The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Bava Batra 42a-b
We have learned (see daf 28) that the term chazaka has two different meanings. While most of our perek deals with chazaka as an act that supports a claim of ownership, i.e. living or working a piece of land for three years will support a man’s claim that he had purchased the land, there is another type of chazaka, as well. A chazaka can also mean a formal act that shows that a person controls the land, which will serve as an act of kinyan – of taking possession of the land.
The Mishnah on our daf refers to each of these chazakot separately.
The Mishnah lists a number of people who may be employed on land or have reason to be on it for an extended period of time, even though they do not own it. Such people, the Mishnah teaches, cannot attain a claim of ownership by working the land for three years, since it is clear that their situation is such that they are on the land legitimately, but in some other capacity – not as owners of the field. People in this category include:
- Umanin – artisans who are building or performing work (according to the Rambam in his Commentary to the Mishnah)
- Shutafin – partners in the field
- Arisin – sharecroppers who work the field for a percentage of its produce
- Apotropin – guardians of the interests of orphans, who work the field on their behalf
- Ba’al be-nikhsei ishto – a husband working his wife’s property
- Av be-nikhsei ha-ben – a father working his son’s property
- Ben be-nikhsei ha-av – a son working his father’s property
In all of these cases, since the individual had legitimate reason to be on the field, there is no reason for the owner to complain, and his being there cannot support a claim that the field had been purchased by him.
In the case where the chazaka will serve as an act of acquisition, for example, where someone gives a present to another, then the chazaka of na’al, gadar u-faratz will be effective. That is to say, if the recipient of the present locked the door, put up a fence, or performed any other action that exhibited ownership, such a chazaka will effect ownership.
Bava Batra 43a-b
As is fairly obvious, someone with a personal, vested interest in a disputed property will not be permitted to testify about that case. Can a person declare that he renounces any claim to the property in question, and then be allowed to testify?
The Gemara appears to assume that a person can remove his self-interest and be able to testify about real estate, but there is a baraita that appears to contradict this. According to the baraita, if a Sefer Torah is stolen in a city, the thief who is caught cannot be tried by residents of the city, nor can they testify against him. The reason for this is, apparently, because the Sefer Torah is communal property; since everyone in the city has a share in it, they cannot testify about it. According to the Gemara’s reasoning, however, shouldn’t two people be able to renounce their share of the Sefer Torah and act as witnesses? In response the Gemara says that a Sefer Torah is unique because it is used for public readings in the synagogue. Therefore, even someone who does not have ownership of it still has a personal interest in it.
A question raised by the rishonim is how residents of the city could be called upon to testify even if they renounce ownership in the Sefer Torah. Since they were invalid witnesses at the time of the incident, how can a change in status affect their ability to testify?
The Ra’avad suggests that we must distinguish between different kinds of problems with witnesses. If there is an intrinsic problem with a witness (e.g. he is related to one of the people in the case), even if that problem is removed the witness cannot testify about knowledge that he gained at a time that he could not be a witness. In our case, however, he could not be trusted at first because of a monetary interest in the case. Once that monetary interest is removed, we can accept testimony even on what he learned at an earlier time.
Bava Batra 44a-b
As we learned on yesterday’s daf someone with a personal, vested interest in a disputed property will not be permitted to testify about that case. Our Gemara examines what might be considered a personal interest in property.
Ravin bar Shmuel quotes Shmuel as saying that if someone sells a field to his friend, and stipulates that he does not take responsibility for the sale (she-lo be-achrayut, i.e. should the land be taken from him for any reason, he will not return the purchase price), if someone else comes and claims the land, the seller cannot testify on behalf of the purchaser. This is true even though according to the sale agreement he will not be responsible to refund the money that he got paid. The reason for this is because he benefits from having the field in the hands of the person he sold it to, since if he has debts, in theory they can be collected from that field, which has a lien on it guaranteeing the money that he owes.
This is only true if he sold a house or a field to another. If he sold a moveable object, like cattle or an article of clothing, then he would be allowed to testify in support of the purchaser, since a debt cannot be collected from a moveable object that has been sold. Therefore he has no personal interest in keeping the object in the hands of the buyer and his testimony will be accepted.
The reason that real estate will guarantee a debt even after it is sold, but moveable objects will not is because of what the Gemara calls a kol – literally a sound or a voice. When real estate is sold, word of the sale soon becomes public knowledge and the purchaser should be aware that he is taking a risk when he buys this property. When moveable objects are sold, however, it has no kol, so we cannot anticipate that a purchaser will realize that the object may have a lien on it.
Bava Batra 45a-b
Today there are credit card companies that offer “purchase insurance” – they are willing to insure your purchases against damage or theft. If you buy something, aside from whatever warranty the product has, if it breaks or is stolen within a limited time after purchase, you will be reimbursed or get a replacement.
Such a guarantee is clearly beyond the ordinary responsibility of a seller to a purchaser. But what level of obligation does a seller have to a buyer after the transaction is complete?
Our Gemara reports that Rava (some say it was Rav Papa) announced so that all those traveling — from Israel to Bavel or vice versa – should know, that if a Jew sells a donkey to his fellow Jew and it is taken by a non-Jew by force, the seller must offer recompense to the purchaser.
