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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 88



(a) Rebbi Yehudah learns from the Pasuk "Ki Yinatzu Anashim Yachdav Ish *be'Achiv*" - that an Eved who is not considered Achiv, does not receive Bo'shes.

(b) The Rabbanan counter this on the basis of the fact that, although an Eved is not Achiv Yichus-wise, he is Achiv be'Mitzvos (since he is Chayav to practice the Mitzvos like a woman).

(c) In spite of the fact that the Torah writes "va'Asisem Lo Ka'asher Zamam La'asos "Le'Achiv*", Rava Amar Rav Huna ascribes the fact that witnesses who testify that an Eved murdered, for example, and who then become Zomemin, are Chayav Miysah - to the conclusion of the Pasuk "u'Vi'arta ha'Ra mi'Kirbecha" (implying at all costs).

(a) Based on the fact that an Eved is called 'Achicha', we ask from the Pasuk "mi'Kerev *Achecha* Tasim Alecha Melech" - why an Eved is not eligible to rule.

(b) We counter this Kashya from a Ger however, who is called Achiv even according to Rebbi Yehudah, yet he is not eligible to rule.

(c) In fact, neither a Ger nor an Eved is eligible to sit on the throne - because the Torah writes (not just "Achecha", but) "*mi'Kerev* Achecha", which we interpret to mean 'mi'Muvchar she'be'Achecha" (from the choice of your brothers).

(a) We then ask from the Pasuk "ve'Hineh Eid Sheker ha'Eid, Sheker Anah *be'Achiv*" - why an Eved should not therefore be eligible to testify?

(b) We answer that if a woman, who is fit to marry into the community, is not eligible to testify, how much more so an Eved. We learn from the Pasuk (in connection with Eidim Zomemin) "ve'Amdu Sh'nei *ha'Anashim*" - that both women and Ketanim are not eligible to testify.

(c) We ask on the above Limud from Ishah however, 'Mah le'Ishah she'Kein Einah be'Milah?' We counter this Kashya - by adding Katan, and learning from a 'Mah ha'Tzad'.

(d) Nevertheless, we need 'Ishah' as well. We cannot learn it from Katan alone - because as Katan, unlike an Eved, is not Chayav be'Mitzvos.

(a) The Tzad ha'Shaveh between Ishah and Katan, which will enable to learn that an Eved too, is not eligible to testify is - that all three are obligated to observe some of the Mitzvos, yet they are not eligible to testify.

(b) The Pircha that we ask on this 'Mah ha'Tzad' is that Eved has a distinct advantage over an Ishah and a Katan - inasmuch as he is a man, whereas they are not.

(c) We then try and learn Eved from Gazlan, but we reject this Limud due to the fact - that a Gazlan is Pasul because of his deeds, which is not the case by an Eved (who is Pasul because of his status).

(d) We finally learn that an Eved is Pasul le'Eidus - from a 'Mah ha'Tzad' from a Gazlan and an Ishah or a Katan.

(a) Mar B'rei de'Ravina learns it from another source. He interprets the Pasuk "Lo Yumsu Avos Al Banim" - to mean that nobody can be sentenced to death through fathers who do not have the Yichus of Banim (i.e. Avadim).

(b) What prompts him to interpret the Pasuk like this is - that had the Torah meant to say that fathers cannot be sentenced to death through the testimony of their children, then it would have written "Lo Yumsu Avos Al Beneihem".

(c) If that is so, we ask, why do we not also Darshen the continuation of the Pasuk "u'Vanim Lo Yumsu Al Avos" 'Lo Yumsu al-Pi Banim she'Ein Lahem Chayas Avos' - to preclude the testimony of a Ger.

(d) We refute this Kashya on the grounds that even if a Ger does not have Yichus upwards, he does have Yichus downwards. The Torah cannot mean to preclude an Eved (who has no Yichus at all) from testifying, from the Reisha, and a Ger (who does not have Yichus le'Ma'alah) from the Seifa - because then, it would have sufficed to preclude a Ger from the Seifa, and to write "Lo Yumsu Avos Al Beneihem" in the Reisha, and we would have learned an Eved from a 'Kal va'Chomer' from a Ger.

6) Despite the fact that the Torah does not intend to make a D'rashah from the Seifa, it nevertheless wrote "u'Vanim Lo Yumsu Al Avos" (which implies 'al-Pi Banim she'Ein Lahem Chayas Avos') and not "Al Avoseihem", in order to balance with the Reisha, where it had to write "Avos" (as we just explained).




(a) Before she died, Rav Shmuel bar Aba's mother bequeathed her property to - Rav Shmuel, her son.

(b) When Rav Shmuel bar Aba came before Rav Yirmiyah bar Aba with his Sh'tar - he placed the property in his possession.

