1) HOW TO AVOID BEING CALLED A "RASHA" WHO DOES NOT PAY BACK LOANS

QUESTION: The Gemara here discusses Shmuel's statement that one who sells land to a buyer (without Achrayus) may not testify that the land belongs to the buyer because he is Noge'a b'Edus. The Gemara explains that the reason why the seller may not testify is that he does not have any other land from which his creditor could collect the debt, and thus he benefits if his former field remains in the hands of the buyer. The creditor will collect the field from the buyer, and the seller will not be considered a Rasha who does not pay back his loans.

Similarly, the Gemara earlier (43a) 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. The Gemara answers that the testifying partner was Makneh his share of the property to his partner, and thus he no longer gains from his testimony. The Gemara asks that he still is Noge'a b'Edus, since he gains indirectly by having his former partner keep the land. As long as the land is in his partner's hands it can be collected by his creditors for loans that he owes. The RASHBAM there cites the Gemara here which explains that he is Noge'a b'Edus because he wants his loan to be paid back so that he will not be called a Rasha who does not pay back his loans.

If the person is worried about avoiding the Aveirah of not repaying a loan, then certainly he should be afraid of transgressing the much more severe Aveirah of testifying falsely! Why is he suspected of lying in order to avoid being called a Rasha who does not pay back his loans, when lying in court is a much greater Aveirah? (RAMBAN (45a) in the name of the RI MI'GASH)

ANSWER: The RI MI'GASH answers that the witness is afraid of what other people say about him. If he does not pay back his loans, then everyone will call him a Rasha for not paying back. If, on the other hand, he gives false testimony, no one will know that he lied.

(The MAHARAM on 44a, cited by the SHACH (CM 37:1), suggests the same answer and adds that if someone who is Noge'a b'Edus is disqualified because he is considered a Karov, then perhaps even if Beis Din is convinced that he is telling the truth, his testimony is still invalid.

However, this answer is difficult to understand. If the witness is more worried about testifying falsely than about not paying back his loans, then he is no longer Noge'a b'Edus in the first place and his testimony should be accepted!)

2) THE CRAFTSMAN'S CLAIM OF OWNERSHIP

QUESTIONS: The Mishnah (42a) teaches that an Uman, craftsman, cannot make a Chazakah on an object that he is holding and claim that the object in his hands belongs to him. Abaye and Rabah argue about the application of this Halachah. According to Rabah, if the claimant does not have witnesses to testify that he handed over the object to the Uman to fix, then the Uman is believed to claim that he bought the object because he has a Migu that he could have said that he never received anything from the claimant. Abaye argues that even when there are no witnesses to testify that the object was given to the Uman to fix, the Uman cannot make a Chazakah on the object and is not believed to claim that the object is his.

According to Rabah, what is the alternate claim (the claim of the Migu) that gives the Uman credibility when he claims that he bought the object? The RASHBAM explains that the Uman could have said that the claimant sold the object to a third party, who then sold it to the Uman. (The Uman does not need to specify who that third party is, and therefore he does not have to worry that the third party will eventually come to court and contradict his claim.)

(a) Why does the Rashbam not give a much more basic explanation for the Uman's Migu-claim? The Uman could claim that he received the object from the claimant by purchasing it from him, and not in order to fix it! When he says that he received the object to fix but then he purchased it from the owner, he should be believed with a Migu that he could have said that he purchased it from the owner directly. (TOSFOS (DH Aval), in fact, gives both examples of Migu. The RI MI'GASH and RABEINU YONAH also suggest the second Migu. See also TOSFOS RID.)

(b) The Rashbam himself seems to contradict his own explanation of what the Migu is, because in other places he implies that the claim of the Migu is, as Tosfos explains, that the Uman could have said that he bought the object directly from the claimant. First, the Rashbam asks why the Uman should be believed according to Rabah; he should not have a Chazakah, just as a person does not have a Chazakah on objects that are normally rented or loaned to others. If the Migu is that the Uman could have said that he purchased the object from a third party (who is not an Uman), then this case cannot be compared to one of an object that is normally borrowed or rented, because he is claiming that he received it from a person who is not an Uman and who had a legitimate Chazakah. When the object is normally borrowed or rented, a person cannot claim that he purchased it from a third party because the Chazakah of the third party does not prove ownership any more than the Chazakah of the Machzik, the one holding the object. (See AYELES HA'SHACHAR.)

Second, the Rashbam answers that the case of the Gemara is not comparable to a case of an object normally borrowed or rented, because the Uman claims that he usually does not receive objects from this claimant to fix. Therefore, his Chazakah is a valid Chazakah against the claimant. If the Chazakah of the Uman is a valid Chazakah, then he should be believed to say that he purchased it directly from the claimant, and he does not have to say that he purchased it from a third party! (AYELES HA'SHACHAR)

Third, the Rashbam (beginning of 45b, DH Amar Lei) explains that Abaye disagrees with Rabah because he compares the case of the Gemara with the case of an object that is normally borrowed or rented. If the Rashbam learns like Tosfos, who explains that Rabah gives the Uman a Migu because he could have said that he purchased the object from the claimant, then the Rashbam's words are easy to understand: Abaye is arguing that the Uman cannot claim that he purchased it, since a person gives his objects to any Uman to fix, even if that person never gave objects to this Uman to fix in the past. However, if the Migu is that the Uman could have said that he bought the object from a third party, then the argument of Abaye that this case is comparable to a case of an object that is normally borrowed or rented is irrelevant. Even if an object being held by an Uman is assumed to have been given to him to fix, he should be able to claim that he purchased the object from a third party, and the third party had a valid Chazakah since he was not an Uman! The Uman will not have to return the object to the third party, since the third party is not contradicting the claim of the Uman that the object was purchased. The Rashbam would need to explain that according to Abaye, the Uman does not have a Migu to say that he purchased it from a third party, perhaps because he is embarrassed to claim that a third party was involved without identifying that party. On the other hand, he is also embarrassed to identify the third party, because that third party might then contradict his claim.