Most rishonim understand that the seller’s obligation is not monetary so much as it is a moral obligation, since the seller has indirectly caused a loss to the buyer. Therefore he must do everything in his power to arrange for the donkey to be returned to the buyer. This stems from the fact that the non-Jew claims that he is not stealing the donkey, rather that the donkey belonged to him. This is clear from the continuation of the Gemara, which says that there are cases where the seller would have no obligation whatsoever to assist the buyer, for example:
- Where the seller owned the donkey’s mother and is therefore certain beyond doubt that the donkey that he sold could not have belonged to the non-Jew, or
- Where the non-Jew took not only the donkey that he claimed, but also the saddle, which clearly did not belong to him, indicating that he is a robber and not merely someone who is trying to recoup what was taken from him.
Thus, in cases where the seller did not own the donkey’s mother, or where the non-Jew only took the animal, there is a reasonable possibility that the seller sold a stolen donkey and that the non-Jew is telling the truth. Therefore the seller must act to assist the buyer in recovering the animal
Bava Batra 46a-b
Have you ever walked out of a wedding or out of the synagogue, gone to the cloakroom to get your coat only to discover that someone had taken yours and left a similar one in its place? While you hope that yours will be returned (which is why you should leave a siman – like your name and address in it), in the meanwhile can you use the other person’s coat?
The Gemara on today’s daf quotes a baraita that deals with this very issue. According to the baraita, if a person gives something to a tailor or repairman to be fixed and receives the wrong item in return, he can use it until the person who got his thing by accident returns it and takes his own thing. If, however, he finds that his coat was switched at a party or at the house of a mourner (i.e. places where large crowds gather and such mistakes happen), he cannot use it until he locates the true owner and returns the coat, receiving his own in exchange.
In explaining the difference between these two cases, Rav says that Rabbi Chiya explained to him that ordinarily we cannot use other people’s property without their permission. In the case where the wrong item was given to him by the repairman, it is at least possible that the item he received had been given to the repairman to fix and then sell. Therefore he is receiving an object that the repairman had the right to give him.
Rav Chiya the son of Rav Nachman limits this ruling only to situations where the repairman himself gave him the object, because only there can we apply Rabbi Chiya’s reasoning. If the repairman’s wife or child gave him the object, then it is likely that it was simply a mistake, and he has no permission to use the object.
Bava Batra 47a-b
Generally speaking, in order for a kinyan – a transfer of ownership – to take place, Jewish law requires gemirut da’at – knowledge and agreement on the part of both the buyer and the seller. It is, therefore, somewhat surprising to hear Rav Huna‘s teaching — talyuhu ve-zavin, zevinei zevini — if someone is “hung,” i.e. if he is forced to sell something, the sale takes effect.
In answer to the Gemara‘s query of why this would be true, we are told that everyone who sells really is doing it against his will, yet we accept that he agrees to the sale. Here, too, we view him as having accepted the sale.
Obviously, not everyone who sells is unhappy about parting with what he owns; the Gemara is talking about someone who sells personal property because of his financial needs, who reluctantly parts with what he owns. The rishonim explain that even though a businessman wants to sell his merchandise, nevertheless from the case of the individual who sells personal possessions we can learn that even a reluctant agreement is sufficient to create a sale.
The codifiers limit this halacha somewhat. Some rule that the ruling of talyuhu ve-zavin, zevinei zevini applies only in situations where the seller has received payment (according to the Tur, even if he refused to count the money as an indication of protest), and not where he is merely given a written guarantee of payment. At the same time, if the seller writes a statement objecting to the sale, explaining that he is being forced to agree to the sale against his will, but that he remains adamant in his refusal to sell even as he is being forced to accept payment, such a statement will be accepted by the bet din, which will invalidate the sale, returning the object to its original owner and the money to the erstwhile purchaser (see Rambam Hilkhot Mechira 10:1 and Shulchan Aruch Choshen Mishpat 151:3 and 205:1)
Bava Batra 48a-b
While discussing the validity of a sale when the original owner was coerced to sell, the Gemara suggests comparing it to a case of divorce.
According to Torah law only the husband can act to divorce his wife; the wife does not have the power to create a divorce. The Gemara in Gittin (88b) teaches that there are exceptions. If a bet din – a Jewish court – forces the husband to give a get, the divorce will take effect. If it is a non-Jewish court that forces him to give a get, no divorce takes place. If, however, the Jewish court rules that the husband should divorce his wife, but they do not have the power to force him to give a get, they can turn to the secular courts and arrange for them to force him to follow their ruling.
The Talmud Yerushalmi considers the possibility that a Jewish court will only force someone to grant a divorce if the marriage is a forbidden union (for example, a kohen who married a divorcee). The Yerushalmi‘s conclusion, however, is that the court can make this decision for other reasons, as well, e.g. if he behaves inappropriately towards his wife.
The Rambam (Mishna, Hilkhot gerushin, 2:20) asks how the bet din could force someone to offer a get – shouldn’t he be considered an anoos (someone forced to perform an action against his will) – whose actions are considered null and void? The Rambam explains that the idea of anoos is that a person is forced to do something that he is not obligated to do. Someone who is obligated to perform a certain action – for example, if he is instructed by the bet din to perform that action – cannot be considered forced against his will to do it, since we believe that every Jewish person wants to do what is right and just. Therefore we perceive the situation as being different than what it appears to be – really this individual wants to give the get, and it is his yetzer ha-ra – his evil inclination – that is keeping him from doing the right thing. Thus, forcing him to agree that he desires to give the get, in actuality is allowing him to do what he really wants to do.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.
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