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

1) TESTIFYING ON BEHALF OF ONE'S PARTNER

QUESTION: The Gemara discusses Shmuel's statement that when two people own property in partnership, one partner may testify on behalf of the other partner. The Gemara asks that the partners should not be allowed to testify for each other because they are "Nog'in b'Edusan" -- the one testifying will benefit personally by his testimony for his partner, since he thereby will not lose his own share in the property.

Why does the Gemara refer to this as "Noge'a b'Edus," meaning that the partner's testimony has some relevance to himself? The problem is much greater than that. The partner's testimony is not valid because he is a defendant himself, a "Ba'al Davar," in the case!

ANSWERS:

(a) The RASHBA answers that the Gemara indeed could have said that the partner is a Ba'al Davar. The reason why the Gemara calls him "Noge'a" is that it anticipates the forthcoming answer -- that the partner withdrew his ownership from the field. Once the partner has withdrawn his ownership, he no longer is a Ba'al Davar. Rather, he is only "Noge'a b'Edus" since he gains indirectly by having his former partner keep the land, because as long as it is in his partner's hands it can be collected by his creditors for loans that he owes.

(b) RAV SHMUEL ROZOVSKY zt'l (Shi'urim #38, Chidushim #23) suggests another reason for why the Gemara does not emphasize that the partner is a Ba'al Davar. Every Ba'al Davar is disqualified from testimony for two independent reasons. First, he is a Ba'al Davar and is Karov (related) to himself, and a Karov (relative) is Pasul l'Edus. Second, Beis Din suspects that he might lie in order to gain. The difference between the two reasons is evident in a case in which the Ba'al Davar's testimony involves both himself and someone else. The Pesul of being a Karov would invalidate him to testify about himself, but the part of his testimony that pertains to others would be accepted. (Such a concept of "dividing" one's testimony may be found in Sanhedrin 9b, with regard to a person who testifies (with another witness) that he willingly participated in the Aveirah of "Mishkav Zachor." He is not believed to incriminate himself, but he is believed to incriminate the other person.) However, if Beis Din suspect that the person is lying because he is Noge'a b'Edus and benefits from the testimony, then his testimony should not be accepted even for others, since his entire testimony might have been given merely for his own personal gain.

The Gemara here is asking that one partner should not be believed to testify even with regard to the portion of the other partner. To ask this question, the Gemara must emphasize that he not only is a Ba'al Davar (and related, Karov, to himself), but that he is also Noge'a b'Edus (suspected of lying for personal gain).

This explanation seems to be based on the assumption that when the Gemara uses the term "Noge'a b'Edus" it means that although the person can gain indirectly from his testimony, he is not actually considered a defendant, a Ba'al Davar, in the case. That is why the words "Noge'a b'Edus" imply a suspicion of fabrication more than the words "Ba'al Davar."

This question is debated at length among the Acharonim. The S'MA (CM 37:1) and SHACH (ibid.) indeed point out this difference between the Pesul of Ba'al Davar and the Pesul of Noge'a b'Edus, and they cite numerous proofs to support this. They cite among these proofs the CHIDUSHEI HA'RAN and NIMUKEI YOSEF (23b of the pages of the Rif), who write that the Pesul of Noge'a b'Edus is not similar to the Pesul of Karov because a Karov cannot testify at all for his relative, whereas a Noge'a b'Edus may testify as long as he does not benefit from his testimony. They also cite numerous places where it is evident that one who is Noge'a is Pasul because he derives personal benefit from his testimony. This also seems to be implied by the words of the RA'AVAD cited by the Rashba here (DH v'Amai), who writes that in the case of the Gemara here the partner is not Pasul because he is a Karov but because of "Cheshad" -- he is suspected of lying because he is Noge'a b'Edus. See also RASHASH (44a and 159a).

The MACHANEH EFRAIM (Hilchos Edus #1) suggests that according to this reasoning, a Karov, relative, of another person who is Noge'a b'Edus would be allowed to testify, even though a Karov of a Ba'al Davar is not allowed to testify. According to these opinions it seems that if a person of impeccable honesty (such as Moshe Rabeinu or Aharon ha'Kohen; see Bava Basra 159a) would testify, his testimony would be accepted.

