Tosfos says that if the kosel fell in one person's reshus, he has a migu to be believed to say I built it because he can taina I bought it.
And why is he believd to say he bought it? Because he has a raya of shah harbeh.
My question is like this. Tosfos says when the wall is standing (before it fell in one person's reshus), it's a case of drara d'mamona and there is a psak yachlokoo. I am assuming that psak yachlokoo is m'toras safeik, not m'toras vadai. So then why can't shah harbeh change the psak of yachlokoo? Meaning why does he need a migu bichlal to be believed to say that he built it? Let him use shah harbeh to taina I built it? And the raya of shah harbeh is strong enough to go against the psak yachlokoo as the psak was m'toras safeik, not m'toras vadai.
Menachem Zaman, United States
You are quite correct that the Pask of Yachloku would be based on Safek, as we might see reflected in the lanuage of Tosfos (1).
Your question is very good. Could we understand it in the following way?
The wall, when it originally stood, was in the shared property midway between the spaces of the two yards (2). So one party could not have been Zocheh in the wall stones with a claim that he built/bought them. The reason is that they are not in his uncontested property.
This is to be contrasted with the position of the stones after the wall's collapse, i.e. in the yard belonging to only one of the parties. Thus, without the Mishnah teaching us that they must split the stones after the wall fell, the Havah Amina would be to believe the one in whose yard the stones are resting if he were to say that he built it, since he could have claimed he bought and thereby won, because they were in his exclusive yard for a very long time (3).
Best wishes,
Yishai Rasowsky
Rav I'm not seeing how you answered the question.
If you agree the psak of yachlokoo is m'toras safeik, so m'din each person is a weak tafis, even if the walls are found to be in one person's reshus.
I am basically asking why does Tosfos use a migu to enable the person to taina I bought it. The migu is because you would have believed me that I bought it (because of shah harbeh), believe me that I built. I am asking why doesn't Tosfos drop the migu and just use the shah harbeh to shlug up the psak yachlokoo that was m'toras safeik?
Shalom Reb Menachem,
Yes, you are quite right; looking back, I see that I misunderstood. I now see that you are asking why Tosfos in the Havah Amina believed that a Migu was necessary. Instead of claiming that he bought the stones, why doesn't he simply claim that it was he alone who originally built the wall?
You may or may not have seen the Gilyon ha'Shas who is bothered by this Migu in Tosfos. Again, the point being, why is a claim of having built the wall alone any less potent than a claim of having bought the stones after it fell?
Let me share two possible resolutions:
1. Chazon Ish (Bava Basra 1:7, DH ul'Mai, see link in footnote (1) below):
It is not common for a person to build a wall himself when he could force his neighbor to help. Tosfos knew this all along (even without the Chidush of our Mishnah which is what he is trying to explain). That is why the mere claim of having built it alone will not suffice, even though the stones were sitting in his yard for a long time, since building alone is very improbable. Therefore, Tosfos needs the Migu. Since the potential claim of having purchased the stones after the wall fell is not so implausible, for it doesn't contradict the premise that both parties orginally built it together, it would therefore be believed, in particular since the stones have been sitting in the one yard for a long time. The Migu, "Believe me when I say I built the wall because I could have said I bought the stones," will therefore suffice. The Maskana of Tosfos is that the Chidush which the Mishnah is teaching us is that the assumption that one person would not voluntarily build a wall by himself (since he could force the neighbor to participate with him) is so strong that it is like Edim and therefore overrides even the strength of the Migu (2).
2. The Kovetz Shi'urim (Bava Basra #7, citing Rav Naftali Trop):
It is all based on the timing when his alleged possession of the wall began. We know that when a doubt arises over who is the rightful owner of an item, a person is more entitled to be Zocheh as Muchzak if he had grabbed hold of the item before the doubt arose, unlike if a person grabbed hold of it only after the doubt arose.
So he would not be believed to say that he built it, since that would be like taking hold of the item after a the doubt arose, because he is now claiming that it was always his even before it fell. Hence, when it is sitting in his yard, it came into his physical possession after the point in time at which we are not sure who owns it. Therefore, he is not believed. However, if he says that he bought the stones, then the doubt of ownership arose after he came into physical possession of it, because he is claiming that only after the stones fell into his side did he subsequently purchase them. Therefore, claiming "I bought it" is a more powerful claim than "I built it," which is why Tosfos needed the Migu.
I hope this helps!
