1) MAKING A CHAZAKAH ON "AVADIM" AND "GODROS"

QUESTIONS: Reish Lakish says that one cannot make a Chazakah (that is, an immediate Chazakah of "Chezkas Metaltelin" to prove one's ownership) on "Godros" (domesticated animals that wander by themselves), since they move about by themselves and are easy to steal. The Gemara explains that the same applies to Avadim, slaves. The Gemara concludes, however, that one does have a Chazakah on Godros and Avadim after they have been in his possession for three years, like one has a Chazakah on land after three years, as the Mishnah explains.

What does Reish Lakish teach that is not already known from the Mishnah? The Mishnah says that one cannot make a Chazakah on Avadim until they have been in his possession for three years. Obviously, the reason is that they wander by themselves. (TOSFOS to Gitin 20b, DH Ta Shema)

(One might suggest that perhaps the Mishnah says that one cannot make an immediate Chazakah on Avadim because they are purchased with a Shtar, like land, and, consequently, if the Machzik cannot produce a Shtar within three years, that shows that the Eved is not his. Accordingly, the Mishnah teaches nothing about Godros. However, this answer is not viable. The Gemara says that it is obvious that a person is considered Muchzak on an Eved Katan even when he has not had possession of the Eved Katan for three years. If people write Shtaros for the purchase of Avadim, If it is true that people write Shtaros for the purchase of Avadim, then one should have a Chazakah on an Eved Katan only after three years if he cannot show the Shtar to attest that he bought the Eved Katan.)

Moreover, why does the Mishnah mention only Avadim and not Godros? The Halachah of Avadim and Godros are the same, and thus the Mishnah should mention both of them.

ANSWERS:

(a) The RAMBAN here and TOSFOS in Gitin explain that from the Mishnah it is not evident that one cannot make a Chazakah on animals. Perhaps only on Avadim -- who have their own minds and who might walk into another person's domain under verbal persuasion or in order to choose a different master -- does one not make a Chazakah in less than three years. Animals, in contrast, do not have their own minds, and the owner can prevent them from wandering into another domain. Reish Lakish teaches that since it is normal for domesticated animals to be allowed to wander freely, one cannot make a Chazakah on animals in less than three years. This answers the first question.

Tosfos and the Ramban do not address the second question. If they agree with the RAMBAM (Hilchos To'en v'Nit'an 10:4) that only Avadim can be acquired with a Chazakah of three years but not animals, then it is clear why the Mishnah does not mention animals. However, Tosfos in Gitin there clearly disagrees with the Rambam and equates Avadim with animals!

Perhaps they understand that since Avadim are often mentioned together with Karka, land, the Mishnah includes Avadim in its list even though the reason why one cannot make a Chazakah on an Eved until he has held the Eved for three years (i.e. because of the reason of Godros, that they move about on their own) is not related to the reason why one cannot make a Chazakah on land until three years have passed. Accordingly, the Mishnah does not mention that the Chazakah on animals must be three years because that Halachah is not related to the Halachah of the Chazakah on land.

(b) The RASHBA and RITVA (28a) explain that the logic that prevents a Chazakah from being made on land in less than three years does apply to an Eved as well. Apparently, they understand that a person does write a Shtar when he sells an Eved. However, when a person sells an animal, he does not sell it with a Shtar. According to this reasoning, it is obvious that the Halachah of Godros cannot be learned from the Mishnah, since the reason why one does not have a Chazakah on an Eved is not related to the reason why one does not have a Chazakah on Godros. It is also obvious why the Mishnah includes the Halachah of Avadim but does not mention that an animal requires a Chazakah of three years. There are two reasons why a slave cannot be acquired through a Chazakah until after three years have passed: an Eved is like Godros, and the Eved was sold to the Machzik with a Shtar. The law of Avadim is included in the Mishnah because of the second reason.

The Rashba and Ritva add that it is possible that Godros can be acquired through a Chazakah in less than three years. The only reason why one needs a Chazakah of three years to acquire an Eved is that the owner would not lose his Shtar within three years. If he cannot present his Shtar, it shows that he did not purchase it. However, in order to acquire Godros, it is enough to hold on to the animal long enough for the owner to have the opportunity to protest, and for that one or two years might suffice.

(The question of the Rashba and Ritva, whether a person protests when someone else uses his property for less than three years or only after three years, seems to depend on the question and answer on 29a; see Insights to 29:1.)

