BAVA BASRA 128ֲ (5 Sivan) - Dedicated l'Zecher Nishmas Reb Chaim Aryeh ben Aharon Stern Z'L by Shmuel Gut of Brooklyn, N.Y.

1)

(a)Rebbi Aba sent to Rav Yosef bar Chama that if Reuven accuses Shimon of stealing his Eved, and Shimon counters that he (Reuven) sold him to him or gave him to him as a gift, the latter is believed. What problem do we have with this from the Sugya in 'Chezkas ha'Batim'? What do we rule there with regard to Godros (animals and Avadim that can walk by themselves)?

(b)To answer the Kashya, we establish Rebbi Aba by a Chazakah of three years (whereas the Sugya in Chezkas ha'Batim is referring to an immediate Chazakah) or by a baby in the cot (who cannot walk yet). What third answer do we give?

(c)He also ruled that if Shimon responds by offering Reuven the right to swear, which he does, he cannot retract by saying that he was only pulling his leg. Besides the fact that that one does not swear on Avadim under any circumstances, why else might we have thought that he can retract?

(d)What is then the reason for Rebbi Aba's ruling?

1)

(a)Rebbi Aba sent to Rav Yosef bar Chama that if Reuven accuses Shimon of stealing his Eved, and Shimon counters that he (Reuven) sold him to him or gave him to him as a gift, the latter is believed. The problem with this from the Sugya in 'Chezkas ha'Batim' is - the ruling there that 'Godros (animals and Avadim that can walk by themselves) are not subject to a Chazakah (in which case, the Eved ought to be given to Reuven)

(b)To answer the Kashya, we establish Rebbi Aba either by a Chazakah of three years (whereas the Sugya in Chezkas ha'Batim is referring to an immediate Chazakah) or by a baby in the cot (who cannot walk yet) or - where there are no witnesses who saw the Eved in Shimon's house.

(c)He also ruled that if Shimon responds by offering Reuven the right to swear, which he does, he cannot retract by saying that he was only pulling his leg. We might have thought that he can a. Because one does not swear on Avadim under any circumstances, and b. because with the exception of a few specific cases, it is always the defendant who swears, and not the claimant.

(d)And Rebbi Aba's ruling is due to the fact that - once Reuven offers Shimon the right to swear, it is as if he declares that he believes him under oath (and that Ne'emanus is not something from which he can retract).

2)

(a)In the Mishnah in Sanhedrin, Rebbi Meir rules that if Reuven offers to accept the arbitrary decision of his own father, of Shimon's father or three cowhands, in his dispute with Shimon, he can retract his offer. Why does the Tana specifically refer to cowhands, and not to shepherds? And what advantage do both fathers have in this regard over shepherds?

(b)What do the Chachamim say?

(c)Having learned the Mishnah in Sanhedrin ('Ne'eman alai Aba ... ', where the Chachamim rule 'Eino Yachol Lachzor bo'), why did Rebbi Aba find it necessary to repeat the ruling in the current case of 'Avdi Ganavta'?

2)

(a)In the Mishnah in Sanhedrin, Rebbi Meir rules that if Reuven offers to accept the arbitrary decision of his own father, of Shimon's father or of three cowhands, in his dispute with Shimon, he can retract his offer. The Tana specifically refers to cowhands, and not to shepherds - because the latter (who allow their animals to graze in other people's fields) are considered Resha'im (as we learned in Bava Kama), whose decisions are unacceptable at any time (as opposed to the respective fathers, who are eligible to rule in cases that do not concern their own children).

(b)The Chachamim rule - 'Eino Yachol Lachzor bo'.

(c)In spite of having learned the Mishnah of 'Ne'eman alai Aba ... ', Rebbi Aba found it necessary to repeat the ruling in the case of 'Avdi Ganavta' to teach us that - the Machlokes Tana'im is confined to where the offer is made by the defendant (who authorizes the claimant to claim with a Shevu'ah), and that the Halachah is like the Chachamim (despite the logistics of Rebbi Meir's opinion). But there where the offer is made by the claimant (for the defendant to be able to retain what he is already Muchzak), even Rebbi Meir will concede that he cannot retract.

