ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Basra 41
BAVA BASRA 41 & 42 - these Dafim have been dedicated anonymously l'Iluy
Nishmas Tzirel Nechamah bas Tuvya Yehudah.
(a) We learn in our Mishnah that a 'Chazakah she'Ein Imah Ta'anah' - one
that is not based on a legal claim, but on the fact that nobody told the
Machzik to leave, is not a Chazakah.
(b) This ruling is not confined to a three-year Chazakah - but applies
equally to a Chazakah that takes effect immediately, such as that of the
right of placing one's beams on his neighbors wall, if his neighbor is
silent even just once.
(c) A plausible Ta'anah - negates the owner's right to argue that the
Machzik entered his Reshus without permission (because if that were so, why
did he remain silent?).
(d) 've'ha'Ba Mishum Yerushah Eino Tzarich Ta'anah'. This does not mean that
he is completely believed when he claims that the land had previously
belonged to his father - because in fact, he is obligated to prove that he
(his father) lived there for at least one day?
(a) The Tana find it necessary to rule that a Chazakah without a Ta'anah is
not a Chazakah, because we might otherwise have thought - that in reality,
he purchased the field for which he had received a Sh'tar, only (not aware
of the Din of Chazakah) he was afraid to say so, because then Beis-Din would
insist that he brings his Sh'tar.
(b) Nevertheless, if the Machzik himself interprets his Ta'anah in this
way - he is believed.
(a) When a flood swept away the wall that divided between Rav Anan's field
and his neighbor's - he built a new wall, but inadvertently advanced it into
his neighbor's field.
(b) When Rav Nachman obligated him to move his wall back to its original
location - he replied that he had a Chazakah (immediately).
(c) Rav Nachman rejected this reply however, even though it was based on the
opinions of Rebbi Yehudah and Rebbi Yishmael in the previous Mishnahs -
because the Halachah is not like them.
(d) When Rav Anan claimed that his neighbor had been Mochel, Rav Nachman
finally replied - that his neighbor's Mechilah, which was based on the same
error that led him to initially believe that he had built the wall in his
own Reshus, was meaningless (since it was a Mechilah be'Ta'us).
(a) When a torrent swept away Rav Kahana's dividing wall, he too, rebuilt it
inside his neighbor's field (though unlike the previous case, Rav Kahana
denied this). When one witness testified that he had encroached two rows of
his neighbor's field, and a second witness said it was three, Rav Yehudah
ruled - that since both witnesses agreed on one row, Rav Kahana was
obligated to move his wall one row back.
(b) Rav Kahana queried this ruling on the grounds that it conformed with
Rebbi Shimon ben Elazar's interpretation of the Machlokes between Beis
Shamai and Beis Hillel, who, in a case where ...
1. ... one pair of witnesses testify that Reuven owes Shimon one Manah,
whereas a second pair say that he owes him two - agree that Reuven must pay
Shimon one Manah ('she'Yesh bi'Ch'lal Masayim Manah').
(c) The basis Rav Kahana's objection was - that this was the individual
opinion of Rebbi Shimon ben Elazar, and he had a letter from Eretz Yisrael
to prove that the Halachah was not like him (but that Beis Hillel agree with
Beis Shamai in the case of two single witnesses [just as Beis Shamai agree
with Beis Hillel in the case of two pairs of witnesses]).
2. ... one witness testifies that Reuven owes Shimon one Manah, whereas a
second witness says that he owes him two - argue whether he is Chayav to pay
or not. Beis Hillel take the same stance as they do in the case of two
pairs of witnesses. Whereas in the opinion of Beis Shamai, this is
considered a discrepancy, in which case both testimonies are canceled and
the money remains where it is. Incidentally, Beis Hillel's reason for not
considering this a discrepancy is because we assume one of the witnesses to
have been careless in picking up the details, but was not lying (see Tosfos
(d) Rebbi Yehudah replied - that he would take cognizance of the letter when
he brought. It seems that Rav Kahana never did bring it, and the Halachah is
therefore like Rav Yehudah.
(a) When Shimon asked Reuven what he was doing in his attic in Kashta, he
substantiated his Chazakah - by claiming that he had purchased it from Levi
who had bought it from *him* (Shimon).
(b) Rebbi Chiya obligated him to prove that Levi had lived in the attic for
(c) The principle that absolved Reuven from having to prove that the seller
had purchased the land is - 'To'anin le'Yoresh ve'To'anin le'Loke'ach'
(Beis-Din will present any argument that an heir or a purchaser were unable
to, simply because there are not conversant with the facts).
(d) Rav objected to Rebbi Chiya's ruling on the grounds that he ought to
have been absolved even from proving that the seller had lived there for one
day - since who's to know that Levi did not sell it to Reuven on the same
night that he bought it, because he offered him a higher price?
(a) Rav referred to Rebbi Chiya as 'Chavivi' - because 'Chavivi' means my
uncle, which is precisely what Rebbi Chiya was to Rav (from both his
father's and his mother's side).
(b) Rebbi Chiya would have believed Reuven even if he had claimed that Levi
had purchased the land from Shimon in his presence - because he had a
'Migu', since he could have claimed to have purchased it directly from
(c) He would not however, have been believed had he claimed that Levi had
told him that he had purchased it from Shimon.
(d) Rava proves Rebbi Chiya right from our Mishnah 'ha'Ba Mishum Yerushah
Eino Tzarich Ta'anah' - implying that he does not require a Ta'anah, but
that he does require some sort of proof.
(a) We refute Rava's proof however - on the grounds that the Tana may mean
that a Yoresh does not require any Ta'anah at all, and that the three-year
Chazakah will suffice on its own.
(b) Even assuming Rava's inference to be correct, this does not necessarily
reflect the ruling by a purchaser, who might not require any Ta'anah at
all - because (unlike a Yoresh), the fact that he paid money for the field
is further evidence that the seller purchased it.
(c) We ask what the Din will be if Levi (the seller) was seen in Shimon's
field measuring and making inquiries about purchasing it . The She'eilah
is - whether that is sufficient proof to establish the property in Reuven
(the purchaser)'s domain or not.
(d) According to Abaye, it is. Rava disagrees - because many people inquire
about property, and then decline to buy it.
(a) We discuss a case where Shimon, Levi and Yehudah (one year each) make a
combined Chazakah on Reuven's field. The problem is - that Reuven can
justify not making a Mecha'ah, because, he says, their Chazakah was not
conventional, and that in fact, they failed to make a conventional Chazakah
because, knowing that Shimon had not purchased the field from Reuven, they
were afraid to do so.
(b) We rule that the Chazakah is indeed valid, though Rav restricts it to
where Levi and Yehudah (not Shimon, who claims to have lost his, but we
don't know that he ever had one) who purchased the field with a Sh'tar ...
(c) ... because then, there is a Kol (a rumor) substantiating the sale of
the field (which Reuven should have noted), but not by an oral sale, where
there is no Kol, and where Reuven can therefore claim that he did not know
about the purchase.
(a) Rav rules - that if someone sells his property with witnesses (accepting
responsibility [but without a Sh'tar]), he may nevertheless claim from
Nechasim Meshubadim (suggesting that there is a Kol with witnesses alone).
(b) To reconcile Rav's two rulings - we conclude that without a Sh'tar,
there is no automatic Kol, which explains why in the current case, the
owner, who sees an unconventional Chazakah, does not find it necessary to
make a Mecha'ah. On the other hand, a few discreet inquiries will easily
reveal that the fields were sold, in which case, with regard to Rav's second
ruling, it is the (second) purchaser's own fault for taking the risk of
buying sold property without making those inquiries.