Discussions for this daf
1. Compare small point with Bava Metzi'a 2. Rebbi Yehudah's "Eitzah Tovah" 3. ומ"ד בפני ג' סבר גלויי מילתא בעינן
4. ערער חזר וערער חזר וערער
DAF DISCUSSIONS - BAVA BASRA 39

Rob 613 asked:

Dear Rav Kornfeld:

We're learning Bava Basra 3rd perek, and we just came to a point regarding making an objection not in front of the person occupying the land, and the discussion about making it in front of two vs three witnesses on Daf 39 A-B.

In reviewing it today I was reminded of something in Bava Metzia which the kollel was kind enough to explain for me... regarding when a person with a high rate of pay sees a lost animal running by, he has to state before a Beis Din that he will seek reimbursement for his time at his high labor rate, and not the lower rate of a common laborer.

Such a Beis Din need not be a standing Beis Din, but rather an ad-hoc Beis Din.

Here in Bava Basra the gemara discussing the difference between 2 and 3 witnesses goes into a discussion about the laws of Loshon Hora.

With "Giluy milsa" it does also touch upon the concept of "official notice" of the objection, which seems close to the connection I am making, but perhaps not directly on point.

I question whether these 3 witnesses to the objection are functioning as a Beis Din?

And why in the case of Bava Metzia why it doesn't work if in front of 2 witnesses?

Here if the objection is said in front of 3 witnesses there still is no proof that the other party has heard of the obection... although it is permissible to discuss in public.

If however the 3 are functioning as an ad-hoc Beis Din, especially if in the case that the right venue for the case is wherever the previous owner is located, perhaps the reason it works with 3 witnesses is that a Beis Din has the authority to take official notice of the objection?

Any guidance to see if there is any commentary addressing this point?

We're told that the Chidushei R' Meir Simcha, author of the Ohr Sameach, may have something to say on this point.

Thank you,

Chaim Chesler

The Kollel replies:

Dear Chaim,

It seems the two Gemaras are not connected.

The argument of two or three in Bava Basra is not connected at all with Beis Din. Rashbam (396) explains that three will cause Giluy Milsa that everybody (including the owner) will know. The other option says that two is enough - because information could get to the owner (even with one - see Tosfos DH Sahadusa) and the two can give Eidus.

In Bava Metzia 30b a person must return the Aveidah only if he is not losing money. Therefore the returner can be compensated and usually, receiving as an "idle" worker is sufficient.

Here, though, he claims he is interested only in more profit even if this means working harder. To receive more, like a regular worker, Rav Shmuel Rozovsky in Shi'urei Rabbi Shmuel (Bava Metzia 31b) explains that it's not enough that we hear his declaration, even if there are two witnesses. It must also receive an O.K. from Beis Din.

All the best,

Reuven Weiner

Rob 613 responded:

(a) Subsequent to this daf there is a mention in Artscroll footnotes which discusses that 2 people can be a Beis Din for monetary matters. I'll have to find it again when I next get access to Artscroll.

Does this change anything?

(b) Please explore with me how it happens that 3 Shomer Shabbos Jews are installed as an ad-hoc Beis Din, even on Rosh HaShana for annulment of vows...

By Bava Metzia what does the professional pay rate person say to the 3 people while he has the fleeting opportunity to run after a lost animal, so that they can become invested with the power of an ad-hoc Beis Din, and they have time to deliberate on the matter to give him an OK to expect his higher labor rate of pay?

I would have assumed that they are hardly in a position to give an OK, and the gemara does not actually say he has to wait for their OK, only that he has to stipulate in front of them, right?

So here, in front of 3 witnesses, is there something the m'aror could say to the 3 witnesses such that they become invested with more than the the power of witnesses, but rather an ad-hoc Beis Din?

(c) And if saying something in front of a Beis Din means something more than saying it in front of witnesses, is this a monetary matter of the type for which a Beis Din of 2 people could be formed?

And 2 other small requests:

(d) Does the Kollel have access to Chidushei R' Meir Simcha?

(e) Please say more about the Giluy Milsa and how it works as "official notice"... is there something more "official" going on than just having 3 people who will have permission to repeat things without being liable to the laws of Loshon Hora?

The Kollel replies:

Dear Chaim,

(a) You saw the "two people Beis Din" on Daf 40a ft.8. It is only according to Shmuel, only in certain cases and only b'Dieved. So it does not change anything.

(b) About Hataras Nedarim:

1. Who is fit to be part of a Beis Din for Hataras Nedarim is explained in Shulchan Aruch YD 228:1. Even the three "simple" Jews must be such that "comprehend when they're taught" enough to know which Neder can be annulled (Shach 228:2). (I was once told this means that the Beis Din must know how Pesach and Charatah can be used to make Hataras Nedarim). The Torah does not require for Nedarim "big Rabbis" as are needed for monetary cases.

2. As you assumed, extra pay is allowed when requested in front of Beis Din automatically, without deliberation. Rav Rozovsky explains that just as we find on 32a, "to extract money a Beis Din is needed", so too, a Beis Din is necessary in order to receive more money.

3. Three witnesses spread more information. But the power of Beis Din doesn't add anything.

(c) Again, Macha'ah needs a certain number of people, specifically three, but not because of Beis Din. In either case, two is never good to start with.

(d) Chidushei R. Meir Simcha was checked twice. I don't see any connection to this discussion. (He mentions Bava Basra 39b earlier in the Perek (p. 198 or 29a-2)).

(e) There is no Lashon Hara here since the old owner must alert the occupant. (Artscroll 39b ft1.)

The Gemara is only making a comparison to the rules of Lashon Hara: Just as we see that once Lashon Hara is spread by three no further sin is involved (because it will certainly spread to all) so too three are also needed to pass on the Macha'ah.

(P.S. Do not deduce from here that after Lashon Hara is spread it is permitted to spread it further. The Halachah must be learned carefully, see Insights to Erchin 16.)

All the best,

Reuven Weiner