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Bava Basra 70

BAVA BASRA 70 - Sponsored by Rabbi Kenny Cohen of Yerushalayim, in honor of his Rebbi, Rabbi Gedalya Rabinowitz.



(a) Rav Acha bar Huna asked Rav Sheishes whether, when the seller declared 'Chutz mi'Cheruv P'loni' or 'Chutz mi'Sadan P'loni', the purchaser acquires all other carob or sycamore trees, or whether it is only the one he specified that he does not acquire. Rav Acha is referring to - 'Ch'ruv ha'Murkav ve'Sadan ha'Shikmah.'

(b) Rav Sheishes replied - 'Lo Kanah' (that he does not acquire any of them).

(c) Considering that the seller specified only one field, the logic behind Rav Sheishes ruling is - the fact that a Ch'ruv ha'Murkav and a Sadan ha'Shikmah are not sold anyway, so why should that change just because of his stipulation.

(d) Nevertheless, he chose to specify that particular tree ...

1. ... according to Rebbi Akiva (who holds Mocher be'Ayin Yafah Hu Mocher) - in order to retain a path to get to it.
2. ... according to the Rabbanan (who hold Mocher be'Ayin Ra'ah Hu Mocher) - in order to reinforce his rights on it (in the way that we explained on the previous Amud).
(a) Rav Acha queried Rav Sheishes however, from the Beraisa which says, in the same case, 'Lo Kanah', which he interpreted to mean that he did not acquire that Charuv, but that he did acquire all the other carob-trees in the field (a Kashya on Rav Sheishes).

(b) To which Rav Sheishes replied - that 'Lo Kanah' extended to the other carob-trees in the field, too.

(c) He proved his answer from a case of someone who sold his field, stipulating 'Chutz mi'Sadeh P'lonis' - where it is obvious that he did sell him all his other fields. In our case too, a Ch'ruv ha'Murkav and a Sadan ha'Shikmah are considered as separate fields (like we explained earlier).

(d) The underlying S'vara behind both cases is - that if Reuven sells Shimon one field and then acts stupidly by (unnecessarily) precluding another of his fields from the sale, he is not going to sell him all his other fields, on the basis of the one that he stupidly precluded (though this seems to clash with the respective S'varos that we gave earlier according to Rebbi Akiva and the Rabbanan).

(a) Some texts read (in Rav Sheishes' answer) 'Ela li'Demei, Hachi Nami li'Demei' which means - that when Reuven said 'Chutz mi'Sadeh P'lonis' or 'Chutz mi'Cheruv' or 'mi'Sadan P'loni', he meant to deduct from the field that he was selling him an area to the value of that specified field or tree.

(b) In the second Lashon, even Rav Acha bar Huna took for granted that in the case of 'Chutz mi'Cheruv P'loni, Chutz mi'Sadan P'loni', the seller has not sold all his other fields, and the She'eilah he asked was whether, if he said 'Chutz mi'Chatzi Ch'ruv P'loni ... ', he meant to include the other half of the Ch'ruv or the Sadan in the sale, or whether it too, was precluded, like the other trees were.

(c) To which Rav Sheishes replied 'Lo Kanah' (like he did in the first Lashon).

(d) When the Beraisa says (with regard to the same case) 'Sha'ar Charuvin Lo Kanah' - the Tana means to incorporate the other half of the tree that he precluded from the sale.

(a) Rav Amram asked Rav Chisda whether, in a case where Reuven deposited something by Shimon with a Sh'tar, he is believed if he claims that he had returned it. He might ...
1. ... be believed, because of a 'Migu' - that he could have claimed that the article was lost, broke or died be'O'nes (in which case, he would have been believed with a Shevu'ah).
2. ... not be believed (in spite of the 'Migu') - because the owner can claim 'Sh'tarcha be'Yadi Mai Ba'i' (What is your Sh'tar doing with me? You should have taken it back when you paid?) And this is similar to a 'Migu be'Makom Eidim'.
(b) Even though Shimon is believed in spite of the Sh'tar, the Sh'tar serves - to counter Shimon, should he claim 'Lo ha'Dam' ('Lo Hayu ha'Devarim me'Olam'), denying that he ever received the Pikadon.

(c) There is no point in calling the witnesses and asking them whether his claim is true - because we ruled in the previous Perek 'ha'Mafkid es Chavero be'Eidim, Eino Tzarich le'Par'o be'Eidim'.

(a) Shimon counters Reuven's claim 'Sh'tarcha be'Yadi Mai Ba'i' - with the argument that had he claimed 'Ne'ensu', he would have been believed, despite the fact that Reuven was holding the Sh'tar.

