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Bava Basra 38



(a) The Neherda'i say that, if Shimon acquires a date-palm from Reuven, he acquires the earth underneath it down to the center of the earth.

(b) Rava objects to that because Reuven can say 'Kurkema de'Rishka Zevini Lach, Akor Kurkema de'Rishka' - meaning that this should be no different than a garden crocus, which one would sell still growing in the ground, on the understanding that, the moment it reaches its full growth, the purchaser must detatch it.

(a) Rava therefore amends the Neherda'i's statement to read - that Shimon acquires the ground underneath the date-palm if he claims that that is what he bought from Shimon.

(b) Assuming that Reuven sold Shimon the tree only, to ensure that the latter does not come after three years and claim that he sold him the ground too - he needs to make a Mecha'ah that he sold him the tree exclusively.

(c) And he proves his point - from the case of Mashkanta de'Sura, where the debtor needs to make a Mecha'ah that he gave the field the field to the creditor for the Peiros only (which is effective, even though, like in our case, he concedes that he does have certain rights in the field), as we explained above.

(a) Eretz Yisrael is divided into three areas regarding Chazakah - Yehudah, Galil and Eiver ha'Yarden.

(b) The ramifications of this sub-division are - that the Machzik cannot acquire Karka in one area, if the owner is in another.

(c) Rebbi Yehudah has a different viewpoint regarding the three years of Chazakah. According to him, Chazal instituted three years - because it takes a year for Shimon to begin to establish a Chazakah, a year for the news of Shimon's Chazakah to reah Reuven's ears, and year to get from Spain (which was as far as a ben Eretz Yisrael would travel on business in those days) to Eretz Yisrael.

(d) If the owner was closer to home than Spain - then the Chazakah would become progressively shorter, because, according to Rebbi Yehudah, a person does not tolerate a stranger living on his property at all, and the time of the Chazakah is purely a technical matter, as we explained.

(a) A 'Mecha'ah she'Lo be'Fanav' is - a Mecha'ah made not in the presence of the Machzik.

(b) The problem with the Tana Kama, assuming that 'Mecha'ah she'Lo be'Fanav ...

1. ... Havya Mecha'ah' is - why the three areas should be any worse than two towns in the same area.
2. ... Lo Havya Mecha'ah' is - why two towns in the same area should better than the three areas.
(c) Rebbi Aba bar Mamal concludes that, according to the Tana Kama, 'Mecha'ah she'Lo be'Fanav Havya Mecha'ah'. In fact - the significance of the three areas is manifest in times of peace, when a Chazakah would apply in two towns in Yehudah, for example, but not from one area to another (because of the constant feuds that made traveling from one area to the other difficult, giving it the same Din as two towns in the same area in time of war).

(d) Two towns in one area will share the same stringency as one area to another - in time of war, as we just explained.




(a) When Rav Yehudah Amar Rav says 'Ein Machzikin be'Nechsei Bore'ach' (someone who fled from town [we will see later why]), he means - that such a Chazakah is futile.

(b) When Rav, Rav Yehudah's Rebbe, died - he went to learn with Shmuel.

(c) Shmuel objected when Rav Yehudah told him what Rav had said - because this ruling is based on the premise that 'Mecha'ah she'Lo be'Fanav Lo Havya Mecha'ah', and we hold 'Mecha'ah she'Lo be'Fanav Havya Mecha'ah'.

(d) We reconcile Rav with his own statement 'Mecha'ah she'Lo be'Fanav Havya Mecha'ah' - by establishing this latter statement as an explanation of the Tana Kama of our Mishnah, whereas Rav himself follows the ruling of Rebbi Yehudah (who holds 'Mecha'ah ... Lo Havya Chazakah'.

