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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Basra 159



(a) The statement of the B'nei Eretz Yisrael 'Ben she'Machar be'Nechsei Aviv be'Chayei Aviv, u'Meis, B'no Motzi mi'Yad ha'Lekuchos' ended - 've'Zu Hi she'Kashah be'Dinei Mamonos'.

(b) We refute the suggestion that this is because the Lekuchos can say to him 'Your father sells, and you take back' - because he can reply that he is claiming in his capacity as the heir of his grandfather, and not of his father.

(c) We know that a grandson inherits from his grandfather - from the Pasuk in Tehilim "Tachas Avosecha Yiheyu Banecha".

(a) So we amend the statement once more, to 'Bechor she'Machar Cheilek Bechorah be'Chayei Aviv u'Meis be'Chayei Aviv, B'no Motzi mi'Yad ha'Lekuchos'. We initially assume this to match the concluding phrase more than the previous suggestion - because the Cheilek Bechorah is certainly Ra'uy, and we would think that, seeing as the Bechor died in his father's lifetime, his son cannot claim it from the purchaser.

(b) We refute this suggestion too however - on the basis of what we learned in 'Yesh Nochlin', that the Bechor's children inherit his Cheilek Bechorah from their grandfather, even though their father is no longer alive (like we saw with the daughters of Tz'lofchad).

(a) We therefore amend the statement yet again to 'Hayah Yode'a Lo Eidus bi'Sh'tar ad she'Lo Na'aseh Gazlan ve'Na'aseh Gazlan, Hu Eino Me'id al K'sav Yado, Aval Acherim Me'idin'. Even though a witness is normally believed to substantiate his signature on a Sh'tar - we learn from the Pasuk in Mishpatim "Al Tashes Yadcha Im Rasha Liheyos Eid Chamas" that he is not believed where he is suspect.

(b) And we suspect - that he may have forged the signature on the Sh'tar, or even written the Sh'tar after he became a Gazlan.

(c) This ruling is initially considered to be beyond comprehension - because if we are afraid that perhaps the Gazlan forged the signature on the Sh'tar, what will it help if others recognize the signature?

(d) We refute this Kashya, too however - by establishing the case when Beis-Din had already substantiated the Sh'tar before he became a Gazlan (see Hagahos Ashri), in which case there is nothing to worry about (see Tosfos DH 'K'gon').

4) And we follow the same pattern when we present the text as 'Hayah Yode'a Lo be'Eidus ad she'Lo Na'aseh Lo Chasno, ve'Na'aseh Chasno, Hu Eino Me'id al K'sav Yado ... '. We refute the answer however, on the basis of a statement by Rav Yosef bar Minyumi Amar Rav Nachman, who establishes the case - even when Beis-Din had not substantiated the Sh'tar.


(a) We resolve the problem however, by citing the ruling that even Moshe and Aharon would be disqualified from testifying in cases involving their fathers-in-law - which proves that a relative is intrinsically Pasul to testify (due to a 'Gezeiras ha'Kasuv'), and not because of any particular suspicion. And in that case, the fact that the Sh'tar was already substantiated, will not validate it once it has been signed by someone who is now a son-in-law.

(b) So we revert to the original text of the statement of the B'nei Eretz Yisrael ('Ben she'Machar be'Nechsei Aviv... ') - in which case the grandson ought not to be able to claim the field that his father sold, and the Pasuk "Tachas Avosecha Yiheyu Banecha" was written (not to teach a Halachah, but) - in the form of a blessing, a prediction that Tzadikim will have children and grandchildren to inherit them.

(a) Our Mishnah discussed the case of 'Nafal ha'Bayis Alav ve'al Aviv, Alav ve'al Morishav ... . Yorshei ha'Av Omrim ... '. If 'Yorshei ha'Av' refers to his (the son's) sons, 'Morishav' refers to - his brothers.

(b) What do we try and prove from here - that a grandson does inherit directly from his grandfather (because "Tachas Avosecha Yiheyu Banecha" is a Halachah), because otherwise, even if the son died first, there would be no reason for his creditors not to claim the property from his sons.

