1) HALACHAH: PERMISSIBLE LASHON HA'RA
OPINIONS: The Gemara quotes Rabah bar Rav Huna who states that "anything which is said in front of three people does not involve the prohibition of speaking Lashon ha'Ra."
Does this mean that one may speak Lashon ha'Ra about another person in front of three people?
(a) TOSFOS (39b, DH Leis) explains that one is permitted to say Lashon ha'Ra in front of three people (in contrast to the view of the Rashbam, see (c) below). However, this does not mean that one may say outright Lashon ha'Ra. Rather, as Tosfos in Erchin (15b, DH Kol) explains, Rabah bar Rav Huna refers to a statement which may be construed in two ways. For example, when one says, "There is always fire in the oven in Reuven's home," this could mean that Reuven is very hospitable and always has hot food available for guests. On the other hand, it could mean that Reuven is a glutton who always cooks food for himself. When such a statement is said in front of three people, it is assumed that it will be publicized (by virtue of having been said in front of three) and eventually heard by the person about whom it was spoken. Since the person who made the statement is aware that the subject of his words will hear of the statement, he presumably did not intend to harm or insult the other person but instead intended his statement to be complimentary, not derogatory. In contrast, an unquestionably degrading statement always constitutes Lashon ha'Ra and may not be said even in front of three people.
(b) RABEINU YONAH here, RASHI in Erchin (15b, DH d'Mis'amri), and RABEINU GERSHOM explain that the Gemara does not refer to a negative statement at all. Rather, one is forbidden to divulge to others any information a person disseminates if there is reason to assume that the one who made the remark wants it to remain secret. If, however, the remark was originally made in the presence of three people, and he did not stipulate that the information should be kept confidential, it is assumed that the one who made the statement does not care whether or not the information is made public, and thus it may be said over to others. The Gemara does not refer to damaging or negative statements said about another person.
(c) The RASHBAM here (DH d'Mis'amra) and the RAMBAM (Hilchos De'os 7:5) explain that if a person spoke forbidden words of Lashon ha'Ra in the presence of three people, one of those three people may repeat the statement to others (even though it was forbidden for the first person to tell it initially). The reasoning behind this is that since the statement was made in the presence of three people, it can be assumed that it is already public knowledge. Repeating what was said will not give the statement added publicity, and therefore it does not constitute Lashon ha'Ra.
The Rashbam adds that since it may be assumed that the statement is public knowledge, one of the three people who heard the Lashon Ha'Ra may even tell the subject of the Lashon ha'Ra what was said about him.
The CHAFETZ CHAIM (Hilchos Lashon ha'Ra 2:3) lists five conditions which must be met in order to implement the lenient ruling of the Rambam:
1. The Rambam disagrees with the Rashbam and rules that one is forbidden to quote what was said to the victim of the Lashon ha'Ra himself.
2. If the original bearer of the Lashon ha'Ra told the listeners not to repeat the story, or if any one of the three is known to be a G-d-fearing person who would not gossip, or if one of them is a friend of the victim of the Lashon ha'Ra, then it cannot be assumed that it is public knowledge and it is forbidden to repeat the story.
3. Only one of the original three who heard the story may repeat it.
4. It may be repeated only in the same city where it was originally told.
5. When repeated, the story must be told with perfect accuracy. One may not change even the smallest detail from the original story.
The Chafetz Chaim concludes that in practice, it does not seem appropriate to rely on the lenient ruling of the Rambam because it is almost impossible to meet all the conditions required. Moreover, according to the way the other Rishonim learn the Gemara, there is no source at all to permit Lashon ha'Ra even under these circumstances.
39b----------------------------------------39b
2) INCONSISTENT PROTESTS
QUESTION: The RASHBAM (DH Im Machmas) explains that when the claimant protested repeatedly within the three-year period from the time that the Machzik occupied the property, the protest is valid and the Machzik does not have a Chazakah. This applies, however, only when all of the claimant's protests during that time contained a single argument (for example, "So and so is occupying my field because he stole it from me"). If, however, the protests contain different, inconsistent arguments (for example, he first protests that the Machzik stole the field from him, and later he protests that the Machzik is holding his field as collateral for a loan), the contradiction in his arguments nullifies the protests and the Machzik thus has a valid Chazakah. The Rashbam explains that since the claimant's second argument contradicts his first argument, he has established himself to be a "Kafran," a liar, whose word is not accepted in Beis Din.
The ROSH (3:29) questions the Rashbam's explanation. A person cannot be proven to be a Kafran unless two witnesses testify that he lied. In contrast, if a person merely presents two contradictory arguments in Beis Din, he may choose one of the arguments and claim that he was mistaken with regard to the other. Why, in the case of inconsistent protests, does Beis Din not let the claimant retract his first argument and claim that he was mistaken?
ANSWER: The BACH (CM 146:11) explains the Rashbam's view. The Bach points out that the Halachah (CM 79) is that a person can be proven to be a Kafran only through the testimony of two witnesses, and that the Rashbam certainly does not dispute this. However, the Rashbam's assertion does apply to the case of protests against the unauthorized occupancy of property. In such a case, the Machzik can argue that because the claimant gave contradictory arguments, he did not bother to keep his Shtar for more than three years. When the Rashbam writes that the claimant establishes himself to be a Kafran, he does not mean that henceforth he will not be believed in Beis Din, but rather that the Machzik considers him a Kafran. Any logical reason which the Machzik can provide for why he did not pay attention to the claimant's protests is valid and his three years of occupancy establish for him a valid Chazakah. (Y. Marcus)