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Kollel Iyun Hadaf, Jerusalem

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Bava Basra 54

BAVA BASRA 54 - in memory of Harry Bernard Zuckerman, Baruch Hersh ben Yitzchak (and Miryam Toba), by his children and sons-in-law.



(a) Rebbi Yirmiyah Bira'ah Amar Rav Yehudah rules that if someone throws turnip seeds into the cracks of land of Nechsei ha'Ger - he does not acquire it ...

(b) ... even if the turnips eventually grow successfully - since that is not the result of his efforts, but of natural causes.

(c) Neither is it comparable to someone who ...

1. ... digs the earth in Nechsei ha'Ger, or lets in some water - who at least improved the field, which *he* did not.
2. ... spreading mats in Nechsei ha'Ger and lying on them - because the latter at least benefitted directly from the field, which he did not.
(d) Nor does he acquire the field when he eats the fruit that grows there - because although that serves as proof of ownership (to replace the lost Sh'tar), it does not constitute a Kinyan.
(a) Shmuel rules that someone who cuts off some of the branches of a date-palm of Nechsei ha'Ger will acquire it - if he does so in order to prune the tree, but not if his intention is to gather foliage to feed his animals.

(b) We will know what his intentions are at the time when he cut off the branches - by the way he cuts them; whether he cuts off branches from both sides of the tree (for pruning) or only from one side (for fodder for his animals).

(c) If he cut off branches from both sides of the tree, even though it is possible that he intended to feed his animals - we assume that, in order to acquire the field, he had in mind to prune the tree (something that we cannot say when he cut off all the branches from one side, because nobody prunes that way).

(a) In the case where he cut off all the branches from one side, he will not acquire the date-palm anyway, (because despite his intentions), he improved it - since, as we learned earlier, a person requires Da'as before he can acquire anything (even assuming he made a Ma'aseh Kinyan [because a Ma'aseh without Da'as is not calld a Ma'aseh]).

(b) Nor will it help to declare that he intends to acquire it with the cutting of the branches - because, he did not perform a Ma'aseh Kinyan (and this can be compared to someone who walks in the street and declares that he intends to acquire such and such a field).

(c) Shmuel also rules that someone who sweeps a field of Nechsei ha'Ger -acquires it if he intended to prepare the field for plowing, but not if he was merely collecting the twigs for firewood.

(d) We will know what his intentions were - by the way he sweeps; if he collects all the twigs, big and small, then his intention may well be to prepare the land (and he will acquire it, as we just explained; whereas if he takes the big ones and leaves the small ones, he is definitely collecting firewood.

(a) In similar fashion, Shmuel differentiates between someone who clears a field of Nechsei ha'Ger of obstacles. If he is not doing it to improve the field (to prevent his plow from getting damaged) - he might be doing it to prepare a threshing-barn.

(b) We will know which of the two objectives he has in mind - by whether he flattens the field, by filling in the pits with the contents of the mounds (in which case he might well be intending to plow); or whether he rearranges the mounds, flattening them slightly and making them more square and less steep, and doing the same with the pits (thereby creating many flat areas, but at different levels, that are fit to use as granaries, but not for plowing).

(c) The fact that he clears the field of obstacles for after he finishes with the threshing, will not enable him to acquire the field - since his system of mounds and pits spoils the field as far as plowing is concerned and will need to be reversed when he finishes with the threshing. Consequently, what he did was a Kilkul, and not a Tikun.

(d) He will indeed acquire Nechsei ha'Ger, even if he clears the field to form mounds and pits - if, when setting-up the granary, he intends to change the field into a permanent granary, and not to change it back into a crop-producing field.

(a) In similar fashion again, Shmuel differentiates between someone who lets water into a field of Nechsei ha'Ger in order to water the field and someone who does it to catch fish. Here too, we will know what his intentions were - by the way he does it, whether he also digs an outlet for the water (in which case, his intention is definitely to catch fish), or not (in which case he might want to water the field, in addition to catching fish).

(b) All these rulings of Shmuel are not confined to acquiring Nechsei ha'Ger - but extend to the acquisition of gifts, sales and brothers who divide their property.

(c) A certain woman ate Gezel ha'Ger 'be'Tafshicha' for thirteen years, meaning - that she cut all the branches from one side of the tree (in order to feed her animals).

(d) When a man came and dug at the foot of the tree, Levi (or Mar Ukva) ruled - that he had in fact, acquired it. and that is the Halachah (as we ruled earlier, that one cannot acquire Nechsei ha'Ger by cutting off the twigs from one side of the date-palm.

(a) Rav rules that someone who paints a picture on Nechsei ha'Ger - acquires it.

(b) In fact, we derive this ruling (not from a statement of his, but) - from a garden beside the Beis-Hamedrash, which had once belonged to a Nochri, and which Rav acquired in this way.

(c) The difference between this case and that of Siyud ve'Kiyud that we discussed earlier is - that the picture here, such as that of an animal, is more prominent (than the plastering or minor pictures of flowers and such-like), and therefore does not need to be an Amah square or opposite the entrance of the house.

(d) According to Rav Huna Amar Rav, someone who digs one spadeful in Nechsei ha'Ger - that has borders, acquires the entire field.

(a) According to Shmuel - the person who digs a spadeful in Nechsei ha'Ger only acquires the area that he dug.

