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Kollel Iyun Hadaf, Jerusalem

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Bava Metzia 39



(a) We already referred to the Beraisa 've'Chulan Shamin Lahem ke'Aris'. This cannot refer to ...
1. ... Nechsei Shevuyin - which even permits the Karov to keep what he picked, in which case the current ruling would be quite unnecessary.
2. ... Nechsei Retushin - because there we learned 'Motzi'in Oso mi'Yado' (so it would be illogical to pay him like an Aris).
(b) Consequently, it refers to - Nechsei Netushin.

(c) This cannot go according to the Rabbanan, who rule 'Motzi'in Oso mi'Yado'. Nor does it seem to go like Raban Shimon ben Gamliel either - because he said 'Shama'ti she'ha'Netushim ki'Shevuyim' (in which case this ruling would be unnecessary, as we just explained).

(d) We finally reconcile the Beraisa with Raban Shimon ben Gamliel, by explaining 'Shama'ti she'ha'Netushim ki'Shevuyim' to mean - 'like Shevuyim' inasmuch as we don't take the property away from him (but not like Shevuyim, inasmuch as he gets paid like an Aris, but cannot keep what he picked).

(a) The Mishnah in Kesuvos rules that if a man invests a lot of money in his wife's field, and the field yields a scant harvest, or vice-versa - 'what he invested he invested, and what he receives, he receives'.

(b) The problem that this Mishnah poses on Raban Shimon ben Gamliel's opinion by Nechsei Netushim is - why we should not say there too, the husband gets paid like an Aris (like Raban Shimon ben Gamliel there).

(c) We answer that Raban Shimon ben Gamliel's case is more comparable to a similar case, but where his wife is a Ketanah - by which we mean a girl of under twelve whose father had died, and who was married off by her mother and brothers (and who has the right to perform 'Miy'un' at any time before she turns twelve).

(d) Rav Ya'akov Amar Rav Chisda rules there - 'Shamin Leih ke'Aris', because, seeing as she is likely to walk out of the marriage at any time, we are afraid that the husband, uncertain about the future, will try to procure short-term gains, without taking care to preserve the property. Similarly, we suspect that, unless the Karov is given some incentive, he will adopt the same attitude (as we explained earlier), because there too, his relative may be released at any time, and take his field back.

(a) The Tana of the Beraisa says 've'Chulan Shamin Lahem ke'Aris' - which comes to include the property of a person who killed someone and had to escape.

(b) Rav Nachman quoting Shmuel, makes a distinction between someone who was captured (whose property is guarded by a relative), and someone who left his property of his own accord (whose property is not). Rav Nachman himself adds that someone who runs away - has the same Din as a captive.

(c) He cannot be referring to someone who ran away to evade having to pay taxes - because that would be the same as leaving of his own own accord (since his life is not in danger, and he has the option of paying.

(d) Rav Nachman must therefore be referring to someone who ran away because he killed someone inadvertently, and the Persians would sentence a manslaughterer to death.

(a) Rav Yehudah Amar Shmuel rules that if a captive who left ripe corn ready to cut, and ripe fruit ready to pick - Beis-Din appoint an Apotropus (an agent) to pick the fruit, after which the next of kin may take over.

(b) 'Kotzer' and 'Botzer' refer to the harvesting of grain and grapes respectively - 'Goder' to the harvesting of dates and 'Mosek', of olives.

(c) They do not appoint permanent a Apotropus to look after the field until the owner is released - because on principle, Beis-Din do not appoint an Apotropus on behalf of grown-ups. This is - because people will volunteer to look after the property of a Katan (whose beard has not yet grown) because it is a Mitzvah, but not of a grown-up, which is not.

(a) Rav Huna forbids ...
1. ... a Katan to look after the property of a Karov - because he will probably spoil it.
2. ... a Karov to look after the property of a Katan who has been captured - because (based on the fact that the Katan does not know how to protest) Rav Huna is afraid that the Gadol will later claim that *he* inherited that field from his father (denying the Katan's ownership).
(b) Neither will he permit a Karov Machmas Karov to look after a captured Karov's property. 'A Karov Machmas Karov' is - a maternal half-brother of the Katan's paternal half-brother (who is himself not a relative of the captured Katan).

(c) He is not permitted to look after the captured man's property - because we are afraid that he will later claim the field on behalf of his paternal half-brother. (d) Rav Huna does however, permit a stranger to go down to the captured Katan's property. He is not afraid that after three years ...

1. ... the stranger will claim that he bought the property from the Katan's father - because (due to the fact that a Katan does not know his father's business affairs, and is therefore unable to protect his interests by protesting) one cannot acquire the property of a Katan by means of a three-year Chazakah.
2. ... from the time that the Katan grows up, he (the Gadol) claims that he bought it from *him* - for the same reason (since, even after he grows up, the 'Katan' remains as ignorant of his father's business affairs as he was before).



(a) Rava (the author of the current statements) holds 'Moridin' in the case of ...
1. ... a maternal half-brother looking after his captured relative's field - because we do not need to worry that he will later turn round and claim that he inherited the field from their father.
2. ... a paternal half-brother looking after the house of his captured relative who is a Katan - because, should he later claim that he (and not his brother) inherited the house from his father, the neighbors will refute his claim.
(b) He even permits a Karov to look after his paternal brother's *field*, if they wrote an It'da - a document of division.

