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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Basra 128

BAVA BASRA 126-128 - have been generously dedicated by Dick and Beverly Horowitz of Los Angeles, California. May they be blessed with a life of joy and much Nachas from their children and grandchildren.



(a) Rebbi Aba sent to Rav Yosef (bar Chama) that if Reuven accuses Shimon of stealing his Eved, and Shimon counters that he actually sold him to him, the latter is believed. We can reconcile this with the ruling in Chezkas ha'Batim 'ha'Godros Ein Lahem Chazakah' (in which case, the Eved ought to revert to Reuven) - by establishing the current ruling in one of three ways; either with regard to a Chezkas Shalosh Shanim (whereas the Sugya in Chezkas ha'Batim is referring to an immediate Chazakah).

(b) He also ruled that if Shimon were to have responded by offering Reuven the right to swear, there is nothing he could then do to stop him from doing so. What is particularly unusual about the case (besides the fact that one doesn't normally swear on Avadim under any circumstances) is - that aside from a few specific cases, it is normally the defendant who swears, not the claimant.

(c) The reason for Rebbi Aba's ruling is - because once Reuven offers Shimon the right to swear, it is as if he declared that he believes him under oath (and that Ne'emanus is not something from which he can retract).

(a) Rebbi Meir rules that if Reuven offers to accept the arbitrary decision of his own father, of Shimon's father or of three cowhands, in his dispute with Shimon, he can retract his offer. The Tana specifically refers to cowhands, and not to shepherds - because the latter (who allow their animals to graze in other people's fields) are considered Resha'im (as we learned in Bava Kama), whose decisions are unacceptable at any time (as opposed to either father ... , who is eligible to rule in cases that do not concern his children).

(b) The Chachamim rule - 'Eino Yachol La'chzor'.

(c) In spite of having learned the Mishnah of 'Ne'eman Alai Aba ... ', Rebbi Aba found it necessary to repeat the ruling in the case of 'Avdi Ganavta' - to teach us that the Machlokes Tana'im is confined to where the offer is made by the defendant (authorizing the claimant *to claim* with a Shevu'ah), and that the Halachah is like the Chachamim (despite the logistics of Rebbi Meir's opinion). But there where the offer is made by the claimant (for the defendant to be able *to keep on what he is already Muchzak*), even Rebbi Meir will concede that he cannot retract.

(a) Rebbi Aba sent to Rav Yosef 'Halachah Govin min ha'Avadim'. Rav Nachman said 'Ein Govin' (because he considers Avadim like Metaltelin).

(b) Rav Nachman ignores the Pasuk "ve'Hisnachaltem Osam lil'Veneichem ... ", comparing Avadim to Karka - on the grounds that our case (which depends on the extent of the creditor's reliance) is different than the other cases incorporated in the Torah's comparison (such as how they are acquired, whether one swears on them and whether they are subject to Ona'ah), which merely depends upon their status [which category they belong to], and not on somebody's Da'as.

(c) What makes this ruling of Rebbi Aba unique (of all the rulings that Rebbi Aba sent to Rav Yosef) is - the fact that it is the only one that is not Halachah (as we shall see later).

(a) He also sent him 'Shelishi be'Sheini Kasher', by which he meant - that if Reuven and Shimon are brothers, then one of their grandsons is permitted to testify in Beis-Din for or against the other one's son (and vice-versa) A Sheini however (a cousin), cannot testify for a Sheini.

(b) Rava adds 'Af be'Rishon' - meaning that Reuven's son for example, may even testify on behalf of Shimon (his uncle), whereas 'Mar bar Rav Ashi, Achshar be'Aba de'Aba' - permitting him to testify even on behalf of Reuven (his own grandfather).

(c) We do not rule like Mar bar Rav Ashi however - on account of the principle 'B'nei Banim Harei Hein ke'Banim' (one's grandchildren are, to a certain extent, considered like his children).

(a) Rebbi Aba send to Rav Yosef - that a witness who knew of testimony regarding someone's land, and then became blind, can no longer testify on his behalf.

(b) His testimony entails - identifying the boundaries of the field in question, which a neighbor stole by moving the boundary-posts.