3)

(a)Rebbi Aba sent to Rav Yosef 'Halachah Govin min ha'Avadim'. What did Rav Nachman say?

(b)On what grounds did Rav Nachman ignore the Pasuk in B'har "ve'Hisnachaltem Osam li'Veneichem ... ", comparing Avadim to Karka?

(c)What makes this ruling of Rebbi Aba unique (of all the rulings that Rebbi Aba sent to Rav Yosef)?

3)

(a)Rebbi Aba sent to Rav Yosef 'Halachah Govin min ha'Avadim'. Rav Nachman said - 'Ein Govin' (because he considers Avadim like Metaltelin).

(b)Rav Nachman ignores the Pasuk in B'har "ve'Hisnachaltem osam lil'Veneichem ... ", comparing Avadim to Karka - because our case (which depends on the extent of the creditor's reliance) is different than the other cases incorporated in the Torah's comparison (such as how they are acquired, whether one swears on them and whether they are subject to Ona'ah), which merely depends upon their status [which category they belong to], and not on somebody's assessment.

(c)What makes this ruling of Rebbi Aba unique (of all the rulings that Rebbi Aba sent to Rav Yosef) is - the fact that it is the only one that is not Halachah (as we shall see later).

4)

(a)He also sent him 'Sh'lishi be'Sheini Kasher'. What did he mean by that?

(b)What is the Din by a Sheini be'Sheini?

(c)Rava adds 'Af be'Rishon' whilst 'Mar bar Rav Ashi Achshar be'Aba de'Aba'. What is the difference between Rava and Mar bar Rav Ashi?

(d)Why do we not rule like Mar bar Rav Ashi (as we usually do)?

4)

(a)He also sent him 'Sh'lishi be'Sheini Kasher', by which he meant that if Reuven and Shimon are brothers, then one of their grandsons (a Sh'lishi) is permitted to testify in Beis-Din for or against the other one's son (and vice-versa).

(b)A Sheini however (a cousin), cannot testify for a Sheini.

(c)Rava adds 'Af be'Rishon' meaning that - Reuven's son for example, may even testify on behalf of Shimon (his uncle), whereas 'Mar bar Rav Ashi Achshar be'Aba de'Aba' permitting him to testify even on behalf of Reuven (his own grandfather).

(d)We do not rule like Mar bar Rav Ashi (as we usually do) - due to the principle 'B'nei Banim harei Hein ke'Banim' (one's grandchildren are, to a certain extent, considered like one's own children).

5)

(a)What ruling did Rebbi Aba send to Rav Yosef regarding a witness who became blind?

(b)What is he supposed to be testifying? How is it possible to steal land?

(c)On what grounds then, does ...

1. ... Shmuel validate such a witness?

2. ... Rav Sheishes validates him even to testify on a garment (which even Shmuel invalidates)?

3. ... Rav Papa validate his testimony even on a lump of silver (which even Rav Sheishes invalidates)?

5)

(a)Rebbi Aba send to Rav Yosef that - a witness who knows of testimony regarding someone's land, and then becomes blind, can no longer testify on his behalf.

(b)His testimony entails - identifying the boundaries of the field in question, which a neighbor stole by moving the boundary-posts.

(c)Nevertheless ...

1. ... Shmuel validates such a witness - because it is possible for him to give identifying marks at the edges of the other neighbors' fields.

2. ... Rav Sheishes validates him even to testify on a garment (which even Shmuel invalidates) - since he can identify it by specifying its length and breadth.

3. ... Rav Papa validates his testimony even on a lump of silver (which even Rav Sheshes invalidates) - since it is possible to give its weight.

6)

(a)What does the Tana of a Beraisa rule with regard to Reuven who knew testimony about Shimon ...

1. ... and then became his son-in-law, a deaf-mute or went crazy?

2. ... before becoming his son-in-law, a deaf-mute or went crazy, but now wants to testify after his daughter dies, or after he recovered?

(b)The Tana concludes with 'Zeh ha'Kelal'. What does 'Zeh ha'Kelal' incorporate?

