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Kollel Iyun Hadaf, Jerusalem

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Bava Basra 64

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) We already cited the Machlokes between Rav Z'vid and Rav Papa whether, according to Resh Lakish, 'al-M'nas she'ha'Deyuta ha'Elyonah she'Li' comes to permit the owner to fix ledges, or to build another floor. According to Rav Dimi from Neherda'a (who maintains that S'tama, the purchaser does not acquire Umka ve'Ruma) - why does the second of these two opinions (that of Rav Papa) require the owner to stipulate 'al-M'nas ... ', in order to retain the roof, since it belongs to him anyway?

(b) To reconcile Rav Papa with Rav Dimi, we establish that he speaks with regard (not to building a new floor, but) - to rebuilding the roof should it cave in (which he would otherwise not have been permitted to do).

(a) We have already dealt with our Mishnah 've'Lo es ha'Bor ve'Lo es ha'Dus, Af-al-Pi she'Kasav Lo Umka ve'Ruma'. The Mishnah then cites Rebbi Akiva, who requires the seller to purchase a path to his Bor va'Dus - because he holds that a seller sells generously (though this will be queried in the Sugya).

(b) The Rabbanan hold - that this is not necessary (because, in their opinion, someone who sells, sells begrudgingly, retaining whatever he needs for himself).

(c) In a case where the seller specifically precludes the Bor and the Dus from the sale, Rebbi Akiva says - that this includes a path to his pit, which he no longer needs to buy from the purchaser.

3) They also argue over what the Din will be with regard to whether the purchaser needs to buy a path from him.
1. Rebbi Akiva - does not require him to do so (because here too, he holds that the seller sold generously).
2. The Rabbanan - do (because here too, they hold that the seller sold begrudgingly).
(a) What distinguishes a Dus from a Bor is - the fact that the latter is walled.

(b) This is what Rabah Tosfa'ah told Ravina, and what Mar Keshisha B'rei de'Rav Chisda told Rav Ashi. They both quoted - a Beraisa that makes this distinction

(c) The Tana needs to mention them both, because, had he only mentioned that the sale does not include ...

1. ... a Bor, we might have thought that a Dus *is* included, because it is a Building like the house.
2. ... a Dus, we might ascribed that to the fact that a Dus is Chashuv, and is considered an independant entity, but that a Bor is Bateil to the house.



(a) In Chezkas ha'Batim, in a case where someone sells trees that are growing in his field, but retains the field itself, we assumed that, according to the Rabbanan, the purchaser does not even acquire the land underneath the trees. According to Rebbi Akiva, we assume - that he does.

(b) The basis of their Machlokes is - whether a seller sells generously (Rebbi Akiva) or not (the Rabbanan), and its ramifications are - whether, should the tree die, he may plant another one in its place.

(c) The source for their opinions cannot be our Mishnah, where their bone of contention might be - whether on the one hand, a purchaser doesn't pay good money for others to walk on his property (Rebbi Akiva); or whether it is not the purchaser who loses anything, but the seller, who doesn't sell his property on the understanding that he has to fly to his pit (the Rabbanan).

(a) We then suggest that the source of their Machlokes must then be the Seifa of our Mishnah (whether or not, the purchaser of the pit needs to buy a path) on the grounds - that Rebbi Akiva does not hold of the S'vara of the Rabbanan (that a person doesn't pay money in order to have to fly to his Chatzer, which this time would work in favor of the purchaser), and the Rabbanan do not hold of the S'vara of Rebbi Akiva (that a person doesn't want others waking through his land, which would work on behalf of the seller). Consequently, their Machlokes must be based on whether a seller sells generously or begrudgingly.

(b) We refute this suggestion too however, on the grounds - that both Tana'im might well hold of both S'varos. However, Rebbi Akiva always goes after the purchaser (because a person does not spend his money for something that is worthless), whereas the Rabbanan go after the seller, following the principle (Yad Ba'al ha'Sh'tar al ha'Tachtonah [since he is the one who is Motzi]).

(c) If that is so, then, in the case of Chezkas ha'Batim (when Reuven purchases trees in Shimon's field) - both Tana'im might hold that he has acquired the land in which the trees grow, and they might hold that he has not.

(a) So we cite the Mishnah later, where the Tana rules, with regard to someone who sells a field 'Lo es ha'Bor ve'Lo es ha'Gas ve'Lo es ha'Shovach ... '. the 'Bor' there refers to - a water-pit, from which they would water the field.

(b) Rebbi Akiva rules there that the owner must nevertheless purchase a path to get to his pit and to his wine-press. It is obvious that the basis of their Machlokes there cannot be exactly the same as that of the house. Initially we establish it - by whether a seller sells generously or begrudgingly.

(c) We conclude however, that maybe the basis of their Machlokes is indeed the same as in our Mishnah (like we just explained), but that the Tana found it necessary to present it both in the case of a house and in that of a field. Had he taught us Rebbi Akiva's Din in the case of ...

1. ... a house, we would not have applied it to a field - because, in the former case, we might have based the purchaser's objection on the discreet nature of a house ('Mishum Tzeni'usa' [which is simply not applicable to a field]).
2. ... a field, we would not have applied it to a house - because there we might have ascribed his objection to the fact that walking through a field causes a certain amount of damage ('de'Kashi Lei Davsha'), which is not the case by a house.
(d) Both of these Chidushim go according to Rebbi Akiva. We could equally well have said - that the Rabbanan argue with Rebbi Akiva in the case of a house only because walking there causes no damage (but in a field, where it does perhaps they will agree with him), or that they argue in the case of a field, because it is not subject to Tzeni'us ... .
(a) In the Seifa there, Rebbi Akiva concludes that if the owner of the field sold the pit or the wine-press ... to someone else, the purchaser does not need to acquire a path either. The Rabbanan - require him to do so.

(b) The basis of their Machlokes is - whether a seller sells generously (Rebbi Akiva) or begrudgingly (the Rabbanan), even in cases where the other S'varos do not apply, such as the case in Chezkas ha'Batim.

(c) We do not refute this proof too, and establish that both Rebbi Akiva and the Rabbanan hold of both S'varos even in the case of a field, and that Rebbi Akiva always goes after the purchaser, whereas the Rabbanan go after the seller - because this is something that we already know from the Reisha (our current Mishnah).

(d) Nor can we counter that the Seifa is needed to teach us that the Rabbanan contend with the seller's argument of 'de'Kashi Lei Davsha' (like Rebbi Akiva holds in the Reisha) - because it is clear by now that the Rabbanan and Rebbi Akiva do not dispute each other's S'varos, only whether we go after the seller or the purchaser.

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