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Bava Basra, 6

1) "KOL HA'OMER LO LAVISI"

QUESTION: The Gemara asks whether or not we apply the principle of "Migu" ("Mah Li l'Shaker") to believe a litigant's claim when there is a Chazakah that counters that claim. The Gemara cites proof from the Mishnah in Shevuos (38b). The Mishnah there discusses a case in which a lender claims that a person owes him a Manah. The borrower admits, in front of witnesses, that he owes a Manah. The following day, the lender tells the borrower to give him the Manah that he owes. If the borrower claims, "I already paid it," then he is exempt, but if he claims, "Nothing of yours is in my possession," then he is Chayav and he must pay.

The Gemara suggests that when the Mishnah there says that the borrower is exempt when he says, "I already paid it," the borrower is claiming that he paid the Manah *after* the date on which payment was due. When he claims that "nothing of yours is in my possession," the borrower is claiming that he paid the Manah *before* the date on which payment was due. We see, then, that a "Migu" is *not* believed when a Chazakah counters it (because in that case, there is a Chazakah that a borrower never pays before the due date).

The Gemara answers that there is no proof from that Mishnah, because when the borrower claims that "nothing of yours is in my possession," he is not claiming that he paid the debt before the due date, but rather he is claiming that *he never borrowed* any money from the lender. He is not believed, because there is a rule that "when a person says 'I did not borrow,' it is as if he is saying 'I did not pay back'" -- "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami."

Why does the Gemara have to give this reason ("Kol ha'Omer...") to explain why the borrower is Chayav to pay? Since the borrower admitted (in front of witnesses) that he owes a Manah, he is certainly not believed afterward when he claims that he never borrowed!

The principle of "Kal ha'Omer..." applies in a situation in which a person denies owing any money, and then witnesses testify that they saw him borrow money, and that they saw him pay it back. When the borrower says, "I never borrowed," he is contradicting the witnesses who say that he borrowed, and thus he is not believed. Even though the witnesses say that he paid back the loan, he himself says that he never borrowed which is akin to saying that he never paid back the loan. Since he effectively claims that he did not pay back the loan, he is Chayav, due to the principle of "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami."

In our case, though, this principle is not necessary, because the borrower himself admit (in front of witnesses) that he borrowed money! (TOSFOS, RA'AVAD in the Shitah Mekubetzes, RAMBAN, RASHBA, RITVA)

The Rishonim (other than Tosfos and the Ramban) add that in this case, the borrower should not be believed for an additional reason, other than "Kol ha'Omer...." The borrower is "Huchzak Kafran" with regard to this money; he has been shown to be lying, and thus he should not be believed.

ANSWERS:

(a) TOSFOS and the RAMBAN answer that the reason of "Kol ha'Omer..." is necessary here, because without this reason, we might have thought that the borrower can explain he words and claim, "When I said that I did not borrow, I did not mean that I did not borrow at all. Rather, I meant that it is *as if* I did not borrow, since I have already paid back." He would then be believed since he is not contradicting his earlier admission to owing money. The principle of "Kol ha'Omer..." teaches that he cannot explain his words in that manner, and when he said "I did not borrow," it was akin to saying that he did not pay back at all.

(b) The RA'AVAD answers that in this case, the borrower is not considered to be "Huchzak Kafran," because the witnesses who contradict him do not testify that they saw him borrow, but rather they testify merely that they say him say that he borrowed. In such a case, when he says later than he did not borrow, he is not considered to be "Huchzak Kafran," since he claim that when he originally said that he borrowed money, his memory failed him due to his many business activities, and now that he has thought about it he remembers that he never borrowed money from this claimant. Therefore, he is not "Huchzak Kafran."

He is considered to be "Huchzak Kafran" only in a case where he claims that he did not borrow money and witnesses testify that they saw him borrow money, and then he claims that he paid the money. In such a case he is not believed, because the witnesses contradict his claim explicitly.

(c) The Ra'avad answers further that a person is "Huchzak Kafran" and is not believed only when he denies that he owes money in Beis Din and witnesses contradict him. When he does not deny that he owes money in Beis Din, even though witnesses contradict the claim that he made outside of Beis Din, he is not considered "Huchzak Kafran." The reason is because when a person makes a claim outside of Beis Din, it is normal for him not to say every part of his claim.

(d) The RAMBAN and RASHBA answer further that the principle of "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami" is necessary here, because without it, we might have thought that if witnesses would then come and testify that he borrowed and he paid back, he would be exempt. Therefore, the Gemara teaches that even if witnesses come and say that he paid back, he is Chayav, because he himself claims that he did not pay back (because "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami"). (I. Alsheich)

QUESTION: The Gemara explains that there is no proof from the Mishnah in Shevuos (38b) that a Chazakah overrides a "Migu." In the case in the Mishnah in Shevuos, when the when the borrower claims that "nothing of yours is in my possession," he is not claiming that he paid the debt before the due date, but rather he is claiming that *he never borrowed* any money from the lender. He is not believed, because there is a rule that "when a person says 'I did not borrow,' it is as if he is saying 'I did not pay back'" -- "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami."