(c) Nevertheless ...

1. ... Shmuel validates such a witness - because it is possible for him to give identifying marks at the edges of the other neighbors' fields.
2. ... Rav Sheishes validates him even to testify on a garment (which even Shmuel invalidates) - since he can identify it by specifying its length and breadth.
3. ... Rav Papa validates his testimony even on a lump of silver (which even Rav Sheishes invalidates) - since it is possible to give its weight.
(a) The Tana of a Beraisa rules that if Reuven knew testimony about Shimon ...
1. ... and then became his son-in-law, a deaf-mute or went crazy - he can no longer testify.
2. ... before becoming his son-in-law, a deaf-mute or went crazy, but now wants to testify after his daughter died, or after he recovered - he may.
(b) The Tana concludes with 'Zeh ha'Kelal' - which reads 'Kol she'Techilaso O Sofo be'Paslus, Pasul. Techilaso ve'Sofo be'Kashrus Kasher'.

(c) We cite this Beraisa to categorically prove Rebbi Aba right. We know that the Tana invalidates all the above cases, that Shmuel, Rav Sheishes and Rav Papa validated (even the case of Karka) - because otherwise, what would 'Zeh ha'Kelal' be coming to teach us?




(a) Rebbi Aba sent to Rav Yosef 'ha'Omer al Tinok Bein ha'Banim, Ne'eman; ve'Rebbi Yochanan Omer - Eino Ne'eman'.

(b) According to Abaye's initial interpretation, they are arguing over - whether a son may bequeath all his property to one of his children (Rebbi Aba, like Rebbi Yochanan ben Berokah) or not (Rebbi Yochanan, like the Rabbanan).

(c) Rava objects however to this interpretation, on the grounds - that Rebbi Aba should then have said 'Yirash' and Rebbi Yochanan, 'Lo Yirash'.

(d) So Rava concludes that they establish their case like that over which Rebbi Yehudah and the Rabbanan argue - whether a father is believed to declare one of his sons the Bechor, even when one of the other sons is already Muchzak, and they argue over whether the Halachah is like Rebbi Yehudah (Rebbi Aba) or the Rabbanan (Rebbi Yochanan).

(a) If one of the brothers is Muchzak as the Bechor and the father says nothing - he receives a double portion nonetheless.

(b) We know this - from the fact that Rebbi Yehudah says that a son whom the father declares the Bechor, is the Bechor, and not that a Bechor whom the father does not declare the Bechor, is not.

(a) Rebbi Aba sent to Rav Yosef 'ha'Omer Titol Ishti ke'Echad min ha'Banim, Ne'eman. Assuming that he is speaking about her receiving that amount ...
1. ... instead of her Kesuvah - he certainly cannot force her to accept that. In fact, he is speaking with her consent.
2. ... in addition to her Kesuvah, it speaks that he also made a Kinyan, in the event that he is giving her a Matnas Bari, but not if he was a Shechiv-Mera (whose words are considered final, even without a Kinyan).
(b) Rava confines Rebbi Aba's ruling to property that he owns at the time, but does not incorporate property that he obtained later. This does not necessarily mean that Rava does not rule like Rebbi Meir, who holds 'Adam Makneh Davar she'Lo Ba le'Olam') - because even Rebbi Meir will agree that in this case, where the man did not stipulate that he included property that he did not yet own, he does not mean to incorporate it in the gift.

(c) And when Rava concludes 'u've'Vanim ha'Ba'im le'Achar mi'Ka'an', assuming that between the time of his statement and the distribution after his death ...

1. ... more children are born - he included them in his statement, thereby reducing the amount that his wife will receive.
2. ... some of the existing children have died - this too, he had in mind with his statement, increasing his gift to her.
(d) The reason for this dual ruling is - that when the husband said 'Bein ha'Banim', he was obviously referring to the time of distribution, and automatically included whichever sons will be alive at that time.
(a) Rebbi Aba sent to Rav Yosef that in a case where Reuven produces a Sh'tar-Chov on Shimon, who claims that he has paid half, but where witnesses testify that he paid in full, Shimon must nevertheless pay half and swear on the rest - because of the principle 'Hoda'as Ba'al-Din, ke'Me'ah Eidim Dami', meaning that the admission of the defendant overrides any testimony to the contrary.

