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Bava Basra 39

BAVA BASRA 39 & 40 - dedicated by an admirer of the work of the Dafyomi Advancement Forum, l'Iluy Nishmas Mrs. Gisela (Golda bas Reb Chaim Yitzchak Ozer) Turkel, A"H.



(a) According to Rav Z'vid, if the owner instructed the witnesses not to inform the Machzik of his Mecha'ah, the Mecha'ah is ineffective (and the Chazakah is valid). Rav Papa holds - that since he only forbade them to tell the Machzik directly, there is nothing to stop them from passing on the warning to other people, in which case we will apply the principle 'Chavrach Chavra Is Leih ... ', thereby validating the Mecha'ah.

(b) In a case where the witnesses deny having informed the Mazik ...

1. ... Rav Z'vid again invalidates the Mecha'ah.
2. ... Rav Papa repeats his previous ruling. He suspects - that even if they did not inform the Machzik himself, they might well have told others, who will have passed on the information to the Machzik.
(a) 'Lo Teipak Leih Shuta' means - 'Don't say a word to a soul'.

(b) According to Rav Z'vid, if the owner said this to the witnesses, the Mecha'ah is ineffective. Rav Papa says - nothing because he agrees with it.

(c) If the witnesses claim that they did not say a word to a soul, Rav Papa invalidates the Mecha'ah. Rav Huna B'rei de'Rav Yehoshua disagrees. According to him - seeing as they were not under orders to remain silent, and did so voluntarily, we apply the principle 'Kol Milsa de'Lo Ramya Aleih de'Inash, La'av Ada'teih' ('something from which it is not obligated to desist, one performs without realising that one did').

(d) The Halachah in all of the above cases is - that the Mecha'ah is valid, except for where the owner said 'Lo Teipak Leih Shuta'.

(a) Rava Amar Rav Nachman 'Mecha'ah she'Lo be'Fanav Havya Mecha'ah' - because as we learned earlier 'Chavrach Chavra Is Leih ... ', making it possible for the Mecha'ah to reach the ears of the Machzik.

(b) Even if the Machzik does not get to hear about the Mecha'ah, and claims that he lost his Sh'tar - seeing as the owner did what he had to, and made a Mecha'ah, the Chazakah is invalid, and the Machzik will have to produce his Sh'tar.

(c) Rava asked on Rav Nachman from Rebbi Yehudah in our Mishnah, who ascribed the three-year period of Chazakah to the fact that the owner needs three years to hear about the Chazakah and travel to warn the Machzik - which implies that the owner needs to make the Mecha'ah personally and not through two witnesses (i.e. 'Mecha'ah she'Lo be'Fanav Lo Havi Mecha'ah').

(d) Rava ask from the Rebbi Yehudah, because, although Rav on the previous Amud, learned that, according to the Tana Kama, 'Mecha'ah she'Lo be'Fanav Havya Mecha'ah' - it seems that Rava understood the Tana Kama differently (see also Tosfos DH 'Leisev').

(a) Despite the fact that Rava asks on Rav Nachman from Rebbi Yehudah (like whom he currently holds regarding Mecha'ah), he does not however, follow his opinion - regarding *Chazakah* she'Lo be'Fanav, which is nevertheless a Chazakah (which therefore requires a Mecha'ah) according to Rebbi Yehudah, but not according to Rava (as we see from his previous ruling 'Ein Machzikin be'Nechsei Bore'ach').

(b) Rav Nachman answers Rava's Kashya - by establishing Rebbi Yehudah's choice of case (not as mandatory, but) as the wiser way of making a Mecha'ah ...

(c) ... because by going himself and taking the field back before the Machzik concludes his Chazakah, he avoids the problem of having to retrieve Gezel, and Chazal have said 'Kashah Gezel ha'Nigzal' ('It is difficult to retrieve something that has been stolen').

