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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Basra 42

BAVA BASRA 41 & 42 - these Dafim have been dedicated anonymously l'Iluy Nishmas Tzirel Nechamah bas Tuvya Yehudah.



(a) The Mishnah in Get Pashut rules that if Reuven lends Shimon money ...
1. ... with a Sh'tar - he is able to claim from Meshubadim.
2. ... with witnesses - he is not.
(b) To answer Rav (who just said that a purchaser who buys a field with witnesses may claim from Meshubadim), we apply the principle that Rav is a Tana who has the power to dispute a Mishnah. We reject this suggestion however, based on a statement of Rav and Shmuel - that one cannot claim an oral loan from Meshubadim, but one can, a documented one.

(c) We reconcile the Rav's two statements - by differentiating between a sale (which one can claim from Meshubadim, as we just explained) and a loan (which one cannot).

(d) This is - because a seller tends to publicize the fact that he is selling (in order to attract customers [making it easy for subsequent purchasers to discover that this field has already been sold once]), whereas a borrower tends to borrow discreetly, in order to avoid the value of his property from depreciating, should he subsequently decide to sell a field (making it difficult for subsequent purchasers to discover that the field is Meshubad).

(a) The Beraisa states that if someone established one year of Chazakah and his son, the other two, or vice-versa, or if a purchaser established the third year - the Chazakah is complete.

(b) We extrapolate from the fact that the purchaser can finalize the Chazakah that when someone buys from a Yoresh, there is a Kol - because otherwise, the owner would be able to argue that he did not warn the purchaser because he was unaware of the purchase.

(c) The Tana of another Beraisa says that if someone established a Chazakah one year in front of the original owner and two in front of his son, or vice-versa, or a third year in front of someone who purchased the field from the son - it is a Chazakah ...

(d) ... implying that when someone buys from a Yoresh, there is no Kol - because if there was, then why would the very sale not serve as a Mecha'ah, warning the Machzik to look after his Sh'tar?

(a) To reconcile the second Beraisa with the first, we establish it - by a Yoresh who sold all his fields, including this one (according to the purchaser).

(b) The purchaser cannot claim that he bought the field in question together with all the other fields - because the Machzik can counter that 'all the fields' obviously precludes this one, seeing as he had already purchased it.

(a) The Tana rules that 'Umnin, Shutfin, Arisin and Apotropsin' - cannot establish a Chazakah.

(b) The Chazakah of Umnin differs from the other three - inasmuch as the Chazakah referred to there is immediate, and does not refer to a three year Chazakah, like the others do.

(c) The reason for this distinction is - because whereas the other cases refer to a Chazakah on Karka, Umnin refers to a Chazakah on Metaltelin.

(d) The Tana is talking about - Metaltelin that are not normally lent or rented out (otherwise they would not be subject to a Chazakah under any circumstances).

(a) Rabeinu Gershom precludes 'Umnin' from the text - because if Shutfin cannot establish a Chazakah, then Umnin goes without saying.

(b) Chazakah will not be effective in the case of ...

1. ... Shutfin - because it is customary for partners to take turns eating the fruit, each one for three or four years.
2. ... Arisin - because the owner can counter that he sold him his own share of the fruit, for which he still has to pay, or because it was customary to take turns to eat the fruit for five or even ten years at a stretch (like we explained by Shutfin).
6) When the Tana rules that ...
1. ... a man cannot establish a Chazakah on his wife's property - he is referring to her Nechsei Milug, which she takes back after his death or after he divorces her.
2. ... a woman cannot establish a Chazakah on her husband's property - he is referring to picking and eating the fruit that grows in his field, which he allowed her to partake of.
(a) The Tana finally inserts the case of a father on the property of the son and vice-versa in the list of those who cannot establish a Chazakah on the other's property - because they are similar to Apotropsin on each other's property (each one allows the other free access to his property [Tif'eres Yisrael]).

(b) The Tana concludes that a donor who gives a gift and brothers who divide their property - acquire with the subsequent Kinyan Chazakah (seeing as the one does so with the other's consent).

(c) The third case that he adds to this list is - someone who acquires the property of a Ger who died without heirs (who does not even require anybody's consent.

(d) Each of these acquires the property in question by means of 'Na'al, Paratz ve'Gadar'.

1. 'Na'al' means - that one puts in a door.
2. 'Gadar' - that one puts up a wall.
3. 'Paratz' - that one demolishes part of an existing wall, creating a breach on the property (all signs of ownership).



(a) Shmuel and Levi included Shutaf ('ha'Shutfin') in our Mishnah, but not Uman ('ha'Umnin'), as we explained there. According to Shmuel - the Tana inserts Uman but not Shutaf, since 'Shutaf Yesh Lo Chazakah'.

(b) Shmuel follows his reasoning in another statement, where he adds that Shutfin can also testify for each other and that they are Shomrei Sachar on each other. When he says that they ...

1. ... can testify for each other, he means - that if the shared article is stolen whilst it is being used by one Shutaf, the other Shutaf may testify on his behalf (against the Ganav [and he is not considered biased, as we shall see later in the Sugya]).
2. ... are Shomrei Sachar on each other - that if the shared article is stolen whilst it is being used by one Shutaf, he is Chayav to pay his partner for his half of the article (what makes him a Shomer Sachar is the fact that his partner would likewise be Chayav if the article was stolen whilst *he* was using it.
(c) Rebbi Aba asked Rav Yehudah how Shmuel l could say this, seeing as elsewhere, he described a Shutaf as one who goes down to the field with permission. Rav Yehudah replied by drawing a distinction between a Shutaf who establishes a Chazakah on the entire field and one who establishes it only on half.

(d) The S'vara to say that he establishes a Chazakah on ...

1. ... the entire field (but not on half of it) is - because Shutfim tended either to take turns to eat the fruit on a yearly basis, or to divide the field, taking half each on an ongoing basis. Consequently, if one of them allowed the other to eat the fruit of the entire field for more than three years, the latter could claim to have established a Chazakah.
2. ... half the field (but not on all of it) - because Shutfim tended to take turns of three or four years. Consequently, had they decided to continue with the partnership on other terms, they would have shared the fruits each year, and not divided the field (substantiating the claim of Chazakah).
(a) Ravina establishes both statements of Shmuel when the Shutaf established the Chazakah on the entire field. His Chazakah will then not be valid - if the field is less than eight Amos by eight Amos (rendering it indivisible), in which case Shutfin tend to take turns of three or four years at a stretch, eating the fruits of the entire field (precluding the possibility of one of the Shutfim establishing a Chazakah on it).

(b) At the beginning of the Perek, we discussed a case where the Shifchah that Rami bar Chama and his brother Rav Ukva purchased worked alternate years for each one. That was not necessary according to Ravina however - seeing as a Shifchah is no different than a field that is not divisible.

(c) The reason that they did divide her in this way was - only for fear that, after three years, witnesses might not be aware of the fact that they had purchased her be'Shutfus.

(a) We cited Shmuel, who said 'Shutaf ke'Yored bi'Reshus Dami', which is equivalent to saying - 'Shutaf Yesh Lo Chazakah'.

(b) The reasons that he said this (and not 'Shutaf Yesh Lo Chazakah'), says Rav Nachman Amar Rabah bar Avuhah, is - to teach us that if a Shutaf plants crops in the shared field, he is entitled to take even the crops that have already ripened and are ready for picking like an Aris ...

(c) ... even in a field that is not supposed to have been planted.

(d) In a case where Reuven planted in Shimon's field without permission - he would have the underhand, to take whatever is less of the improvement or his expenses.

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