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Bava Basra 35
1) [line 1] SHUDA D'DAYANEI - (a) the estimate of the judges as to with whom
the previous owner of the field (the person who wrote the Shtar) was closer,
or who of the two is the more upright individual such that *the giver of the
field* would have intended that he receive the field (RASHBAM, RASHI to
KESUVOS 94a); (b) the opinion of *the judges* as to which of the two should
get the field (TOSFOS DH Shuda, citing Rabeinu Tam)
2) [line 2] LEIKA L'MEIKAM ALAH D'MILSA - it is impossible to determine the
truth of the matter (through witnesses or proofs) [to whom the field was
supposed to have been given, since their Shetaros are identical]
3) [line 4] HA'MACHALIF PARAH B'CHAMOR V'YALDAH (CHALIPIN)
(a) When a person acquires an object, he must make a Ma'aseh Kinyan, a
formal Halachically-binding act denoting his acquisition of the object, in
order for the acquisition to be irrevocably binding. Depending on what
object one is acquiring, different Kinyanim are used.
(b) One of the forms of Kinyan that may be used for the acquisition of
Metaltelin (mobile items) is Kinyan Chalipin (exchange or barter), i.e. the
barter of two equally-valued items. Another way that a Kinyan Chalipin can
be accomplished is by taking a symbolic object to demonstrate one's consent
for the barter (or for an agreement) (see Background to Bava Metzia 45:8,
Kinyan Sudar).
(c) Our Gemara brings the case in which a person bartered a cow for a donkey
and the cow gave birth and it is not known whether it gave birth while in
the possession of the seller or in the possession of the buyer. The cow was
standing in the marsh at the time of the exchange, and as such it is
impossible to apply the Halachah of "ha'Motzi me'Chaveiro Alav ha'Re'ayah"
(see Background to Bava Basra 29:24). Instead, the ruling is "Yachloku," the
value of the calf is divided between the two of them.
35b---------------------------------------35b
4) [line 1] DERARA D'MAMONA - (a) a loss of money, i.e. the item in question
could belong to either one of the litigants depending on the timing of the
action that caused the doubt (RASHBAM; RASHI Bava Metzia 2b DH Derara). In
the case of our Gemara, the calf can belong to the seller if it was born
before the sale or to the buyer if it was born after the sale. Since there
is valid reason to attribute it to either one of them, if we do not divide
the value of the calf between the two litigants, the one who does not
receive it will be "losing" what could be his property; (b) even without the
claims of the litigants, Beis Din has a doubt as to the ownership of the
item (TOSFOS DH Derara -- This explanation is very similar to that of Rashi,
except that according to Tosfos the text of the Gemara does not read that
"each of them [i.e. the litigants] has" a Derara d'Mamona, but that "it [the
case] is" a Derara d'Mamona.)
5) [line 7] SHE'LO NITAN L'HESHAVON (GEZELAH: HASHAVAH)
(a) According to Torah law, a person must return the exact item that he
robbed if it is still in its original state, or its value if it is not, as
it states, "v'Heishiv Es ha'Gezeilah Asher Gazal," - "he shall return the
robbery that he robbed" (Vayikra 5:23).
(b) When a person robs the field from the two people of our Sugya, whose
claims to the field are not clear-cut, the RASHBAM rules that it is similar
to a person who robs the public, such as a shopkeeper who uses intentionally
inexact weights. He is not able to fulfill the Mitzvah of "v'Heishiv Es
ha'Gezeilah," since he is not sure to whom to return the stolen items.
TOSFOS DH d'Tani states that our Sugya is similar to a case where a person
robs once from one of five people (see Bava Metzia 103b), and he has not
fulfilled the Mitzvah of "v'Heishiv Es ha'Gezeilah," *in its entirety* until
he pays the stolen amount to all five people. Similarly, he is prevented
from fulfilling the Mitzvah in its entirety in our Sugya since he is not
sure to whom to return the stolen field.
6) [line 8] IY DALI LEI IHU GUFEI TZANA D'FEIREI - if he (the Me'ar'er, the
person who is protesting that the field belongs to him) loaded up a basket
of fruits on the shoulders of the Machzik (the one who is currently working
the land)
7) [line 9] L'ALTAR - immediately
8) [line 14] MASHKANTA D'SURA
The "Mashkon of Sura" refers to when the two parties (the lender and
borrower) specifically stipulate that when the years of the Mashkon
terminate, the field will go back to the debtor and the debt will be settled
(its produce, or rental value, for each year being deducted from the amount
owed for the loan) (see also TOSFOS to Bava Metzia 67b DH b'Mishlam).
9) [line 15] B'MISHLAM SHENAYA ILEIN, TEIPUK AR'A DA B'LO CHESAF - at the
end of this time period (lit. these years), this land will go out [of the
creditor's possession] without any additional payments [on the part of the
debtor]
10) [line 21] HA'BA MACHMAS AKU"M - one who comes [to uphold his claim on a
piece of land that he bought] from an idolater [who claims that he bought
the land from the original (Jewish) owner]
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