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Bava Basra 106

BAVA BASRA 101-108 - Sponsored by a generous grant from an anonymous donor. Kollel Iyun Hadaf is indebted to him for his encouragement and support and prays that Hashem will repay him in kind.



(a) In a case where Reuven sells Shimon a Beis Kur 'be'Simanav u'vi'Metzarav', our Mishnah rules Pachos mi'Shetus Higi'o, ad Sh'tus Yenakeh'. Thirty Kabin comprise a sixth, in a field of a Kur (four times as much as a Rova ha'Kav le'Beis-Sa'ah.

(b) The reason for this is - because having shown the purchaser the borders of the field, it is as if he stipulated that the sale is valid as is. On the other hand, it must be close to the Beis-Kur that he stipulated. So Chazal (based on their assessment of how much a person tends to be Mochel) struck the balance in this way.

(c) This ruling can have nothing to do with the Din of Ona'ah - because of the principle 'Ein Ona'ah le'Karka'os.

(d) Its source is - a Takanas Chachamim, based on the Chachamim's assessment of how much a person tends to be Mochel (as we just explained).

(a) The Seifa of the Mishnah 'ad Sh'tus, Yenakeh' means - that if the discrepancy concerns more than a sixth less than what Reuven promised Shimon, then the latter deducts the balance from the payment (whereas if it is more than a sixth more, then he must return Reuven the balance).

(b) Rav Huna says 'Sh'tus ke'Pachos mi'Sh'tus', and the purchaser must accept the sale. Rav Yehudah holds - 'Sh'tus ke'Yoser mi'Sh'tus'.

(c) Based on the Seifa of the Mishnah ('ad Sh'tus Yenakeh'), the basis of their Machlokes is - whether we hold 'ad ve'ad bi'Chelal' (Rav Huna) or 'ad ve'Lo ad bi'Chelal' (Rav Yehudah).

(a) The Beraisa repeats the Lashon of our Mishnah, but adds (' ... O Hosir Sh'tus, Harei Hu ke'Shum ha'Dayanim'). If the Beis-Din erred by exactly a sixth - their ruling is disqualified as if they had erred by more than a sixth ...

(b) ... a Kashya on Rav Huna, who equates the Din of a sixth with that of less than a sixth.

(c) Rav Huna counters the above Kashya - by reminding us that the Beraisa concludes 'Higi'o', whereas the comparison of Sh'tus to Yoser mi'Shetus by Shum ha'Dayanim concerns Bitul Mekach (the negation of their ruling). Consequently, the comparison of Sh'tus in our case must be to Pachos mi'Shetus.

(d) So Rav Huna establishes the author of the Beraisa - as Raban Shimon ben Gamliel, who rules in Kesuvos that Beis-Din's assessment is final even if they erred to the tune of a Sh'tus, because of the S'vara 'Mah Ko'ach Beis-Din Yafeh' (one cannot limit the power of Beis-Din). And the Beraisa is in fact, referring to both Sh'tus and Pachos mi'Shetus.

(a) If as Rav Huna just explained, the author of the Beraisa is Raban Shimon ben Gamliel, and 'Sh'tus ke'Pachos mi'Shetus' - the original Kashya will now have turned into a Kashya against Rav Yehudah.

(b) Rav Yehudah however, counters this by re-establishing the Beraisa the author as the Chachamim of Raban Shimon ben Gamliel). He therefore ...

1. ... interprets 'ke'Shum ha'Dayanim' to mean - that by Sh'tus, like Sh'tus of Shum ha'Dayanim, there is no Mechilah.
2. ... qualify 'ke'Shum ha'Dayanim', by limiting it to that fact, but when it comes to the crunch, Shum ha'Dayanim entails Bitul Mekach, whereas in the case of the Beraisa, the sale is valid, only the one must pay the other the sixth.
(c) Alternatively, we might interpret 'Ela ke'Shum ha'Dayanim ve'Lo ke'Shum ha'Dayanim' according to Rav Huna (who is pointing out that if Sh'tus ke'Yoser mi'Shetus, like the Makshan asked, then the Tana should have said 'Yenakeh', and not 'Higi'o', like we explained). In that case, the Tana says 'ke'Shum ha'Dayanim - only with respect to the Shiur of error of a sale 'be'Simanav u'vi'Metzarav', which is one sixth (thirty Kabin per Kur), as opposed to a regular sale, where the Shiur of error is seven and a half Kabin per Kur.



(a) A man told Rav Papa, that the field he was selling him measured twenty Sa'ah. The actual measurements of the field were - fifteen Sa'ah.

(b) Abaye ruled - that, despite the fact that that the discrepancy was more than a sixth, the sale was final, due to the fact that Rav Papa had thought it over and accepted it.

