1) MAKING A CLAIM ON BEHALF OF A THIEF'S DESCENDANTS

QUESTION: Rebbi Yochanan teaches that although an Uman cannot make a Chazakah (when the object that he was working on was seen in his possession), the son of an Uman does have a Chazakah. Neither a Gazlan nor his son has a Chazakah, but his grandson does have a Chazakah. If the land was in the son's possession for three years and no one protested against his occupancy during that time, he can claim that his father purchased the land from the present claimant. The Gemara asks why the son should be believed with such a claim; just as the father is not believed to say that he purchased the object, the son should not be believed to say that his father purchased the object.

Why should the son not be believed? Even though the father himself could not claim that he purchased it, the son could claim that he purchased it, since he occupied the land for three years. (This case is not comparable to a case of an object that is normally borrowed or rented, even though it is known that the father received the land as an Uman or as a Gazlan. This is because after the father dies, the true owner usually takes back the object within a short period of time. If the son holds the object for three years, he certainly has a valid Chazakah. See TOSFOS DH Yarad.) Therefore, even if the son claims that he does not know whether or not his father purchased it, Beis Din should claim on his behalf that perhaps his father purchased it, because of the rule of "To'anin l'Yoresh" (41a). (The RASHBAM (DH Iy d'Asu) writes that the rule of "To'anin l'Yoresh" does not apply, but he does not explain clearly why it does not apply.)

ANSWERS:

(a) The ALIYOS D'RABEINU YONAH explains that Beis Din suggests a claim for the Yoresh only when the father was seen on the land for at least one day. In order for Beis Din to make a claim for the son, Beis Din needs some minimal evidence that the father had rights to the field (even though a three-year Chazakah is not necessary, as the Gemara explains on 41b; see Rashbam to 41b, DH Afilu Chad Yoma). Since Beis Din knows that the father received the land from its owner to work on it and not as a gift, the presence of the father on the land cannot serve as even a minimal proof that the land was his. Without such minimal proof, Beis Din may not suggest any claims for the Yoresh. (See also KETZOS HA'CHOSHEN 146:6.)

Rava teaches that if the grandson of the Gazlan asserts that the claimant admitted to his grandfather that he sold the field to him, the grandson is not believed. Why does Beis Din not "To'en" for him and say that even if his grandfather did not purchase the field, perhaps his father purchased it? After all, his father did have a valid Chazakah of living on the field for one day (as explained above in the question). TOSFOS (DH Pe'amim) answers that the case in which the grandson is not believed is one in which he provides an implied admission that his father did not purchase it but rather relied on the purchase of his grandfather. (It is obvious that the grandson would not be believed in such a case, and perhaps that is why the Rashbam (DH Lishna Achrina) prefers a different Girsa in Rava's statement.)

(b) TOSFOS (DH Pe'amim) seems to understand that there is a different reason for why Beis Din is not "To'en" on behalf of the Yoresh (see MAHARSHA). According to Tosfos, Beis Din does not claim for the Yoresh that the father received the property in a manner which is very unlikely. It is very unlikely that the original owner of the property sold the property to the Uman or to the Gazlan, and therefore Beis Din does not make such a claim for the son when he does not present such a claim on his own.

2) THE CLAIM OF THE SON OF A CRAFTSMAN AND THE GRANDSON OF A THIEF

QUESTIONS: Rebbi Yochanan teaches that although an Uman cannot make a Chazakah (when the object that he was working on was seen in his possession), the son of an Uman does have a Chazakah. Neither a Gazlan nor his son has a Chazakah, but his grandson does have a Chazakah. The Gemara explains that Rebbi Yochanan refers to a case in which witnesses testify that they heard the claimant admit that he sold the object or the land to the father. (This is the Girsa as it appears in our text and in the text of the Rashbam.)

A number of questions may be asked on this Gemara.

(a) Why does the Gemara explain that the son of the Uman has a Chazakah because he brings witnesses who testify that the claimant admitted that the Uman owned it? Even if the son of the Uman does not bring witnesses, he should still be believed to say that the claimant sold the object to his father with a Migu that he could have said that he bought it from the claimant (and he would have been believed with that claim since he has a Chazakah of three years). (See TOSFOS DH Kegon, who changes the Girsa because of this question and others.)

(b) If witnesses testify that the claimant admitted that he sold the object to the Uman, then it is obvious that the son of the Uman should be given the object based on that testimony. In fact, the Uman himself would be given the object based on that testimony, as the Rashbam writes (DH Lo Tzericha). Why, then, does Rebbi Yochanan find it necessary to teach this Halachah? One might suggest that Rebbi Yochanan's main point is not that the son of the Uman is believed, but that the son of the Gazlan is not awarded the object, because in the case of the Gazlan the claimant's admission was made out of fear of the Gazlan (see Rashbam to 47b, DH Ra'ayasan).