(c)We cite this Beraisa to categorically prove Rebbi Aba right. How do we know that the Tana invalidates all the above cases that Shmuel, Rav Sheishes and Rav Papa validate (even Karka)?

6)

(a)The Tana of a Beraisa rules that Reuven who knew testimony about Shimon ...

1. ... and then became his son-in-law, a deaf-mute or went crazy - he may no longer testify.

2. ... before becoming his son-in-law, a deaf-mute or went crazy, but now wants to testify after his daughter dies, or after he recovers - he may.

(b)The Tana concludes with 'Zeh ha'Kelal - Kol she'Techilaso O Sofo be'Paslus, Pasul. Techilaso ve'Sofo be'Kashrus, Kasher'.

(c)We cite this Beraisa to categorically prove Rebbi Aba's last ruling right, because - if the Tana was not coming to invalidate all the above cases that Shmuel, Rav Sheishes and Rav Papa validate (even the case of Karka), what would 'Zeh ha'Kelal' be teaching us?

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7)

(a)Rebbi Aba sent to Rav Yosef 'ha'Omer al Tinok Ben ha'Banim, Ne'eman'. What did Rebbi Yochanan say?

(b)How does Abaye initially interpret their Machlokes? Which Machlokes Tana'im does it echo?

(c)What objection does Rava raise to Abaye's interpretation?

(d)So Rava concludes that they establish their case like the case over which Rebbi Yehudah and the Rabbanan argue, and they argue over like whom the Halachah is. Which Machlokes is Rava referring to?

7)

(a)Rebbi Aba sent to Rav Yosef 'ha'Omer al Tinok Ben ha'Banim, Ne'eman'. Rebbi Yochanan says - 'Eino Ne'eman'.

(b)According to Abaye's initial interpretation, they are arguing over whether a son may bequeath all his property to one of his children (Rebbi Aba), like Rebbi Yochanan ben Berokah or not (Rebbi Yochanan), like the Rabbanan.

(c)Rava objects to Abaye's interpretation however, on the grounds that - Rebbi Aba should then have said 'Yirash' and Rebbi Yochanan, 'Lo Yirash'.

(d)So Rava concludes that they establish their case like that over which Rebbi Yehudah and the Rabbanan argue - whether a father is believed to declare one of his sons the B'chor, even when one of the other sons is already Muchzak, and they argue over whether the Halachah is like Rebbi Yehudah (Rebbi Aba) or the Rabbanan (Rebbi Yochanan).

8)

(a)What will be the Din if one of the brothers is Muchzak as the B'chor and the father says nothing? Does he receive a double portion?

(b)How do we know this?

8)

(a)If one of the brothers is Muchzak as the B'chor and the father says nothing - he receives a double portion.

(b)We know this from the fact that - Rebbi Yehudah says that a son whom the father declares the B'chor, is the B'chor; he does not say that a B'chor whom the father does not declare the B'chor, is not.

9)

(a)Rebbi Aba sent to Rav Yosef 'ha'Omer Titol Ishti ke'Echad min ha'Banim, Ne'eman'. Assuming that he is speaking about her receiving that amount ...

1. ... instead of her Kesuvah, how can he force her to accept that?

2. ... in addition to her Kesubah, what is the Din regarding Kinyan?

(b)Rava confines Rebbi Aba's ruling to property that the husband owns at the time, but does not incorporate property that he will obtain only later. Does this mean that Rava does not hold like Rebbi Meir, who holds 'Adam Makneh Davar she'Lo Ba le'Olam'?

(c)What does Rava mean when he concludes 'u've'Vanim ha'Ba'im le'Achar mi'Ka'an', assuming that between the time of his statement and the distribution after his death ...

1. ... more children are born?

2. ... some of the existing children have died?

(d)What is the reason for this dual ruling?

9)

(a)Rebbi Aba sent to Rav Yosef 'ha'Omer Titol Ishti ke'Echad min ha'Banim, Ne'eman. Assuming that he is speaking about her receiving that amount ...

1. ... instead of her Kesuvah he certainly cannot force her to accept that. In fact, he is speaking with her consent.

