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Bava Basra, 36

1) MAKING A CHAZAKAH ON "AVADIM" AND "GODROS"

QUESTIONS: Reish Lakish says that one cannot make a Chazakah (that is, an immediate Chazakah of "Chezkas Metaltelin" to prove one's ownership) on "Godros" (domesticated animals that wander by themselves), since they move about by themselves and are easy to steal. The Gemara explains that the same applies to Avadim, slaves. The Gemara concludes, though, that one does have a Chazakah after they have been in his possession for three years, just like land, as our Mishnah explains.

What is Reish Lakish teaching us that we did not already know from the Mishnah? The Mishnah says that one cannot make a Chazakah on Avadim until they have been in his possession for three years. Obviously, the reason is because they wander by themselves! (TOSFOS in Gitin 20b, DH Ta Shema)

(We might suggest that perhaps the Mishnah writes that one cannot make an immediate Chazakah on Avadim because they are purchased with a Shtar, like land, and, consequently, if the Machzik cannot produce a Shtar within three years it will prove that the Eved is not his. The Mishnah, then, has nothing to do with the Halachah of Godros. However, this answer is not correct, because if this is true, then why does the Gemara say that it is obvious that a person is considered Muchzak on an Eved Katan even if he does not have possession of the Eved Katan for three years? If people write Shtaros for the purchase of slaves, then one should have a Chazakah on an Eved Katan only after three years if he cannot show a Shtar to attest that he bought the baby Eved.)

Second, why does the Mishnah mention only Avadim and not Godros? The Halachah of Avadim and Godros are the same, and thus the Mishnah should have mentioned both of them!

ANSWERS:

(a) The RAMBAN here and TOSFOS in Gitin explain that from the Mishnah it is not evident that one cannot make a Chazakah on animals. Perhaps only on Avadim -- who have their own minds and who might walk into another person's domain under verbal persuasion or in order to choose a different master -- one cannot make a Chazakah in less than three years. Animals, in contrast, do not have their own minds, and therefore the owner can prevent them from wandering into another domain. Reish Lakish teaches that since it is normal for domesticated animals to be allowed to wander freely, therefore one cannot make a Chazakah on animals in less than three years. This answers the first question.

Tosfos and the Ramban do not address the second question. If they hold like the RAMBAM (Hilchos To'en v'Nit'an 10:4), who says that only Avadim can be acquired with a Chazakah of three years but animals cannot be acquired even when a person holds them for three years, then it is clear why the Mishnah does not list animals. However, Tosfos in Gitin there disagrees with the Rambam and equates Avadim with animals!

Perhaps they understood that since Avadim are often mentioned together with Karka, land, the Mishnah includes Avadim in its list even though the reason why one cannot make a Chazakah on an Eved until he has held the Eved for three years (i.e. because of the reason of Godros, that they move about on their own) is not related to the reason why one cannot make a Chazakah on land until three years have passed. Accordingly, the Mishnah does not mention that the Chazakah on animals must be three years, because that Halachah is not related to the Halachah of the Chazakah on land.

(b) The RASHBA and RITVA (28a) explain that the logic that prevents a Chazakah from being made on land in less than three years *does* apply to an Eved as well. Apparently, they understand that a person does write a Shtar when he sells an Eved, just like when he sells land. However, when a person sells an animal, it is clear that he does not sell it with a Shtar. According to this reasoning, it is obvious that the Halachah of Godros cannot be learned from the Mishnah. since the reason why a person does not have a Chazakah on an Eved is not necessarily related to Godros. It is equally obvious why the Mishnah includes the Halachah of Avadim but does not mention that an *animal* requires a Chazakah of three years. It is obvious because there are two reasons why a slave cannot be acquired through a Chazakah until after three years have passed. First, an Eved is like Godros, and, second, the Eved was sold to the Machzik with a Shtar. Because of the second reason, it is included in our Mishnah.

The Rashba and Ritva add that it is possible that Godros can be acquired through a Chazakah in less than three years. The only reason one needs a Chazakah of three years to acquire an Eved is because the owner would not lose his Shtar within three years. If he cannot present his Shtar, it shows that he did not purchase it. However, in order to acquire Godros, it is enough to hold on to the animal long enough for the owner to have the opportunity to protest, and for that one or two years might suffice.

