ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf 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
(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
(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
(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.
(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
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).
(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
(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
2. ... his second claim - because it contradicts his first one.