(d) We reconcile Rava's Kashya on Rav Nachman (implying that he holds 'Mecha'ah she'Lo be'Fanav Lo Havya Mecha'ah', with the fact that he himself declared ' ... Havya Mecha'ah' - by establishing the latter ruling after Rav Nachman's answer, which he accepted.

(a) Rebbi Chiya bar Aba told Rebbi Yossi b'Rebbi Chanina that Rebbi Yochanan requires two witnesses before whom to make a Mecha'ah. Rebbi Avahu told him - that Rebbi Yochanan requires three witnesses.

(b) We try to connect their Machlokes with a statement of Rabah bar Rav Huna, who said that any derogatory statement that is said in front of three people is no longer subject to Lashon ha'Ra (i.e. one is permitted to pass it on to the person about whom is was spoken).

(c) This is not because Mecha'ah itself (since the owner informs the witnesses that the Machzik is a Gazlan) is considered Lashon-ha'Ra (even though many commentaries do explain this way) - since warning the Machzik is the owner's obligation as instigated by Chazal, so that in the event that the Machzik did purchase the field, he will know that he has to look after his Sh'tar. Consequently, there can be no question of Lashon ha'Ra.

(a) We learn from Rabah bar Rav Huna - that once three people are told something, it is considered as if everyone knows about it.

(b) Rebbi Chiya bar Aba Amar Rebbi Yochanan disagrees with him however. According to him - even when two people know about it, it is as if the whole world knows.




(a) Alternatively, both opinions agree with Rabah bar Rav Huna (that once three people are told something, it is considered as if everyone knows about it), and they argue over whether 'Mecha'ah she'Lo be'Fanav, Havya Mecha'ah (Rebbi Avahu) or not (Rebbi Chiya bar Aba). Both opinions agree that publicity requires three, and the reason that ...
1. ... Rebbi Chiya bar Aba makes do with two witnesses is - because since Mecha'ah needs to be made in the presence of the Machzik, all that is needed is two witnesses to testify that it was performed.
2. ... Rebbi Avahu requires three is - that since Mecha'ah can be performed not the presence of the Machzik, it requires publicity, which in turn, requires three people (like Rabah bar Rav Huna taught).
(b) Yet a third alternative suggests that they both agree with Rav bar Rav Huna and both hold 'Mecha'ah she'Lo be'Fanav, Havya Mecha'ah'. And the basis of their Machlokes is - whether Mecha'ah requires publicity (to ensure that the Machzik gets to hear about the warning) or just testimony (which creates the possibility that the Machzik gets to know about the warning [either directly from the two witnesses or indirectly], even though this is not guaranteed).
(a) Gidal bar Minyumi made a Mecha'ah in front of three Amora'im. Does this prove that Mecha'ah requires three?

(b) What did they say to him when, the following year, he came to repeat the Mecha'ah?

(a) Resh Lakish quoting bar Kapara rules - that the owner needs to make a new Mecha'ah at the end of each three-year period.

(b) We object to Rebbi Yochanan's protest 've'Chi Gazlan Yesh Lo Chazakah' - because there is no justification to call the Machzik a Gazlan.

(c) What Resh Lakish really meant to say was - someone who is comparable to a Gazlan (inasmuch he has been accused of setting out to steal the owner's field) ought to look after his Sh'tar, even without a further Mecha'ah.

(a) bar Kapara rules - that if the owner makes a Mecha'ah more than his Mecha'ah is valid, provided he issues the same claim each time, but not if he changes it from one time to the next.

(b) It is appropriate that specifically he issues this ruling - since he is the one who requires a new Mecha'ah after each set of three years (though as a result of this ruling, it became customary to make a Mecha'ah a number of times during the first three years, too).

(c) The two different claims might be 1. that the Machzik is stealing his fruit 2. that the field is only a Mashkon, and not sold to him completely.

(d) We do we not accept ...

1. ... the owner's first claim - because, in his second, he admits that the Machzik is not a thief (and we have a principle 'Hoda'as Ba'al-Din ke'Me'ah Eidim Dami'.
2. ... his second claim - because it contradicts his first one.
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