(b) The fact that Shimon did not ask for the Sh'tar back when he purportedly returned the article is not a proof that he did not return it - due to the combination that a. it sometimes happens that the owner claims that he has lost the Sh'tar (in which case the trustee cannot get it), and b. the trustee is not worried about this in the knowledge that he will always be able to say that an O'nes occurred, and be believed, Sh'tar or no Sh'tar.

(c) A debtor, by the same token, is not believed when he claims that he paid - because seeing as he cannot exempt himself by claiming 'Ne'ensu', when paying his debt, he has no business to leave the Sh'tar with the creditor, (and is therefore not believed when he claims that he paid).

(d) The apparent problem with the 'Migu' that had Shimon claimed 'Ne'ensu, he would have had to swear (as the Torah writes in Mishpatim "Shevu'as Hashem Tih'yeh Bein Sh'neihem"), is no problem at all - because in our case too, Shimon is only believed with a Shevu'ah.




(a) The Daynei Golah and the Daynei Eretz Yisrael argue in a Beraisa (see Rashash) about a Sh'tar Kis that Reuven produces against Shimon's Yesomim. We already learned that the Daynei Golah are Shmuel and Karna; the Daynei Eretz Yisrael are - Rebbi Ami and Rebbi Asi.

(b) The Din of a Sh'tar Kis is determined by the ruling of the Neherda'i (in Bava Metzi'a) - that an Iska (where Reuven makes a deal with Shimon, whereby he provides the cash which Shimon goes on to invest in goods, and they share the profits. A Sh'tar Kis is the Sh'tar that Shimon gives Reuven upon receipt of the money.

(c) The significance of the Neherdai's ruling that Iska is half a loan and half a Pikadon is - that Reuven bears responsibility for the half that is a Pikadon (should any sort of O'nes occur), whilst Shimon accepts responsibility for the half that is a loan.

(d) The significance of Reuven's oath (bearing in mind that it normally the defendant who swears) is - based on the principle that one cannot claim from Yesomim without a Shevu'ah.

(a) In the current case, the Yesomim claim - that their father may have (or that he did) return the Pikadon.

(b) We know that the Yosemite's father did not specifically inform his sons that the Pikadon had not been returned - only because the Yesomim are obligated to swear to that effect?

(c) If Reuven had produced a Sh'tar-Chov against them, both would have agreed that Reuven would swear and claim his debt. And that is what the Daynei Golah hold in this case. The Daynei Eretz Yisrael however rule - that he swears and claims half (the half that is a loan).

(d) We suggest that Rav Chisda who just believed the trustee in spite of the Sh'tar held by the owner - follows the opinion of the Daynei Eretz Yisrael.

(a) We conclude however, that even the Daynei Golah would concede to Rav Chisda that, in a case that did not involve Yesomim, the trustee is believed. What makes a case which does involve Yesomim different - is the fact that, had their father paid, he would have informed them of the fact before his death.

(b) The Daynei Eretz Yisrael counter this argument however, by pointing out - that death may have overcome him before he had a chance to do so.

(a) Rav Huna bar Avin issued two rulings a. 'ha'Mafkid Eitzel Chavero bi'Sh'tar, ve'Amar Lo Hechzartiv Lach Ne'eman', and b. 'Sh'tar Kis ha'Yotzei al ha'Yesomim Nishba ve'Govah ha'Kol'. 'Tarti'? means - that the two statements are an apparent contradiction.

(b) We resolve the problem - in exactly the same way as we did to reconcile Rav Chisda with the Daynei Golah (by differentiating between a regular case of trustee, and one which involves Yesomim).

(a) Rava rules (in the above Machlokes) - 'Nishba ve'Govah Mechtzah' (like the Daynei Eretz Yisrael).

(b) Mar Zutra, who rules like the Daynei Golah, reconciles his ruling with that of Rava - by pointing out that he learned the opinions of the Daynei Golah and the Daynei Eretz Yisrael in the reverse.

(c) And in the Sugya in Shevu'os, where, in order to clarify a certain issue there, Rami bar Chama establishes the Halachah that even those who hold 'ha'Malveh es Chavero be'Eidim, Ein Tzarich le'Par'o be'Eidim' concede that 'ha'Malveh es Chavero bi'Sh'tar, Tzarich le'Par'o bi'Sh'tar', Rava's silence is not an indication of admission, as is evident from our Sugya, where he rules like Rav Chisda (and the opinion of Rami bar Chama remains his own). Alternatively, we do not remain with the outcome there, which equates Rava with Rami bar Chama.

(d) Ravina and Rav Ashi inserts the previous Sugya (beginning with Rav Amram's She'eilah of 'ha'Mafkid es Chavero bi'Sh'tar') in this Perek - because of the opinion of the Daynei Golah, which occurred in the previous Sugya (and who are otherwise rarely quoted).

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