According to the Rashba and Ritva, it seems that an Eved is acquired with a Shtar. Why, then, does the Gemara write that it is obvious that an Eved Katan can be acquired immediately? If the Machzik cannot present a Shtar, the Eved Katan should not be acquired until three years have passed! (KETZOS HA'CHOSHEN 135:2; BIRKAS SHMUEL #26)

The KETZOS HA'CHOSHEN answers that the logic that a "mother does not forget her son" is such a strong proof that the baby belongs to the Machzik that it overrides the fact that the Machzik cannot produce a Shtar. However, this answer is problematic, as the Acharonim point out (see Birkas Shmuel). The Gemara says that it is obvious that a person can acquire a baby Eved with a Chazakah, before it knows the logic that a mother does not forget her child! Furthermore, perhaps the Machzik stole the baby Eved and that is how the baby entered his domain without its mother.

The BIRKAS SHMUEL and KOVETZ SHI'URIM (#160) answer that the Chazakah that a person makes on a movable object that is in his possession is much stronger than the Chazakah that a person makes on land, since a movable object is totally in his possession to do with it as he pleases. A person can hide the object from its previous owner so that the previous owner will never see it (as Tosfos writes in Bava Metzia 103a, DH Pardisei, and as the Rashbam writes later in Bava Basra 105b, DH v'Rav Nachman). Perhaps the proof of ownership that emerges from a Chazakah on land is not as strong as the counter proof that he does not own the land if he cannot produce a Shtar. However, the proof of ownership that emerges from a Chazakah on Metaltelin is so strong that it can override the counter proof that he does not own the object if he does not produce a Shtar.

Accordingly, even if an Eved is normally sold with a Shtar, a Chazakah on an Eved Katan is sufficient proof of ownership. However, if the Eved is an adult, one cannot make a Chezkas Metaltelin on it (because it is like Godros). Therefore, the fact that the Machzik cannot produce a Shtar proves that the Eved does not belong to him.

There are a number of problems with this explanation. First, why does the Gemara say that it is "obvious" that an Eved Katan can be acquired with a Chazakah, and that Rava does not need to teach that Halachah? Perhaps Rava's intention is to teach this point itself -- that a Chazakah on Metaltelin is able to override the fact that the Machzik cannot show a Shtar.

Second, the Rashba and Ritva imply that the two reasons for why an immediate Chazakah cannot be made on an Eved are not related to each other. According to the Birkas Shmuel and Kovetz Shi'urim, it is only because an Eved is like Godros that the Chazakah cannot override the absence of a Shtar.

Third, the Gemara earlier (33b) teaches that when a person occupies land for less than three years and claims that he purchased only the fruit and not the land itself, he has a Chazakah and is believed, because a person would not be so brazen as to eat the fruit of another person's land. The Gemara asks why is that proof acceptable? To the contrary, if he purchased the land he would have been able to show a Shtar! The Gemara answers that people do not write Shtaros on the purchase of fruit.

It is clear from the Gemara there that the proof of brazenness is a stronger proof than a normal Chezkas Metaltelin, as Tosfos (33b, DH v'Iy Ta'in) writes. The brazenness premise proves ownership even when the fruits are no longer in his possession (see Insights there), which is not true in the case of a normal Chezkas Metaltelin. (When Tosfos and the Rashbam write that a Chezkas Metaltelin is stronger, they are referring to a case in which the brazenness of the occupant is not relevant (for example, when there is a doubt about the intention of the seller when he sold an object, or when there is a doubt about the Halachah).) Nevertheless, if fruit normally would be sold with a Shtar, the lack of a Shtar would override the brazenness of the Machzik. Consequently, it would certainly override a normal Chezkas Metaltelin (which is weaker than the proof of brazenness). (The BIRKAS SHMUEL alludes to this question and leaves it unanswered.)

Perhaps the reason why a Chazakah works for an Eved Katan is as follows. When the Rashba and Ritva explain that the reason why a person cannot make a Chazakah on an Eved until three years pass is the same as the reason why a person needs three years for the other things mentioned in the Mishnah, they describe that reason as "Osin Peros Tadir" -- "they constantly produce fruit." ("Tadir," or "constantly," clearly is Lav Davka and is not required, because there are items in the Mishnah for which a Chazakah cannot be made in less than three years even though they do not produce fruits constantly, as the Rashba and Ramban in the Mishnah explain, and as the Gemara teaches here (36b) according to the opinion of the Chachamim.)

Why do they say that the production of fruit is what causes the Chazakah not to take effect in less than three years? They should say instead that it is because those items were sold with a Shtar that they do not have a Chazakah immediately!

