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)

(a)What is the problem with Shmuel's statement, permitting one Shutaf to testify on behalf of the other?

(b)To solve the problem, we establish Shmuel where the second Shutaf declared 'Din u'Devarim Ein li al Sadeh Zu'. What else might we also have answered?

(c)What does the Beraisa say about someone who withdraws from a field that is already his (by means of the above Lashon or one that is similar)?

(d)In which case would this Lashon be effective?

1)

(a)The problem with Shmuel's statement permitting one Shutaf to testify for the other is that he is prejudiced, seeing as, should his friend lose the case, the loss will affect him too.

(b)To solve the problem, we establish Shmuel when the second Shutaf declared 'Din u'Devarim Ein li al Sadeh Zu'. We might also have answered that - he actually presented him his half with a Kinyan (only this is a bigger Chidush).

(c)The Beraisa states that if someone withdraws from a field that is already his (by means of the above Lashon or one that is similar) - the field remains his (because one cannot withdraw from something that he already owns).

(d)This Lashon would be effective however if he used it to withdraw from something that he had a right to claim but did not yet own.

2)

(a)Why can we not answer that 'Ein li Din ... ' is not effective because he did not say 'Lo Yehei li Din ... ' (in the future tense)?

(b)How do we know for sure that this is correct?

2)

(a)We cannot answer that 'Ein li Din ... ' (in the future tense) is not effective because he did not say 'Lo Yehei li Din ... ' - because this is not a conventional Lashon used by Chazal.

(b)We know for sure that this is correct - because the Sugya does not use this answer to resolve the problem.

3)

(a)Even after we answer that his declaration 'Din u'Devarim ... ' was accompanied by a Kinyan, a problem remains, as we learn from a statement by Ravin bar Shmuel quoting his father. What did Shmuel say about someone who sells a field without Achrayus?

(b)What is the reason for this?

(c)What does he gain by testifying?

3)

(a)Even after we answer that his declaration 'Din u'Devarim ... ' was accompanied by a Kinyan, a problem remains, as we learn from a statement by Ravin bar Shmuel quoting his father, who said that - someone who sells a field without Achrayus cannot testify on his behalf (to establish it in his possession).

(b)The reason for this is - because (on the assumption that he himself does not own any other fields) the sale enables his creditor to claim his debt, which he would have unable to do had the claimant taken the field from the purchaser.

(c)What he gains by testifying is that - he is now spared from the reputation of being a wicked borrower who does not pay his debts.

4)

(a)So we establish the Beraisa where the Shutaf accepted Achrayus. Why can this not be referring to general Achrayus for claimants even not directly connected with him (e.g. who claim that the field was originally their father's or theirs)?

(b)Then what kind of Achrayus are we referring to? Why is it then no longer a case of 'Ma'amidah bi'Fenei Ba'al-Chovo'?

(c)What does the Beraisa say about the Dayanim and the people of a town in which a Sefer-Torah was stolen?

(d)Why indeed, do we not allow those concerned to withdraw from their rights with a Kinyan?

4)

(a)So we establish the Beraisa where the Shutaf accepted Achrayus. This cannot be referring to general Achrayus for claimants even not directly connected with him (e.g. who claim that the field was originally their father's or theirs) - because then, he is certainly interested to ensure that his Shutaf retains the field, since otherwise, he will come back to him to be reimbursed.

(b)We must therefore be referring to - Achrayus concerning claims that emanate from him (such as his creditor claiming his debt), which is no longer a case of 'Ma'amido bi'Fenei Ba'al-Chovo, seeing as either way, he will not be paying somebody, and will therefore be branded a 'Loveh Rasha ve'Lo Yeshalem' (whether his Shutaf wins his case or not).

(c)The Beraisa rules that the Dayanim and the people of a town in which a Sefer-Torah was stolen - cannot judge or testify in the case if the Ganav is found.

(d)We do not allow those concerned to withdraw from their rights with a Kinyan - because we suspect a Kenunya (collusion [that they are only withdrawing temporarily in order to establish the Seifer-Torah in the hands of the Ganav, and once the case against the Ganav is closed, they will negate their withdrawal]).

5)

(a)What problem does this Beraisa pose on our Mishnah (according to the way we just interpreted it)?

