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Kollel Iyun Hadaf, Jerusalem

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Bava Basra 157



(a) Our Mishnah discusses a case where a house fell on Reuven and his father Ya'akov, or on Reuven and his Morishin - his next of kin other than his father (e.g. his paternal uncle, or his brothers).

(b) The bone of contention between Ya'akov's heirs and Reuven's wife or creditor (based on the fact that Reuven left nothing of his own) is - who died first; Reuven (in which case, the father's heirs inherit everything, and Reuven's creditors have no claim); or Ya'akov (in which case, Reuven too, inherits part of Ya'akov's property, to which they now have rights).

(c) When Beis Hillel say 'Nechasim be'Chezkasan' - they mean in the Chazakah of the father's heirs, who are considered heirs either way (and not to Reuven's creditors, who only inherit in the event that Ya'akov died first (and we have a principle 'Ein Safek Motzi Midei Vaday').

(d) Beis Shamai argue (and say 'Yachloku') - on the basis of their own opinion elsewhere, that if someone has a Kasher Sh'tar, it is as if he had already claimed it in Beis-Din, in which case, the property is as much in the Chazakah of the creditors as of the heirs.

(a) The Mishnah in 'Get Pashut' teaches - that the creditor may claim a Milveh bi'Sh'tar from Meshubadim (from the purchaser), but not a Milveh al Peh.

(b) The reason for this distinction - lies in the fact that where there is a Sh'tar, there is a Kol, which enables the would-be purchaser to make the necessary inquiries and spare himself a loss. In the case of a Milveh al Peh on the other, where there is no Kol, the purchaser would be helpless, if the creditor was able to claim from him.

(c) In the case of a Milveh bi'Sh'tar, the creditor may claim from the Lekuchos, even if Acharayus was not inserted in the Sh'tar - because creditors expects this form of insurance against loss, and the omission is therefore an error on the part of the Sofer.

(d) The creditor may not however, claim from Meshubadim, if there are B'nei Chorin available.

(a) Shmuel asks whether 'de'Ikni ve'Kanah' is included in the Shibud, by which he means to ask - whether property that the debtor subsequently purchases and then sells is included in the Shibud, should the debtor stipulate it?

(b) Shmuel's She'eilah is not relevant according to Rebbi Meir - because if one can acquire something that is not yet in the world, one can certainly place a Shibud on it.

(c) His She'eilah, according to the Rabbanan, is - whether, even though one cannot sell something that is not yet in the world, he can at least place a Shibud on it.

(d) A Shibud might be different than a Kinyan in this regard - either because the land was already in the world, even though he did not yet own it, or because the Rabbanan strengthened the Shibud of the creditor, so that people should be assured of retrieving their loans and therefore be willing to lend money to the poor (a Takanah known as 'Ne'ilas Delles', which describes what it prevents).

(a) The Mishnah in Kesuvos discusses a case where Reuven produces a Sh'tar-Chov against Shimon, and Shimon counters this by producing a Sh'tar that Reuven sold him a field. His argument is - that if as Reuven claims, he (Shimon) still owes him money, why did he sell him a field, instead of claiming the money directly to pay his debt?

(b) Admon accepts Shimon's argument. The Chachamim counter - that, on the contrary, Reuven was smart in landing Shimon a field which he is now able to claim in lieu of his debt.

(c) Rav Yosef tries to prove from the Chachamim that 'de'Ikni' is Meshubad (seeing as Shimon purchased the field after the loan took place). Rava however, refutes this proof - on the grounds that it is obvious that the creditor can claim from the debtor himself (just like he can claim even 'the shirt on his back', which is Metaltelin). Our She'eilah concerns claiming from the Purchaser, which remains a She'eilah.

(d) Besides claiming a (later) field from the *Lekuchos*, the She'eilah also incorporates - claiming a later field from the *heirs*.

(a) Rav Chana tries to resolve our She'eilah from the case of 'Naflah ha'Bayis Alav ve'al Aviv' in our Mishnah, where the father died first - and where the creditor now claims from the son, property which he inherited from his father (which he did not own at the time of the loan), a clear proof that 'de'Ikni ve'Kanah, Mishtabed'.

(b) Rav Nachman refutes the proof, quoting Ze'ira Chavrin, who points out that our Mishnah is referring specifically to Yorshin, on whom there lies a Mitzvah to pay their father's debts (even without having written 'de'Ikni' in the Sh'tar). By Lekuchos, on the other hand, it is still possible to hold 'de'Ikni ve'Kamah, Lo Mishtabed'.

(c) Rav Ashi refutes this however, by quoting a statement of Rav and Shmuel, who rule - that the creditor cannot claim a Milveh al Peh from the Yorshin, as well as from the Lekuchos.

(d) And this case pertains to a Milveh al Peh - since the property was only acquired later, and was therefore not included in the Sh'tar.

