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Kollel Iyun Hadaf, Jerusalem

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Bava Basra 63

BAVA BASRA 61-67 - This week's study material has been dedicated by Mrs. Rita Grunberger of Queens, N.Y., in loving memory of her husband, Reb Yitzchok Yakov ben Eliyahu Grunberger. Irving Grunberger helped many people quietly in an unassuming manner and is dearly missed by all who knew him. His Yahrzeit is 10 Sivan.



(a) It is obvious that if Reuven says 'Yachlok P'loni bi'Nechasai' the recipient receives half his property. When Reuven says that - he is either a Sh'chiv-Mera (on his death-bed) or a healthy person, distributing his property.

(b) Not so obvious is the Din in a case where Reuven says 'T'nu Cheilek li'Peloni'. Besides possibly a half, Cheilek might mean - a portion (which Beis-Din would then have to assess).

(c) Initially, we reconcile this with the Beraisa 'T'nu Cheilek li'Peloni bi'Nechasai', Yirash im ha'Banim' - by establishing our case when the donor has no sons (because it is only when he has sons that we assume the Cheilek of the stranger to be a small portion. When he has none, perhaps it means half).

(d) True, there are other heirs (because every Yisrael has relatives) - but still, one tends to be less concerned about other heirs than about one's own sons.

(a) One of the alternative explanations is that the Amora'im who asked the Kashya and Ravina bar Kisi, who gave he answer, were not aware of that Beraisa (even assuming that we are speaking when the donor has children). Bearing in mind that we will now cite Sumchus to resolve the She'eilah, they might even have known of the Beraisa, but declined to cite it - because the author is the Rabbanan of Sumchus, and we rule like Sumchus (though many commmentaries disagree with this explanation).

(b) Ravina bar Kisi cites the Beraisa 'ha'Omer T'nu Cheilek li'Peloni be'Bor, Ein Pachos me'Revi'a'. The Tana is speaking about a water-pit (see Rabeunu Gershom), although some establish it by a wine-pit.

(c) Sumchus, the author of this Beraisa, issues this ruling - in keeping with his own ruling in Bava Kama 'Mamon ha'Mutal be'Safek, Cholkin'. 'Ein Pachos me'Revi'a' implies - a little more than a quarter of the pit, because the Safek here, is not whether the recipient receives a half or nothing, but a half or a small portion (e.g. a P'rutah's-worth).

(d) Sumchus continues 'le'Chavis, Ein Pachos mi'Sheminis'. The significance of the eighth is - that a barrel would normally hold half the water in the pit (so the quarter of the pit of the previous case becomes an eighth).

(a) Sumchus rules that if the donor said 'for the pot', the recipient will not receive less than a twelfth (a quarter of a third of the pit) - because Chazal knew that a third of the pit was generally needed for the pot.

(b) And if he said 'li'Tefi'ach', he concludes, the recipient receives not less than a sixteenth (a quarter of a quarter). A Tefia'ch - is a small earthenware vessel used for drinking.

(c) According to some commentaries, Sumchus Shiurim are based on the Chachamim's assessment of what the donor probably meant to give.

(a) The Beraisa states that if Levi sells a field to a Yisrael on condition that he receives the Ma'aser each year - his condition is valid, and the purchaser is obligated to give him all the Ma'aser each year.

(b) If the purchaser sells the field - nothing changes, because the seller only sold the rights that he owned, but not the Levi's (which were not his to sell).

(c) His son will inherit this rights - only if he made a stipulation to that effect, but not otherwise.

(d) The Tana rules that if the Levi stipulates that the Ma'aser is his only as long as the field is in the purchaser's jurisdiction - then should the purchaser subseqently sell the field and buy it back, the Levi no longer has any rights to the field (because the second purchaser purchased the rights of Ma'aser with his purchase, and he sold them to the first purchaser together with the field).

(a) We query this Beraisa however, on the grounds - that the Ma'aser is a 'Davar she'Lo Ba Le'olam' (seeing as the field has yet to be plowed, let alone sown), and we have a principle that one cannot acquire a 'Davar she'Lo Bo Le'olam' (something that is not yet in the world).

(b) We answer - that seeing as the Levi made a stipulation, he obviously wants it to take effect. So we assume that he held back the small portion of land sufficient to separate Ma'aser from it (and the land is already be'Olam [though this is very difficult to understand, since no land is specified, and to rely on the land from which the Ma'aser will later be separated would be a question of 'Bereirah']).

