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Bava Basra 36

BAVA BASRA 36 - Today's learning has been dedicated l'Iluy Nishmas Meir ben Reb Benzion Sand (Yahrzeit: 14 Iyar) by his grandchildren, Zvi and Tamara Sand of Yerushalayim and Dedi and Malca Graucher of Petach Tikva.



(a) We have already cited Rav Yehudah, who rules that if Reuven who takes a scythe and a rope and says that he will go down to pick dates from the palm that he purchased from Shimon, and subsequently does do, he is believed - because a person would not have the Chutzpah to brazenly pick someone else's fruit.

(b) Some people would build a wall within the borders of their field, leaving some land outside the wall - where they would throw food for the wild animals that emerged from the forest nearby. This would circumvent their need to enter the field to scrummage for food there.

(c) According to Rav Yehudah, one cannot establish a Chazakah on that section of land - because seeing as whatever grow there is eaten by the wild animals, the owners do not bother to make a Mecha'ah. This in turn, is because the Machzik is not making the Chazakah in the regular way.

(a) Rav Yehudah rules that there is no Chazakah if someone eats Orlah. A Beraisa corrobotates this. The Beraisa adds - Kil'ayim and Shevi'is to the list.

(b) There is no Chazakah on ...

1. ... Orlah or Kil'ayim - because they are forbidden to be eaten (so the owner does not care to make a Mecha'ah on them).
2. ... Shevi'is - because it is Hefker (and the owner does not bother there either).
(c) Rabeinu Chananel's version of the Tana's ruling is - that Orlah, Kil'ayim and Shevi'is are subject to Chazakah (though we reject his version).
(a) Shachas, as we already learned, is crops that have only partially grown, and are as yet only fit for animals to eat.

(b) Rav Yosef rules 'Achlah Shachas Lo Havi Chazakah' - because this is not the way people make a Chazakah (and what's more, the very fact that he harvests the crops before they are ripe indicates that he is attempting to steal the field and that he is afraid to make a proper Chazakah.

(c) Nevertheless, Rava rules that. in the valley of Mechuza, it would be a Chazakah - since the residents of Mechuza, who were extremely wealthy, owned many animals, whom they would regularly feed Shachas.

(a) Rav Nachman makes a statement 'Tafticha Lo Havya Chazakah'. According to Rabeinu Chananel, this refers to a field which the Machzik did not plow, and some sort of natural furrow appeared after it had rained, the wind had blown and the sun shone. Rav Nachman might also have been referring to - an open field that is full of cracks and does not produce fruit. Consequently, the owner does not care to make a Mecha'ah on it.

(b) 'Apik Kura ve'Ayil Kura' means - that one sows a Kur of seeds and only a Kur grows, meaning that there is no profit ...

(c) ... which explains why here too, the owner does not care to make a Mecha'ah.

(a) The reason that ...
1. ... the family of the Resh Galusa cannot establish a Chazakah on the fields of others is - because to the fear that he evokes in people, they are afraid to make a Mecha'ah.
2. ... others not establish a Chazakah on the fields of the Resh Galusa - because the latter, who owned a lot of land, were pleased when someone took over their land and looked after it, so they would deliberately refrain from making a Mecha'ah. Neither were they afraid of someone making a Chazakah on their land, because they knew that they would have no trouble in retrieving it by force if necessary.
(b) We reject the explanation - that they were so busy seeing to their business affairs, that they did not know what was happening to their property (and so were unable to make a Mecha'ah).
(a) When Resh Lakish says 'ha'Godros Ein Lahem Chazakah', he means - that the regular Chazakah of ownership that applies to Metaltelin (which will now be explained) does not apply to anything which moves under its own steam, because it might have wandered on its own into the defendant's field, or the latter might have found it wandering around in the street and taken it into his Reshus.

(b) One is also not believed to say 'Laku'ach Hu be'Yadi' ('I bought it from you!') by Metaltelin - which people tend to lend or to rent out.