(b)How do we reconcile the two Tana'im? Why is a Seifer-Torah different?

(c)We ask the same Kashya with regard to local Dayanim or residents deciding how to spend the Manah that someone donated towards the town's communal needs. What alternative would a potential Dayan or witness have besides withdrawing from his rights?

(d)How do we reconcile this Beraisa too, with our Mishnah,?

5)

(a)The problem this Beraisa poses on our Mishnah (according to the way we just interpreted it) is - why we do not permit potential Dayanim and witnesses to withdraw from their rights with a Kinyan like we do in our Mishnah (where we are not worried about Kenunya).

(b)And we reconcile the two Tana'im by establishing the Beraisa specifically by a Seifer-Torah which is different - because seeing as everyone is obligated to hear Keri'as ha'Torah, nobody has the right to withdraw from their rights in it (see Maharam).

(c)We ask the same Kashya with regard to local Dayanim or residents deciding how to spend the Manah that someone donated towards the town's communal needs. Besides withdrawing from his rights - a potential Dayan or witness would be able to donate his portion of the Manah towards those needs.

(d)We reconcile this Beraisa too with our Mishnah however, by establishing it by money that was donated specifically towards the purchase of a Seifer-Torah.

6)

(a)We ask the same Kashya from yet another Beraisa regarding a case where someone donated a Manah to the poor people of the city. How do we initially answer the Kashya 'Aniyim Shakli, Dayni Mifs'li' (If the poor receive the money, why should the Dayanim be invalidated)?

(b)And how do we answer the Kashya that cuts through the Sugya 'Let some of the people withdraw from their municipal rights with a Kinyan and judge or testify'?

(c)Alternatively, we interpret 'Aniyim' literally. How do we then answer the Kashya that we asked earlier 'Aniyim Shakli, Dayni Mifs'li'?

(d)We might establish this where the amount each Ani receives is not fixed. How do we even establish it where it is (where we at first assumed that they could donate that amount and no longer be prejudiced)?

6)

(a)We ask the same Kashya from yet another Beraisa regarding a case where someone donated a Manah to the poor people of the city. Initially, we answer the Kashya 'Aniyim Shakli, Dayni Mifs'li' (If the poor receive the money, why should the Dayanim be invalidated) - by establishing the case where it is those Aniyim who cannot judge or testify.

(b)We answer the Kashya that cuts through the Sugya 'Let some of the people withdraw from their municipal rights with a Kinyan and judge or testify' - by establishing this Beraisa too by a Seifer-Torah (and the reason the Tana speaks about the poor is because without a Seifer-Torah, everybody is poor).

(c)Alternatively, we interpret 'Aniyim' literally. And to answer the Kashya that we asked earlier 'Aniyim Shakli, Dayni Mifs'li' - we establish the Beraisa by poor people whom the community are obligated to support (in which case the community is prejudiced).

(d)We might establish this where the amount each Ani receives is not fixed. But we might even establish it when it is (where we at first assumed that they could donate that amount and no longer be prejudiced) - because the Dayanim are nevertheless interested for the poor to receive the extra Manah, since once there is sufficient money in the kitty, they will not need to donate more (see Maharam).

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

7)

(a)The problem with Shmuel, who rules that Shutfin are Shomrei Sachar for each other, is why it is not a case of Shemirah be'Ba'alim. What is Shemirah be'Ba'alim?

(b)How does Rav Papa solve the problem?

(c)What is Shmuel's Chidush?

(d)Why might we have thought otherwise?

7)

(a)The problem with Shmuel, who rules that Shutfin are Shomrei Sachar for each other is why it is not a case of Shemirah be'Ba'alim (like a case of 'Sh'mor li ve'Eshmor lach') - where the employer is working for the Shomer at the time that the latter first starts working for him.

(b)Rav Papa solves the problem - by establishing the case where one Shutaf looks after the field today and the other one, tomorrow (see Rashash).

(c)Shmuel's Chidush is that - they are Shomrei Sachar and not Shomrei Chinam.

(d)We might have thought otherwise - because seeing as each Shutaf must anyway look after his own half, the fact that he also looks after his friend's half (which he does without extra effort) does not render him a Shomer Sachar (though this is extremely difficult to understand, seeing as his friend certainly benefits from not having to look after his half today, and he will benefit when his friend looks after his half tomorrow, which automatically renders them both Shomrei Sachar).

