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Bava Basra 44

BAVA BASRA 44-55 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for the Torah and for those who study it.



(a) Rav Sheishes just established the Beraisa currently under discussion, when Yehudah claimed that property which Reuven stole from Shimon and sold to Levi, belonged to him, and where Shimon is then not believed to testify on behalf of Levi. The Tana could have presented the case in a shorter form - by eliminating Levi altogether, and stating that Shimon is not believed to testify on behalf of Reuven the Ganav (to prevent the property falling into the hands of Yehudah.

(b) In that case, instead of 'Mipnei she'Achrayuso Alav' he ought have written - 'Mipnei she'Achrayuso shel Nigzal Aleih de'Gazlan'?

(c) He mentioned Levi - because of the Seifa 'Machar Lo Parah, Machar Lo Talis ... ', where Shimon is only permitted to testify on behalf of Levi, because the latter acquired the article from Reuven with Ye'ush and Shinuy Reshus, thereby severing Shimon's rights to the article and removing his prejudice. Note, that this answers our original Kashya on the Tana's distinction between the Reisha and the Seifa.

(d) Shimon was heard to be Meya'esh - already before Reuven sold it to Levi (since according to some opinions, Ye'ush after Shinuy Reshus is not Koneh, whereas Ye'ush first and then Shinuy Reshus are Koneh according to everyone.

(a) We query the above answer however. When we ask ' ... mi'D'meih Mi Meya'esh', we mean - that even though Shimon was Meya'esh from his cow or cloak (which Levi may therefore now keep), he was certainly not Meya'esh from the money that Reuven owes him for stealing it. Consequently, he remains prejudiced that Levi wins his case, because if Yehudah does, he will lose his right to claim the money from Reuven.

(b) We therefore establish the Beraisa when the Gazlan died. This answers the Kashya, because, like the Mishnah says in Bava Kama 'ha'Gozel u'Ma'achil es Banav ve'Hini'ach Lifneihem - Peturim mi'Leshalem' (seeing as they acquire the object with Ye'ush and Shinuy Reshus).

(a) The problem with the Beraisa (based on the fact that the Tana must in any event be talking about where the Gazlan died) then is - why do we then need to establish the case when Reuven (the Gazlan) sold the field to Levi, let Levi be Reuven's son.

(b) Why cannot answer that the Tana holds 'Reshus Yoresh La'av ki'Reshus Loke'ach Dami' (i.e. entering the domain of an heir is not considered a Shinuy Reshus as is entering that of a purchaser) - because of the opinion among Amora'im) which holds 'Reshus Yoresh ki'Reshus Loke'ach Dami'.

(c) In addition Abaye has a problem with the Lashon of the Beraisa 'Mipnei she'Achrayuso Alav' and ... 'Ein Achrayuso Alav'. The Tana should rather have said - 'Mipnei She'Hi Chozeres Lo' and ' ... Ein Chozeres Lo'.

(d) Abaye's problem is based on our interpretation of 'Achrayuso Alav' - that Levi the purchaser, is destined to retrieve the property from Yehudah, whereas Acharayus generally refers to the obligations of the seller, and not to the purchaser at all.

(a) We therefore retract from the current interpretation of our Mishnah - despite the fact that it is Halachah.

(b) Instead, we establish the Beraisa like Ravin bar Shmuel quoting his father (whom we quoted and explained on the previous Daf ) 'ha'Mocher Sadeh la'Chavero she'Lo be'Achrayus Ein Me'id Lo Alehah Mipnei she'Ma'amido bi'Fenei Ba'al-Chovo' (which we established when Shimon sold the property without Achrayus). This pertains specifically to a house or a field however, but not to a cow or a cloak - because the Metaltelin of a debtor are not Meshubad to his creditor.

(c) When the debtor writes in the Sh'tar Chov that the creditor may claim 'even the shirt on his back', he is referring to - Metaltelin that he did not sell.