2. ... in addition to her Kesuvah, it speaks that he also made a Kinyan, in the event that he is giving her a Matnas Bari, but not if he was a Sh'chiv-Mera (whose words are considered final, even without a Kinyan).

(b)Rava confines Rebbi Aba's ruling to property that he owns at the time, but does not incorporate property that he obtained later. This does not necessarily mean that Rava does not rule like Rebbi Meir, who holds 'Adam Makneh Davar she'Lo Ba le'Olam') - because even Rebbi Meir will agree that in this case, where the man did not stipulate that he included property that he did not yet own, he does not mean to incorporate it in the gift.

(c)And when Rava concludes 'u've'Vanim ha'Ba'im le'Achar mi'Ka'an', assuming that between the time of his statement and the distribution after his death ...

1. ... more children are born - he included them in his statement, thereby reducing the amount that his wife will receive. Likewise, if ...

2. ... some of the existing children died, he had that in mind with his statement, thereby increasing it.

(d)The reason for this dual ruling is that - when the husband said 'ke'Echad min ha'Banim', he was obviously referring to the time of distribution, automatically including whichever sons will be alive at that time.

10)

(a)Rebbi Aba sent to Rav Yosef that if Reuven produces a Sh'tar-Chov against Shimon, who claims that he has paid half, whereas the witnesses testify that he paid in full, Shimon must nevertheless pay half and swear on the rest. Why is that?

(b)Why does he then conclude that Reuven may only claim from B'nei Chorin? Why can he not claim Meshubadim from the Lekuchos?

(c)Moreover, the Lekuchos can counter that the creditor and the debtor entered into a Kenunyah. What is a 'Kenunyah'?

10)

(a)Rebbi Aba sent to Rav Yosef that if Reuven produces a Shtar-Chov on Shimon, who claims that he has paid half, whereas the witnesses testify that he paid in full, Shimon must nevertheless pay half and swear on the rest - based on the principle 'Hoda'as Ba'al-Din, ke'Me'ah Eidim Dami' (the admission of the defendant overrides any testimony to the contrary).

(b)Nevertheless, he concludes that Reuven may only claim from B'nei Chorin and not Meshubadim from the Lekuchos - because the initial ruling is acceptable vis-a-vis himself (since a person is able to obligate himself as much as he wishes), but not at the expense of a third person, who is entitled to accept the testimony of witnesses.

(c)Moreover, the Lekuchos can counter that the creditor and the debtor entered into a Kenunyah - collusion (a conspiracy to claim the purchased piece of land [even though the debt has already been paid] from him and share it between them).

11)

(a)Rebbi Aba's latest ruling goes even according to Rebbi Akiva (cited in a Beraisa in Bava Metzia, where Reuven produces a Sh'tar-Chov on Shimon, which states 'Sela'im' or 'Dinarim', and claims from him five, whereas Shimon admits to three. Rebbi Shimon ben Elazar obligates the latter to pay three and swear on the rest. What does Rebbi Akiva say?

(b)Why is that?

(c)On what grounds do we establish Rebbi Aba (in the current case) even like Rebbi Akiva? Why will the latter not consider this case too (where he could have agreed with the witnesses), to be 'Meishiv Aveidah', and exempt him from a Shevu'ah?

(d)What objection did Mar bar Rav Ashi raise to Rebbi Aba's ruling? How did he view this case in light of the Machlokes Tana'im in Bava Metzia?

(e)How do we counter Mar bar Ashi's objection?

11)

(a)Rebbi Aba's latest ruling goes even according to Rebbi Akiva (cited in a Beraisa in Bava Metzia, where Reuven produces a Shtar-Chov on Shimon, which states 'Sela'im' or 'Dinarim', and claims from him five, whereas Shimon admits to three, and where Rebbi Shimon ben Elazar obligates the latter to pay three and swear on the rest. Rebbi Akiva - exempts him from a Shevu'ah ...

(b)... since he could have admitted to two Sela'im or Dinarim, seeing as (based on the principle 'Mi'ut Rabim, Shenayim') that is what is implied by the Sh'tar. Admitting to more, is akin to 'Meishiv Aveidah' (admitting that one found half of the amount that the loser claims to have lost, and which the Chachamim exempted from a Shevu'ah, so as not to discourage people from returning lost articles).

