BAVA BASRA 53 - Dedicated by Mrs. Eta Kloristenfeld in memory of Dr. Shlomo Sprecher a'h, who was Niftar yesterday (17 Adar). Dr. Sprecher was an extraordinary Talmud Chacham, who gave a Dafyomi Shiur for decades.

1)

(a)Rav asked whether the acquiring of a gift not in the presence of the owner also requires 'Lech Chazek u'Keni'. Shmuel did not consider this She'eilah relevant. Why not? Why is it obvious to Shmuel that in this regard a gift is worse than a sale?

(b)How does Rav counter this? What advantage doe Matanah have over Mecher?

(c)Does this mean that Shmuel doesn't hold of the S'vara 'Nosen, be'Ayin Yafah Hu Nosen'?

(d)How does Shmuel interpret the Tana of the Beraisa's Lashon 'Kol she'Hu', with regard to ...

1. ... Gadar?

2. ... Paratz?

1)

(a)Rav asked whether the acquiring of a gift not in the presence of the owner also requires 'Lech Chazek u'Keni'. Shmuel did not consider this She'eilah relevant because - if in the case of a sale, where the main objective of the seller is to obtain money, we say that, even though he has attained that objective, without 'Lech, Chazek u'Keni, he retains the right to retract, then how much more so by a gift, where there is no such objective!

(b)Rav counters this - with the S'vara that 'Nosen, be'Ayin Yafah hu Nosen' ('When someone gives a gift, he gives it generously), giving Matanah a possible advantage over Mecher.

(c)In fact, Shmuel too, holds of the S'vara 'Nosen, be'Ayin Yafah hu Nosen' - only he confines it to after the Kinyan has taken place, where the donor strengthens the hand of the recipient even against his own (as we learned above with regard to a man who gives a field to his wife, where he may not eat the Peiros, even though he would have been able to, had he sold it to her), but not as far as the actual Kinyan is concerned.

(d)Shmuel interprets the Tana of the Beraisa's Lashon 'Kol she'Hu', with regard to ...

1. ... Gadar - as raising the height of the wall up to ten Tefachim.

2. ... Paratz - as widening an existing breach in a way that enables a person to enter more easily (as we shall now see).

2)

(a)Why can 'Gadar Kol she'Hu' not be referring to a case where an intruder ...

1. ... could not have clambered over the wall (due to the angle of the wall, or because it was built on a slope), even before he built it higher?

2. ... was previously able to clamber over the wall with great effort, and now he cannot do so at all?

(b)Then to which case does it refer?

(c)What if, after he heightens the wall, it is still less than ten Tefachim?

(d)By the same token, how do we interpret 'Paratz Kol-she'Hu'?

2)

(a)'Gadar Kol she'Hu' cannot be referring to a case where an intruder ...

1. ... could not have clambered over the wall (due to the angle of the wall, or because it was built on a slope), even before he built it higher - because that would not even constitute a 'Kol she-Hu'.

2. ... was previously able to clamber over the wall with great effort, and now he could not do so at all - because that would not be classified as a 'Kol-she'Hu', but as a substantial improvement.

(b)In fact, it refers to - where he was previously able to climb over the wall easily, but now, only with difficulty. This too, constitutes a Kinyan Chazakah ...

(c)... even if, after he heightens the wall, it is still less than ten Tefachim (only in most cases ten Tefachim would be the height that would make life problematic for the would-be Ganav).

(d)By the same token, we interpret 'Paratz Kol-she'Hu' to mean - that he breached the wall to the extent that where it was previously difficult to get through the entrance, it has now become easy.

3)

(a)How will we now explain 'Na'al Kol-she'Hu' ...

1. ... in the same way ...

2. ... slightly differently)?

(b)Why is locking the door not considered a Chazakah by the property of a Ger who died?

(c)A hirer acquires when he is merely handed the keys of the apartment (a prerequisite to locking or unlocking the door). In which regard does the Gemara in Pesachim present this Halachah?