(c) Resh Lakish extrapolates from this Beraisa - that if someone sells a house on condition that the top storey (i.e. the roof including a Ma'akeh) remains his, his condition stands.

(d) The basis of his Chidush (the details of which we are about to discuss) is - the fact that as far as using the roof is concerned, we already learned in our Mishnah that the roof is not included in the sale (and no stipulatoom is therefore required).




(a) Rav Zvid explains Resh Lakish (who, based on the Beraisa, validates the seller's condition that the roof including a Ma'akeh remains his, as we just explained) to mean that if he wants to fix ledges that jut out over the purchaser's Chatzer, he may. If not for the condition - this would not have been included in his rights.

(b) In the event that the seller dies - this right does not extend to his children, unless he stipulates to the contrary (as we learned above with regard to Ma'aser).

(c) According to Rav Papa, the condition does not permit the seller to fix ledges that jut out over the purchaser's Chatzer. What it does achieve is - to permit him to rebuild the roof should it collapse.

(d) The Mishnah in Bava Metzi'a, which permits the owner of the roof to rebuild it should it cave in, even without any conditions - speaks about two partners who divided their joint house, one taking the downstairs apartment, the other, the upstairs. In that case, it is understood that the owner of the upstairs apartment receives the same permanent rights as the owner of the downstairs one.

(a) Rav Zvid disagrees with Rav Papa (which is basically the smaller Chidush, as we shall see shortly) - on the grounds that the seller initially thinks of the immediate benefit of fixing ledges to his roof, but not of the possible eventuality that his roof might cave in.

(b) The problem with Rav Papa's interpretation of Resh Lakish's Chidush is - what it has to do with the Beraisa of Ma'aser (from which Resh Lakish extrapolated it), since the Beraisa refers to the seller holding back *space* for himself (a Chidush with which Rav Papa's interpretation of Resh Lakish tallies), and not *time* (as *he* explains Resh Lakish).

(c) Even without Resh Lakish, we would have known Rav Papa's Chidush - from Rebbi Akiva in the following Mishnah, from whom we learn that every stipulation comes to add something (incorporating a time extension). An extension of space, it seems, we would not have known without the Beraisa, as Resh Lakish teaches us according to Rav Zvid's interpretation).

(d) We are not able to answer the Kashya on Rav Papa.

(a) According to Rav Dimi from Neherda'a, if Reuven sells Shimon a house and he specifically includes 'Umka ve'Ruma' ...
1. ... 'Umka' incorporates - the ground itself vis-a-vis digging pits underneath his house.
2. ... 'Ruma' incorporates - the roof even if it has a Ma'akeh of ten Tefachim, as well as the air above the roof, entitling him to build more floors should he so wish.
(b) According to Rav Dimi, if he wants to include a Bor and a Dus, he must add - 'mi'Tehom Rabah ad Rum Raki'a', because they serve a completely different purpose than the house itself (as we have already explained), and are therefore mot even included in 'Umka ve'Ruma'.

(c) This Lashon also includes - Mechilos (tunnels).

(a) We refute the proof from the next Mishnah 've'Lo es ha'Bor ve'Lo es ha'Dus, Af-al-Pi she'Kasav Lo Umka ve'Ruma', by establishing the Mishnah when he did not write Umka ve'Ruma in the Sh'tar. When the Tana writes 'Af-al-Pi she'Kasav Lo ... ', he means - that it is not necessary to actually write it, because it is as if he actually wrote it.

(b) 'Umka ve'Ruma' will then come to include - Bor va'Dus u'Mechilos.

(a) We again try and prove Rav Dimi right from our Mishnah 've'Lo es ha'Gag bi'Zeman she'Yesh Lo Ma'akeh Gavohah Asarah Tefachim', because, if we assumed that one acquires Umka ve'Ruma (including the roof) automatically - why would the fact that the roof had a Ma'akeh of ten Tefachim make any difference?

(b) If on the other hand, one does not acquire Umka ve'Ruma automatically (like Rav Dimi), there is no problem with the fact that the purchaser nevertheless acquires the roof-space when there is no Ma'akeh - because it would be Batel to the house (just like an attic).

(c) We refute this proof too however - on the grounds that a roof with a Ma'akeh might be different, inasmuch as it is Chashuv, and can therefore be considered a separate entity, even if a roof without a Ma'akeh is considered part of the house.

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