(c)We establish Rebbi Aba (in the current case) even like Rebbi Akiva, who will not consider this case too, 'Meishiv Aveidah' (despite the fact that he could have agreed with the witnesses), to exempt him from a Shevu'ah - because in this case, where the witnesses only arrived after he had admitted to half the claim, we suspect that he was aware of the witnesses, but not quite sure whether they were coming to support him or to obligate him, prompting him to take the middle course and admit to half.

(d)Mar bar Rav Ashi objected to Rebbi Aba's ruling however, on the grounds that quite to the contrary - seeing as Shimon has witnesses on his side, even Rebbi Shimon ben Elazar will concede that he is exempt from a Shevu'ah, since he had the option to agree with them.

(e)We do not even bother to reply to Mar bar Rav Ashi, ignoring his Kashya altogether - in view of Rebbi Aba's S'vara, which we just presented.

12)

(a)Mar Zutra in the name of Rav Shim'i bar Ashi rules that in all of the above cases, the Halachah is like Rebbi Aba. On what grounds does Ravina query this from Rebbi Aba's dispute with Rav Nachman, where he ruled 'Govin min ha'Avadim'?

(b)What did Rav Ashi reply?

(c)In that case, we have a problem as to why Mar Zutra found it necessary to rule like Rebbi Aba. Why would he not need to preclude from ...

1. ... Rava, in the case of Sh'lishi be'Sheini (where Rava adds 'Af be'Rishon')?

2. ... Mar bar Rav Ashi there, who adds 'Af Aba de'Aba'?

3. ... Shmuel, Rav Sheishes and Rav Papa, in the case of 'Hayah Yode'a be'Eidus ad she'Lo Nistama ... ', who argue in the cases of Karka, a garment and silver respectively?

(d)If, as we just suggested, Rebbi Aba agrees with Rava, then why did he say 'Sh'lishi be'Sheini', and not 'be'Rishon' (like Rava)?

(e)Why can we not nevertheless infer from his ruling that a Sh'lishi be'Rishon is Pasul?

12)

(a)Mar Zutra in the name of Rav Shimi bar Ashi ruled that in all of the above cases, the Halachah is like Rebbi Aba. Ravina queried this from Rebbi Aba's dispute with Rav Nachman, where he ruled 'Govin min ha'Avadim' - because to rule like Rebbi Aba would contravene the principle that the Halachah is always like Rav Nachman in Dinei Mamonos.

(b)Rav Ashi replied that - we need to amend the text there to read to 'Ein Govin; ve'Chein Amar Rav Nachman'.

(c)In that case, we have a problem why Mar Zutra found it necessary to rule like Rebbi Aba. It is not be necessary to do so to preclude from ...

1. ... Rava, in the case of Sh'lishi be'Sheini (where Rava adds 'Af be'Rishon') - because he comes to add to Rebbi Aba's statement, not to argue with him.

2. ... Mar bar Rav Ashi there, who adds 'Af Aba de'Aba' - since he has already been disproved.

3. ... Shmuel, Rav Sheishes and Rav Papa, in the case of 'Hayah Yode'a be'Eidus ad she'Lo Nistama ... ', who argue in the cases of Karka, garment and silver respectively - for the same reason.

(d)Even if, as we just suggested, Rebbi Aba agrees with Rava, it is necessary to rule by 'Sh'lishi be'Sheini' - to preclude from the opinion in Sanhedrin, which holds that he is Pasul.

(e)Nor can we infer from his ruling that a Sh'lishi be'Rishon is Pasul - because he may well have issued his ruling with regard to a case involving a Sh'lishi be'Sheini.

13)

(a)Whose two opinions does Mar Zutra's ruling like Rebbi Aba finally come to preclude?

13)

(a)In fact, Mar Zutra's ruling like Rebbi Aba comes to preclude - from Rebbi Yochanan (who holds 'ha'Omer al Tinok Ben ha'Banim, B'chor hu, Eino Ne'eman'), and from the Kashya of Mar bar Rav Ashi (that we just discussed).

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