(d)Assuming that this ruling extends to Reuven selling his apartment to Shimon, why does it not apply to Gezel ha'Ger?

3)

(a)Similarly, 'Na'al Kol-she'Hu' refers to a case where he ...

1. ... closed up part of the entrance to make it more difficult to gain entry, or ...

2. ... fitted a new lock.

(b)Locking the door by the property of Ger who died is not considered a Chazakah - because it is not an act of ownership. In fact, it would constitute a Mitzvah ('Mavri'ach Ari' [keeping unwanted elements out of a fellow-Jew's house]) if the Ger had still been alive (rather than serving as a proof that he bought the property).

(c)A hirer acquires when he is merely handed the keys of the apartment (a prerequisite to locking or unlocking the door). The Gemara in Pesachim cites this Halachah to teach us that - if Reuven, who has rented his apartment to Shimon, hands him the keys before the eve of the fourteenth, the latter is Chayav to search for Chametz.

(d)Even assuming that this ruling extends to Reuven selling his apartment to Shimon, it will not apply to Gezel ha'Ger - because there is nobody to hand him the keys. In other words, locking or unlocking the door of an apartment is effective as a Kinyan, only if it is carried out with the consent of the owner.

4)

(a)What does Rebbi Asi Amar Rebbi Yochanan say about placing a clod of earth into a hole in a wall surrounding a field, or about removing it?

(b)What area of Chazakah is Rebbi Asi talking about?

(c)Why can Shimon not have in mind merely to prevent water from entering the field, or to drain the water that has already accumulated there, respectively?

(d)Then what did he have in mind?

4)

(a)Rebbi Asi Amar Rebbi Yochanan rules that if Shimon places a clod of earth into a hole in a wall surrounding a field or removes it - he acquires the field ...

(b)... in the case of Nechsei ha'Ger (though the same will apply if he is purchasing the field from Reuven).

(c)Shimon cannot have had in mind merely to prevent water from entering the field, or to drain the water that has already accumulated there, respectively - because, as we explained earlier, that would constitute 'Mavri'ach Ari', which does not signify ownership.

(d)What Shimon must therefore have had in mind was - either to prevent the water that was already in the field from draining, or to let water into the field, which, unlike the previous case, is a Tikun in the field.

53b----------------------------------------53b

5)

(a)What does Rebbi Asi Amar Rebbi Yochanan say about Shimon, who makes a Chazakah on one of two fields which are divided by a border?

(b)What if he specifically has in mind to acquire both fields with the one Kinyan?

(c)And what will be the Din ...

1. ... in a case where no border divides the two?

2. ... if he intends to acquire the second field with the Kinyan on the first?

5)

(a)Rebbi Asi Amar Rebbi Yochanan rules that if Shimon makes a Chazakah on one of two fields which are divided by a border - then he acquires that field only ...

(b)... even if he expressly intends to acquire both fields with the one Kinyan.

(c)In a case where ...

1. ... no border divides the two however - then he will automatically acquire both fields with the one Kinyan.

2. ... where he intends to acquire only the second field with the Kinyan on the first - he will not even acquire the first one (because a person cannot acquire something that he does intend to).

6)

(a)The earlier ruling (i.e. where he intends to acquire both fields with the one Kinyan) does not extend to a case where Shimon is *purchasing* them from Reuven because of a statement of Shmuel. What did Shmuel say in this regard?

(b)Rebbi Zeira asks whether the same ruling will apply if Shimon intends to acquire the border, as well as the second field. What are the two sides of the She'eilah? Why might he ...

1. ... then acquire the second field as well?

2. ... not acquire it even then?

6)

(a)The earlier ruling (i.e. where he intended to acquire both fields with the one Kinyan) does not extend to a case where Shimon is *purchasing* them from Reuven - on the basis of Shmuel - that someone who purchases ten fields in ten different parts of the world, acquires them all with a Kinyan on just one of them.