(a) The basis for this distinction between Karka and Metaltelin lies in the fact that Karka has a Kol (everyone knows that the debtor's Karka is Meshubad, and potential buyers can protect themselves when purchasing property), whereas Metaltelin does not (and for fear of a creditor claiming them, people will desist from purchasing Metaltelin).

(b) Neither does the Tana include Metaltelin in the Reisha, in a case where the debtor declared them an Apotiki (designated for the creditor to claim) - because even there, the creditor cannot claim them, as we shall now see.




(a) Rava states that, regarding Reuven's creditor claiming an Apotiki which Reuven subsequently sold, if that Apotiki is ...
1. ... an Eved - he may claim it.
2. ... an ox or a donkey - he may not.
(b) The difference is based on the fact - that although Karka have a Kol, Metaltelin, even when they are Meshubad, are not.
(a) We ask that, even by a cow and a cloak, Shimon should not be permitted to testify on behalf of Levi, based on a statement by Rabah, who says - that if a debtor is Makneh Metaltelin together with Karka to the creditor, even in the form of a Shibud - the Kinyan is valid and the Metaltelin become Meshubad.

(b) The debtor would have to stipulate - that in the event of his failure to pay within the prescribed time, the creditor will have the right to claim the property from whoever purchased it from the debtor.

(c) Such a transaction would not be effective with Metaltelin alone, even if he acquired them with a Kinyan Sudar - because every case of 'de'I' (in the event that ...) does not acquire by Metaltelin (because of the principle 'Asmachta Lo Kanya', a principle which does not apply by Karka).

(d) According to Rav Chisda, the debtor needs to add 'de'Lo ke'Asmachta (which this resembles [even though we are talking about Karka], seeing as it is only a Shibud), ve'Lo ke'Tufsa di'Sh'tara', which means - the blueprint of a Sh'tar, containing the basic text ( from which the Sofrim would copy other documents).

(a) The Kashya on the Beraisa now is, that Shimon should not be permitted to testify on behalf of Levi even by a cow and a cloak, according to Rabah - seeing as he may have been Meshabed them together with Karka, in which case, the prejudice that applies to Karka (which we dealt with earlier) will apply no less to Metaltelin.

(b) We answer - that the Tana is speaking when Shimon sold the Metaltelin the moment he bought them, in which case he could not possibly have taken out a loan and declared them an Apotiki in between.

(c) We query this however, and ask 've'Lichush Dilma de'Ikni Amar Leih', which means - that we ought to suspect that he may have been Meshabed them together with Karka even before he purchased them.

(d) We try to prove from here - that 'de'Ikni Kanah u'Machar' or 'de'Ikni Kanah ve'Horish' is not valid (thereby resolving the She'eilah asked in 'Get Pashut' whether 'de'Ikni' is valid or not).

(a) We refute the previous proof however - by establishing the Beraisa when witnesses testify that Shimon never owned any Karka (together with which he might have been Meshabed the cow or the cloak). Note, that it is no longer necessary to establish that he bought and sold the cow immediately.

(b) The witnesses can only be absolutely certain that what they are saying is true - if they also testify that Shimon was with them from the day that he was born until then, and that they therefore know first hand that he never purchased or received any Karka during that time (Rabeinu Chananel).

(a) We query the current explanation of the Beriasa (Ravin bar Shmuel Amar Shmuel) from a statement of Rav Papa, who states with regard to someone sells something without Achrayus - that even though the purchaser has no claim in the event that the seller's creditor claims from him, this will not be the case should the article be found not to have belonged to him in the first place.

(b) This would pose a Kashya on the Beraisa, which permits Shimon to testify on behalf of Levi, on the basis of his having sold it to him without Achrayus - despite the fact that the cow was subsequently discovered not to have belonged to him in the first place.

(c) According to Rav Papa, we establish the Beraisa - when Levi acknowledges before witnesses that the cow or the cloak belonged to Shimon, and not to Reuven.

(d) Rav Z'vid disagrees with Rav Papa. According to him - if someone sells something without Achrayus, then the purchaser has no claim on the seller, even if the article is found not to have belonged to the him in the first place.

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