(c) The Sh'tar It'da creates a Kol (in which case everyone knows to whom the field belongs), negating the fear that the Karov might claim that *he* inherited it.

(d) We conclude however, that in all of the above cases, we say 'Ein Moridin'. The reason for this in the case of a paternal half-brother looking after his captured Katan's house and a Karov looking after his paternal brother's field, if they wrote an It'da, is merely a Chumra (see Tosfos DH 'Lo Sh'na'). And the reason in the case of a maternal half-brother looking after his captured relative's field (where there appears to be no logical reason to go le'Chumra) is - because we are afraid that he will claim that the field is the Nichsei Milug of his mother, and of which (assuming that the captive's father died before their mother), he now claims half.

(a) In the case of that old woman who was captured together with one of her three daughters - one of the two remaining daughters died, leaving behind a little son.

(b) The problem now was that they could not allow ...

1. ... the free sister to look after the property on behalf of her mother - in case the mother had died, and we have the principle 'Ein Moridin Karov le'Nechsei Katan' (i.e. the young son, who would then own part of the property).
2. ... allow the young son to look after it - in case the old woman had not died, in which case we rule 'Ein Moridin Katan le'Nechsei Shavuy'.
(c) Abaye therefore ruled that they should allow the sister to look after half the property - either because she owned it (assuming both captives died), or because of 'Moridin Karov le'Nichsei Shavuy' (assuming they didn't). And they should appoint an Apotropus on the other half - because the Katan himself is not permitted to take over the field, as we just explained.

(d) According to Rava - once Beis-Din anyway appoint an Apotropus on behalf of the Katan, they will appoint an Apotropus to take charge of the grown-up 's portion as well.

(a) When they subsequently heard that the old woman had died - Abaye ruled that one third should be given to the remaining sister and one third to the small son. As for the remaining third, they should divide in exactly the same way as they divided the two halves at the beginning.

(b) Rava - agrees with Abaye regarding the first two thirds. But with regard to the remaining third, he too, abides by his previous ruling, and Beis-Din appoint an Apotropus for each half.

(a) Mari bar Isak traveled with his father to Mechuza - where he married another woman, who bore him a son. Then Mari returned to his original home.

(b) When Mari claimed that he did not recognize the man who claimed to be his brother - Rav Chisda justified his claim, based on the Pasuk in Miketz "va'Yaker Yosef es Echav, ve'Heim Lo Hikiruhu" (because, like Mari's brother, he had grown a beard in the meantime).

(c) And when Rav Chisda ordered the purported brother to bring witnesses to prove his identity - he replied that he had witnesses, but that they were afraid to testify against Mari bar Isak, who was a tough guy.

(a) When Rav Chisda then ordered Mari to bring those (or other) witnesses to prove that he was not a brother - he queried him on the basis of the principle 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah' (and it was his brother who was the claimant.

(b) Rav Chisda countered his query however - by informing him that this is how he would judge him and all tough guys like him.

(c) And when Mari argued that even if he brought the witnesses, they would merely testify in his favor due to their fear of him, Rav Chisda replied - that 'Tarti Lo Avdi' (the witnesses might decline to testify for fear of him, but they would not go so far as to testify falsely in his favor).

(d) Rav Chisda upheld the brother's claim to half the vineyards (or orchards) and tree-gardens that Mari had planted (without paying him even like an Aris) - on the basis of the Mishnah in Bava Basra 'Hini'ach Banim Gedolim u'Ketanim, ve'Hishbichu ha'Gedolim es ha'Nechasim, Hishbichu le'Emtza'.

(a) Aside from the fact that a Mishnah does not require the support of Amora'im, we cannot accept the text 've'Chein Amar Rabah, Hishbichu le'Emtza' - because Rabah was Rav Chisda's Talmid, and it is unlikely that Rav Chisda would bring support for point of view from his Talmid.

(b) We dispense with the second Kashya by substituting Rav for Rabah, and we answer the first Kashya - by establishing Rav when the field improved due to the brother's efforts (to preclude those who confine it to where it improved on its own, but whatever improved on account of the brothers' efforts, they may retain).

(c) Abaye attempted to refute the proof from the Mishnah in Bava Basra - on the grounds that there, at least the big brothers knew about the little brothers and were Mochel (forewent any payment for their efforts), whereas in our case, Mari did not know that his brother would claim this property (see Maharam Shif), so he was not Mochel.

(d) When the case came before Rebbi Ami, he supported Abaye's opinion, on the basis of 'Shamin Lahem ke'Aris' - because if the Karov can claim remuneration for the work that he did on behalf of his relative, how much more so on work that he did on his own behalf.

(a) When the case was brought back to Rav Chisda, he objected to Rebbi Ami's reasoning for two reasons; one of them, because Mari bar Isak developed the field without Beis-Din's permission, and the second - because his brother had been a Katan when Mari originally took over the property (in which Beis-Din would not have given him permission anyway [seeing as 'Ein Moridin Karov le'Nechsei Shavuy']).

(b) when he heard that, Rebbi Ami commented - that nobody had told him that Mari's brother had been a Katan.

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