1) THE DISPUTE BETWEEN RELATIVES OVER AN INHERITANCE

QUESTION: The Gemara relates that Rav Idi bar Avin had a dispute with his relative about who had rights to inherit the tree of a third relative who had died. Rav Idi bar Avin claimed that he was more closely related to the deceased relative, and therefore he should inherit the tree. The other relative claimed that he was more closely related and that he should inherit it. Before the case was settled, the other relative took the tree for himself and ate its fruit. Later, he admitted that Rav Idi bar Avin was a closer relative. Rav Chisda ruled that although the tree must be given to Rav Idi bar Avin, the relative does not have to pay for the fruit that he ate until then, because he was eating the fruit with his original claim that he was the closer relative. Abaye and Rava argued and said that the relative does have to pay for the fruit since, by his own admission, he is not the closer relative, and thus he ate the fruit unlawfully.

What was Rav Chisda's logic for not obligating the relative to pay for the fruit? While it is true that he originally claimed to be the rightful heir, he later admitted that his claim was false!

ANSWERS:

(a) The RASHBAM writes that Rav Chisda understood the admission to be merely a guise for giving a present to Rav Idi bar Avin. The relative did not really mean that Rav Idi was the rightful owner of the tree; he just wanted to give a gift to Rav Idi, and therefore he said that Rav Idi was the closer relative and deserved to have the tree.

Why, though, did Rav Chisda not take his admission literally? Apparently, Rav Chisda maintained that had the relative meant what he said (that Rav Idi was the closer relative), he never would have taken the fruit in the first place. The fact that he ate the fruit until now shows that he sincerely thought that he was the rightful owner of the tree. (TOSFOS changes the Girsa because of this question and writes that the relative did not admit openly that Rav Idi was a closer relative.)

(b) The TZAFNAS PANE'ACH (Hilchos Na'arah Besulah 1:1) explains that Rav Chisda maintained that the credibility of Hoda'as Ba'al Din is not based on the defendant's trustworthiness when he says something to his disadvantage. Rather, it is a way of obligating oneself ("Hischaivus") to give something to someone else, like an act of Kinyan (such as a Matanah, gift). (See Insights to 6:2, Bava Basra 149a, and KETZOS HA'CHOSHEN 34:4.)

(c) The CHASAM SOFER explains that Rav Chisda maintained that Rav Idi bar Avin lost his title to the tree since he despaired of ever receiving it ("Ye'ush"), and he did not think that his relative would ever admit that he was the closer relative. Consequently, the other relative became the legal owner of the tree and indeed was entitled to eat the fruit.

33b----------------------------------------33b

2) A PERSON IS NOT SO BRAZEN

QUESTIONS: The Gemara says that a person who eats the fruit of another person's field and claims that he was a sharecropper (and that is why he ate the fruit) is believed. The Gemara cites proof for this ruling from the statement of Rebbi Yehudah, who says that when a person declares that he is going to harvest the fruit of another person's tree because the other person sold him the fruit, he is believed. The reason he is believed is that a person is not so brazen ("Lo Chatzif Inish") as to harvest the fruit of a tree which is not his. Similarly, a person is not so brazen as to claim that he was a sharecropper on the field of someone else if he really was not a sharecropper. However, this logic of "Lo Chatzif" does not apply to land; if a person does not have a Chazakah of three years, he cannot claim that he bought the entire land based on the logic that a person would not be brazen to stay in someone else's field (for less than three years) without permission. The reason for this is that if he actually bought the field, then he should have a Shtar to prove his ownership. In contrast, people do not write Shtaros for fruit, and therefore one is not expected to have a Shtar to prove his ownership.

(a) Why does the Gemara need to present the reason of "Lo Chatzif," that a person is not brazen, in order to give the Machzik the right to keep the fruit? Fruit is like any other Metaltelin, mobile property, for which a "Chezkas Mamon" (or "Chezkas Metaltelin") applies. If the food is in his hands and he claims that he purchased it, then it may be assumed to belong to him! Only with regard to land must the Machzik have possession of the disputed object for three years.

(b) The converse question may be asked as well: why does the law say that a person has the right of ownership to Metaltelin because he is "Muchzak" and not because of the logic of "Lo Chatzif"? The object should be assumed to be his not because he is "Muchzak" but because a person is not so brazen as to take another person's object!

ANSWERS:

(a) The Rishonim offer different answers to this question,

1. TOSFOS (DH v'Iy Ta'in) writes that a "Chezkas Metaltelin" suffices to give the right of ownership to the Machzik. The Gemara introduces the new logic of "Lo Chatzif" only to explain why the Machzik has the rights even to fruit that he picked and deposited elsewhere and is no longer holding. Since he is not holding the fruit at the moment, he does not have a "Chezkas Metaltelin."

The Acharonim ask why the Machzik should not have a Chazakah even on the fruit which is not in his hands. Although they are not in his hands at present, people saw him pick the fruit, and at that moment they were in his hands. The fruit that he deposited elsewhere should belong to him because of that Chazakah.

HA'GA'ON RAV NAFTALI TROP zt'l answers that although there is a Chazakah that an object in a person's possession is assumed to be his (because of the assumption that a person is not a thief), that is not a strong enough reason to be certain that the object is his. Rather, a doubt remains about the true ownership of the object (perhaps the person who is holding the object purchased it from the original owner, or perhaps he stole it). The Halachah says that in a case of such doubt, the object should stay in its present domain (i.e. in the hands of the Machzik). When, however, the Machzik is no longer holding the object, the Halachah also says that it should remain where it is, and thus the Machzik is not entitled to keep it, but rather "Kol d'Alim Gevar" applies.

