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Kollel Iyun Hadaf, Jerusalem

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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) remains unanswered.

(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 bi'Mesirah'

(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 Rabeinu Gershom).

(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.

(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).

10) 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 to him).


(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 afraid of.

(c) Rabah establishes Rav's latter statement - in the case of a Sh'tar (even a Sh'tar Mecher) that does not contain Acharayus.

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