Yishai Rasowsky
(1) https://hebrewbooks.org/pdfpager.aspx?req=14332&st=&pgnum=285
(2) We know this from https://www.sefaria.org.il/Ketubot.27b.3?lang=he&with=Rashi&lang2=he; however, see Nachalas David (Bava Basra 2a) who questions Tosfos' classification.
Thank you so much for getting back to me.
In terms of what the Chazon Ish says:
"It is not common for a person to build a wall himself when he could force his neighbor to help. Tosfos knew this all along (even without the Chidush of our Mishnah which is what he is trying to explain). That is why the mere claim of having built it alone will not suffice, even though the stones were sitting in his yard for a long time, since building alone is very improbable."
This Chazon Ish seems to me to be going against a Mishna in Bava Basra 5a: Kosel Chatzer she'Nafal Mechayven Oso l'Vnoso Ad Arba Amos b'Chezkas she'Nasan Ad she'Yavi R'ayah she'Lo NasanThis is the translation of Sefaria which is the pashut pshat. I highlighted the part that is relevant.
MISHNA: In the case of a dividing wall in a jointly owned courtyard that fell, if one of the owners wishes to rebuild the wall, the court obligates the other owner to build the wall with him up to a height of four cubits. If after the wall was built one of the neighbors claims he alone constructed it and the other did not participate in its building, the latter is nevertheless presumed to have given his share of the money, unless the claimant brings proof that the other did not give his part.
The Mishna says it's "b'Chezkas she'Nasan" not because we don't think it's possible for one person to build a wall!!! So I don't understand the Chazon Ish's svara, maybe you can get out of it but it would be dochak.
In terms of the second answer you provided:
"It is all based on the timing when his alleged possession of the wall began. We know that when a doubt arises over who is the rightful owner of an item, a person is more entitled to be Zocheh as Muchzak if he had grabbed hold of the item before the doubt arose, unlike if a person grabbed hold of it only after the doubt arose.
So he would not be believed to say that he built it, since that would be like taking hold of the item after a the doubt arose, because he is now claiming that it was always his even before it fell. Hence, when it is sitting in his yard, it came into his physical possession after the point in time at which we are not sure who owns it. Therefore, he is not believed."
This is exactly my point. When the wall was standing there was a safeik who the wall belonged to so they would divide the wall because as Tosfos says v'Im Hayu Ba'in la'Chalok b'Od she'ha'Kosel Kayam Hayu Cholkin b'Shaveh mi'Safek.
So while the wall was standing there was a psak yachlokoo. As I asked you last time Rav, the psak yachlokoo is m'toras safeik (and not vadai). So now the wall is in his reshus, he has a tefisa now a raya that the wall is his because of shah harbeh. So since the psak yachlkoo was m'toras safeik, why can't shah harbeh relitigate the case and say he built the wall? Why shouldn't shah harbeh be abe to overtake a psak yachlokoo m'toras safeik?
Great to hear from you. Very nice to see your sharp thoughts and insightful comments on this issue!
1. Regarding the approach of the Chazon Ish, his Sevara is that most probably a person would not build the wall on his own because he has the legal option of obligating his neighbor to chip in. You may have already had the opportunity to see the Chazon Ish inside. If not, I invite you to check the Sefer or the link above.
2. Regarding Rav Naftali Trop's approach that Rav Elchanan brought, you wrote that "he has a tefisa now a raya that the wall is his because of shah harbeh." I agree with you that this seems very intuitive and convincing. But when I read Rav Elchanan, he seems to write in opposition to this. Namely, he explains that the long period of time during which the stones lie in one yard are not a Ra'ayah, but rather it just removes from the equation that factor that partners are less Makpid on each other. In other words, more time has elapsed than would be reasonable even for partners. But still, he means to explain, we ultimately have to ask if the Tefisah -- which in this case is the presence of the stones in one person's yard -- constitute a legitimate Hachra'ah to settle the Safek. He is understanding that since, if the claim is "I built the wall,, then this Tefisah occurs after the Safek was Nolad, therefore it cannot be Machri'a. Only if he claims "I bought the stones [after they fell into my yard]," then the Tefisah is before the Safek is Nolad, and therefore it can be Machri'a. Are there any parts of this reasoning which do not resonate? You may have already had an opportunity to see the Kovetz Shi'urim inside. If not, unfortunately, unlike the Chazon Ish, for this I could not find an easy link to send. But if you did not locate the Sefer, please let me know and we will send you a scan.
I hope this helps!
Best wishes,
Yishai Rasowsky