An alternate approach may be as follows. Although the earlier Chazakah that the Machzik had on the fruit shows that he did purchase the fruit from the original owner, once the fruit is no longer in the Machzik's possession the original owner may claim that he never sold it to the Machzik, based on a Migu: he could have said that he purchased the fruit back from the Machzik, and therefore he is believed to say that the fruit always belonged to him. Unless the Machzik can prove that he deposited the fruit in the other field, he is not presumed to be the rightful owner, and the principle of "Kol d'Alim Gevar" applies. (M. KORNFELD)

How, then, does the logic of "Lo Chatzif" override this Migu and give the rights of ownership to the Machzik? The answer is that the logic of "Lo Chatzif" is considered so strong that a Migu that counters it is like a "Migu b'Makom Edim," a Migu that counters witnesses, which is not a valid Migu, as the RAMBAN writes. (See RASHASH and CHIDUSHEI RABEINU MEIR SIMCHAH. See also TOSFOS to 35b, DH v'Iy Dali, who suggests similarly that sometimes a logical reason (Sevara) can transform a Migu into a "Migu b'Makom Edim.")

2. The HAGAHOS MAIMONIYOS (Hilchos To'en v'Nit'an 9:5) in the name of the RITZBA, cited by the KETZOS HA'CHOSHEN (137:1), answers that a Chazakah works because it is assumed that the Machzik took the object with the consent of the previous owner. However, if people witness the Machzik as he enters the property of the previous owner and removes the object when the previous owner is not present, he will not have a Chazakah. The fact that he took the object from inside someone's home when the owner was not present is enough to cast doubt on the legitimacy of his claim of ownership of the object. Since in the case of the Gemara here, the Machzik was collecting the fruit when the previous owner was not present, he is not entitled to the fruit through the normal law of "Chezkas Metaltelin" if not for the logic of "Lo Chatzif."

The Ritzba cites support for this principle from the case of "Nascha d'Rebbi Aba," in which case the one who seized the object does not have a Chazakah on the object. (Tosfos apparently differentiates between grabbing, which is clearly done without the owner's consent, and taking something from the owner's house when he is not present.)

Many Rishonim rule, like the Ritzba, that taking an object when the owner is not present does not create a Chazakah (see RAMBAM, Hilchos Gezeilah v'Aveidah 4:12, RIF and ROSH to Shevuos 46a, and SHULCHAN ARUCH CM 90:14). This also seems to be the intention of the RITVA (22a, DH Minayin).

(b) Why does the logic of "Lo Chatzif" not apply in every case of doubt about the ownership of Metaltelin? It seems that the logic of "Lo Chatzif" applies only to an object which is outside of one's home and which a person uses over a period of time in front of the eyes of the public. In such a case, it is assumed that a person would not have taken the fruit from the field unless the fruit was actually sold or gifted to him. In contrast, other types of Metaltelin, which a person uses in the privacy of his own home, may be taken surreptitiously from inside the owner's home and are used inside the Machzik's home in private while no one is watching. Consequently, the logic of "Lo Chatzif" does not apply. Instead, the logic that a person is not assumed to be a thief applies, and it is assumed that the Machzik is the rightful owner of the object and that he did not steal it (he has a "Chezkas Kashrus" that he is not a thief). Such a Chazakah is less powerful than the Chazakah of "Lo Chatzif Inish."

(Aside from the logic that a person is not assumed to be a thief, there is a second element implicit in a "Chezkas Metaltelin": When there is a doubt about the ownership of an object, the object is left where it is and is not taken out of its present domain without definitive proof ("ha'Motzi me'Chaveiro Alav ha'Re'ayah"). This element of the Chazakah applies even when the doubt about who owns the object has nothing to do with whether the Machzik is a Ganav, such as in a case in which both litigants have a "Ta'anas Shema," a claim of uncertainty, or, like the case on 32b, where there is a Safek in Halachah and the ruling is "ha'Motzi me'Chaveiro Alav ha'Re'ayah." This element of the Chazakah applies to land as well, according to the Rashbam (see Tosfos there), and that is why the Rashbam there says that even if a person does not have a Chazakah of three years on a field, he is considered the Machzik with regard to "ha'Motzi me'Chaveiro Alav ha'Re'ayah" and he may remain on the land.)

It is evident from this Gemara that the reason why the logic of "Lo Chatzif" does not allow Beis Din to grant the land to the person who presently occupies it is the counter logic of "Achvi Shtarach" -- "show your Shtar." This idea provides a key to understanding the difference, in general, between the laws of ownership of land and the laws of ownership of Metaltelin. Why is the Chazakah on land not immediate, as it is on Metaltelin? Why is it not assumed that when a person is in possession of land, he owns that land and is not a thief? The Gemara says that the reason why such logic does not apply to land is that in the case of land there is a strong counter claim of "Achvi Shtarach"; if the Machzik is the true owner, then he should still be in possession of the Shtar. If he does not have the Shtar, then we must suspect that something is not right. That logic is so strong that it overrides even the logic of "Lo Chatzif Inish." Accordingly, it certainly overrides the logic that a person is not assumed to be a thief. The reason why a person does have a Chazakah for an object of Metaltelin is that a person usually does not write a Shtar for the sale of Metaltelin. This is also evident from the Rashbam later (42a, DH Ein Lahem Chazakah). (See also Insights to 36:1:b.) (M. KORNFELD)

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