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Bava Basra 35



(a) In a case where Reuven and Shimon both claimed that the ship or the field over which they were arguing had belonged to their respective fathers - Rav Nachman ruls - 'Kol de'lim G'var'.

(b) If Reuven and Shimon both produce separate Sh'taros stating that Levi had given each of them the same gift on the same day, Rav rules 'Yachloku' - Shmuel, 'Shuda de'Dayna', which means that it is up to the Beis-Din to decide to whom the donor really meant to give it (see also Tosfos DH 'Shuda de'Dayna'). He declines to learn like Rav - according to whom, we are definitly not conforming with the Levi's wishes, whereas according to him, the is a good chance that the Beis-Din will hit on the one to whom Levi had in mind to give it.

(c) 'Shuda' really means - to cast, as if to say that the Beis-Din will throw the article to the rightful owner.

(d) It will make no difference if one of the Sh'taros was written in the morning, and the other one, in the afternoon - since it was not customary to insert the time in a Sh'tar (except for Sh'taros tht were written in Yerushalayim, where it was). Consequently, the Sh'tar only takes effect - at the end of the day.

(a) The difference between the two cases is - that there, according to both Rav and Shmuel, Beis-Din prefer to make an arbitrary ruling, since in any case, it is impossible to arrive at a definite conclusion as to whom Levi really wanted to give the article; because 'Kol de'Alim G'var' is Bei-Din's way of declining to get involved, which is appropriate only where it possible to arrive at the corect ruling withut them.

(b) We know that Levi did not perhaps hand one of the two recipients the Sh'tar a day or two before the other (neagting what we just said about being impossible to arrive at the correct solution) - because one assumes that Levi will have given the Sh'taros to their respective owners on the same day s he wrote them.

(a) In the case in the Mishnah in Bava Kama where Reuven swapped a cow for Shimon's donkey, or if he sold him his Shifchah, and it is later discovered that the cow or the Shifchah had given birth, the problem is - whether they gave birth before the transaction or after it.

(b) The Tana refers ...

1. ... specifically to swapping in the case of the cow and the donkey - because one cannot acquire an animal through 'Kesef'. And had the Kinyan consisted of Meshichah, then they would have seen whether the baby was born at that stage or not.
2. ... selling in the case of the Shifchah - because one can acquire her through Kinyan Kesef (and presumably, that is how one would normally acquire her).
(c) The Tana rules there - 'Yachloku'.

(d) Despite the fact that there, like here, neither is Muchzak in the cow or the Shifchah (because, as we ascertain elsewhere, the Tana is speaking when they were in a public meadow at the time), and it is also possible to ascertain (through witnesses) exactly when they gave birth, the Tana not rule 'Kol de'Alim G'var' (a Kashya on Rav Nachman) - because unlike in the case of the ship or the field (which belonged to one of the disputants but not to the other), the cow and the Shifchah belonged both to each of the litigants at different stages (and we are only uncertain as to at which stage they gave birth), giving them a sort of Chazakah.

(a) Shmuel does not rule here 'Shuda de'Dayna' (like he ruled in the case of two the Sh'taros) - because that ruling only applies there, where it was a matter of whom the donor had in mind to give it, but not when it is a question of when a certain event occurred (see Maharsha).

(b) We know that the Kashya from 'ha'Machlif Parah ba'Chamor' is a Kashya on Rav Nachman and not on Shmuel - because if we do not ask it in Kesuvos, which is the major Sugya that discusses Rav and Shmuel's Machlokes, then it would be unlikely to ask it here (where it is only brought in the form of a Kashya.

(a) Rebbi Chiya cites a Beraisa 'Gazlan shel Rabim Lo Sh'mei Gazlan', which the Neherda'i apply to Rav Nachman's case ('Zeh Omer shel Avosai, ve'Zeh Omer shel Avosai') - inasmuch as he stole from two people, neither of whom, for all we know, may have been the rightful owner.

