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Bava Metzia 100

BAVA METZIA 100 (18 Adar) - Reb Gedalya Weinberger of Brooklyn, N.Y., has dedicated this Daf in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger, on his Yahrzeit. Reb Chaim Tzvi, who miraculously survived the holocaust, raised his children with a strong dedication to Torah and its study.

In a case in which a person bartered a cow for a donkey, and it (the cow) gave birth (and it is not known whether it gave birth while in the possession of the seller or in the possession of the buyer). (The Kinyan of Chalipin occurs when one effects a Kinyan by exchanging one item for another item. In such a case, the item that he is receiving becomes his property through the Ma'aseh Kinyan, the act of acquisition, that the other person does to the item that is being bartered.)

The general rule in monetary claims is that the burden of proof rests with the one who wishes to extract payment or other items of value from the other person. Hence, when there is a doubt, all money remains with the one who has possession.

3) [line 13] B'OMEDES B'AGAM - [the case of the Mishnah is referring to] when it (the cow that gave birth) is standing in the marsh

4) [line 14] D'KAIMA B'SIMTA - [the case of the Mishnah is referring to] when she (the maidservant that gave birth) is standing in an alleyway

5) [line 14] V'NUKMA A'CHEZKAS MARA KAMA - we should resolve the doubt based on the Chazakah (the situation as it stood until now, i.e. an assumption that is legally reliable) of "Mara Kama" (CHAZAKAH: CHEZKAS MARA KAMA)
(a) One of the most confusing aspects of the subject of "Chazakah" is that the term "Chazakah" is used to describe so many unrelated laws. Just about any logical clarification of a doubt (and more) is referred to by this name. In our Sugya, it is referring to the rule that when doubt arises as to whether the status of a certain person/object has changed, we assume that is has not changed.

1. Such a "Chazakah" may be used in regard to a purely Halachic status (such as Tamei/Tahor or Mutar/Asur), or in regards to a physical status that effects the Halachah (such as an animal not being a Tereifah, or a Mikvah not lacking the necessary amount of water). In our Sugya, the Chazakah tells us in whose possession the cow was standing at the time that it gave birth.
2. A Chazakah may work forward in time (Chazakah D'Ikara), proving what will be, or backward in time (Chazakah D'Hashta), proving what was.
(b) A Chazakah of "Mara Kama" tells us that when in doubt about who the owner of an object is, or who the owner was at a given moment, we may assume that the owner was the person who was known, for certain, to have owned the object before the doubt arose.

(a) Sumchus maintains that when the ownership of property is in doubt, it is divided among the claimants.
(b) Even according to Sumchus, when a person possesses a certain object, and another person claims that it is his, they do not divide the object between them; rather, we rule "ha'Motzi me'Chaveiro Alav ha'Re'ayah" (see above, entry #2) and allow the object to remain in his possession. Sumchus' ruling applies in a case where Beis Din has reason to doubt the ownership of the object even before hearing the claims of the litigants. For example, one case in which Sumchus' ruling is applied is when a bull gores a cow and a dead calf is found next to the dead cow such that we do not know whether the calf was killed by the bull or whether it was born and died before the goring. Sumchus rules Mamon ha'Mutal b'Safek Cholkin, and the owner of the bull pays for half of the calf.
(c) According to the Rabanan who disagree with Sumchus, as long as one of the claimants has a Chazakah (i.e. evidence of prior ownership) over the property in dispute, he need not pay until his opponent brings a proof of his claim using witnesses. A Chazakah, with regard to this Halachah, can mean either Chezkas Mamon (the object is currently in his possession) or Chezkas Marei Kama (he has evidence that he was once the owner of the object, and nobody can show that it left his ownership since that time).

7a) [line 17] SHEMA V'SHEMA - (lit. perhaps and perhaps) one litigant claims, "Perhaps the case occurred as follows" and his opponent counters with a claim of "Perhaps the case occurred in a different fashion"
b) [line 18] BARI U'VARI - (lit. certain and certain) one litigant claims, "The case certainly occurred as follows" and his opponent counters with a claim of "The case certainly occurred in a different fashion"

8) [line 28] IY MISHUM HA, LO IRYA - If [your argument is] because of this [logic], there is no proof (i.e. this logic is refutable)

9a) [line 37] MODEH SUMCHUS HEICHA D'IKA SHEVU'AH D'ORAISA - Sumchus agrees in a case where there is [an obligation to swear] a Shevu'ah d'Oraisa (such as a Shevu'ah of Modeh b'Miktzas, as in this case, as the Gemara will explain later)
b) [line 38] KED'BA'INAN L'MEIMAR L'KAMAN - as we will explain later

