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Bava Basra 33



(a) Abaye asked Rava bar Sharshom 'Eima Li Eizo Gufa de'Uvda Heicha Havi' when he heard the rumor - that he was 'eating up land belonging to Yesomim'.

(b) In response, he explained to Abaye the Mashkanta de'Sura that he received from their father had just expired. A Mashkanta de'Sura is - where the debtor gives the creditor a Mashkon to eat fruit for a fixed period of time as payment of the debt. And when the time expires, he returns the field and the debt is cancelled.

(c) Rava bar Sharshom then continued to eat the fruit of the Yesomim - on the basis of another debt that, he claimed, their father owed him.

(a) Rava bar Sharshom claimed that he had a 'Migu' - inasmuch as he could now quash the Sh'tar Mashkanta, and claim that he had purchased the field from their father (since he had eaten the fruit for more than three years in the lifetime of the father.

(b) He was using the 'Migu' to try and spare himself - a Shevu'ah, because Chazal have taught 'ha'Ba Li'para mi'Nechsei Yesomim, Lo Yipara Ela bi'Shevu'ah'.

(c) Rava bar Sharshom would not have been obligated to swear if he had claimed that he purchased the field - because a. a claim on Karka does not require a Shevu'ah, and b. because the Chazakah stands in place of a Sh'tar, which does not require a Shevu'ah either (see Tosfos DH 'Migu').

(a) Abaye rejected Rava bar Sharshom's argument - on the grounds that the basis of his 'Migu' (that he could have said that he had bought the field and lost the Sh'tar) was not acceptable, since the Beis-Din would counter by informing him that he should have treated the Kol (that it belonged to the Yesomim, and which had already been in effect from before the father's death) like a Mecha'ah, and looked after his Sh'tar.

(b) He could not have sworn to the Yesomim immediately and claimed his debt - because although Chazal permit claiming from Yesomim with a Shevu'ah, that is only after they grow-up; as long as they are Ketanim, the principle 'Ein Nizkakin le'Nechsei Yesomim Ela-im-Kein Ribis Ocheles Bahen' applies (see Bach 6).

(c) We reconcile Abaye, who authorized Rava bar Sharshom to claim from Yesomim from the time they reached the age of thirteen, with the Sugya in the last Perek, which delays their right to sell their father's property until the age of twenty - by confining the latter to the Din of selling for their own needs; it does not pertain to paying of their father's debts.

(d) Abaye would indeed have issued the same ruling (authorising Rava bar Sharshom to claim from the Yesomim when they grew up) had the loan been an oral one - because we hold 'Milveh-al-Peh Govah min ha'Yorshim', provided there are witnesses that the loan took place.

(a) When a relative died leaving a date-palm, Rav Idi bar Avin claimed that he was the closest relation. Along came that man and claimed - that he was closer still.

(b) When that man admitted that he was not as close a relative as he was - Rav Idi then claimed all the fruit that he had eaten up to that time.

(c) Rav Chisda rejected his claim outright - since he had no proof that he was a closer relative than that man other than the man's own admission. Consequently we assume that until now, he had eaten the fruits lawfully (on account of the Din of 'Kol de'Alim G'var'), and now that he gave up the right, it was as if he had given Rav Idi a gift, which did not work retroactively.

(d) Abaye and Rava disagreed. According to them - once the man admitted, his admission automatically worked retroactively and he was obligated to pay Rav Idi for the fruit.

(a) According to another text, which Rabeinu Chananel accepts, both parties brought witnesses that they were relatives of the deceased man, and Rav Chisda placed the tree in the possession of Rav Idi's rival, before the rival admitted that Rav Idi was the closer relative.
1. Rav Chisda absolved the rival from paying for the fruit - on the grounds that it was not due Rav Idid's witnesses, who had not testified that he was a closer relative than his rival, only that they did not know who the rival was, that he ultimately received the tree, only due to the admission of the latter, who had previously argued that *he* was a closer relative (as we explained in the first version [see also note in Rashbam]). Consequently, as far as the fruit is concerned, the rival had a 'Migu', since he could have claimed that he did not eat any fruit at all.
2. Abaye and Rava disagreed with him - because having admitted that he did eat the fruit, the principle 'Hoda'as Ba'al-Din ke'Me'ah Eidim Dami' applied, and he was obligated to pay.
(b) And we reject this version - since it appears from the Sugya that the fruit which the rival ate was subject to witnesses' testimony, and not to his own admission.



(a) In a case where Reuven and Shimon both claim that a field belonged to their respective parents, and Reuven brings witnesses to that effect, whereas Shimon brings witnesses that he had worked on it for three years ...
1. ... Rav Chisda accepts Shimon's claim - because he has a 'Migu' (he could have claimed that he effected the Chazakah after having purchased it from Reuven).
2. ... Abaye and Rava disagree with him on the grounds - that it is a'Migu be'Makom Eidim'.
(b) We rule - like Abaye and Rava.
(a) When Reuven, who claimed that he had purchased a field from Shimon and that he had worked in it for three years, was only able to bring witnesses for two, Rav Nahman ruled - that he had to return the field and pay Shimon for the two years fruit that he ate.

(b) If he had claimed that he had only gone into the field for the fruit (either literally or like an Aris [who tends the field for a half, a third or a quarter of the produce]), he would have been believed ...

(c) ... because he has a 'Migu' (since he could have claimed that he ate only a little more than the expenses (which would still constitute a Chazakah, and which presumably, he does have to pay).

(d) This case is different than the previous one, where, acording to Abaye and Rava, Rav Idi bar Avin's rival had to pay for all the fruit - because whereas there, having admitted that the property belonged to Rav Idi bar Avin, the rival had eaten fruit that was definitely not his, here, although Reuven had to return the field for lack of proof that it was his, this does not prove that it was definitely not his (since the fact that Shimon is Muchzak in the field, does not prove that it does not belong to Reuven).

(a) Rav Z'vid rules that if Reuven claims that he went down to the field for Peiros (as we just explained), he is believed, comparing it to statement of Rav Yehudah, who said that if Reuven takes a scythe and a rope and declares that he is going climb the date-palm that Shimon sold him to pick dates, and then does so - he is believed, because a person would not have the Chutzpah to brazenly pick somebody else's fruit.

(b) The reason that we believe Reuven when he claims 'le'Peiros Yaradti' but not when he claims that the fruit is his because he purchased the field is - because in the latter case, the Chazakah that a person would not have the Chutzpah to go into a person's field and eat the fruit, is overridden by the fact that he does not produce a Sh'tar, whereas in the former, it is not customary to write a Sh'tar when buying the Peiros only (or when undertaking to be an Aris).

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