THOUGHTS ON THE DAILY DAF
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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
1) WHEN A CLAIM OF "BARI" OVERRIDES A CLAIM OF "SHEMA"
QUESTION: The Mishnah discusses various cases in which a dispute arises
between a buyer and a seller concerning the object that was purchased. The
Mishnah says that in a case in which the buyer claims that he bought the
larger item (such as the larger field), and the seller claims that he does
not know which one he sold to the buyer, the buyer is entitled to take the
Why should the buyer be able to take the larger field? Presumably, the
Mishnah entitles the buyer to take what he claims because his claim is a
claim of certainty ("Bari"), while the seller has no certain of certainty
but only a claim of doubt ("Shema"). We have learned, however, that in such
a case the Halachah is "Bari v'Shema *Lav* Bari Adif" -- when one person has
a claim of certainty, and the other has a doubtful claim, the claim of
certainty does *not* prevail to take money or objects from the possession of
someone else. Why, then, in the case of the Mishnah here, does the buyer's
(a) The RA'AVAD answers first that the rule of "Bari v'Shema *Lav* Bari
Adif" applies only when the one with the claim of "Shema" is actually
holding the object in doubt and thus has a "Chezkas Mamon" that counters the
other person's claim of "Bari." If, however, the one with the claim of
"Shema" is not actually holding the object (and he only has a "Chezkas Mara
Kama" -- a Chazakah that, before this moment, he was known to be the
owner -- to support his claim to ownership), then the other person's claim
of "Bari" overrides his claim of "Shema."
Our Mishnah, presumably, is discussing a case in which the seller is not in
physical possession of the object. The Gemara explains that the first case
in the Mishnah is certainly referring to when the cow in question is not in
the physical possession of either the buyer or seller, but rather is
standing in the marsh. It is reasonable to assume that the second case of
the Mishnah is also discussing such a situation, and there is no proper
"Muchzak," but only a Chazakah of "Mara Kama," and that is why the buyer's
claim of "Bari" overrides the seller's claim of "Shema."
The RAMBAN (Bava Basra 34b), however, argues with the Ra'avad's assertion
and says that even when the original owner is not in physical possession of
the object and has only a Chazakah of "Mara Kama," the other person's claim
of "Bari" is not enough to prevail.
(b) The Ra'avad offers a second answer, with which the Ramban agrees. He
explains that the Mishnah is discussing a case in which the seller was
obligated to make a Shevu'ah of "Modeh b'Miktzas" to the buyer due to an
additional element involved in the dispute that arose between them. Since
the seller admits that he owes part of the buyer's claim, and -- with regard
to the buyer's claim that he bought the larger field -- the seller claims
that he does not know, the rule that "since he is obligated to swear but he
cannot swear, he must pay" applies. (This is similar to the case in the
Gemara on 97b.) (Y. Marcus)
2) A CASE OF "HEILACH"
QUESTION: The Mishnah (100a) discusses various cases in which a dispute
arises between a buyer and a seller concerning the object that was
purchased. The Mishnah says that in a case in which the buyer claims with
certainty that he bought the larger Eved (or larger field), and the seller
claims with certainty that he sold the smaller Eved (or smaller field), the
seller must swear that he sold the smaller Eved (and then he may give to the
buyer only the smaller Eved). This Shevu'ah is a "Shevu'as Modeh b'Miktzas,"
since the seller is admitting to part of the claim of the buyer.
The Gemara (100a), however, asks several questions on the Mishnah's ruling.
First, it asks that this is not a case of "Modeh b'Miktzas," because the
seller is not admitting to any part of the buyer's claim. The buyer claims
that he bought one Eved (or one field), and the seller claims that he sold a
completely different Eved (or field); this is not "Modeh b'Miktzas!"
Second, this is a case of "Heilach," because when the seller denies owing a
large Eved, he is handing over the small Eved to which he admits owing. One
opinion cited earlier (4a) maintains that one does not make a Shevu'ah of
"Modeh b'Miktzas" in a case of "Heilach!"
Third, there is a rule that one does not swear about Avadim (or Karka'os,
land). Why, then, does the seller have to swear?
Shmuel answers these questions by explaining that the Mishnah is referring
to a case in which the dispute involves not the Eved himself, but the
*clothes* of an Eved (or, in the case of the field, the sheaves of grain on
the field) -- the buyer claims that he bought large clothing, while the
seller claims that he sold small clothing. The subject of the dispute,
therefore, is mobile property (Metaltelin) for which a Shevu'ah may be made
(in contrast to Avadim and Karka'os). This answers the third question. In
addition, it answers the first question, as the Gemara itself explains,
because the dispute involves one large piece of fabric from which the
clothing is made. Thus, the seller is indeed admitting to part of the claim
of the buyer.
How, though, does Shmuel's explanation answer the second question? It is
still a case of "Heilach," because the seller is readily giving to the buyer
the part of the claim to which he admits (i.e. part of the clothing)! (RAN)
ANSWER: The RAN answers that since the clothing that the buyer and seller
are disputing is attached to one large piece of fabric, as the Gemara
explains, the case is no longer a case of "Heilach." The is because the
buyer is not claiming a specific article of clothing, but rather he is
claiming an *amount* (such as a length) of any part of the roll of fabric.
Hence, when the seller agrees to selling a smaller amount, there is no
specific, identifiable object that the seller is handing over as part of his
admission. Rather, the seller now has to choose what part of the fabric to
give to the buyer. Therefore, the seller's admission does not involve
"Heilach." (Similarly, with regard to the sheaves in the field, the buyer is
claiming an *amount* of sheaves, and not any sheaves in particular.) (Y.