This principle -- that whenever a borrower says that he did not borrow (and there are witnesses who testify that he did borrow) it is as if he said that he did not repay -- poses a difficulty for one interpretation of another common principle. We know that there is a rule that "Hoda'as Ba'al Din k'Me'ah Edim Dami" -- the admission of a litigant (who admits owing money) is like one hundred witnesses, and his word is believed. One way of understanding this is simply that when a person admits to owing money, we accept his word and believe him that he really owes money. The KETZOS HA'CHOSHEN (34:4) cites the famous words of the MAHARI BEN LEV who explains how "Hoda'as Ba'al Din" works. The Ketzos understands the Mahari ben Lev to be saying that when a person admits to owing money, he does not become obligated to pay because we accept and believe his word ("Ne'emanus"). Rather, he is obligated to pay because he is committing himself to give a gift ("Hischaivus"), and a person has the right to obligate himself to give a gift.

The Ketzos ha'Choshen questions this explanation from the principle of our Gemara, that "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami." This principle is easily understood according to the view that interprets "Hoda'as Ba'al Din" to mean that we believe the person's word when he says that he owes money. When he says that he never borrowed money, and witnesses say that he borrowed money but repaid, he is Chayav, because by saying that he never borrowed, it is as if he is saying that he never repaid (since witnesses testify that he borrowed). Even though the witnesses also say that he paid, his word (that he did not pay) is believed over the testimony of the witnesses, because of "Hoda'as Ba'al Din."

However, according to the view that interprets "Hoda'as Ba'al Din" to mean that a person is able to obligate himself to give a gift (but not that he is actually believed about owing someone money), why should he be believed against witnesses? When he says that he did not repay (by saying that he never borrowed), and the witnesses say that he did repay, he should be exempt, because here he clearly is not coming to obligate himself to give a gift (since he did not actually say that he owes money; on the contrary, he said that he never borrowed)! Why, then, does the principle of ""Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami" make him Chayav to pay?

ANSWER: The SEFER MAR'EI MEKOMOS (Rav Karelenstein, zt'l) suggests an answer to this question based on the words of REBBI AKIVA EIGER (Teshuvos #149). Rebbi Akiva Eiger discusses the reason for why "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami" -- why is saying "I did not borrow" akin to saying "I did not repay?" There are two possibilities. Perhaps when he says that he did not borrow (and there are witnesses who say that he did borrow) it is considered to be an open admission that he did not pay. Alternatively, perhaps it is because there is an "Anan Sehadi" -- we assume that he did not pay, because if he indeed did pay, he would have claimed that he paid (instead of claiming that he did not borrow). It must be that he did not repay.

According to the second approach, we can understand why the person is obligated to pay when he says "I did not borrow" (which is like saying "I did not repay") even though the witnesses testify that he repaid. There is an "Anan Sehadi" that tells us that he did not repay, since he did not claim that he repaid. (I. Alsheich)

6b

QUESTION: Abaye says that when two people on opposite sides of the street own two homes that face each other, each homeowner is obligated to build a wall along the edge of his roof, the length of which must be just over half of the length of the roof. This will prevent each owner from being able to see into the other's roof-area.

This ruling seems problematic, because in the Gemara later, Rav Nachman says in the name of Shmuel that when the roof a person's home is immediately adjacent to his neighbor's Chatzer, the homeowner must build a wall four-Amos high on his roof in order to prevent him from seeing the private activities of his neighbor. Between two roofs, though, there is no requirement to build a wall, because people do not engage in private activities atop their roofs, and thus there is no concern for a breach of privacy. Only when one might be able to see into his neighbor's Chatzer -- where one does engage in private activities -- is there a concern for breach of privacy. Why, then, does Abaye say that when two homes face each other, each owner must contribute part of a wall to prevent against loss of privacy?

ANSWERS:

(a) The RASHBA (see also HASAGOS HA'RA'AVAD, Hilchos Shechenim 3:6) cites those who answer that Abaye is referring to roofs that are on a level plane, while Shmuel is referring to roofs that are built at an incline. Roofs that are flat are used for private activities, while roofs that are slanted cannot be used for private activities.

The Rashba questions this answer, because in both cases the Gemara uses the word "Gagin" ("roofs") without qualifying it. This implies that both statements are referring to the same type of roof.

The Rashba asks further that if Shmuel is referring to slanted roofs, then why does he require the roof owner to build a wall four Amos high when his roof is adjacent to his neighbor's Chatzer? If the roof is slanted, the owner will not be standing on it to use it for any purpose, and thus the neighbor will not suffer any loss of privacy, even without a wall! (The Rashba answers this question by suggesting that even though one does not use his roof frequently when it is slanted, nevertheless he does go up to the roof occasionally to use it, and he also stores some of his wares there, and therefore there is still a risk of loss of privacy to the neighbor.)

(b) The RASHBA gives a different answer (and so answers TOSFOS). Abaye is referring specifically to roofs that are distanced from each other (as he says, "on two sides of Reshus ha'Rabim"). Since their roofs are not near each other, each owner will not notice when the other goes onto his roof, and he will not know that he should cease his private activities. Therefore, Abaye says that they must build a wall to protect each other's privacy. In contrast, when the two roofs are adjacent to each other, each owner is aware when the other ascends to his roof, and thus he will know when to cease his private activities. Therefore, Shmuel says that there is no need to build a wall between two adjacent roofs.

(The Rashba explains that according to this answer, the reason why a roof next to a Chatzer needs a wall is because the usage of a Chatzer is frequent and regular, and thus it is not possible for the neighbor in the Chatzer to simply stop his activities every time he hears his neighbor going up to the roof.) (I. Alsheich)