The answer might be that the two points depend on each other. The reason why it is common practice to write a Shtar for the sale of land is that the purpose of the land is to produce fruit. Since land cannot be used in any other way other than to produce fruit (in contrast to Metaltelin, for which the item itself can be used), when a person buys land it is not clear whether he buys the actual land or whether he buys the fruit alone. In order to prove his ownership, the buyer has a Shtar written. If he purchases only the rights to the fruit of the land, he has no need to write a Shtar, as the Gemara says (33b).

The same logic applies to Avadim. An Eved cannot be used up (since the master has no rights over the body of the Eved, but only for the service of the Eved). Therefore, when one acquires an Eved, he normally has a Shtar written. In contrast, an Eved Katan, who is still unable even to walk, cannot provide any service. Thus, it is clear that when the Eved Katan is in a master's possession, the master must have purchased the Eved himself and not the rights to his services (since the Eved Katan provides no services). Since it is not common to write a Shtar when one purchases an Eved Katan, it is obvious that a Chazakah takes effect immediately. (M. KORNFELD)

2) KEEPING A COW BASED ON A CHAZAKAH

QUESTIONS: Reish Lakish says that one cannot make a Chazakah (that is, an immediate Chazakah of "Chezkas Metaltelin" to prove one's ownership) on "Godros" (domesticated animals that wander by themselves), since they move about by themselves and are easy to steal. The Gemara explains that the same applies to Avadim, slaves. The Gemara concludes, however, that one does have a Chazakah on Godros and Avadim after they have been in his possession for three years, like one has a Chazakah on land after three years, as the Mishnah explains.

The Mishnah in Bava Metzia (100a, and cited here on 35a) teaches that if a person bartered a cow for a donkey and the cow gave birth, and it was unclear whether it gave birth before or after the exchange, the buyer and seller split the calf. The RASHBAM (35a, DH u'Mai Shena) quotes the Gemara in Bava Metzia which asks why the rule of "ha'Motzi me'Chaveiro Alav ha'Re'ayah" does not apply. If the cow was in the purchaser's domain at the time of the purchase, he should be entitled to keep the calf. The Gemara answers that the cow was in the domain of neither the buyer nor the seller at the time of the purchase (but rather it was in the swamp).

Why does the Gemara assume that if the cow was in the domain of the purchaser, he should be entitled to keep the calf? Cows are domesticated animals that wander freely, and thus the purchaser should have no Chezkas Metaltelin (on the calf) in less than three years (TOSFOS to Bava Metzia 100a, DH v'Lechzi). The Gemara implies that a Chezkas Metaltelin cannot be made even on a baby animal, because -- unlike a baby Eved -- it walks immediately after birth (TOSFOS RABEINU PERETZ there).

ANSWER: TOSFOS and the TOSFOS HA'ROSH answer that in the case of the Mishnah in Bava Metzia, the reason why the purchaser may keep the calf is not simply that the cow is in his possession, but rather he may keep it because he has a "Derara d'Mamona" -- a valid reason to support his claim of ownership of the object. The fact that there was a sale is known, and the fact that a calf was born is known, and the doubt is only when the calf was born. In such a situation, the Chazakah of the purchaser gives him the rights even to Godros. The CHIDUSHEI HA'RAN and TOSFOS RABEINU PERETZ give a similar answer.

Tosfos adds, however, that this answer applies only when the purchaser claims with certainty that the calf was born after he purchased the cow. If neither the purchaser nor seller claims with certainty when the calf was born, then they split it.

It seems that Tosfos follows his opinion expressed elsewhere. The RASHBAM earlier (32b; see also Rashbam to 41a, DH Chaishinan) explains that when there is a doubt in Halachah about the ownership of land, the land is given to the person who is occupying it, even if he has been there for less than three years. Tosfos there (DH Hilchasa) argues that just as the occupant does not have a Chezkas Karka (of three years) to claim that he purchased the land, he does not have a Chazakah to allow him to take the land in the event of a Safek. The case that Tosfos is discussing is similar to a case of "Derara d'Mamona"; in that case as well, there is valid reason to assume that the occupant of the land is the true owner. However, Tosfos says that had the case not involved a "Derara d'Mamona," Beis Din would not have given him the land since his Chazakah is not strong enough to establish him as the owner. In a similar manner, Tosfos maintains that since the possession of Godros cannot establish the Machzik to be the owner when there is no "Derara d'Mamona," it is not enough of a Chazakah to give him the object (through the principle of "ha'Motzi me'Chaveiro Alav ha'Re'ayah) even when there is a "Derara d'Mamona."