10) [line 41] HEILACH HU (HEILACH: SHEVU'AS MODEH B'MIKTZAS) - it is a case of Heilach
(a) The Torah obligates a person to take an oath supporting his claim if he admits to part of the claim against him and denies the other part (Modeh b'Miktzas). If he is Kofer ha'Kol, i.e. he denies the entire claim, the Torah does not require him to take an oath (but the Rabanan instituted that he must swear a Shevu'as Heses supporting his claim -- see Background to Bava Metzia 103:3). The logic behind the Torah's oath of Modeh b'Miktzas is that if a person admits that he owes part of a claim, the Torah suspects that the person is not a thief but rather wants to temporarily postpone payment. He would have denied the entire claim in an attempt to postpone paying any of it, but he does not have the audacity to do so. He is therefore required to take an oath, mid'Oraisa, on the part he denies, or to pay the entire amount being claimed (Shemos 22:8).
(b) When a person admits that he owes part of the claim and immediately offers that part of the sum to the claimant ("Heilach"), the Amora'im argue whether or not the defendant must swear a Shevu'as Modeh b'Miktzas. Rebbi Chiya maintains that this is the same as any Modeh b'Miktzas, and the defendant must swear. Rav Sheshes argues that since the defendant has offered to the claimant the amount to which he admits, the claim is only on the remainder, which the defendant has entirely denied. Therefore he is considered to be Kofer ha'Kol and not obligated to swear mid'Oraisa.
(c) If the person has not actually *delivered* to the claimant the part to which he admits but he admits that a specific object that is in his possession belongs to his claimant, it is considered to be Heilach. Since he is holding the object for the claimant, it is considered to be already paid (RITVA and RISHONIM to Bava Metzia 4a, based upon Bava Metzia 98a, RASHI DH Ka). According to RASHI (Bava Metzia 4a DH v'Heilach), even if the defendant *borrowed money* and has not as yet spent it, if he admits that these coins belong to his creditor, it is considered Heilach. Conversely, according to Rashi (ibid., see Ritva), it is only considered Heilach if the defendant admits that a specific item or items that he received from the claimant are in his possession. If he admits to receiving them, but claims that they no longer exist, even if he immediately offers to reimburse the claimant for them it is not considered Heilach. Other Rishonim argue with this and maintain that immediate reimbursement is also considered Heilach, and that this is the only Heilach that applies to loans of money (Ritva and Rishonim ibid.).

With regard to claims of slaves (or of land), none of the Shevu'os (oaths) d'Oraisa or d'Rabanan apply. Instead, we rule "ha'Motzi me'Chavero Alav ha'Ra'ayah," that the burden of proof rests with the one who wishes to extract payment or other items of value from the other person.

12) [last line] OMAREI SADEH GEDOLAH - the sheaves of a large field


13) [line 2] BED'LAIFEI - [the case of the Mishnah is referring to] rolls of fabric (that have not yet been cut)

14) [line 5] SHE'TA'ANO EVED BI'CHESUSO - when he claims from him a slave along with his clothing

15) [line 8] ZOKEKIN - [the concept of] including [in a Shevu'ah that one is obligated to make on an item of Metaltelin, a Shevu'ah on land or on a slave, for which one normally does not make a Shevu'ah; see next entry]

16) [line 9] ZOKEKIN HA'NECHASIM SHE'EIN LAHEN ACHRAYUS ES HA'NECHASIM SHE'YESH LAHEN ACHRAYUS LISHAVA ALEIHEN - when an oath is administered we can include in that oath a response to a claim for real estate as well (SHEVU'AH: GILGUL SHEVU'AH) - (lit. "rolling" an oath) the extension of an oath
(a) If a defendant has to take an oath in Beis Din in response to one claim of a plaintiff, he can be required to include within his oath a response to another outstanding claim from the same plaintiff, even though the second claim was not the type of claim which normally requires an oath. This Halachah is learned from the Shevu'ah of the Sotah woman (see Background to Kidushin 80:27), where she is obligated to swear that she did not have relations with the man whom her husband suspects. Beis Din is Megalgel onto her oath the additional details that she did to have relations with any other man, while she was an Arusah, etc., to which she must swear, also.
(b) Examples of claims that can be included in a person's oath through Gilgul are Shevu'os that pertain to land, Kofer ha'Kol (denying an entire loan; see above, entry #10:a), and even an oath that the defendant is not the slave of the claimant (Kidushin 28a).
(c) The Halachah of Gilgul Shevu'ah applies whether the Shevu'ah is a Shevu'ah d'Oraisa such as the Shevu'ah brought about by the testimony of a solitary witness, or a Shevu'ah d'Rabanan such as Shevu'as Heses (Shevu'os 48b; see Rashi there).