(b)Rebbi Zeira asks whether the same ruling will apply if Shimon intends to acquire the border, as well as the second field. He might ...

1. ... then acquire the second field as well - because the only reason that he does not acquire it in the previous case, is due to the fact that the two fields are separate entities, and since he did not intend to acquire the border that connects it with the field that he is acquiring, he cannot acquire it either. But once he does, he will acquire the second field too.

2. ... not acquire it even then - because, since the border itself (which is generally either higher or lower than the field) is not really part of the field either, he will not even acquire it, let alone the second field.

7)

(a)Assuming that in the previous case, Shimon does not acquire the border, Rebbi Elazar asks what the Din will be if he makes a Kinyan on the border, with the intention of acquiring the fields too. Why might he acquire them, even assuming that in the previous case, he does not acquire the border?

(b)In what way can this be compared to a acquiring an animal together with the reigns?

(c)Why on the other hand, might the cases not be comparable?

(d)Why did Rebbi Yochanan then not teach us this case (which would have been a bigger Chidush [rather than the reverse case])?

(e)We conclude Rebbi Zeira's She'eilah with 'Teiku' ('Tishbi Yetaretz Kushyos ve'Iba'ayos'). How do we conclude Rebbi Elazar's She'eilah?

7)

(a)Assuming that in the previous case, Shimon does not acquire the border, Rebbi Elazar asks what the Din will be if he makes a Kinyan on the border, with the intention of acquiring the fields too. The reason that he might nevertheless acquire them is - because, whereas, on the one hand, a border does not need the field, on the other, a field needs the border ...

(b)... like an animal needs reigns, and which he therefore acquires via a Kinyan on the reigns.

(c)On the other hand, the cases might not be comparable - because, whereas the animal and the reigns are part of the same entity, the field and the border, are two independent entities, as we just explained ...

(d)... and the reason that Rebbi Yochanan did not then teach us this case (which would have been a bigger Chidush [rather than the reverse case]) is - because, a border as such is not a major acquisition, and people would be more likely to acquire a border together with a field, than vice-versa.

(e)We conclude Rebbi Zeira's She'eilah with 'Teiku' ('Tishbi Yetaretz Kushyos ve'Iba'ayos') - and that's how we conclude Rebbi Elazar's She'eilah, too.

8)

(a)With regard to acquiring a room within a room, what does Rav Nachman Amar Rabah bar Avuhah say about someone making a Kinyan on ...

1. ... the outer room with the intention of acquiring the inner room as well?

2. ... the inner room with the intention of acquiring the outer room as well?

(b)What does Rav Nachman Amar Rabah bar Avuhah say about a case where Reuven builds a large mansion on property of a Ger who died, and Shimon puts in the doors? Who acquires the property?

(c)Rav Dimi bar Yosef Amar Rebbi Elazar says that someone who adds 'Siyud ve'Kiyud' to the completed mansion of a Ger who died, acquires it. What is ...

1. ... 'Siyud'?

2. ... 'Kiyud'?

(d)Rav Yosef explains that the Shi'ur of Siyud and Kiyud is one Amah square. How does Rav Chisda qualify that?

8)

(a)With regard to acquiring a room within a room, Rav Nachman Amar Rabah bar Avuhah rules that someone who makes a Kinyan on ...

1. ... the outer room with the intention of acquiring the inner room as well - only acquires the outer room (since the occupant of the former does not need the latter, and therefore has no rights in it).

2. ... the inner room with the intention of acquiring the outer room as well - does indeed acquire them both (since the occupant of the former must have rights in the latter in order to have access to the street).