According to the Rashbam, it is possible that even though the possession of Godros does not establish the Machzik as the owner when there is no "Derara d'Mamona," it does give him the right to the object when there is a "Derara d'Mamona," such as in a case of a Sfeika d'Dina (a Safek what the Halachah is), or when it is not clear when the baby cow was born (even when the Machzik himself does not claim to know when it was born).

36b----------------------------------------36b

3) MAKING A CHAZAKAH ON "SMALL FRUITS"

QUESTIONS: The Gemara explains that Rebbi Yishmael and Rebbi Akiva in the Mishnah (28a) argue about whether a Chazakah can be made on "small fruits" ("Pera Zuta"). The RASHBAM explains that according to Rebbi Akiva, even if the Machzik harvests fruit that grows in only thirty days it is considered a Chazakah, such as when he harvests "Shachas" (underdeveloped grain used for animal fodder), or when he harvests a vegetable which grows to maturity in thirty days. Rebbi Yishmael maintains that harvesting such produce is not sufficient for making a Chazakah.

The Rashbam's explanation seems problematic for several reasons.

First, how can the Gemara assert that Rebbi Yishmael does not allow a Chazakah to be made by harvesting a fruit that grows in one month? The Gemara says earlier (28b) that according to Rebbi Yishmael, when a person harvests "Aspasta" three times in three months he has a Chazakah! Whether Aspasta is Shachas (as RASHI explains on 20b, DH Aspasta) or whether it refers to a different type of plant that becomes fully mature in thirty days of growth (as Rashi explains on 28b), in either case it should not be a Chazakah according to Rebbi Yishmael.

Second, why does Rebbi Akiva say that a Chazakah can be made in only 14 months? If he maintains that a one-month harvest suffices as a complete year for a Chazakah, then one should be able to make a Chazakah in three months, as the Gemara says earlier (28b).

Third, the Gemara earlier (36a) cites Rav Yosef who teaches that when a person harvests the field for three years while the grain is still "Shachas," it is not a Chazakah because the occupant did not harvest it in the normal manner. (This is true even if the occupant constantly planted and harvested Shachas throughout the three years.) How can the Rashbam write that according to Rebbi Akiva, harvesting the grain while it is Shachas suffices to constitute a Chazakah?

ANSWERS:

(a) The RAMBAN, RASHBA, and RITVA (28b) explain that Rebbi Yishmael would allow a Chazakah to be made in three months if the field was normally used for planting Aspasta or Shachas. The Mishnah, however, refers to a field which is normally not used for growing Shachas. That is why a one-month harvest of Shachas is not sufficient. Rebbi Akiva argues and maintains that even a harvest of Shachas suffices, since at least some people plant Shachas in their fields (ALIYOS D'RABEINU YONAH on 28b).

To answer the second and third questions, they explain that although the field is sometimes used for growing Shachas, since it is not a field designated for growing Shachas people use it for Shachas only during the alternating fallow years. Therefore, if the occupant plants a full crop in the middle year, and in the first and third years he plants Shachas, he is using the field in the normal manner and he will have a Chazakah. However, if he plants Shachas for three consecutive years, he is not using the field in the normal manner and he will not have a Chazakah. In Mechoza, even if the fields are planted with Shachas for three consecutive years, he will have a Chazakah, because animal fodder is in such high demand there that even fields normally used for growing grain are sometimes used for growing Shachas as their main crop (RITVA to 36a).

(b) TOSFOS (28b) has a different approach to the Sugya. Tosfos explains that when the Gemara says that according to Rebbi Yishmael, one cannot make a Chazakah with "small fruit," it does not refer to a person who raises a full crop of fruit in thirty days; such a harvest indeed would be a Chazakah according to Rebbi Yishmael, as the Gemara says earlier (28b). Rather, the Gemara means that if a person lets his grain grow only a small amount, it is not a Chazakah according to Rebbi Yishmael; he must let it grow for three months. This is why Rebbi Akiva does not say that one can make a Chazakah in three months; the Mishnah discusses one who makes a Chazakah on a field of grain and not on a field of vegetables.

Tosfos addresses the third question (why, according to Rebbi Akiva, harvesting the grain while it is Shachas, grain grown for one month, suffices to constitute a Chazakah). Tosfos explains that there are two ways to grow Shachas. One could harvest the grain before it develops seeds, in which case it will grow back and can be re-harvested after another thirty days. Alternatively, one can wait until after the grain develops and then harvest it, in which case it will not grow back. Rav Yosef (on 36a) teaches that harvesting Shachas is not a Chazakah when the occupant lets the Shachas develop seeds and only reaps one harvest of Shachas per year. Rebbi Akiva says that Shachas is a Chazakah when the occupant harvests it before it develops seeds and continues to harvest it throughout the year.

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