(The question of the Rashba and Ritva, whether a person protests when someone else uses his property for less than three years or only after three years, seems to depend on the question and answer on 29a (see Insights to 29:1).)

According to the Rashba and Ritva, it seems that an Eved *is* acquired with a Shtar. Why, then, does the Gemara write that it is obvious that an Eved Katan can be acquired immediately? If the Machzik cannot present a Shtar, the Eved Katan should not be acquired until three years have passed! (KETZOS HA'CHOSHEN 135:2; BIRKAS SHMUEL #26)

The KETZOS HA'CHOSHEN answers that the logic that a "mother does not forget her son" is such a strong proof that the baby belongs to the Machzik that it overrides the fact that the Machzik cannot produce a Shtar. However, this answer is problematic, as the Acharonim point out (see Birkas Shmuel). The Gemara said that it was obvious that a person can acquire a baby Eved with a Chazakah, *before* it knew the logic that a mother does not forget her child! In addition, perhaps the Machzik stole the baby Eved and that is how the baby entered his domain without being accompanied by its mother.

The BIRKAS SHMUEL and KOVETZ SHI'URIM (#160) answer that the Chazakah that a person makes on a movable object that is in his possession is much stronger than the Chazakah that a person makes on land, since a movable object is totally in his possession to do with it as he pleases. A person can hide the object from its previous owner so that the previous owner will never see it (as Tosfos writes in Bava Metzia 103a, DH Pardisei, and Rashbam in Bava Basra 105b, DH v'Rav Nachman). Perhaps the proof of ownership that emerges from a Chazakah on land is not as strong as the proof that he does *not* own the land if he *cannot* produce a Shtar. However, the proof of ownership that emerges from a Chazakah on Metaltelin is so strong that it can override the proof that he does not own the object if he does not produce a Shtar.

Accordingly, even if an Eved is normally sold with a Shtar, a Chazakah on an Eved Katan will be sufficient proof of ownership. However, if the Eved is an adult, one cannot make a Chezkas Metaltelin on it (because it is like Godros). Therefore, the fact that the Machzik cannot produce a Shtar will show that the Eved does not belong to him.

There are a number of problems with this explanation. First, why does the Gemara say that it is "obvious" that an Eved Katan can be acquired with a Chakazah, and that Rava would not have to teach us that Halachah? Perhaps Rava is teaching this point itself -- that a Chazakah on Metaltelin is able to override the fact that the Machzik cannot show a Shtar!

Second, the Rashba and Ritva imply that the two reasons for why an immediate Chazakah cannot be made on an Eved are not related to each other. According to these Acharonim, it is only because an Eved is like Godros that the Chazakah cannot override the lack of a Shtar.

Third, the Gemara earlier (33b) teaches that when a person occupies land for less than three years and claims that he purchased only the fruit and not the land itself, he is believed and he has a Chazakah, because a person would not be so brazen as to eat the fruit of another person's land. The Gemara asks why should we accept that proof? To the contrary -- we should say that if he purchased it he would have been able to show us a Shtar! The Gemara answers that people do not write a Shtar on the purchase of fruit.

It is clear from the Gemara there that the proof that emerges from the brazenness of a person who is occupying land is a *stronger* proof than a normal Chezkas Metaltelin, as Tosfos (33b, DH v'Iy Ta'in) writes. The brazenness will be a proof of ownership even when the fruits are no longer in his possession (see Insights there), which is *not* true with regard to a normal Chezkas Metaltelin. (When Tosfos and the Rashbam write that a Chezkas Metaltelin is stronger, they are referring to a case in which the brazenness of the occupant is not relevant, such as -- for example -- when there is a question as to the intention of the seller when he sold an object, or when there is a doubt regarding the Halachah.) Nevertheless, we say that if fruit would normally be sold with a Shtar, the lack of a Shtar would override the brazenness of the Machzik. Consequently, it would certainly override a normal Chezkas Metaltelin (which is weaker). (The BIRKAS SHMUEL alludes to this question and leaves it unanswered.)

Perhaps the reason why a Chazakah works for an Eved Katan is as follows. When the Rashba and Ritva explain that a person cannot make a Chazakah on an Eved until three years pass for the same reason that he needs three years for the other things mentioned in the Mishnah, they describe that reason as "Osin Peros Tadir" -- "they constantly produce fruit" ("Tadir" ("constantly") clearly is Lav Davka and is not required, because there are items in the Mishnah for which a Chazakah cannot be made in less than three years even though they do not produce fruits constantly, as the Rashba and Ramban in the Mishnah explain, and as the Gemara teaches here (36b) according to the opinion of the Chachamim).

