BAVA BASRA 43 (8 Adar) - dedicated in honor of the first Yahrzeit of Sarah bas Baruch Hersh Rosenbaum, by her husband Zev Dov Rosenbaum.

[43a - 35 lines; 43b - 17 lines]

1)[line 1]נוגעין בעדותן הןNOG'IN B'EDUSAN HEN (NOGE'A B'EDUS)

Witnesses who stand to benefit or lose based upon their testimony about a certain case (for example, the partners mentioned in the previous Sugya who can act as witnesses for each other) are termed "Nog'in b'Edusan," and are disqualified from being witnesses in that case.

2)[line 2]דכתב ליה, "דין ודברים אין לי על שדה זו"KASAV LEI, "DIN U'DEVARIM EIN LI AL SADEH ZO"- He wrote for him (his partner), "I will have no claim in court on this field" [and not even the right to complain (TOSFOS YOM TOV to Kesuvos 9:1 DH Din) and not even on my share of the field - I have relinquished my rights and have transferred them to you (RASHBAM)]

3)[line 3]לחבירוCHAVEIRO- (lit. his friend) his partner

4a)[line 4]ואין לי עסק בהV'EIN LI ESEK BAH- and I will have no business regarding it (RASHBAM)

b)[line 5]וְיָדַי מסולקות הימנהV'YADAI MESULAKOS HEIMENAH- and I will withdraw my hands from it (RASHBAM)

5)[line 6]כשקנו מידוKESHE'KANU MI'YADO- when he made a Kinyan Sudar (see Background to Bava Basra 40:4) with him [transferring his rights to the field to his partner]

6)[line 7]הרי מעמידה בפני בעל חובוHAREI MA'AMIDAH BIFNEI BA'AL CHOVO- [when he (Reuven) transfers his rights to his partner (Shimon),] he has in actuality placed [his half] in front of any [previous] creditor [that he had, who will repossess half of the field from Shimon in lieu of the debt, and Reuven will benefit from not transgressing the verse "לֹוֶה רָשָׁע וְלֹא יְשַׁלֵּם" "Loveh Rasha v'Lo Yeshalem" - "The wicked one borrows, and does not pay back" (Tehilim 37:21)]

7)[line 9]באחריותACHRAYUS

(a)"Achrayus" is a way of insuring the purchase of land or the repayment of a debt. A person who sells a field or gives it as a gift to someone else can guarantee the field by obligating himself in Achrayus. If it is determined afterwards that the seller, or the giver of the gift, did not have the right to sell or give the land (for example, if there was a lien on the property and it was claimed by a creditor as repayment for a loan), the assets of the seller or giver are made available to the buyer to collect the value of the property that was removed from his possession. If the field was purchased without Achrayus, the buyer has no legal claim against the seller, and he is not compensated at all for his loss (Bava Basra 44b).

(b)There is an argument among the Tana'im as to whether a seller automatically accepts upon himself Achrayus whenever he sells a property or obligates himself to pay someone (e.g. by writing a document of debt or a Kesuvah) with a Shtar (a legal document), even if it did not state in the Shtar that he accepts upon himself Achrayus for the sale. Rebbi Yehudah states that "Achrayus Ta'us Sofer"; the sale or debt does have Achrayus and the scribe simply forgot to include it in the Shtar. Rebbi Meir rules that we follow the plain reading of the Shtar, and therefore there is no Achrayus (Bava Metzia 13b).

(c)The Gemara (ibid. 15b) concludes that even if Achrayus was not written in the Shtar, the seller is obligated in Achrayus unless he made an explicit condition to be absolved of Achrayus.

8)[line 11]דקביל עליה אחריותD'KABIL ALEI ACHRAYUS- where Reuven accepted Achrayus upon himself, should any claim be made upon the field that he was Makneh to Shimon

9a)[line 12]אחריות דעלמאACHRAYUS D'ALMA- Achrayus against any claim that may come from an outsider (i.e. not a creditor of the partners) who claims that the field belonged to his father or to him

b)[line 13]אחריות דאתיא ליה מחמתיהACHRAYUS D'ASYA LEI MACHMASEI- Achrayus against a claim that comes as a result of Reuven, e.g. his creditor

10)[line 17]בי תריBEI TREI- two [men] (see Insights)

11)[line 19]מנהMANEH- a coin equal in value to 25 Sela'im, or 100 Zuz

12)[line 31]ובעניי דראמו עלייהוANIYEI D'RAMU ALAIHU- poor people whom the judges are responsible to support

13a)[line 31]אי דקיץ להוIY D'KITZ LEHU- if they have a fixed amount [for the support of the poor] imposed upon them

b)[line 32]ליתבו בי תרי מינייהו מאי דקיץ להוLEISVU BEI TREI MINAIHU MAI D'KITZ LEHU- let two of them give the fixed amount

14)[line 34]דכיון דרווח ,רווחKEIVAN D'RAVACH, RAVACH- since there is accumulation [of funds], there is profit [for the judges or witnesses]

43b----------------------------------------43b

15)[line 1]שמירה בבעלים היאSHEMIRAH BI'VE'ALIM HI

(a)A Sho'el (see Background to Bava Metzia 93:11) is exempt from theft, loss or damages that occurred to the borrowed object if the item was stolen, lost or damaged while its owner was working for the Sho'el ("Be'alav Imo"). The Gemara (Bava Metzia 95b) rules that as long as the owner was working for the Sho'el at the onset of the Sho'el's obligation to guard the object, he gains the exemption of Be'alav Imo.

(b)This Halachah applies to the Socher and the Nosei Sachar (see Background ibid.) as well. There is an argument as to whether this Halachah applies to a Shomer Chinam (ibid.) for whom the owner of the item being guarded is working. That is, some rule that he is exempt from theft, loss or damages that occur to the object as a result of his own Peshi'ah (negligence), while others rule that this Halachah does not apply to the negligence of a Shomer Chinam.

16)[line 10]דניחא ליה (דהדרא) [דתהדר ליה]D'NICHA LEI (D'HADRA) [D'SEHEDAR LEI]- it is beneficial to him (Shimon) that it should remain in Levi's possession (lit. that it should return to him - Levi)

17a)[line 14]השני נוח לי, הראשון קשה הימנוHA'SHENI NO'ACH LI, HA'RISHON KASHEH HEIMENU- (This phrase is borrowed from the Mishnah in Kesuvos 109a. The intent of our Gemara is actually HA'RISHON NO'ACH LI, HA'SHENI KASHEH HEIMENU - RASHBAM)

b)[line 14]השני נוח ליHA'SHENI NO'ACH LI- Levi is easier for me [to deal with]

c)[line 14]הראשון קשה הימנוHA'RISHON KASHEH HEIMENU- Yehudah is harder for me [to deal with]

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