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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Basra 43

BAVA BASRA 43 - 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) The problem with Shmuel's statement permitting one Shutaf to testify for the other is - that he is prejudiced, seeing as, should his friend lose the case, the loss will affect his too.

(b) To solve the problem, we establish Shmuel when the second Shutaf declared 'Din u'Devarim Ein Li al Sadeh Zu'. We might equally well have answered - that he actually presented him his half with a Kinyan (only this is a bigger Chidush).

(c) The Beraisa states that if someone withdraws from a field that is already his (using the above Lashon or one that is similar) - the field remains his (because one cannot withdraw from something that he already owns).

(d) This Lashon would however, be effective - if he used it to withdraw from something that he had a right to claim but did not yet own.

(a) We cannot answer that 'Ein Li Din ... ' (in the future tense) is not effective because he did not say 'Lo Yehei Li Din ... ' - because this is not a conventional Lashon used by Chazal.

(b) We know for sure that this is correct - because the Sugya does not use this answer to resolve the problem.

(c) Even after we answer that his declaration 'Din u'Devarim ... ' was accompanied with a Kinyan, a problem remains, as we learn from a statement by Ravin bar Shmuel quoting his father, who said that someone who sells a field without Achrayus - cannot testify on his behalf (to establish it in his possession).

(d) The reason for this is - because (on the assumption that he himself does not own any other fields) he offers his creditor the opportunity of claiming his debt, which he would otherwise have lost (rendering him [the Shutaf] a wicked man who fails to pay his debts).

(a) So we establish the Beraisa when the Shutaf accepted Achrayus. This cannot be referring to general Achrayus for claimants even not directly connected with him (e.g. who claim that the field was originally their father's or theirs) - because then, he is certainly interested to ensure that his Shutaf retains the field, since otherwise, he will come back to him to be reimbursed.

(b) We must therefore be referring to - Achrayus concerning claims that emanate from him (such as his creditor claiming his debt), which is no longer a case of 'Ma'amido bi'Fenei Ba'al-Chovo, seeing as either way, he will not be paying somebody, and will therefore be branded a 'Loveh Rasha ve'Lo Yeshalem' (whether his Shutaf wins his case or not).

(c) The Beraisa rules that the Dayanim and the people of a town in which a Sefer-Torah was stolen - cannot judge or testify in the case if the Ganav is found.

(d) We do not allow those concerned to withdraw from their rights with a Kinyan - because we suspect a Kenunya (collusion [that they are only withdrawing temporarily in order to establish the Sefer-Torah in the hands of the Ganav, and once the case against the Ganav is closed, they will negate their withdrawal]).

(a) The problem this Beraisa posed on our Mishnah (according to the way we interpreted it) is - why we do not permit potential Dayanim and witnesses to withdraw from their rights with a Kinyan like we do in our Mishnah (where we are not worried about Kenunya).

(b) And we reconcile the two Tana'im by establishing the Beraisa specifically by a Sefer-Torah which is different - because seeing as everyone is obligated to hear Keri'as ha'Torah, nobody has the right to withdraw from their rights in it (see Maharam).

(c) We ask the same Kashya with regard to local Dayanim or residents deciding how to spend the Manah that someone donated towards the town's communal needs. Besides withdrawing from his rights - a potential Dayan or witness would be able to donate his portion of the Manah towards those needs.

(d) We reconcile this Beraisa with our Mishnah however - by establishing it too, by money that was donated specifically towards the purchase of a Sefer-Torah.

(a) We ask the same Kashya from yet another Beraisa regarding a case where someone donated a Manah to the poor people of the city. Initially, we answer the Kashya 'Aniyim Shakli, Dayni Mifseli' (If the poor receive the money, why should the Dayanim be invalidated) - by establishing the case where it is those poor who cannot judge or testify.

(b) We answer the Kashya that cuts through the Sugya 'Let some of the people withdraw from their municipal rights with a Kinyan and judge or testify' - by establishing this Beraisa too by a Sefer-Torah (and the reason the Tana speaks about the poor is because without a Sefer-Torah, everybody is poor).