8)

(a)What does the Beraisa say about Reuven who sells Shimon a house or a field, and Levi claims that it is his?

(b)And what does the Tana say about the equivalent case, but where Reuven sold Shimon a cow or a cloak (Metaltelin)?

(c)What reason does the Tana give for the distinction between the two cases?

(d)What problem do we have with this explanation?

8)

(a)The Beraisa rules that if Reuven sells Shimon a house or a field, and Levi claims that it is his - Reuven is not permitted to testify on behalf of Shimon (together with a second witness).

(b)In an equivalent case, but where Reuven sold Shimon a cow or a cloak (Metaltelin) - the Tana rules that he is permitted to testify.

(c)The reason the Tana gives for the distinction between the two cases is - because in the case of the house or the field (Karka), Reuven accepted Achrayus (responsibility should the property turn out to be Meshubad to a creditor or simply not his), wherever in the case of the cow, he did not.

(d)The problem with this explanation is why the Tana draws this distinction between Karka and Metaltelin, when it is perfectly feasible to accept Achrayus by Metaltelin, and not by Karka.

9)

(a)Rav Sheishes therefore establishes the Reisha by a case where Reuven stole a house or a field from Shimon and sold it to Levi, when along came Yehudah and claimed that the field belonged to him. Why is Shimon not permitted to testify on behalf of Levi (that Yehudah is a Ganav)?

(b)Why will it make no difference if Shimon is Meya'esh from the field (in which case there has been Ye'ush and Shinuy R'shus)?

(c)What do the Tana's words 'Mipnei she'Achrayuso alav' now mean?

(d)Prejudice apart, having testified that the property belongs to Levi, how will Shimon later be able to claim that the field is his?

9)

(a)Rav Sheishes therefore establishes the Reisha by a case where Reuven stole a house or a field from Shimon and sold it to Levi, when along came Yehudah and claimed that the field belongs to him. Shimon is not permitted to testify on behalf of Levi (that Yehudah is a Ganav) - because we suspect that he is prejudiced (since Levi might be an easier character to deal with than Yehudah).

(b)Nor will it make a difference if Shimon is Meya'esh from the field (in which case there has been Ye'ush and Shinuy R'shus) - because of the principle 'Karka Einah Nigzeles'. Consequently, there is no such thing as Shinuy R'shus by Karka.

(c)The Tana's words 'Mipnei she'Achrayuso alav' now mean that - ultimately, the owner (Shimon) will have to go to the purchaser (Levi) to retrieve his property (which renders him prejudiced).

(d)In spite of having testified that the property belongs to Levi, prejudice apart, Shimon will later be able to claim that the field is his - if his testimony was worded in a way that merely stated that it does not belong to Yehudah.

10)

(a)We have already explained that Shimon might prefer his property to be in Levi's hands than in Yehudah's, because Yehudah is a tougher character to deal with than Levi. What other reason might he have for preferring to deal with Levi? What would be the problem if the property landed with Yehudah?

(b)What can Shimon testify to place the property in the hands of Levi?

(c)Why will Yehudah not be able to reclaim the property from Shimon after the latter wins it from Levi?

10)

(a)We have already explained that Shimon might prefer his property to be in Levi's hands than in Yehudah's, because Yehudah is a tougher character to deal with than Levi. Alternatively, he might prefer to deal with Levi - because he knows that both he and Yehudah have two witnesses to prove their ownership. Consequently, should Yehudah win his case against Levi, then, when Shimon opens a claim against him, he knows that the land will remain where it is. It will therefore be to his advantage if the property lands with Levi, from whom he will later be able to claim it with witnesses who saw Reuven steal it.

(b)The testimony that Shimon can testify to place the property in the hands of Levi is - either that Yehudah's witnesses are Pasul, or that Yehudah admitted in his presence that the property belonged to Levi (though it is unclear why he could not achieve the same result if Yehudah won the case against Levi).

(c)Once Shimon wins the property from Levi, Yehudah will not be able to reclaim the property from him - for the same reason as Shimon had to win it from Levi before it fell into the hands of Yehudah (i.e. the principle that when there are two witnesses against two witnesses, the property remains where it is.

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