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Bava Basra 45

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) We discussed earlier the ruling of Ravin bar Shmuel 'ha'Mocher Sadeh la'Chavero she'Lo be'Achryus Ein Me'id Lo Aleheh Mipnei she'Ma'amidah bi'Fenei Ba'al-Chovo'. He cannot be speaking when Shimon (the seller) owns other fields - because then there would be no reason for him to be prejudiced that the field remains in Levi's.

(b) On the other hand, even though Shmuel is speaking when the disputed field was his only property, Shimon nevertheless wants the disputed field to remain in the purchaser's possession - so that, should his creditor claim his debt, he will be able to claim the field from Levi, and not accuse him of being "a Loveh Rasha ve'Lo Yeshalem".

(c) Should the claimant win the case, on the other hand, Levi will not then be able to accuse Shimon of being "a Loveh Rasha ve'Lo Yeshalem" - because that is precisely why he sold him the field without Achrayus. Consequently, it is to his advantage that field remain with Levi, and not fall into the Reshus of the claimant.

(a) Rava (or Rav Papa) made an important announcement, which he wanted everyone to know. When he said 'de'Salkin le'Eila, u'de'Nachsin le'Tata', he meant - both those who go from Bavel to Eretz Yisrael and those who go from Eretz Yisrael to Bavel.

(b) He announced that if Reuven sold Shimon a donkey and a Nochri took it from him by force - Reuven is obligated to approach the Nochri with witnesses, and try and induce him to return it.

(c) This will only apply however, if the Nochri took the donkey but not the saddle - because this proves that his claim on the donkey was genuine (otherwise he would have taken the saddle too).

(d) The second condition that is required before Reuven is obligated to make the effort on behalf of Shimon is - that Shimon does not actually recognize the donkey as having belonged to him (Reuven), because if he did, then Reuven is absolved.

(a) Reuven will not be obligated to talk the Nochri into returning the donkey to Shimon if either the two conditions are not met - because then we assume the Nochri to have forced the donkey out of Shimon's Reshus unlawfully, in which case Reuven has no obligations to take any action on Shimon's behalf.

(b) If it had been a Yisrael who coerced Shimon into handing him the donkey, the Din would have differed - inasmuch as a Yisrael has no right to force anyone to give him his donkey, without taking him to Beis-Din. Consequently, Shimon should not have given it to him in the first place, and Reuven is absolved from taking any action.

(c) Ameimar disagrees with Rava. According to him - based on the Pasuk in Tehilim "Asher Pihem Diber Shav, vi'Yeminam Yemin Shaker", the Nochri's claim is discredited whatever the circumstances, and Reuven is under no obligation to reclaim the donkey on his behalf.

(a) We learned in our Mishnah that an Uman has no Chazakah. Rabah restricts this to where the owner handed the article with witnesses - where he is not believed to say that he purchased it, even if the article was not seen in his possession, because Rabah holds 'ha'Mafkid Eitzel Chavero be'Eidim Tzarich le'Par'o be'Eidim' (someone who is given a Pikadon with witnesses, must return it with witnesses [depriving him of a 'Migu' that he could have said that he returned the article]).

(b) If he claimed that he gave the article back in front of witnesses, who then left for overseas - he would be believed.

(c) He is not however believed, to say that he returned the article without witnesses since he could have claimed that he returned it in front of two witnesses who then went overseas - because (bearing in mind the definition of 'Migu' - that we believe the current claim, because if the defendant wanted to lie, he could have told a better lie), this cannot be considered 'a better lie', since when the witnesses later return and refute his claim, he will proved to be a liar ('Milsa de'Avidi Liglu'yi').

(a) If the article was handed over to him without witnesses, the Uman will be believed - because he has a 'Migu' to claim that he bought the article, since he could have denied it altogether.

(b) This concession will apply - even if witnesses saw the article in his possession, because he still has a 'Migu' that he could have denied having received it from him (but from someone else to whom the original owner had sold it in hi presence).

(c) Abaye asked Rabah why the 'Migu' was not applicable even if the owner handed the Uman the article with witnesses, to which Rabah replied with the principle - 'ha'Mafkid Eitzel Chavero be'Eidim Tzarich le'Par'o be'Eidim', whereas Abaye holds 'Ein Tzarich le'Par'o be'Eidim' (in which case the 'Migu will apply even if the Uman received the article with witnesses).




