ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Basra 170
(a) The Beraisa discusses a case where Reuven counters Shimon's claim that
Reuven stole his field with a Sh'tar and a Chazakah. According to Rebbi, we
contend only with the Sh'tar. Raban Shimon ben Gamliel says - 'be'Chazakah'.
(b) We reject the text in Raban Shimon ben Gamliel 'Af be'Chazakah' -
because it is subject to a Machlokes Amora'im later in the Sugya. Clearly
then, it is not explicit in his words (see also Tosfos DH 'be'Chazakah).
(c) According to Rav Dimi, their Machlokes is based on the principle 'Osiyos
Niknos bi'Mesirah' - Rebbi holds 'Osiyos Niknos bi'Mesirah'. Consequently,
if the claimant does not produce the Sh'tar, we are afraid that he may have
returned it, in which case the field would have reverted to the original
owner, and the Chazakah would be worthless. Whereas according to Raban
Shimon ben Gamliel, who holds 'Ein Osiyos Niknos bi'Mesirah', there is no
reason not to go by the Chazakah.
(d) One can acquire a field with a Sh'tar, according to Raban Shimon ben
Gamliel - because the initial transaction is recorded in the Sh'tar, and has
nothing to do with the above Machlokes, where this is not the case.
(a) When Abaye asked Rav Dimi whether his interpretation did not clash with
Rabah, in whose opinion Raban Shimon ben Gamliel holds 'Osiyos Niknos
bi'Mesirah' - he replied that it did (and so what!)
(b) Abaye did not accept Rav Dimi's answer however - because according to
Rav Dimi, Rabah's Kashya on the previous Beraisa (why Raban Shimon ben
Gamliel's opinion does not extend to where the Sh'tar was stole or lost)
(c) So Abaye establishes the Machlokes when one of the witnesses turned out
to be a relative or Pasul - and they argue over the Machlokes between Rebbi
Elazar who holds that 'Eidei Mesirah Karsi' (Rebbi, who therefore validates
a Sh'tar without witnesses or, we initially think, with Pasul witnesses),
and Rebbi Meir, who does not (Raban Shimon ben Gamliel, who therefore
requires the proof of a Chazakah).
(d) With regard to 'Osiyos' however, both Tana'im hold - 'Osiyos Niknos
(a) We reject this however, on the basis of a statement by Rebbi Elazar (the
Tana) himself - who states that a Sh'tar that is 'intrinsically a forgery'
is Pasul (and that he and Rebbi Meir are arguing over a Sh'tar which does
contain witnesses at all).
(b) Rebbi Avina (Ravina) therefore establishes the Machlokes, so that they
still argue over Rebbi Elazar and Rebbi Meir - when the Sh'tar had no
witnesses at all (the exact case over which Rebbi Meir and Rebbi Elazar
argue). So again, Rebbi holds like Rebbi Elazar, and Raban Shimon ben
Gamliel, like Rebbi Meir.
(c) Alternatively, they argue over a Sh'tar which the 'seller' admits to
having written, and the basis of their Machlokes is - whether the
'purchaser' subsequently needs to corroborate the Sh'tar (Raban Shimon ben
Gamliel) or not (Rebbi).
(d) The reason that Raban Shimon ben Gamliel does not apply the principle
'ha'Peh she'Asar Hu ha'Peh she'Hitir' (and believe the 'seller' that
although he wrote the Sh'tar, the sale did not take place) - is because,
even if the 'seller' were to deny having written the Sh'tar, we would not
suspect the 'purchaser' of having forged it (in which case it is not really
a 'Peh she'Asar').
(a) Rebbi holds in a Beraisa, that if a creditor and a debtor are holding
the Sh'tar Halva'ah, which the creditor claims he lost before the debtor had
paid, and the debtor claims that he lost after having paid, 'Yiskayem
ha'Sh'tar be'Chosamav', which means - that the claimant needs to verify his
claim, before he receives anything.
(b) Raban Shimon ben Gamliel rules ' - that he receives a half anyway.
(c) We ask on Rebbi - why in light of the Mishnah 'Shenayim Ochzin be'Talis
... Yachloku', the claimant should not receive half in the above case, too.
(a) Rava Amar Rav Nachman therefore explains that, had the Sh'tar been
verified, even Rebbi would agree that the creditor would claim half the
debt - and that they argue in a case where it was not. Rebbi's reason is
based on the principle 'Modeh bi'Sh'tar she'Kasvo, Tzarich le'Kaymo'.
(b) We resolve the discrepancy (seeing as Rebbi and Raban Shimon ben Gamliel
appear to have switched opinions), by indeed switching their opinions in the
first Beraisa ('ha'Ba Li'dun bi'Sh'tar uve'Chazakah') to conform with the
second ('Shenayim Adukim bi'Sh'tar' [though the commentaries do seem to have
this answer in their text]).