(b) Rav Ashi disagrees. According to him, there is no way that the Gazlan, who does not hve a 'Ta'anah' will be allowed to keep the ship or the field. And he inteprets the Tana's statement ('Gazlan shel Rabim Lo Sh'mei Gazlan') to mean - that he cannot fulfill his obligation of returning it, since he does not know who the owner is to whom to return it.

(c) According to Rav Ashi - Rebbi Chiya also pertains to a storekeeper whose weights and measures were false, and who then decided to do Teshuvah.




(a) Rebbi Aba says that if Reuven the Me'arer (who protests at Shimon's Chazakah of his field) subsequently loads a basketful of fruit (from tSAhat field) on to Shimon's back - it substantiates Shimon's Chazakah, and the latter acquires the field immediately.

(b) Rabeinu Chananel explains 'I Dali Leih Ihu Gufei Tzana de'Peira' to mean (not that Reuven subsequently loads a basketful of fruit on to Shimon's back, but) - that Shimon presented Reuven with a gift of a basketful of fruit, which he accepts).

(c) The fact that Reuven helped Shimon to load the fruit will not be instrumental in establishing the latter as the owner - if Reuven backed up his action with the claim 'le'Peiros Horadtiv'.

(d) On the other hand, his claim of 'le'Peiros Horadtiv' will not help him - after three years, once Shimon's Chazakah is complete.

(a) The problem we have with the previous ruling is - that seeing as Reuven cannot claim 'le'Peiros Horadtiv' after three years, if he really had (given Shimon the Peiros for three years or more), how will he able to safeguard himself against Shimon establishing a Chazakah on the field and claiming that it is his (bearing in mind that, as we explained earlier, it is not customary to write a Sh'tar for Peiros)?

(b) To answer this Kashya, we cite the case of Mashkanta de'Sura, where we have the same problem - since Shimon has the right to eat the Peiros for five or ten years, and who is to then stop him from making a Chazakah?

(c) And we resolve it - by advising Reuven to make a Mecha'ah to the effect that Shimon only has rights over the fruit, but not over the field (which is a valid Mecha'ah, despite the fact that he simultaneously concedes partial rights to Shimon).

(d) The reason that we need to come on to Mashkanta de'Sura to answer the first Kashya is - because Mashkanta de'Sura is a Takanas Chazal, in which case we need to answer how they could institute a Takanah which will lead to the owner losing his field.

(e) Mashkanta de'Sura is not a case of Ribis (despite the fact that, in the case of a bumper harvest, the creditor will eat far more fruit than the value of the loan) - because there is an equal chance that, following a year of draught, the field will only yield a Dinar's-worth even though he lent him ten Manah for ten years (a Manah per year).

(a) Chazal did not include Nochrim in the Din of Chezkas Shalosh Shanim - because most Nochrim were Gazlanim, and people were therefore afraid to make a Mecha'ah when a Nochri was being Machzik their property.

(b) When Rav Yehudah Amar Rav talks about 'Yisrael ha'Ba Machmas Akum', he is referring to - a Yisrael who purchased a field (which was known to have previously belonged to a Yisrael) from a Nochri and who then established a Chazakah on it.

(c) And he issued a ruling - that such a Chazakah is ineffective.

(a) How is it possible, we ask, for the Machzik who claims that the Nochri informed him that he bought the field from the Me'arer, to be believed, as Rava initially claimed - seeing as the Nochri himself would not?

(b) What Rava really must have therefore said was - that if, after establishing his Chazakah, he claims that the Nochri actually purchased the field from the Yisrael in his presence, he is believed ...

(c) ... because he has a 'Migu' (that he could have said that *he* purchased it from him.

(d) The Halachah would be more lenient still if the Machzik claimed that he had purchased the field from a Yisrael (who had bought it from the original owner) - because then, all he would need to claim is that he saw the Yisrael working on it for one day.

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