Why, though, does Rebbi Yochanan continue and say that the grandson of the Gazlan does have a Chazakah? It is clear from the context that Rebbi Yochanan himself considers that a Chidush, but what Chidush is there? If the grandson of the Gazlan brings testimony that the claimant sold the object to his father (and not to his grandfather), then it is obvious that the grandson would be believed. If, on the other hand, he brings testimony that the claimant admitted that the field belonged to his grandfather (the Gazlan), then the grandson should not receive the field because the claimant's admission was made out of fear of the Gazlan. The grandson has no Chazakah on the field since it originally came into his family's possession through theft.

ANSWERS:

(a) A number of approaches are suggested to explain why the son of an Uman does not have a Migu when he says that he heard the claimant admit to his father that he sold him the object.

1. The NIMUKEI YOSEF writes that the son indeed would be believed with such a claim. The reason why the Gemara mentions that the son brought testimony about the claimant's admission is to teach that even in such a case the son of a Gazlan is not awarded the object.

This explanation is not clear. Why is the fact that the son of the Gazlan loses the case when there are witnesses considered more of a Chidush than when there are no witnesses? Even when there are no witnesses, the son has a valid Migu, and the only reason why he loses is that the admission of the claimant was done out of fear. For the same reason, the son of a Gazlan will lose the case even when he brings witnesses who attest to the claimant's admission.

Moreover, how is this added Chidush -- that witnesses do not help the son of the Gazlan -- deduced from the words of Rebbi Yochanan? Rebbi Yochanan does not mention that witnesses were brought. On the contrary, he clearly refers to a case in which there are no witnesses (as the Rashbam writes), since the Gazlan himself does not have a Chazakah.

2. The Gemara in Sanhedrin (29a) teaches that when a person admits that he owes him money to the claimant, even if the claimant conceals witnesses behind a wall who later testify that the borrower admitted that he owed money, Beis Din does not obligate the borrower based on his own admission. The Loveh can claim that when he admitted, he was "just fooling" and did not really mean what he said, since he did not realize that witnesses were listening to his words. Only when a person realizes that people are listening is his admission binding.

If the son of the Uman would claim that he heard the claimant admit to his father that he sold the field to his father, he would not win the case because it would be considered a Chazakah without a Ta'anah, since the admission of the claimant in private is not binding. That is why the son must bring witnesses to testify that the claimant admitted that he sold the property to his father in front of them, and thus his admission is binding.

(The RITVA and other Rishonim write that in this case, the words of the Gemara in Sanhedrin (29a) do not apply. A person can claim that his admission was made in jest when he admits that he owes money to someone else. However, if the other person is already holding the object, and the claimant admits that the object belongs to the other person, then his admission is accepted even if it was made in private. (The Ritva gives other reasons for why the ruling of the Gemara in Sanhedrin does not apply to the case of the Gemara here.) Accordingly, they explain that the son of the Uman indeed has a Migu and does not have to bring testimony to uphold his case. The Rashbam perhaps do not accept these arguments and thus compares the case of the Gemara here to the case in Sanhedrin, where the claimant may say that his admission was in jest.)

This approach does not answer the question entirely. Why is the son of an Uman not believed to say that the claimant admitted to his father in front of witnesses that the object was sold to his father? Why is it necessary for the son himself to bring the witnesses to court? As long as he saw an admission made in front of witnesses, he has a valid claim with his Chazakah and he should be believed with a Migu that he could have said that he bought it from the claimant himself.

The answer might be that even when a person admits in front of witnesses, he still can say that his admission was in jest. He can say, "I knew that those witnesses who heard my admission would never testify in court about my admission if I told them not to." It is only when those witnesses actually come to court that this claim is no longer viable, and the claimant is held accountable for his admission. Therefore, the son of the Uman will have a valid claim for his Chazakah only when he actually brings to court the witnesses who saw the admission. (M. KORNFELD)

(b) The Rashbam appears to have been bothered by the second question. What Chidush does Rebbi Yochanan intend to teach when he says that the grandson of the Gazlan has a Chazakah? The Rashbam explains that even if the witnesses testify that the claimant admitted to the Gazlan himself (and not to his son) that he sold the field to him, the grandson will have a Chazakah. The basis for this Chazakah will not be the admission of the claimant to the grandson's grandfather (the Gazlan), since that admission was made out of fear. Rather, the grandson's claim will be that he received the object from his father and he does not know what rights his father had to the object. In such a case, Beis Din supplements his claim by suggesting that perhaps his father purchased the object from the claimant, because of the rule of "To'anin l'Yoresh" (41a). That is why the claim of the Gazlan's grandson is accepted.

Even though Beis Din is not "To'en" for the Yoresh based on the Gazlan's occupancy of the land for one day (as explained in the previous Insight), since it is known that it did not come into his possession legally, nevertheless Beis Din does make a claim on behalf of the Yoresh based on the presence of the son of the Gazlan on the land, since it is possible that the son of the Gazlan occupied the land legitimately, after the owner was paid for the land.

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