruling here - by confining it to that Sugya, turning it into a Takanah on behalf of the Yesomim, so that they should not lose out by having to pay without someone having made a Shevu'ah to substantiate the claim.




(a) In the case of the ship over which Reuven and Shimon were arguing, we know that neither of the disputants was actually Muchzak in it - from the fact that the Sugya does not ask on the final ruling of 'Kol de'Alim G'var' from the case of (the Mishnah of) 'Shenayim Ochzin be'Talis', where the Din is that each disputant takes what he is holding and they share the rest (with a Shevu'ah).

(b) Reuven asked Beis-Din to seize it on his behalf whilst he went to fetch witnesses that the ship was his (not to prevent Shimon from making a Chazakah on it, since seizing after the Safek has arisen is ineffective [because we know that he seize it], but) - in order to prevent Shimon from selling it.

(c) The argument *for* seizing the ship is that, seeing as, in the event that Reuven failed to find witnesses, Beis-Din would release it, no harm will have been done. The argument against seizing it is - that once Beis-Din do take control of it, they will not let it out of their jurisdiction until one of the parties proves that it belongs to him (as will be explained shortly).

(a) Rav Huna maintained that Beis-Din should seize the ship, because he held like Rav Papa, who rules that, assuming that Beis-Din had seized the ship on behalf of one of the litigants - they will let it go again, should he prove unable to substantiate his claim.

(b) Rav Yehudah said - 'Lo Tafsinan' ...

(c) ... because he also holds that, once Beis-Din do seize the object, they will not let it go again until one of the litigants brings proof of ownership. Consequently, to seize it Lechatchilah would be playing into the hands of the swindler, whilst causing the real owner an unfair loss).

(d) When Reuven failed in his attempt to find proof of ownership, despite the fact that Beis-Din had, it appears, seized the ship (like Rav Huna), the Chachamim ruled - 'Kol de'Alim G'var', meaning that whoever was strongest (either by means of superior evidence or by force) would take it.

7) Finally we ask what the Din will be, if Beis-Din did seize an article on behalf of one of the litigants. We have already cited the opinions of both Rav Yehudah and Rav Papa. The final ruling in the matter is - 'Lo Tafsinan, ve'Heicha de'Tafas, Lo Mafkinan' (like Rav Yehudah).

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