Sam, it is so great to hear from you after such a long time!! I was thinking to myself recently "Where is Sam?". This is wonderful.

A possible answer to your question, that comes to mind at the moment, is according to the Shitah of Rabeinu Tam; cited in Tosfos Kidushin 59a DH Ani; who writes that Ani ha'Mihapech b'Charara does not apply if the Charara was of Hefker, because if he is not able to acquire this Hefker item, he will not get it for free anywhere else. Ani ha'Mihapech only applies when A is looking to buy something and B gets in first. We say to B that he should not have bought that item because he could have bought it elsehwere without disturbing A.

So here in the Gemara end 54b we learn that the property of Akum is like the wilderness. They are Hefker, so Ani ha'Mihapech does not apply according to Rabeinu Tam.

1. I see that Rashbam here 54b DH Harei Hein writes that even though the property of the Akum is like the wilderness, nevertheless the second one; who occupied it after the first one paid money to buy it; is called a Rasha because this is comparable to Ani ha'Mihapech. According to this, it seems that the other Yisrael, who plowed the land after Rav Huna bought it, is indeed called a Rasha. However, Rav Nachman gave the land to the 2nd one, because even though he is called a Rasha, the Beis Din cannot take it away from him. We see this in Shulchan Aruch Choshen Mishpat 237:1 and in SM'A #1, that we announce in Shul that this person did the action of a Rasha but Beis Din does not have the power to take it away from him.

Rabbi Akiva Eiger, in Gilyon HaShas on the above Rashbam, sends us to Tosfos above 21b DH Marchikin. There Tosfos cites our Gemara and Rashbam that the Yisrael who does Chazoka in this land is called a Rasha but then he cites Rabeinu Tam; that I mentioned in my first reply in the name of Tosfos Kidushin; that since the second one will not find the item anywhere else; he is not called a Rasha if he takes it. So this issue, about Hefker, seems to be a dispute between the 2 brothers; Rabeinu Tam and Rashbam.

Possibly we can suggest that the Gemara end 54b; that the second one got it after Rav Huna bought it; is somewhat a support for Rabeinu Tam, because we do not need to say now that the second plower did anything wrong.

2. Rav Huna was rich:-

I thought, bs'd, of another answer.

The Maharsha Bava Basra 14a Chidushei Agados DH Rav Huna writes that Rav Huna was rich, as we find in Taanis 20b, that they took Rav Huna out in a golden carriage.

The Ran in Kidushin 24a in Rif pages; end DH Rav Gidel; writes that if a rich person is looking for an item and somebody else gets in first, the second person is not called a Rasha because the rich man could buy elsewehere.

So I suggest that the other Yisrael who plowed the field slightly was not considered a Rasha because Rav Huna could easily find land elewhere to buy.

It is true that the Ran concludes that when it comes to buying land, someone who gets in before the rich man is also called a Rasha, because it is not so easy to find land to buy. This is indeed a question on my Pshat. However, I suggest, in answer to this question, that Rav Huna was extremely wealthy, as we see from the fact that he rode in a golden carriage. Such a wealthy person would not find it hard to buy land elewhere.

3. The "other Yisrael" who plowed the field may not have known about the Din of Ani ha'Mihapech:-

A friend of mine suggested another reason why Ani ha'Mihapech b'Charara was not invoked.

There are 2 possibilities that one can suggest for the motives of the "Yisrael Acher" who plowed the field that Rav Huna had paid for:-

(a) he did not know the Halacha that if somebody wants to buy a field, but has not yet acquired it, one is called a Rasha if one gets in first

(b) he did not know that Rav Huna was interested in the field and had already paid money.

If a person does not know the Halacha of Ani ha'Mihapech it is very logical to say that he is not called a Rasha if he transgressed it. The question would now be:- why did Rav Nachman not inform him about this Halacha when he came in front of him in the Beis Din?