(a) In a case where Reuven queries the Uman about his Eved, whom witnesses find training with him, or his cloak which they spot with the laundryman, assuming that the latter replies ...
1. ... 'You gave him to me as a gift, the Beraisa rules - that *he is not believed*.
2. ... 'You asked Levi to give him/it to me as a gift, the Beraisa rules that he *is*.
(b) Even though, in the case of the cloak, the Tana is speaking about an immediate Chazakah, the case of the Eved must be speaking about one of three years - because otherwise, in view of the principle 'ha'Godros Ein Lahen Chazakah', why does the Tana present the case of an Uman (implying that someone other than an Uman would have a Chazakah)?

(c) Rava establishes the Seifa when they found the Eved or the cloak in the Reshus of Levi, from whom Reuven now claims it. The case is when the defendant claims that in his presence, Reuven instructed the Uman or the laundryman to hand him the Eved or the cloak as a gift.

(d) And he is believed - like any purchaser who is not an Uman (because of the 'Migu').

(a) The Reisha however, presents the case of 'Ra'ah'. Assuming that there were witnesses who saw that the article was handed over for repairs, Rava now asks on Rabah from the Reisha, 'Ra'ah Avdo be'Yad Uman ... Lo Amar K'lum' - why the Tana needs to say 'Ra'ah', considering that Rabah holds 'ha'Mafkid Eitzel Chavero be'Eidim, Tzarich le'Par'o be'Eidim' (even if he did not see the article by the Uman)?

(b) Rava tries to extrapolate from this - that the Tana must be speaking when there are no witnesses, and that nevertheless the Uman is not believed with a 'Migu' once the owner has seen the article by him, like Metaltelin that one tends to lend or hire out (on which one cannot establish a Chazakah) ...

(c) ... a Kashya on Rabah, who maintains that even Ra'ah is believed unless there are witnesses too.

(d) Rabah answers - that the Beraisa is speaking when there are both witnesses and he saw the article by the Uman/laundryman (in which case he can neither claim to have bought it nor that he returned it). And although earlier, Rabah had maintained that witnesses alone were sufficient reason to break his 'Migu', he now retracted from that view.

(a) Rabah and Abaye now argue exclusively - whether 'Ra'ah' has the same Din as articles that one tends to end or rent out, on which one cannot establish a Chazakah (Abaye), or not (Rabah).

(b) In a case where the Uman claims that Reuven fixed a price of two Zuz to repair his cloak, whereas Reuven counters that he promised him only one, the Tana rules that as long as the Uman still has the cloak in his possession - he is believed ...

(c) ... with a 'Migu', because he could have claimed that he bought the cloak).

(d) If the dispute arises after the Uman has already returned it - then 'Toch Zemano' the Uman is believed with a Shevu'ah, but le'Achar Zemano, he will have to prove his claim ('ha'Motzi me'Chavero Alav ha'Re'ayah').

(a) In spite of the principle 'Ein Nishba'in ve'Notlin', the Tana rules in the case of 'Toch Zemano' - that the Uman swears and takes, because the owner is too busy paying all his employees to remember exactly which one he has paid and which ones he hasn't (so Chazal switched the Shevu'ah from the defendant to the claimant).

(b) The reason that the Uman is believed is because he has a 'Migu' (because he could have claimed that he bought the cloak). Rava attempts to prove Rabah's viewpoint from there - based on the current assumption that they saw the article by the Uman, yet the Uman is believed with a 'Migu' (like Rabah).

(c) We refute the proof however - by establishing the Beraisa when there were neither witnesses who saw the article handed over for repairs, nor are there witnesses who subsequently saw it in the Uman's Reshus.

(a) Rav Nachman bar Yitzchak extrapolates from our Mishnah 'Uman Ein Li Chazakah' - that anyone other than an Uman does have a Chazakah.

(b) The Beraisa cannot be speaking when Reuven handed the article to the Uman with witnesses - because, then, seeing as there are witnesses that the owner handed it to him for repairs, and in addition, we assume (as we shall see shortly), that it was subsequently seen by the Uman, it is obvious that the Uman would not be believed, any more than an Aris or an Apotropus.

(c) Rava finally proves Rabah wrong from there - because we see that on the basis of 'Ra'ah' alone, the Uman is not believed.

(d) Neither can we refute this proof by establishing the Mishnah when the article was not seen in the Reshus of the Uman - because then even an Uman would be unanimously believed, as we learned earlier.

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