(a) Alternatively, we establish the Machlokes in the latter Beraisa
'bi'Le'varer ka'Miflegi', which means - that they argue over whether a
litigant is obligated to substantiate every argument that he presents, even
assuming that argument to have been unnecessary.
(b) And we support this with a case of Rav Yitzchak bar Yosef who lent Rebbi
Aba money. When the latter claimed to have paid in front of P'loni u'Peloni
u'Peloni - Rebbi Yitzchak Nafcha insisted that he bring all three witnesses
to corroborate his claim.
(c) The defendant queried this however, from the established ruling -
'ha'Malveh es Chavero be'Eidim - Ein Tzarich le'Par'o be'Eidim' (in which
case, it appeared unnecessary for him to have to corroborate his claim).
(a) In reply, Rebbi Yitzchak Nafcha quoted Rebbi Aba (Amar Rav Ada bar
Ahavah Amar Rav) himself, who ruled, in a case where the debtor claims that
he paid in the presence of P'loni u'Peloni u'Peloni - that he had to bring
them to Beis-Din ...
(b) ... like the opinion of Rebbi.
(c) Rebbi Aba objected to Rebbi Yitzchak Nafcha's ruling from a statement by
Rav Gidal Amar Rav - who ruled like Raban Shimon ben Gamliel (who said
'be'Chazakah [ve'Lo bi'Sh'tar']).
(a) Rebbi Yitzchak Nafcha replied - that he followed the opinion of Rebbi,
and that Rebbi Aba (who personally held like Raban Shimon ben Gamliel [see
Maharsha]) therefore, remained obligated to bring the witnesses (see also
(b) Ultimately however - we rule like Raban Shimon ben Gamliel (despite the
principle 'Halachah ke'Rebbi me'Chavero'), that 'Ein Tzarich Le'varer', like
Rav Gidal Amar Rav).
(a) Our Mishnah discusses someone who paid part of his debt. The problem
is - that if the Sh'tar is torn up, the creditor will lose the outstanding
debt, whereas if it is not, he is likely to claim again.
The basis of Rebbi Yossi's opinion is - the principle 'Eved Loveh le'Ish
Malveh' (a borrower is indebted to the creditor and is therefore subservient
(b) Rebbi Yehudah holds 'Yachlif' - which means that they write a fresh
Sh'tar (though the details will only become clear in the Beraisa that we
will quote shortly).
(c) Rebbi Yossi - holds 'Kosvin Shover'.
(d) In countering Rebbi Yehudah's argument (that it would not be fair to
expect the debtor to look after a receipt, to prevent it from falling into
the hands of the mice), Rebbi Yossi argues - that it is preferable for the
debtor to have to look after his receipt than for the creditor to lose his
leverage over the debtor (in forcing him to pay the rest of his debt quickly
before he loses it).
(a) Rav disagrees with both Rebbi Yehudah and Rebbi Yossi. Even though an
Amora does not have the right to argue with Tana'im - Rav is unique among
Amora'im, inasmuch as he bears the title of a Tana.
(b) After quoting the Beraisa 'Eidim Mekar'in es ha'Sh'tar ve'Kosvin Lo
Sh'tar Acher *mi'Z'man Rishon*', Rav Nachman (or Rebbi Yirmiyah bar Aba)
after quoting the Beraisa 'Eidim Mekar'in es ha'Sh'tar ve'Kosvin Lo Sh'tar
Acher mi'Z'man Rishon' (though this is not the actual wording of the Beraisa
as we shall see) commented to Rav Huna - that, had Rav seen this Beraisa, he
would not admitted that the Halachah is like Rebbi Yehudah, seeing as
(considering that there is no difference whether it is the witnesses who
write the new Sh'tar or Beis-Din) they are saying exactly the same thing.
(c) Rav Huna replied - that Rav was conversant indeed with the Beraisa, yet
he did not retract from his statement, because in spite of Rav Nachman,
there is a major difference between Beis-Din (who are merely exercising
their rights of 'Hefker Beis-Din Hefker', by writing a second Sh'tar
backdates to the original date) and the witnesses (whose Shelichus ended
when they wrote the initial Sh'tar and signed on it, and who have no
authority to write a second one).
(a) When Rav Yehudah Amar Rav said 'Eidim she'Kosvin Afilu Asarah Sh'taros
al Sadeh Achas', he meant - that if the Sh'tar was lost, they had to write
another one (even if this happened ten times).
(b) To answer the apparent contradiction in Rav, Rav Yosef establishes Rav's
latter statement by a Sh'tar Matanah - which does not incorporate Acharayus,
and seeing as the problem of the witnesses' writing a second Sh'tar is due
solely to the Shibud that it creates, there is no longer anything to be
(c) Rabah establishes Rav's latter statement - in the case of a Sh'tar (even
a Sh'tar Mecher) that does not contain Acharayus.