(b) This ruling of Shmuel - is confined to Nechsei ha'Ger, but not to where Reuven buys a field from Shimon, where we have already learned, one even acquires ten fields in ten different parts of the world by means of a Kinyan on one of them.

(c) The Halachah is like Rav (in spite of the principle 'Hilchesa ki'Shmuel be'Diyna' [that we rule like Shmuel in money-matters]) - because later in the Sugya, Rav Nachman issues a ruling based on Rav's opinion.

(d) To acquire a field which has no borders - a pair of oxen would need to plow across the entire field and to return (meaning that they plow two furrows). This is according to Rav, because, according to Shmuel, if one does acquire more than the area that one digs in a field with borders, how much more so a field without borders.




(a) When Rav Yehudah Amar Shmuel refers to the property of an Akum as 'ka'Midbar', he means - that they are Hefker, and that whoever establishes ownership of them, may keep them.

(b) The reason for this is based on the difference between the Kinyan of a Yisrael - which is not finalized until the purchaser recieves a Sh'tar or makes a Kinyan Chazakah [as we explained earlier]) and that of an Akum - who acquires with Kesef alone.

(c) Consequently - the moment the Nochri receives payment for his property, the field leaves his Reshus, but it does not enter the Reshus of the Yisrael until he receives a Sh'tar or makes a Chazakah. In the interim, the field is Hefker, and anyone who acquires it with Chazakah may keep it.

(a) The Machzik is not justified in acquiring the field in question. Once someone has paid money for a field, anyone who acquires it earns himself the title 'Rasha', much like the case (cited in Kidushin) of 'a poor man who is turning over a cake' (and somebody else grabs it first).

(b) Although some are of the opinion that the Machzik is obligated to reimburse the purchaser for his loss - the words 'Harei Hein ka'Midbar' belie this. It is up to the purchaser himself to claim reimbursement from the Nochri who sold it to him, if he can.

(a) It is incorrect to suggest that, when purchasing land from a Nochri, one acquires the moment one pays - because if, when acquiring from a Yisrael, a Sh'tar is required before the Kinyan can be finalized, then how much more so when purchasing from a Nochri. This is because, since most Nochrim are Anasim (land thieves), one will certainly not consider the sale final before receiving a Sh'tar Mechirah.

(b) The same ruling does not apply to a Yisrael who purchases from a Yisrael. If Shimon pays Reuven immediately for the field that he sold him, Levi cannot acquire the field - because since money does not acquire without a Sh'tar (from the point of view of the seller as well as the purchaser), the field remains the seller's until he supplies the purchaser with the Sh'tar.

(c) Abaye raised an objection to Shmuel's ruling from a statement by Shmuel himself, who taught the principle 'Diyna de'Malchusa Diyna' ...

(d) ... and here too, the Persians legislated that a purchaser of land only acquires it when he receives the document of sale (in which case, a field that a Jew purchases from a Nochri, should be no different than one which he purchased from a fellow-Jew.

(a) Rav Yosef refuted Abaye's objection by citing an incident that took place 'be'Dura di'Re'usa' - which, besides possibly being a place-name, might also mean - village of shepherds ...

(b) ... where a Jew paid for the field that he purchased from a Nochri, but where, before he received the Sh'tar, another Jew dug in the field, and Rav Yehudah established him as the owner.

(c) Rav Yehudah's ruling has a direct bearing on Shmuel's opinion, since most of Rav Yehudah's rulings emanated from Shmuel (whose close disciple he was).

(d) Abaye however, rejects this proof - because, he claimed, Rav Yehudah's reason there was not because the field was Hefker, but because the residents of that particular area (including the seller in our incident) were lax in paying their land taxes, and the King had decreed that whoever paid the tax would acquire the land (and the Machzik had undertaken to do just that).

(a) Rabeinu Chananel does not rule like Shmuel, but like Abaye, who has the last word in our Sugya. We disagree with Rabeinu Chananel however - on the basis of Rav Nachman, who, as we shall see shortly, follows Shmuel's ruling (and we always follow Rav Nachman's opinion in money-matters). In addition, many Amora'im agree with Rav Nachman, as we shall see there.

(b) Evidently, Rav Yosef did not agree with Abaye's version of the incident. He was most certainly aware of Shmuel's ruling 'Diyna de'Malchusa Diyna' ...

(c) ... yet, when Abaye asked him the apparent contradiction between Shmuel's two statements, he did not resolve the discrepancy (even adding that he didn't know about that) - because he preferred to cite the incident (presumably, based on the principle 'Ma'aseh Rav' ['an incident lends weight to a ruling']).

(a) When, after Rav Huna had paid a Nochri for a certain field, a third person came and dug there - Rav Nachman established the field to be the Machzik's.

(b) Rav Huna objected on the grounds - that he should then have also ruled like Shmuel's other ruling, confining the Machzik's Kinyan to the area that he dug.

(c) He did not cite Shmuel's other ruling Diyna de'Malchusa Diyna), like Abaye - because, like Rav Yosef, he maintained that Shmuel also said 'Nechsei Akum Harei Hein ka'Midbar'.

(d) When Rav Huna queried him from Shmuel's earlier ruling (regarding only acquiring the area of the spade-full where he dug) - Rav Nachman retorted that, with regard to that issue, he agreed with the opinion of Rav, who rules that the Machzik acquires the entire field (as cited by Rav Huna himself).

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