If we look at Gemara Kidushin 59a we may be able to answer this question. This is actually the source of the Halacha of Ani ha'Mihapech. The Gemara relates that Rav Gidel was looking to buy a field but Rabbi Abba got in first. Rav Yitzchak Nafcha asked R. Abba why he did this and he replied that he did not know that Rav Gidel was interested in buying the field. Rav Yitzchak suggested to R. Abba that he give the field to Rav Gidel. Rav Gidel replied that he did not want to receive a present since Mishlei 15:27 states that "he who hates gifts will live".

Possibly it can be suggested that since the Jew who plowed the field had acquired it according to the Halacha, if he would have given it to Rav Huna that would represent a gift that Rav Huna did not want.

That is why Rav Nachman left the situation as it was.

4. Hagahos Ashrei writes that the 2nd was not called a Rasha:-

I found, bs'd, that one of the Rishonim writes explicitly what I wrote in my first answer; that because the other Yisrael could not acquire the field anywhere else if he would not have taken it before Rav Huna, who has not yet purchased it according to the Halacha; he is not a Rasha.

This is in Hagahos Ashrei DH uMarchikin on Rosh in 2nd chapter of Bava Basra #12. He cites Rabeinu Tam that if he takes away a Hefker item he is not a Rasha, because if he would not receive this he will find it hard to obtain a substitute. He then cites the Gemara in Chezkas HaBatim that even if a Yisrael has already given money to the Akum for the sale and a second Yisrael came and took it away from he is not called a Rasha.

He is clearly referring to the Gemara end 57b about Rav Huna (not merely to the general Halacha at top 54b on which Rashbam writes; unlike R. Tam; that the one who takes it is a Rasha).

I also found, bs'd, in Teshuvos Mahari Bruna #223 (Germany 1400-1480) who cites this Din in the name of Ashrei [the Rosh himself, not merely Hagahos Ashrei, that I found -DB] thst even though the second Yisrael damages the first Yisrael by causing him to lose his money, he is not called a Rasha.

This must be because the second one could not buy a field elsewhere; and the first Yisrael has not yet acqured the field according to the Halacha; so he is not obliged to lose the opportunity of buying this field even though it causes a loss to somebody else.

5. Even according to Rabeinu Tam the Yisrael who took it away from Rav Huna was a Rasha:-

When I started working on this question I said that according to Rabeinu Tam the second person was not a Rasha because he could not have obtained the field in any other way. Now I am going, bs'd, to say the opposite; that both according to Rabeinu Tam and Rashbam he was a Rasha!

A friend, who gives a Dafyomi shiur, told me that Teshuvas Chasam Sofer Choshen Mishpat #79 writes that Rabeinu Tam agrees to his brother; the Rashbam; that if A made the field of the Akum available to be acquired, this makes B a Rasha if he takes it away from him. I would not have noticed this myself in Chasam Sofer, but now that it is pointed out to me I can see it.

#79 is a very long Teshuva about Ani ha'Mihapech. On page 174 of the new edition, in DH veHaRashbam, he cites our Rashbam 54b DH Harei Hein. In the next paragraph, DH veLichorah, he explains the reason why according to Rashbam the one who takes it is a Rasha. Chasam Sofer writes that it is not necessarily because the first one lost money on it, but rather because the first one revealed this Hefker item. Chasam Sofer compares this to someone who digs in the ground and discovers a hidden treasure. It is not logical that other people should be able to take the treasure away from the finder, merely because it started off as Hefker. In our Gemara too, if the first one would not have paid money to the Akum, this field would never have been available to the world. He revealed this field by buying it from the Akum. Even if he would not have spent money on it, but merely found some way of persuading the Akum to release the field, it is not fitting that somebody else should enjoy the field whilst the discoverer walks away disappointed.

Chasam Sofer then hints that Rabeinu Tam would not disagree with this thinking.

So we can say that, even according to Rabeinu Tam, the other Yisrael who plowed the field and took it away from Rav Huna is called a Rasha because without Rav Huna's actions there would have been no possibility of anyone acquiring the field.

Dovid Bloom