However, the LEVUSH IR SHUSHAN writes that Noge'a b'Edus is not Pasul just because he is suspected of lying, but because he is [also] a Karov to himself (that is, every Noge'a b'Edus is a Ba'al Davar since he benefits from his testimony in the case; the TUMIM (end of 37:21) comes to the same conclusion as the Ir Shushan). See also MAHARAM (end of 44a). Indeed, no Poskim allow the testimony of a person who is Noge'a b'Edus even when he is of impeccable honesty. Regarding the proofs that the Acharonim cite that indicate otherwise, most of the proofs are from cases in which it is evident that if the person does not gain by his testimony, his testimony is valid. However, when the witness does not gain by his testimony, he is no longer Noge'a b'Edus (as the Shach himself writes); if he loses as a result of his testimony, he certainly is believed to cause a loss to himself because of Hoda'as Ba'al Din.

The RA'AVAD (cited by the Rashba) says only that if a person is not only a Karov but is also suspected of lying because he is a defendant in the case, then he is not considered a witness at all (and therefore he is not comparable to a relative who cannot testify even after he becomes unrelated to the litigant; see Insights below). The words of the Chidushei ha'Ran and Nimukei Yosef are not clear, because according to the Shach's way of understanding they call a person "Noge'a b'Edus" even when the testimony is no longer relevant to him. It is possible that they, too, are simply differentiating between one who is Noge'a b'Edus and a Karov with regard to after he is no longer Noge'a b'Edus or a Karov (see TUMIM, end of 37:21 and 37:22). Accordingly, every Noge'a b'Edus is a Ba'al Davar and a Karov, and thus it would have been more accurate for the Gemara to call the partner who testifies a "Ba'al Davar." Perhaps the answer of Rav Shmuel Rozovsky still applies if one explains the Gemara's usage of the words "Noge'a b'Edus" in a different sense than usual: the Gemara means to emphasize that aside from the fact that the partner is a Karov to himself, he is also suspected of lying, as Rav Shmuel Rozovsky suggests.

2) LET TWO JUDGE THE CASE

QUESTION: The Gemara asks that if it is true that a partner, after he withdraws his ownership from his share of the property, may testify on behalf of his former partner, then why may the residents of a city not testify or adjudicate in the case of a thief who stole a Sefer Torah from the city? Two of the residents of the city should relinquish their rights to the Sefer Torah and judge the case!

Why does the Gemara suggest that two people should judge the case? Although two people can provide testimony as witnesses about the case, three Dayanim are necessary in order to judge the case. (MAHARAM and RISHONIM)

ANSWERS:

(a) The RAMBAN and RASHBA answer that the Gemara means that two of the residents should relinquish their ownership of the Sefer Torah, and then three others (from outside the city) can judge based on their testimony.

Their Girsa of the Gemara is, "v'Lidainuha" -- "and let them judge it." "It" may refer to the testimony that the two residents of the city present. This explanation, however, does not fit will with the Girsa of our texts, "v'Lidainu" -- "and let them judge."

(b) The RITVA and RAN explain that the Gemara's expression here is abbreviated. The Gemara means to say, "Let two withdraw their rights and testify, or let three withdraw their rights and judge." The ROSH (Teshuvos 58:1) suggests a similar explanation.

(c) The TOSFOS RID and MAHARAM suggest that the Girsa in the Gemara be emended from "v'Lidainu" to "v'Lisahadu" -- "and let them testify."

(d) The YAD RAMAH (#134) explains that the Gemara is discussing the statement of Shmuel. It is Shmuel who maintains (in Sanhedrin 3a) that a court can be comprised of two judges. Although Shmuel allows such a court to judge a case only b'Di'eved, this case is considered b'Di'eved because no more than two residents of the city are willing to relinquish their rights to the Sefer Torah, and nobody else is available to judge the case. Since the case is considered to be b'Di'eved, it may be judged by two judges. A similar answer is suggested by the PNEI SHLOMO and CHOSHEN YESHU'OS. (For further elucidation of this answer, see TUMIM 37:22, and Hagahos of RAV NISAN ZAKS to the Tosfos Rid, #190.)

