BAVA BASRA 159 - A week of learning has been dedicated towards meriting a Refu'ah Sheleimah for Eliezer Lipa ben Yetta, by Mr. and Mrs. Kornfeld of Yerushalayim.


OPINIONS: The Gemara quotes two Halachos that are very similar. One Halachah states that if a person signed a document as a witness and then became a "Gazlan" -- a thief who is unfit to testify -- he cannot testify that the signature on the document is his in order to verify that he witnessed the transaction. Although the Gemara first implies otherwise, the Gemara concludes that even other people cannot testify merely that they know his signature and thereby validate the document. The RASHBAM (DH Aval Acherim) explains that even if they do verify his signature, the Rabanan suspect that he may have signed the document on the day it came to court and not when the transaction took place.

The second case is almost identical, except that the witness in that case becomes the father-in-law of the person on the document, and he thus becomes unfit to testify because he is a relative, but not because he is a Rasha. However, in this case the Gemara says that other people can verify the father-in-law's signature. What is the difference between testifying about a Rasha's signature and testifying about a father-in-law's signature?

The Rashbam (DH Af Al Pi) apparently addresses this question. He explains that a thief is unfit to testify because he may lie for monetary benefit, and thus he is suspected of willfully signing a forged document. In contrast, there is no reason to suspect that a father-in-law would forge a signature. It is merely a Gezeiras ha'Kasuv that a man may not testify on behalf of his relative, as the Gemara concludes that even Moshe Rabeinu and Aharon ha'Kohen would not be allowed to testify for their fathers-in-law, even though they certainly would not be suspecting of lying. This explanation is supported by TOSFOS (DH v'Af Al Pi) who infers from the Gemara that when two witnesses on a Shtar subsequently become relatives, others may testify about their signatures and there is no need to suspect that they forged the document.

What is the law, in the cases of the Gemara here, if the witness signed on the Shtar becomes unfit to testify as a result of becoming a Rasha, but not because of a money-related sin? Is such a person comparable to a relative, since there is no reason to assume that he is dishonest about money, or is he comparable to a thief? The BEIS YOSEF (CM 46) addresses this question but reaches no conclusion.

(a) The KETZOS HA'CHOSHEN (CM 46) writes that it is logical that a Rasha who is not suspected of sinning for monetary gain is not considered like a thief. The reason why such a Rasha is unfit to testify is a Gezeiras ha'Kasuv, as the Torah says, "Do not place your hand with the wicked to be a thieving witness" (Shemos 23:1). This is similar to a father-in-law, who is unfit to testify only because the Torah says so, but not because of any suspicion that he will lie. Without the Gezeiras ha'Kasuv, the Rasha should be believed. Therefore, if a witness who signed a Shtar later becomes an evildoer but is not suspected of dishonesty in monetary matters, people may verify that the signature on the document is his signature, and there is no concern that he signed a forged document. This is also the opinion of the GEVUROS ARI in Makos (5b).

(b) However, the MILU'EI HA'CHOSHEN quotes many Rishonim (including the YAD RAMAH) who argue that the reason why any Rasha is unfit to testify is that he is suspected of lying. If he is suspected of lying, he also should be suspected of helping to forge a document, and therefore others may not testify about his signature. One apparent proof for this position is the Halachah that one who is unfit to testify may not take an oath. If the reason why a Rasha is unfit to testify is simply a Gezeiras ha'Kasuv but he essentially is trustworthy, then why may he not take an oath (CHIDUSHEI HA'RIM CM 34:9)? According to this opinion, the Gemara's ruling in the case of a thief should apply as well to anyone who becomes a Rasha. (Y. MONTROSE)



OPINIONS: The Gemara discusses the grandson's right to inherit his grandfather's property directly from his grandfather and not through his father. What is the difference whether he inherits from his grandfather directly or only through his father?

The Gemara demonstrates the difference with a case of three generations of sons, Yakov, Reuven, and Chanoch. Before Reuven's father, Yakov, died, Reuven sold his right to receive the inheritance. However, Reuven died before Yakov. When Yakov dies, does his grandson, Chanoch, inherit Yakov's property directly? If he does, then his right of inheritance circumvents the sale transacted by Reuven, since Reuven never inherited the property and thus did not have the right to sell it. If, on the other hand, Chanoch inherits his grandfather's property only through his father, the property should belong to the purchaser who bought from Reuven the rights to the inheritance. By teaching that a grandson inherits from his grandfather directly, the Gemara is teaching that Chanoch may keep the property.

The Gemara derives this from the verse, "Tachas Avosecha Yiheyu Vanecha" -- "In place of your fathers shall be your sons" (Tehilim 45:17). The verse clearly is addressing the middle generation, saying that in place of "your fathers will be your sons." This teaches that a grandson directly inherit their grandfather. Although the Gemara concludes without conclusive proof from any Beraisa for this novel idea, the commentators (see, for example, RASHBAM DH u'Meshani) state that this idea is accepted by the Gemara.

Does this concept apply in any other cases?

(a) The RASHBA quotes the RA'AVAD who has a doubt about the law in a similar case. Reuven borrowed money from his father (Yakov) with a Shtar, and then proceeded to sell his fields which were collateralized to the loan. Afterwards, Reuven died, and soon after Yakov died. May Chanoch collect the fields that his father, Reuven, sold which were a lien for his loan? After all, if Chanoch inherits from his grandfather (Yakov) directly, then he inherits his grandfather's Shtar which says that Reuven owes Yakov money. If, on the other hand, he inherits his grandfather's property only via his father, then the debt is null and void since the borrower -- Chanoch's father, Reuven -- essentially inherited his own debt from Yakov, effectively canceling the loan. The Ra'avad is in doubt about whether Chanoch may claim the fields which Reuven sold, which were collateralized to the loan.

(b) The Rashba himself questions the Ra'avad's doubt. In this case, it seems obvious that applying the rule that one inherits from a grandfather directly entitles Chanoch to collect the fields. What is the Ra'avad's doubt?

The AYELES HA'SHACHAR answers that the Ra'avad is unsure about the mechanism of two possible paths of inheritance. As mentioned above, the concept that a grandson may inherit a grandfather directly is a right that the grandson possesses. It does not mean that he has no option to inherit through his father if he so chooses. In the case of the Gemara, the land in question is in Yakov's possession when he dies. Does the inheritance go directly to Chanoch and sidestep the creditors of Reuven, or does it first go to Reuven and thus is taken by the creditors? In that case, the Gemara says that Chanoch may choose the path which the inheritance takes; he may choose that the land should go from his grandfather's possession directly to his possession. However, the Ra'avad is unsure about whether this right to choose also applies in a case in which a choice to inherit directly from a grandfather would result in taking away land from someone who bought the land from Reuven. Perhaps the purchaser may claim that since he is the current owner of the property and there are two possible paths for the inheritance to go, the inheritance should not go the way Chanoch chooses. Is Chanoch entitled to make such a decision to take away land from its current owner? This is why the Ra'avad was unsure about the law in this case. (Y. MONTROSE)