(b) Nevertheless, he concludes that Reuven may only claim from B'nei Chorin and not Meshubadim from the Lekuchos - because the initial ruling is acceptable vis-a-vis himself (since a person is able to obligate himself as much as he wishes), but not vis-a-vis a third person, who is entitled to accept the testimony of the witnesses.

(c) In addition, the Lekuchos can counter that the creditor and the debtor entered into a Kenunyah - collusion (a conspiracy to claim the purchased piece of land [even though the debt has already been paid] from him and share it between them).

(a) In a Beraisa in Bava Metzi'a, in a case where Reuven produces a Sh'tar-Chov on Shimon which contains 'Sela'im' or 'Dinrim', and claims from him five, whereas Shimon admits to three, Rebbi Shimon ben Elazar obligates the latter to pay three and swear on the rest. Rebbi Akiva - exempts him from a Shevu'ah, since he could have admitted to two Sela'im or Dinrim, seeing as (based on the principle 'Miy'ut Rabim, Shenayim') that is what is implied by the Sh'tar. Admitting to more, is akin to 'Meishiv Aveidah' (admitting that one found half of the amount that the loser claims to have lost, and which the Chachamim exempted from swearing, so as not to discourage people from returning lost articles).

(b) We establish Rebbi Aba (in the current case) even like Rebbi Akiva, who will not consider this case too, 'Meishiv Aveidah' (despite the fact that he could have agreed with the witnesses), to exempt him from a Shevu'ah - because in this case, where the witnesses only arrived after he had admitted to half the claim, we suspect that he was aware of the witnesses, but not quite sure whether they were coming to support him or to obligate him, he took the middle course and admitted to half.

(c) Mar bar Rav Ashi objected to Rebbi Aba's ruling however, on the grounds that - quite to the contrary, seeing as Shimon has witnesses on his side, even Rebbi Shimon ben Elazar will concede that he is exempt from a Shevu'ah, since he had the option to agree with them.

(d) In view of Rebbi Aba's S'vara, which we just presented, we do not even bother to reply to Mar bar Rav Ashi, ignoring his Kashya altogether.

(a) Mar Zutra in the name of Rav Shimi bar Ashi ruled that in all of the above cases, the Halachah is like Rebbi Aba. Ravina queried this from Rebbi Aba's dispute with Rav Nachman, where he ruled 'Govin min ha'Avadim' - because to rule like Rebbi Aba would contravene the principle 'Halachah ke'Rav Nachman'.

(b) Rav Ashi replied - that it is necessary to amend the text to read to 'Ein Govin. ve'Chein Amar Rav Nachman'.

(c) why Mar Zutra found it necessary to rule like Rebbi Aba. It is not be necessary to do so to preclude from ...

1. ... Rava, in the case of Shelishi be'Sheini (where Rava adds 'Af be'Rishon') - because he comes to add to Rebbi Aba's statement, not to argue with him.
2. ... Mar bar Rav Ashi there, who adds 'Af Aba de'Aba' - since he has already be disproved.
3. ... Shmuel, Rav Sheishes and Rav Papa, in the case of 'Hayah Yode'a be'Eidus ad she'Lo Nistama ... ', who argue in the cases of Karka, garment and silver respectively - for exactly the same reason.
(d) Even if, as we just suggested, Rebbi Aba agrees with Rava - it was necessary to rule by 'Shelishi be'Sheini' - to preclude from the opinion in Sanhedrin, which holds that he is Pasul. Neither can we infer from his ruling that a Shelishi be'Rishon is Pasul, because he may well have issued his ruling with regard to a case involving a Shelishi be'Sheini.
13) In fact, Mar Zutra's ruling like Rebbi Aba comes to preclude - from Rebbi Yochanan (who holds 'ha'Omer al Tinok Bein ha'Banim, Bechor Hu, Eino Ne'eman'), and from the Kashya of Mar bar Rav Ashi (that we just discussed).

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