(c) We refute this proof by explaining 'Yorshei ha'Av' to mean his (the son's) brothers, in which case, 'Morishav' means - his father's brothers.




(a) They asked Rav Sheishes whether a son inherits his mother in the grave - to pass on her property to his paternal brothers.

(b) Rav Sheishes resolved the She'eilah from a Beraisa, which states - that if a father was taken captive, and his son died in his hometown or vice-versa, 'Yorshei ha'Av ve'Yorshei ha'Ben Yachloku'.

(c) The problem with this Beraisa the way it stands is - that if neither the father nor the son had children, then the father's heirs inherit the property, whereas if the son had children, then they inherit both the father and the son.

(d) We therefore amend the Beraisa to read - 'Av she'Nashvah u'Meis ben Bito bi'Medinah; u'Ben she'Nashvah, u'Meis Avi Imo bi'Medinah', Yorshei ha'Av ve'Yorshei he'Ben Yachloku'.

(a) The Safek is - whether the father (of his deceased daughter) died first or her son.

(b) If the father died first, then the son's heirs (e.g. his paternal brothers) will inherit the property; whereas if the son died first, then the father's heirs (e.g. his brothers) will inherit it.

(c) The reason for the Beraisa's ruling is - the principle 'Mamon ha'Mutal be'Safek, Cholkin'.

(d) Rav Sheishes now proves from this Beraisa - that a son does not inherit his mother to pass on his grandfather's property to his paternal brothers, because if he did, then, either way, it would be they who would inherit the property, and there is no reason why the father's brothers should receive half.

(a) Rav Acha bar Minyumi substantiates Rav Sheishes ruling from our Mishnah 'Nafal ha'Bayis Alav ve'al Imo, Eilu ve'Eilu Modim she'Yachloku' - in exactly the same way, because if a son would inherit his mother in the grave to pass on the property to his paternal brothers, then, even if the son died first, his paternal heirs ought to inherit all the property, and should not have to share it with their grandmothers heirs.

(b) The source for this ruling is the 'Gezeirah-Shavah' "Seivah" "Seivah" (which is synonymous with "Hasavah" Hasavah") - from a husband who inherits his wife, but not in the grave.

(c) What is strange about this 'Gezeirah-Shavah' is -the fact that 'in the grave' has different connotations in the two cases. It means that a husband does not inherit property that falls to his wife when *she* is already in the grave, but that a son does not inherit his deceased mother's property when *he* is in the grave.

(a) Reuven, who had sold Shimon all the fields that he had purchased from Bei bar Sisin, refused to give Shimon one particular field, even though it was also called 'de'Bei bar Sisin' - because although it was called 'de'Bei bar Sisin', that was not because he had purchased it from Bei bar Sisin.

(b) Rav Nachman placed that field in the possession of Shimon. Rava disagreed with Rav Nachman, on the basis of the S'vara - 'ha'Motzi me'Chavero Alav ha'Re'ayah', in which case, the field ought to remain with the original owner.

(c) Both Rava and Rav Nachman appear to have switched their opinions from another case (regarding 'Ana be'Shechuni Gava'i Hava'i') - where Rav Nachman placed the disputed property in the domain of the original owner, whereas Rava placed it in the domain of the purchaser; whereas in the current case, they reverse their rulings.

(d) We resolve the apparent discrepancy ...

1. ... in Rava, by making a distinction between the first case - where it is the purchaser who currently owns the property, whereas in the second case - the property is still under the jurisdiction of the original owner.
2. ... in Rav Nachman, by going after the purchaser in the case of Bei bar Sisin - since the field is called 'Bei bar Sisin', just as the seller specified, but after the seller in the first case - because the Chazakah is not better than the Sh'tar that he ought to have produced, and which he would have had to substantiate, had the seller demanded it (there too, Shimon had to substantiate his claim, seeing as Reuven queried it).
11) In spite of having learned this Sugya in Chezkas ha'Batim, we repeat it here - because it is similar to our current Mishnahs, which discuss cases of 'Nechasim be'Chezkasan.

***** Hadran Alach, Mi she'Meis *****

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