(e) The TOSFOS RID, in his first explanation, writes that perhaps the Gemara suggests that the residents who relinquish their rights should judge the case specifically as Dayanim because they are not eligible to testify as witnesses. The reason for this is that a person who was not fit to be a witness at the time he saw the event ("Techilaso b'Pesul") cannot testify later about the event, even if he later becomes a valid witness (Bava Basra 128a; see TOSFOS here, DH v'Lisalku). For this reason, a resident of the city who witnessed the event (such as the theft of the Sefer Torah) is not able to testify, even if he later relinquishes his rights to the Sefer Torah. Since the beginning of his testimony (the moment at which he witnessed the event) occurred when he owned a share of the Sefer Torah, he is not a valid witness. Nevertheless, after he relinquishes his rights to the Sefer Torah, he is able to judge the case, because he only begins to judge the case after he has given up his rights to the Sefer Torah. This is also the understanding of TOSFOS in Nidah (50a, DH v'Rebbi Meir) and TOSFOS RABEINU YEHUDAH cited by the Rosh (Teshuvos 58:1).

This explanation is consistent with the Girsa of the Pizaro manuscript of the Gemara, cited by the DIKDUKEI SOFRIM (#5). In place of the words "Bei Trei" ("*two people* should withdraw"), that Girsa reads, "Beis Din should withdraw."

The ROSH rejects this explanation because Shmuel stated that after a partner relinquishes his ownership of his share of the property, he may testify for his former partner. According to the Tosfos Rid, a former partner may not testify since he originally was an invalid witness.

The Rishonim suggest a number of approaches to answer this question on the Tosfos Rid and to explain why the witness is allowed to testify about what he saw while he was still a partner.

1. The ROSH (in Teshuvos) and the YAD RAMAH explain that the partner saw the event before the partnership started. Therefore, when he withdraws from the partnership he is a valid witness, because both at the beginning of his testimony (the moment of the event) and at the end of his testimony (the moment that he testifies in court) he was a valid witness.

This answer is also suggested by the MISHNEH L'MELECH (Hilchos Edus 15:1) and TUMIM (37:22). The Tumim points out that this answer does not fully explain the Gemara which says that residents of the city may withdraw and testify, since the Beraisa which says that they may not testify might refer to residents of the city at the time of the theft, and thus even if they later relinquish their rights to the Sefer Torah they will not be eligible to testify. (Perhaps the Tosfos Rid and Tosfos in Nidah indeed understand the Gemara in this way, and that is why they write that the Gemara's question on the Beraisa is only with regard to judging the case, but not with regard to testimony, even though Shmuel himself permitted the partner to testify in his case.) This answers the question of the Rosh.

2. The MORDECHAI (#539) answers that if, at the time that he witnesses the event, the witness is able to remove the Pesul that invalidates him from testifying, then he is not considered "Techilaso b'Pesul." Alternatively, the witness was eligible to testify about his partner for everything other than events involving their ownership of the property, and therefore he is not considered "Techilaso b'Pesul."

3. TOSFOS writes that the partner is not considered "Techilaso b'Pesul" since the Pesul of the witness was not in his person, but it was because of the property that he owned.

The intention of Tosfos is not clear. Why should there be a difference between the two causes for the disqualification? Perhaps Tosfos means to say what the RI MI'GASH and the RA'AVAD (cited by the Rashba) say. They explain that when a person is Noge'a b'Edus because he stands to gain monetarily, he is not considered a witness altogether. Rather, he is a Ba'al Davar, a defendant in the case (see previous Insight). He becomes a witness only at the moment he relinquishes his rights to the property. Consequently, he is not considered "Techilaso b'Pesul" since he is able to testify at the moment that he "becomes" a "witness." (See RASHBA who rejects this explanation.)

4. Others suggest that Tosfos means to explain like the RAMBAN, RASHBA, and other Rishonim. They explain that a witness is considered "Techilaso b'Pesul" only if he once was related to the person for whom he is testifying, which would have made him ineligible to present testimony about that person. The relationship of the past might affect what he says now about his former relative.

In contrast, if a witness was once ineligible to testify about another person because that testimony might cause the witness personal benefit, then the witness was never really ineligible to present testimony about the other person. Rather, he was ineligible because his testimony was affecting himself. Since now his testimony is no longer affecting himself, he is permitted to testify for the other person.