(a) If a person admits that he owes part of a claim, the Torah suspects that the person wants to temporarily postpone part of the payment but does not have the audacity to completely deny the claim. He is therefore required to take an oath, mid'Oraisa, on the part he denies (Shemos 22:8), or otherwise he must pay the entire amount being claimed.
(b) In the event that a creditor claims a certain amount of a commodity such as one Kor of wheat and the debtor responds that he owes one Kor of barley, the Mishnah (Shavu'os 38b) records a Machlokes Tana'im as to whether he is obligated to take an oath or not. Raban Gamliel, who requires an oath, rules that the partial admission does not have to be of the same type of commodity that the creditor claimed. If the litigant swears, he must pay the creditor the barley. The Rabanan exempt the litigant from an oath since they rule that only a partial admission of the same type of commodity requires an oath.

18) [line 16] AVDA D'KATA L'YADEI - [the case of the Mishnah is referring to when] he cut off the hand of the slave (and thus he is not giving the claimant exactly what he claims)

19a) [line 16] BOROS - round pits or wells that are dug in the ground; cisterns
b) [line 16] SHICHIN - narrow elongated ditches
c) [line 17] ME'AROS - caves (usually leading to a spring or water source)

20) [line 18] MESHALEM KI'SHE'AS HA'GEZEILAH - he (the thief) must pay for the item that he stole in accordance with its value at the time of the theft

21) [line 19] BA'AVADIM OMER LO "HAREI SHELCHA LEFANECHA" - [if a thief stole] slaves, he may say (to the owner), "Here is yours in front of you" (and he returns it in its present state, even if it has decreased in value since the time that he stole it) (KARKA EINAH NIGZELES)
(a) A thief becomes liable for a stolen item (such that if it is destroyed, he must reimburse the owner) when he makes a Ma'aseh Kinyan on the item (a formal Halachically-binding act denoting a change in ownership). Similarly, when he makes a Ma'aseh Kinyan on the item, he acquires it to the extent that if the owner gives up hope of ever getting it back, and the object becomes "changed" (Shinuy) from its original state, he need not return the object itself but rather its value. However, with regard to plots of land, slaves and legal documents (Shetaros), there are Tana'im who learn from the verses that these laws of theft do not apply. In that sense, they cannot be Halachically stolen (Bava Kama 117b).
(b) Similarly, those Tana'im maintain that the negative commandment of Lo Sigzol does not apply to the theft of land for it cannot be Halachically stolen, nor does it apply to slaves, which are compared to land with regard to theft. (However, there are some Rishonim who explain that the exemption from the Lav of Lo Sigzol is not connected to the verses that exclude land from the Halachic aspects of Kinyanei Gezeilah. Rather, it is simply impossible to grasp land and take it out of the possession of its owner, which is the defining factor of Lo Sigzol. It is not a movable item that can be taken away from its owner. According to these Rishonim, sometimes the Lav of Lo Sigzol applies even with regard to land, and all the more so with regard to slaves and legal documents -- see Insights to Sukah 31a.)

All Shevu'os d'Oraisa, oaths of Torah origin, involve making a Shevu'ah to *exempt* oneself from payment or liability, and not making a Shevu'ah to *extract* payment from someone. This is derived from the verse, "An oath of HaSh-m shall be between the two of them... and the owner shall accept it and *he shall not pay*" (Shemos 22:10).

23) [line 37] YESH DEVARIM SHE'HEN K'KARKA V'EINAN K'KARKA - there are things which are like land [in one respect,] and which are not like land [in another respect]

24) [line 38] GEFANIM TE'UNOS - vines laden [with fruit]
25) [line 41] HA'OMDOS LIBATZER - that are ready to be harvested
26) [line 51] HA'MOCHER ZEISAV L'ETZIM - one who sells his olive trees to be [cut and] used as wood

27) [line 51] V'ASU PACHOS ME'REVI'IS LI'SE'AH - and they produced inferior olives that yield less than a Revi'is of oil per Se'ah of olives

28a) [line 53] SHATAF NAHAR ZEISAV - an overflowing river swept away his olive trees
b) [line 53] V'NASNAM L'SOCH SEDEH CHAVEIRO - and placed them into the field of his neighbor (and they took root there and olives grew on them)

29) [line 54] KOTZ L'ALTAR - cut [the trees] immediately

30) [line 55] KOL EIMAS D'VA'IS KOTZ - whenever you want, cut [the trees]

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