(c) Rava reconciles Resh Lakish's ruling with our Mishnah, which lists Avadim (which also move on their own) among the things that are subject to Chazakah - by drawing a distinction between the Chazakah currently under discussion which takes place immediately, and the three-year Chazakah of Karka discussed by our Mishnah.

(d) Rava confines Resh Lakish's ruling to an Eved who is at least able to walk, but precludes a baby Eved in his cot (who is subject to Chazakah) We might have thought otherwise - because he may have been carried into the Machzik's Reshus by his mother, who forgot him there.

(e) We refute that contention however - on the grounds that a mother does not forget her baby.

(a) Some goats ate Chushli - peeled barley that one would spread out in the field to absorb the sun, in someone's field in Neherda'a.

(b) The owner of the Chushli - seized the goats as a security against the claim he had on their owner that fat exceeded the value of the goats.

(c) Shmuel's father ruled - that the Nizak was only believed to claim as much as the goats were worth, because he had a 'Migu' (that he could have claimed that he had purchased them from him).

(d) We reconcile this with Resh Lakish's principle 'ha'Godros Ein Lahem Chazakah' - by diffentiating between other animals and goats, which (because they are wild), would be handed to a shepherd, and would therefore not be able to stray into someone's field, or to be found wandering in the street and taken into his possession.

(e) Neither are we afraid that in the morning when the animals would customarily make their own way to the shepherd, or in the evening, when they would make their own way home from the town-centre, that they strayed into the Machzik's field (in which case he could not be believed when he claimed that he had purchased them?) - due to the fact that in Neherda'a, there were a lot of Arabs who would steal the animals if they allowed to go unaccompanied in the streets.

(a) We learned in our Mishnah that, with regard to a Sadeh Beis ha'Ba'al, Rebbi Yishmael requires only eighteen months to establish a Chazakah, whereas Rebbi Akiva requires fourteen months. We suggest that perhaps the basis of their Machlokes is whether Nir (plowing) constitutes a Chazakah or not - Rebbi Akiva considers plowing as a Chazakah, whereas according to Rebbi Yishmael, a Chazakah can consists exclusively of eating the fruit.

(b) We reject this suggestion on the grounds - that Rebbi Akiva would not then require fourteen months, but twelve months and two days (since plowing a field does not take longer than a day).

(c) We therefore conclude that even according to Rebbi Akiva, plowing does not constitute a Chazakah, and the basis of their Machlokes is - whether a Chazakah comprises a full harvest (e.g. barley, oats and lentils, that grow in three months [Rebbi Yishmael]), or whether even picking Shachas (or the vegetable harvest) will suffice (Rebbi Akiva).




(a) We learned in a Beraisa that plowing does not constitute a Chazakah. Yesh Omrim say 'Harei Zeh Chazakah'.

(b) We establish 'Yesh Omrim' in this case as Rebbi Acha, who disputes the Tana Kama's opinion in another Beraisa. There he says - that leaving a field fallow one year (which means that he plowed it but did not sow it), sowing it one year, and leaving it fallow the third year, constitutes a Chazakah.

(c) He substantiates his opinion - by citing all the Gedolei ha'Dor, whose opinion he sought, and who told him that 'Nir Havi Chazakah'.

(d) Rav Bibi attributed Rav Acha's ruling to the fact that a person would not remain silent whilst a stranger plowed his field. The Rabbanan would counter that - by arguing that, on the contrary, the owner would be only too happy to let him break his plow on his field in the process of softening his earth, before taking his field back for sowing.

(a) When Rav Nachman bar Rav Chisda, in reply to a She'eilah from the people of Pum Nahara, cited Rebbi Acha and all the Gedolei ha'Dor who hold 'Nir Havi Chazakah', Rav Nachman - with a statement that his list was no big deal, seeing as Rebbi Yishmael and Rebbi Akiva in our Mishnah, as well as Rav and Shmuel in Bavel, all hold that plowing does nor constitute a Chazakah.