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

3) PROVING THAT THE "MUCHZAK" KEEPS LAND WHEN ITS OWNERSHIP IS IN DOUBT

QUESTIONS: The RASHBAM (DH v'Iy Ba'is Eima) writes that whenever a question arises about the ownership of an object, the object is left with the person who is presently in possession of it (because of "ha'Motzi me'Chaveiro Alav ha'Re'ayah"). The Rashbam asserts that this applies even with regard to land; the land is left with the person who presently occupies it, even if he does not have a Chazakah of three years. The Rashbam cites three proofs for this:

First, the Gemara earlier (32b, in the case of "Gachin Lachish") says that the land is left with the person who presently occupies it, even though he has no Chazakah.

Second, the Gemara earlier (34b) rules that "Kol d'Alim Gevar" in a case in which two disputants claim that a field belonged to their fathers.

Third, the Gemara in Kesuvos (20a) discusses the case of "Bar Shatya," in which two sets of witnesses contradicted each other regarding whether Bar Shatya sold his property when he was of sound mind. Since the ownership of the property was in doubt, the land was left in his possession.

(a) What proof does the Rashbam bring from the ruling of "Kol d'Alim Gevar"? That ruling seems to be unrelated to the rule of "ha'Motzi me'Chaveiro Alav ha'Re'ayah."

(b) How does the Rashbam prove from the case of "Bar Shatya" that the land is left in the hands of the person who is Muchzak? The opposite is true in that case: the land was taken away from the person who purchased it and it was given to the Mara Kama (Bar Shatya)! (KOVETZ SHI'URIM #182; see AYELES HA'SHACHAR.)

ANSWERS:

(a) The RASHBAM indeed understands that "Kol d'Alim Gevar" is an application of the rule of "ha'Motzi me'Chaveiro Alav ha'Re'ayah." Beis Din withdraws from judging the case, and, consequently, if one of the disputants takes control of the land he is allowed to keep it until the other brings proof that it is his. If the other one takes it away from the first through force, then he is allowed to keep it, and this process can repeat itself indefinitely. (See Rashbam to 35a, DH Hasam, and Insights there.) This is also the opinion of TOSFOS in Kesuvos (20a, DH v'Uki). The Rashbam apparently maintains that when Beis Din rules "ha'Motzi me'Chaveiro Alav ha'Re'ayah," if the claimant seizes the property from the defendant ("Tefisah"), then Beis Din allows the claimant to keep it even though he seized it after Beis Din became aware of the doubt. (This is in contrast to the view of TOSFOS to 2a, DH Lefichach; see Insights to 4a.)

(b) In the case of "Bar Shatya," the Gemara teaches that Beis Din does not destroy the Shtar that says that Bar Shatya sold the land, even though the property is given back to Bar Shatya. RASHI in Kesuvos (DH v'Uki) explains that the reason why the Shtar is not destroyed that even though the testimony is stalemated, if the buyer seizes the property from Bar Shatya Beis Din allows it to remain in his hands.

According to Rashi, why does Beis Din return the property to Bar Shatya and not allow the buyer -- who is presently occupying the property -- to remain on the property? Apparently, in that case Bar Shatya was still occupying the property.

In is clear from the Sugya of "Bar Shatya" (according to Rashi) that if someone seizes property (and claims that it belongs to him), Beis Din allows him to keep it even though he does not have a three-year Chazakah and someone else has a Chezkas Mara Kama. This is also the opinion of Tosfos there (DH v'Uki, in his first answer).

Tosfos in Bava Basra (32b, DH v'Hilchesa) argues with the Rashbam's proofs from these three Gemaras. He is consistent with his own view earlier (on 2a) where he explains that in the case of "Gachin Lachish" the ruling was not "ha'Motzi me'Chaveiro Alav ha'Re'ayah." In the case of "Bar Shatya," the buyer was evicted from the property in favor of Bar Shatya who had a Chezkas Mara Kama. Finally, according to Tosfos, the principle of "Kol d'Alim Gevar" is not the same as "ha'Motzi me'Chaveiro Alav ha'Re'ayah." Rather, since there is no one who is Muchzak, Beis Din allows the two disputants to seize the property from each other, even though normally they would not be permitted to seize the property from each other after the case has been presented to Beis Din. (M. KORNFELD)

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