(a) We cannot answer that we do not hold like Rav and Shmuel - since it was Shmuel who posed the She'eilah in the first place, and if 'de'Ikni' is not Meshubad, he will be faced with a Kashya based on his own statement.

(b) We reconcile Shmuel's She'eilah with our Mishnah - by establishing the author of the Mishnah as Rebbi Meir (who holds 'Adam Makneh Davar she'Lo Ba le'Olam'), whilst Shmuel asked his She'eilah according to the Rabbanan, as we explained earlier.




(a) We have learned in the Mishnah in Shevi'is 'Sh'tarei-Chov ha'Mukdamin, Pesulin, ve'ha'Me'ucharin Kesheirin'. A Sh'tar-Chov ...
1. ... Mukdam' is - a Sh'tar-Chov that is pre-dated, either retroactively at the time of the loan, or because it was written before the loan took place.
2. ... Me'uchar' is - a Sh'tar-Chov that is post-dated, either at the time of the loan, or because it was only written later.
(b) The former is Pasul - because the Lekuchos, who will purchase land from the debtor without being aware of the as yet undocumented loan, have no way of safeguarding themselves from the creditor.

(c) Rav Ya'akov from Nehar Pakud in the name of Ravina tries to prove from the fact that a Sh'tar-Chov Me'uchar is Kasher - that de'Ikni Kanah u'Machar, de'Ikni Kanah u'Mishtabed' must be Kasher.

(d) We refute Ravina's proof too - by establishing the author of the Mishnah in Shevi'is as Rebbi Meir.

(a) According to Rebbi Meir, if they did not insert ...
1. ... Achrayus in the Sh'tar at all - the creditor cannot claim from Meshubadim.
2. ... 'de'Ikni' in a Sh'tar-Chov Me'uchar - the Sh'tar is Pasul (like our Kashya).
(b) We did not ask from this case on Shmuel - because it is uncommon to insert Achrayus in a Sh'tar in halves (i.e. general Shibud, but not 'de'Ikni').
(a) The Mishnah in Gitin discusses Sh'vach Karka'os - which is the improvements that a purchaser made in a field before the seller's creditor claimed it, and which the purchaser then reclaims from the seller.

(b) The Beraisa rules - that he may claim a. the Keren from Meshubadim, and b. the Sh'vach, only from B'nei-Chorin.

(c) Rav Mesharshaya in the name of Rava tries to prove from here - that de'Ikni Lo Mishtabed', because if it was, what right would the creditor have to claim the Sh'vach from the purchaser in the first place?

(d) We refute this proof, too - by establishing the author as Rebbi Meir.

(a) On the assumption that 'de'Ikni ... Mishtabed', we ask - if he borrowed twice and then acquired what the Din will be in a case where the borrower borrowed twice and then acquired property - which of the two creditors has the rights to it.

(b) According to Rav Nachman, this She'eilah was asked of the B'nei Eretz Yisrael, who replied that the first creditor has the right to the newly-acquired property. Rav Huna says 'Yachloku' - and Rabah bar Avuhah says 'Yachloku, too.

(c) By 'Yachloku', they mean - in proportion to the loan.

(a) Ravina quotes the Mahadura Kama of Rav Ashi and the Mahadura Basra. The significance of ...
1. ...Mahadura Kama with regard to Rav Ashi - is that it comprised the first thirty years of his life, when he finished all his learning the first time round, and Mahadura Basra, the second thirty years (Rav Ashi lived sixty years), when he finished it the second time round.
2. ... the Chodshei ha'Kalah - is that each Nisan and Tishri, he would review all his current learning.
(b) Rav Ashi ruled in ...
1. ... the Mahadura Kama - that the first creditor had the rights to the property, but ...
2. ... in the Mahadura Basra - 'Yachlohu'.
(c) The Halachah is - 'Yachloku'.
(a) Quoting once more from the Beraisa 'li'Shevach Karka'os Keitzad ... ', we query the previous ruling from the conclusion of the Beraisa 've'es ha'Shevach mi'Nechasim B'nei-Chorin' - which the purchaser only did after the loan, and which implies that the latter borrower (the purchaser, in this case) has the rights, and not 'Yachloku', as we just ruled.

(b) We refute this Kashya however - by interpreting the Beraisa to mean half the Sh'vach.

(c) When Shmuel rules in Bava Metzi'a 'Ba'al-Chov Govah es ha'Shevach' - he too means half the Sh'vach.

(d) And when in Bava Metzi'a, he rules 'Govin es ha'Shevach', whereas here he remains with the She'eilah - he is either referring to the opinion of Rebbi Meir, or resolving his own She'eilah (following the principle 'Divrei Torah Aniyim be'Makom Echad va'Ashirim be'Makom Acher' [the Gemara sometimes omits something in one place, and explains it somewhere else].

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