(a) In the second Lashon, Rav issued the statement 'Mecha'ah she'Lo be'Fanav Havya Mecha'ah'. Reuven (the Machzik) cannot claim that he failed to make a Mecha'ah because he did not know that Shimon was establishing a Chazakah on his field - for the same reason that a Mecha'ah she'Lo be'Fanav is effective (because just as having told two people, the word spreads until Reuven is bound to hear about the Mecha'ah, so too, do the caravans that travel between the two towns ensure that Shimon gets to hear about the Chazakah.

(b) Seeing as the S'vara behind Rav's ruling is 'Mecha'ah she'Lo be'Fanav Havya Mecha'ah', there can be no difference between a Bore'ach and anybody else who is not in the same town as the Machzik. And the reason that Rav talks about a Bore'ach is - because it is when someone is forced to run away that would-be Gazlanim tend to take advantage to attempt to establish a Chazakah.

(c) Shmuel queries why Rav needs to say this, seeing as he has already said it before. Rav will answer however, that he repeats it - to include a Mecha'ah in front of two people who are unable to pass on the warning directly (such as witnesses who are lame, who are about to go off in the opposite direction to the one in which the field is situated).

(d) Shmuel disagrees, as Rav Anan explained. According to him, a Mecha'ah in front of witnesses who are unable to inform the Machzik is not a Mecha'ah (and the Chazakah of the Machzik is therefore not valid either). Rav says that it is - because of the S'vara 'Chavrach Chavra Is Leih, ve'Chavrach de'Chavrach Chavra Is Leih' (as we have already discussed earlier). In other words, once two people receive certain information, the word tends to spread.

(a) The Yerushalmi adopts the first Lashon in Rav 'Ein Chazakah le'Bore'ach ve'Ein Machzikin me'Eretz le'Eretz'., whereas Shmuel says - Yesh Lahen Chazakah.

(b) Rav Nachman goes on to prove Shmuel's opinion from a Pasuk in Melachim, where the King ordered his servant to return to the woman all the property that she had lost to the Machzik after having fled - implying that if not for the king's intervention, the woman would have lost her property (Maharsha) despite the fact that she had run away and her Mecha'ah was made not in the presence

(a) The problem with Rava statement 'Hilchesa Ein Machzikin be'Nechsei Bore'ach, u'Mecha'ah she'Lo be'Fanav Havya Mecha'ah' is - that the two statements appear to clash, since the reason that 'Ein Machzikin be'Nechsei Bore'ach' is because 'Mecha'ah she'Lo be'Fanav Lo Havya Mecha'ah' (so how do we reconcile this with the Seifa)?

(b) To resolve the discrepancy we establish the ruling 'Hilchesa Ein Machzikin be'Nechsei Bore'ach' - by 'Bore'ach Machmas Mardin', meaning that the owner fled town because he had killed someone (and due to the fact that the Persians were strict with regard to murder, he was forced to keep a low profile, in order to keep his whereabouts a secret. Consequently, he would be afraid to make a Mecha'ah.

(c) Rava will agree that 'Machzikin be'Nechsei Bore'ach' - in a case of 'Bore'ach Machmas Mamon' (when he ran away because he owed money, and where divulging his identity in no way endangers his life).

(a) 'Pelanya Gazlana Hu', says Rav Z'vid, does not constitute a Mecha'ah - by a Mecha'ah she'Lo be'Fanav.

(b) This is not considered a good Mecha'ah - because it is not sufficient to make him guard his Sh'tar (since there is nothing in those words to explain why they are calling him a Gazlan).

(c) For such a Mecha'ah to be effective, the owner must definitely add 've'Nakat Leih le'A'ra'i be'Gazlenusa' ('and he is holding my land illegally').

(d) According to Rabeinu Chananel, the Mecha'ah is still not effective, until he adds 'u'le'Machar Tava'ana Leih le'Diyna' - because this looks as if he is out to slur the Machzik, rather than to warn him.

(e) Alternatively, we might interpret this conclusive phrase of Rav Z'vid's statement to be a mere explanation of the first one 'Peloni Gazlana Hu' (see also Tosfos DH 'u'le'Machar'), and the Mecha'ah is complete without it.

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