(b)Rav Nachman Amar Rabah bar Avuhah rules, that if Reuven builds a large mansion on property of a Ger who died, and Shimon puts in the doors - Shimon acquires the property (and not Reuven, since after Reuven completes his work, it is just as accessible to the public as it was beforehand [and the objective of a house is to be inaccessible to the public]). Consequently, it is the one who puts in the doors who effectively completes the building, by turning it into a R'shus-ha'Yachid.

(c)Rav Dimi bar Yosef Amar Rebbi Elazar says that one acquires a completed mansion of a Ger who died by adding to it ...

1. ... 'Siyud' - (plastering the mansion with lime).

2. ... 'Kiyud' - (painting pictures on the walls).

(d)Rav Yosef explains that the Shiur of Siyud and Kiyud is one Amah square, which Rav Chisda qualifies - by limiting its location to a spot facing the front door (Elsewhere will require more than that).

9)

(a)What did Rav Amram quoting Rav Sheishes say with regard to someone who places mats in the property of a Ger who died and sleeps on them?

(b)And he concluded his statement with 've'Anharinhu le'Ainin mi'Masnisin'. What does this mean?

(c)What does the Tana there say about an Eved that Shimon is purchasing from Reuven there where he (the Eved) ties or unties Shimon's shoes, dresses or undresses him or bathes him?

(d)What if he (the Eved) anoints him or scratches him?

(e)What else does the Tana Kama add to this list?

9)

(a)Rav Amram quoting Rav Sheishes ruled that someone who places mats in the property of a Ger who died and sleeps on them, - acquires the property.

(b)And he concluded his statement with 've'Anharinhu le'Ainin mi'Masnisin', meaning - 'and he enlightened us by citing a Beraisa to prove it.

(c)The Beraisa rules that if the Eved that Shimon is purchasing from Reuven ties or unties his shoes, dresses or undresses him or bathes him - he acquires him.

(d)And the same will apply should he (the Eved) anoint or scratch him.

(e)The Tana Kama adds to the list - 'Higbi'ho' (if he picked him up), which will be explained shortly.

10)

(a)Rebbi Shimon comments that Hagbahah should not be any worse than Chazakah, since it acquires everywhere. What does he mean by 'everywhere', over and above in the R'shus ha'Rabim, and in the domain of the seller?

(b)Rebbi Shimon seems to be echoing the words of the Tana Kama. What must the Tana Kama therefore mean when he says 'Higbi'ho'?

(c)In which point does Rebbi Shimon now argue with him?

10)

(a)Rebbi Shimon comments that Hagbahah should not be any worse than Chazakah, since it acquires everywhere, even in the R'shus ha'Rabim, in the domain of the seller - or in a Simta (an alleyway).

(b)So that Rebbi Shimon should not merely be echoing the words of the Tana Kama, we establish 'Higbi'ho' of the Tana Kama to mean that - the Eved picked up the man who was acquiring him, but not vice-versa.

(c)Rebbi Shimon argues with him - inasmuch as seeing as Hagbahah is such a wide-spread Kinyan (as we just explained), it is logical to say that it will acquire Avadim too.

11)

(a)What does Rav Sheishes now extrapolate from the Tana Kama? What might we otherwise have thought?

(b)What do we learn from the Pasuk in Eikev "vi'Yerishtem osam vi'Yeshavtem bam" (or from a similar Pasuk in Yirmiyah)?

11)

(a)Rav Sheishes now extrapolates from the Beraisa - that the Chazakah of Karka is not confined exclusively to 'Na'al, Ga'dar u'Paratz' (cited in our Mishnah, but) extends to wherever the Machzik derives positive benefit from it, even by merely leaning or lying on it (like in the case of an Eved who picks up his master, to be acquired by him).

(b)We learn from the Pasuk in Eikev "vi'Yerishtem osam vi'Yeshavtem bam" (or from a similar Pasuk in Yirmiyah) - that one acquires Karka with a Kinyan Chazakah, and what's more, that one can even acquire it by lying down on it (since 'Yeshivah' has connotations of lying down, as well).

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