(c) Rebbi Aba, unhappy with Rav Yirmiyah bar Aba's ruling, took the case to Rav Hoshaya, who presented the case to Rav Yehudah, who in turn, quoted Shmuel as saying - that if a woman sold her Nechsei Mi'lug in the lifetime of her husband, the sale is invalid.

(d) Rav Yirmiyah bar Aba replied that he has the support of a Mishnah in Bava Basra, from which he set out to prove - that Kinyan Peyros La'av ke'Kinyan ha'Guf (in which case, Rebbi Aba's Kinyan Peyros on his wife's property would not invalidate her gift to their son).

(a) The Tana there says that if someone bequeaths his property (by means of a Sh'tar) to his son 'from today after his death, his son is not permitted to sell the property during his father's lifetime, because it is still in his father's Reshus - and the father is not permitted to sell it either, because he has bequeathed it to his son.

(b) That is Lechatchilah. In the event that ...

1. ... the father sold the property - the sale is valid up until his death.
2. ... the son sold it - the purchaser receives nothing until after the father's death.
(c) Rebbi Yirmiyah bar Aba establishes the inference (that when the father dies, the son's sale is valid) even when the son died before his father. This is the opinion of Resh Lakish. The reason for this is - because of the principle 'Kinyan Peyros La'av ke'Kinyan ha'Guf', meaning that the Kinyan Peyros of the father (which is what he retained during his lifetime) is not considered ownership. In other words, the person who owns the Guf (the son, in this case) is the real owner, and his sale is valid.

(d) Rebbi Yochanan holds - 'Kinyan Peyros ke'Kinyan ha'Guf', meaning that the father is the real owner (or at least a joint owner), in which case, the son's sale will not be valid unless he survives his father, at which point the field becomes his (though it is not clear how the sale is valid retroactively). And that is how he establishes the Mishnah.

(a) We assume that both Rebbi Yirmiyah bar Aba and Rav Yehudah hold like Resh Lakish against Rebbi Yochanan (despite the principle that the Halachah is generally like the latter) - because this is one of the three cases in Shas where we specifically rule like Resh Lakish against Rebbi Yochanan.

(b) If indeed, Rav Yehudah does hold like Resh Lakish, he will have to explain why he sided with Rebbi Aba against his son Rav Shmuel in the current lawsuit. When confronted with this Kashya, he quoted Shmuel as saying - that the current case is different than the Mishnah.

(c) Rav Yosef initially interprets Shmuel's statement to mean that the proof for Resh Lakish would have been acceptable had the Mishnah reversed the case. What he means is - that had the Mishnah reversed the case (and it would have been a matter of the Kinyan Peyros of the son, who sold his property to his father not preventing the latter from selling it), then the proof that 'Kinyan Peyros La'av ke'Kinyan ha'Guf' would have been sound. But now that it is the Kinyan Peyros of the father that is in question, there is no proof, because ...

(d) ... the Tana's reason for validating the son's sale even when he died first is (not because 'Kinyan Peyros La'av ke'Kinyan ha'Guf', but) - because seeing as he stands to inherit the property anyway, his father must have given him a Kinyan Peyros too (in order to make the gift meaningful).

(a) We refute Rav Yosef's argument on the grounds that there is no real difference between whether it is the father who is the recipient of the field or the son - because, if neither has any other sons, then the father stands to inherit his son no less than the son stands to inherit him. But the Tana is speaking when the father has other sons, in which case, the son is not automatically the sole heir.

(b) What both cases therefore have in common is - that each of them bequeathed his property to the other one during his lifetime - in order to deprive his (other) sons of any share in it.

(c) The Kinyan Peyros of the father does not prevent the son's sale from becoming valid when he dies, even if he (the son) died first - because 'Kinyan Peyros La'av ke'Kinyan ha'Guf'.

(a) We conclude that when Shmuel said that the Mishnah in Bava Basra is different, he was referring to a statement of Rebbi Yossi b'Rebbi Chanina, according to whom - the Chachamim in Usha instituted that if a woman sells her Nichsei Mi'lug, her husband may claim them from the purchaser (i.e. they gave him the Din of the first purchaser).

(b) They made this Takanah - because of Eivah (Shalom Bayis, so that the woman should not raise her husband's ire by selling property that is Meshubad to him).

(c) It now transpires that, even though Rav Yehudah holds 'Kinyan Peyros La'av ke'Kinyan ha'Guf', like Resh Lakish holds, he nevertheless placed the property of Rav Shmuel bar Aba's mother in Rebbi Aba's possession - because, due to Takanas Usha, the Kinyan Peiros of a husband is different, as we just explained.

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