These three comments of the Rashbam imply that the Rashbam understands the Migu as Tosfos explains it -- that the Uman could have claimed that he purchased the object directly from the claimant. How is this apparent contradiction in the words of the Rashbam to be reconciled?

ANSWERS:

(a) The Rashbam does not accept the explanation of the Ri mi'Gash that the Uman is believed with a Migu that he could have said that he purchased the object directly from the claimant because, according to that explanation, Abaye (who compares this case to a case of an object that is normally borrowed or rented) and Rabah argue not only about a case in which the Uman claims that he received the object to fix and then later purchased it, but they argue even about a case in which the Uman claims that he purchased it directly from the claimant. Why, then, does Rabah state his ruling in the case of an Uman who is believed with a Migu? He should have said simply that an Uman is believed to say that he purchased the object from the claimant, because that is the case in which he and Abaye argue! In fact, the TOSFOS RID rejects the explanation of the Ri mi'Gash for this reason.

Moreover, if people normally give their objects to one Uman in particular, and that is why this case is not comparable to a case of an object that is normally borrowed or rented, then why should Abaye argue and compare it to such a case? Abaye should say that the Uman's believability depends on whether the practice of the person is to give his objects that need repair to one particular Uman or to give it to any Uman!

The Rashbam, therefore, prefers to explain that the Migu is that the Uman could have claimed that he purchased the object from a third party. Both Rabah and Abaye agree that the Uman would not be believed to claim that he purchased it from the claimant himself, if not for the Migu, because a person indeed gives his objects to any Uman to fix, and therefore it would be comparable to an object that is normally borrowed or rented. (This is the same as the logic of Abaye, according to the Rashbam's explanation (45b) that Abaye and Rabah argue about whether the case of an object in the hands of an Uman is comparable to the case of an object that is normally borrowed or rented.)

The Tosfos Rid rejects the Rashbam's explanation as well. He asserts that the Uman's claim that he purchased the object from a third party should be no stronger than the claim that he purchased it from the claimant himself. With either claim, if the object in the hands of the Uman is considered like an object that is normally borrowed or rented (since people normally give such objects to an Uman to fix), then the Chazakah of the Uman should be worthless.

The Rashbam, on the other hand, apparently follows his own opinion in this regard as expressed earlier. The Rashbam (32b, DH Hilchesa, and 43b, DH v'Iy Ba'is Eima, see Insights there) explains that even when a person occupies a field for less than three years, if Beis Din has a doubt about who the owner of the land is, and the Chezkas Mara Kama cannot be used to resolve the doubt (for example, in a case of "Trei u'Trei," or when there is a Safek about the Halachah), then the person occupying the land is allowed to keep the land because of "ha'Motzi me'Chaveiro Alav ha'Re'ayah." Apparently, a Chazakah that does not provide proof of purchase is still sufficient to give that person the object when there is no Chezkas Mara Kama opposing his possession, in which case Beis Din rules "ha'Motzi me'Chaveiro Alav ha'Re'ayah." Similarly, when the Uman claims that he purchased the object from a third party, the Chezkas Mara Kama of the claimant is no longer pertinent, since the Uman claims that there is another person who had a Chazakah on the object after the claimant (thus harming the Chezkas Mara Kama of the claimant). Even though the Chazakah of the Uman is not enough to prove that the object is his (because it is like an object that is normally borrowed or rented), nevertheless since his Chazakah is not opposed by a Chezkas Mara Kama, Beis Din leaves the object with the Uman (instead of saying "Kol d'Alim Gevar"). (Even those who argue with the Rashbam -- and maintain that "Kol d'Alim Gevar" or "Yachloku" does apply in such a situation -- agree that in the case of the Uman, the Uman has a stronger claim since there is no person to contradict his claim that he bought the object from the third party (since the third party is unidentified).)

(b) The Acharonim suggest that the Rashbam maintains that neither Migu is sufficient by itself for the Uman to win the case. The Migu that he could have said that he purchased the object from a third party is not a strong Migu, for the reason mentioned above. The Migu that he could have said that he purchased the object from the claimant is also a weak Migu, since it should be similar to a case of an object that is normally borrowed or rented. The strength of the combination of the two Migus, however, enables the Uman to be believed and to win the case. Consequently, Abaye only needs to argue with one of the Migus by saying that an object in the hands of an Uman is comparable to an object that is normally borrowed or rented, and thus the Uman cannot say that he purchased it. Since only one weak Migu remains, the Uman does not win the case with his claim.

The Acharonim do not explain exactly why the Rashbam assumes that Rabah's opinion relies on two Migus, when the Rashbam could have explained that the Gemara is discussing one Migu (that the Uman bought it from someone else who bought it from the claimant).

Another possibility is that the Rashbam's first explanation -- that the Uman could claim that he purchased the object from a third party who purchased it from the claimant -- indeed differs from what he writes later. His first explanation is a later addition that the Rashbam added because of the question that he had on the explanation of the other Rishonim (see (a) above). The Rashbam added this explanation at the beginning of his comments, but did not remove his original explanation which was based on his original understanding of the Gemara (see Insights to 30b and 44a).

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