(c) Alternatively, we interpret 'Aniyim' literally. And to answer the Kashya that we asked earlier 'Aniyim Shakli, Dayni Mifseli' - we establish the Beraisa by poor people whom the community are obligated to support (in which case the community is prejudiced).

(d) We might establish this when the amount each Ani receives is not fixed. But we might even establish it when it is (where we at first assumed that they could donate that amount and no longer be prejudiced) - because the Dayanim are nevertheless interested for the poor to receive the extra Manah, since once there is sufficient money in the kitty, why should they need to give more (see Maharam)?




(a) The problem with Shmuel, who rules that Shutfin are Shomrei Sachar for each other is why it is not a case of Shemirah be'Ba'alim - like a case of 'Sh'mor Li ve'Eshmor Lach', where the employer is working for the Shomer at the time when the latter first starts working for him.

(b) Rav Papa solves the problem - by establishing the case when one Shutaf looks after the field today and the other one, tomorrow (see Rashash).

(c) Shmuel's Chidush is - that they are Shomrei Sachar and not Shomrei Chinam.

(d) We might have thought otherwise - because seeing as each Shutaf must anyway look after his own half, the fact that he also looks after his friend's half (which he does without extra effort) does not render him a Shomer Sachar (though this is extremely difficult to understand, seeing as his friend certainly benefits from not having to look after his half today, and he will benefit when his friend looks after his half tomorrow, so why should he be anything but a Shomer Sachar).

(a) The Beraisa rules that if Reuven sells Shimon a house or a field, and Levi claims that it is his - Reuven *is not permitted* to testify (together with a second witness) on behalf of Shimon.

(b) In an equivalent case, but where Reuven sold Shimon a cow or a cloak (Metaltelin), the Tana rules - that he *is*.

(c) The reason the Tana gives for the distinction between the two cases is - because in the case of the house or the field (Karka), Reuven accepted Achrayus (responsibility should the property turn out to be Meshubad to a creditor or simply not his), wherever in the case of the cow, he did not.

(d) The problem with this is - on what grounds the Tana draws a distinction between Karka and Metaltelin, when it is possible to accept Achrayus by Metaltelin, and not to accept it by Karka.

(a) Rav Sheishes therefore establishes the Reisha by a case where Reuven stole a house or a field from Shimon and sold it to Levi, when along came Yehudah and claimed that the field belonged to him. Shimon is not permitted to testify on behalf of Levi (that Yehudah is a Ganav) - because we suspect that he is prejudiced (since Levi might be an easier character to deal with than Yehudah).

(b) Nor will it make any difference even if Shimon was Meya'esh from the field (in which case there has been Ye'ush and Shinuy Reshus) - because of the principle 'Karka Einah Nigzeles'. Consequently, there is no such thing as Shinuy Reshus by Karka.

(c) The Tana's words 'Mipnei she'Achrayuso Alav' now mean - that ultimately, the owner (Shimon) will have to go to the purchaser (Levi) to retrieve his property (which renders him prejudiced).

(d) In spite of having testified that the property belongs to Levi, prejudice apart, Shimon would later be able to claim that the field was his - if his testimony was worded in a way that merely stated that it did not belong to Yehudah.

(a) We have already explained that Shimon might prefer his property to be in Levi's hands than in Yehudah's, because Yehudah is a tougher character to deal with than Levi. Alternatively, he might prefer to deal with Levi - because he knows that both he and Yehudah have two witnesses to prove their ownership. Consequently, should Yehudah win his case against Levi, then, when Shimon opens a claim against him, he knows that the land will remains where it is. It will therefore be to his advantage if the property lands with Levi, from whom he will later be able to claim it with witnesses who saw Reuven steal it.

(b) The testimony that Shimon would testify to place the property in the hands of Levi is - either that Yehudah's witnesses are Pasul, or that Yehudah admitted in his presence that the property belonged to Levi (though it is unclear why he could not achieve the same result if Yehudah won the case against Levi).

(c) Yehudah will not be able to reclaim the property from Shimon after the latter wins it from Levi - for the same reason as Shimon had to win it from Levi before it fell into the hands of Yehudah (i.e. the principle that when there are two witnessess against two witnessess, the property remains where it is.

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