(c) This case differed from 'be'Simanav u'vi'Metzarav' in our Mishnah - inasmuch as Rav Papa was aware from the outset that the field measured only fifteen Sa'ah.

(a) Rav Papa queried Abaye's ruling - on the grounds that the owner did not know the field's measurements, and that he only mentioned twenty Sa'ah to because it was his intention that, if it measured less, either to give him the balance, or to deduct from the price.

(b) Abaye overruled his objection however - by countering that the owner really did know the true size of the field, and he only said twenty to boost his sale (as if to say that it was as good as another field of twenty Sa'ah), in the way that salesmen tend to do.

(a) If brothers divide their inheritance by drawing lots - it is not necessary to then make a Kinyan in order to actually acquire their respective portions, because the property already belongs to them, and the lots only serve to clarify which portion each one will receive.

(b) Rebbi Yossi says in a Beraisa 'ha'Achin she'Chalku, Keyvan she'Alah Goral le'Echad Meihen, Kanu Kulam'. We are speaking - when the portions have already been divided into equal portions.

(c) Assuming that there were ...

1. ... only two brothers to begin with - when the one acquires his portion through lots, his brother automatically acquires the remaining portion.
2. ... three brothers to begin with - when the one acquires his portion through lots, the other two acquire the remaining two portions between them, to divide them when and as they see fit.
(d) The ramifications of this ruling are - that none of the brothers are permitted to retract from whatever they have at that moment (something which they *were* able to do before the first brother lots).
(a) The source Rebbi Elazar cites for Rebbi Yossi's ruling is - the distribution of Eretz Yisrael in the time of Yehoshua, which was apportioned by lots.

(b) In addition however, to inherit Eretz Yisrael also required - a box and the Urim ve'Tumim (the Choshen Mishpat, with Names of Hashem inside the folds).

(c) Despite the fact that our source is the inheritance of Eretz Yisrael, these two are not required by brothers or partners dividing their land, explains Rav Ashi - because the deal is clinched instead by the pleasure that each brother derives from the mutual trust from one to the other (in return for which he is Makneh each brother his portion as if the Urim ve'Tumim was present).

(a) According to Rav, if a third brother arrives from overseas after the first two brothers have divided their inheritance of Karka, the original division is considered invalid, and they divide their property afresh - unlike the previous ruling (where, as soon as the first brother acquires his portion, the remaining brothers automatically acquire theirs) - because whereas there, the first brother only took what was his, the two brothers here (albeit in error) took more than their due.

(b) Shmuel holds - 'Mekamtzin', meaning that each brother deducts a third of what he received (e.g. one out of his three fields), and gives it to the third brother without the need to redistribute the property.

(a) Rava remarked to Rav Nachman that Rav holds 'Hadar Dina' - which means that if some of the partners or brothers divide the property without the con sent of the others, their transaction is invalid.

(b) When he asked him why it does not then follow, that if two out of three brothers went and divided the joint property into three portions in front of Beis-Din, the division is also considered invalid. To which Rav Nachman replied - that there the division would be valid, because they initially divided the property into three portions (in which case, the division stands), unlike in the case of Rav, where they initially divided it into only two portions instead of three.

(c) To effect such a division would require - only a Beis-Din of Hedyotos (laymen [i.e. any three Kasher Jews]).

(a) Rav Papa remarked to Abaye that Shmuel, who rules 'Mekamtzin', holds 'Kam Dina', which means - that if some of the partners or brothers divide the property, even without the consent of the others, their transaction is valid.

(b) This seems to clash with Shmuel's other ruling (discussed earlier) 'Kur bi'Sheloshim Ani Mocher Lach, Yachol la'Chezor Bo Afilu be'Sa'ah Acharonah' inasmuch as - there too, we ought to apply 'Kam Dina' (and declare the transaction valid Sa'ah by Sa'ah, as he pours it into his jars).

(c) We reconcile that ruling with Shmuel's current one - by ascribing it to a Takanas Chachamim which is to the advantage of both parties; the purchaser is happy to be able to retract in the event that the price of the goods drops, whereas the seller is pleased with the chance to retract in the event that the price rises.

(a) Nevertheless, Shmuel concluded 'Kur bi'Sheloshim Sa'ah be'Sela Ani Mocher Lach, Rishon Rishon Kanah' - because there, the purchaser acquires each Sa'ah with Meshichah, finalizing the deal.

(b) Shmuel's basic S'vara in the Reisha will not apply here by the division of the brothers - because here, the opposite is true, that brothers and partners prefer to divide the property as quickly as possible, like the old saying goes 'The pot belonging to partners does not get hot and does not get cold' (but remains lukewarm).

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