(b) Rav Yehudah Amar Rav, commenting on the opinions of Rebbi Yishmael and Rebbi Akiva in our Mishnah, concludes - that the Chachamim require three full years from day to day (from which Rav Nachman extrapolates that Rav holds that plowing is not a Chazakah).

(c) We know that, in the opinion of the Rabbanan, plowing does not constitute a Chazakah - because if they disagree with the Chazakah of 'Peira Rabah and Peira Zuta' of Rebbi Yishmael and Rebbi Akiva, then they certainly disagree with that of plowing (which even Rebbi Yishmael and Akiva disagree with [though in any event, if plowing constitutes a Chazakah, then one year and two days would suffice, as we learned earlier]).

(d) The basic difference between Rebbi Yishmael and Rebbi Akiva on the one hand, and the Rabbanan on the other, is based on their respective reasons for Chezkas Shalosh Shanim - which has to do with the owner not having made a Mecha'ah, according to the former, and with the Machzik not being required to keep his Sh'tar more than three years, according to the latter.

(a) Rav Yehudah Amar Shmuel quotes the Rabbanan who disagree with Rebbi Yishmael and Rebbi Akiva as saying - that they require three full harvests of dates, grapes or olives (which normally constitutes three years).

(b) Seeing as either way, the Rabbanan require three full years for a Chazakah, Rav and Shmuel appear to be saying the same thing. Abaye therefore explains the Machlokes between Rav and Shmuel with respect to the dates that grow on a Dekel Na'arah (a young date-palm), which are ready to harvest before the end of the year. According to Shmuel therefore, this will constitute a Chazakah (seeing as the Machzik has picked three harvests of dates), whereas according to Rav, who requires three full years, it will not.

(c) Rabeinu Chananel explains this quite differently. According to him, 'Dekel Na'arah' means a date-palm that sheds its dates - which is not a Chazakah according to Shmuel (since the Machzik does not harvest the fruit), though it is according to Rav (since three years have passed).

(a) According to a second Lashon, 'Dekel Na'arah' is the equivalent of a 'Dekel D'yuperin', meaning - a date-palm which produces two crops annually.

(b) According to Shmuel - the Rabbanan consider the Chazakah effective after one and a half years (after three crops have been picked), whereas according to that of Rav, they do not, because a Chazakah in any case, requires three years.

(a) Abaye states that, according to the Rabbanan (in the opinion of Shmuel) if Reuven establishes a Chazakah on ten out of thirty trees in a field the size of three Beis-Sa'ah (ten trees per Beis-Sa'ah) one year, a second ten, in the second year, and the third ten, in the third year - it is considered a Chazakah on all thirty trees.

(b) And he extrapolates this from Rebbi Yishmael, who says in our Mishnah - that if Reuven establishes a Chazakah on produce, olives and figs in one year, it is as if he had established a three-year Chazakah.

(c) Abaye learns the one from the other - on the grounds that Rebbi Yishmael only argues with the Rabbanan inasmuch as where they require three years, he suffices with three crops in one year. Conversely however, whatever Rebbi Yishmael considers a Chazakah in one year, the Rabbanan consider a Chazakah in three.

(d) This Chazakah requires two further details in order to be effective.
When we say that ...

1. ... they did not produce fruit, we mean - that the twenty trees that did not participate in the Chazakah did not produce fruit that year (because if they did, and Reuven did not benefit from them, there would be no Chazakah). This is possible, explains Rabeinu Chananel, in a case of 'B'nos Shu'ach' (a wild fig-tree, that only produces fruit once every three years).
2. ... they are spread out, we mean that - the ten trees that did produce fruit, and which Reuven picked, were spread evenly in each of the three Beis-Sa'ah (three in one, three in the other and four in the third).
14) If there were ...
1. ... ten trees in an area that was less than a Beis-Sa'ah - the Chazakah would not take effect, since due to the compact space (which renders the field more like a forest), this is not the way that people make a Chazakah in a field.
2. ... less than ten trees in a Beis-Sa'ah - the Chazakah would not be effective on the entire either, though it would acquire the trees, together with the amount of land that each tree needs.
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