Why do they mention that the production of fruit is what causes the Chazakah not to take effect in less than three years? They should say instead that it is because they were sold with a Shtar that they do not have a Chazakah immediately!

The answer might be that the two points are dependent upon each other. The reason it is common practice to write a Shtar for the sale of land is because the purpose of the land is to produce fruit. Because land cannot be used in any other way other than to produce fruit (in contrast to Metaltelin, for which the item itself can be used), when a person acquires the land it will not be clear that he acquired the land itself and not the fruit alone. In order to prove his ownership, the buyer will have a Shtar written. If, on the other hand, he only purchased the rights to the fruit of the land, we will not find it necessary to write a Shtar, as the Gemara says (33b).

The same logic applies to Avadim. An Eved cannot be used up (for the master has no rights over the body of the slave, but only for the service of the slave). Therefore, when a person acquires an Eved, he will normally have a Shtar written. In contrast, an Eved Katan, who is still unable even to walk, cannot provide any service. Thus, it is clear that when the Eved Katan is in a master's possession, the master must have purchased the slave himself and not the rights to his services (since this slave is not providing services). Since it is not common to write a Shtar when selling an Eved Katan, it is obvious that a Chazakah will take effect immediately. (M. Kornfeld)

QUESTION: Reish Lakish says that one cannot make a Chazakah (that is, an immediate Chazakah of "Chezkas Metaltelin" to prove one's ownership) on "Godros" (domesticated animals that wander by themselves), since they move about by themselves and are easy to steal. The Gemara explains that the same applies to Avadim, slaves. The Gemara concludes, though, that one does have a Chazakah after they have been in his possession for three years, just like land, as our Mishnah explains.

The Mishnah in Bava Metzia (100a, cited here on 35a) teaches that if a person exchanges a cow with a donkey and the cow gives birth, and it is not clear whether it gave birth before or after the exchange, the buyer and seller split the calf. The RASHBAM (35a, DH u'Mai Shena) quotes the Gemara in Bava Metzia which asks why we do not apply the rule of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" and allow the purchaser to keep the calf if it is in his domain. The Gemara answers that the cow was in the domain of neither the buyer nor the seller at the time of the purchase (but rather it was in the swamp).

Why, though, if the cow *was* in the domain of the buyer, should we allow the buyer to keep the calf? Cows are domesticated animals that wander freely, and therefore the buyer should not have a Chezkas Metaltelin (on the calf) in less than three years! (TOSFOS, Bava Metzia 100a, DH v'Lechzi) The Gemara implies that a Chezkas Metaltelin cannot be made even on a baby animal, because -- unlike a baby slave -- it walks immediately after birth (TOSFOS RABEINU PERETZ there).

ANSWER: TOSFOS and the TOSFOS HA'ROSH answer that in the case of the Mishnah in Bava Metzia, the reason we are assuming that the cow might belong to the buyer is not simply because the cow is in his possession, but rather it is because there is a "Derara d'Mamona," a valid reason for considering his ownership of the object and for giving him the rights to keep the calf. That reason is that we know that there was a sale, and we know that the calf was born, and our doubt is only *when* it was born. In such a situation, the Chazakah of the buyer will be able to give him the rights even to Godros. The CHIDUSHEI HA'RAN and TOSFOS RABEINU PERETZ answer similarly.

Tosfos adds, though, that this is true only when the buyer would claim with certainty that the calf was born after he purchased the mother. If neither the buyer nor the seller claims with certainty when the calf was born, then they would split it.

It seems that Tosfos is following his opinion expressed elsewhere. Earlier (32b; see also Rashbam 41a DH Chaishinan), the RASHBAM explains that when there is a doubt in Halachah concerning the ownership of land, we give the land to the person who is occupying it, even if he has been there for less than three years. Tosfos there (DH Hilchasa) argues that just as the occupant does not have a Chezkas Karka (of three years) to claim that he purchased the land, he does not have a Chazakah to allow him to take the land in the event of a Safek. The case that Tosfos is discussing is similar to a case of "Derara d'Mamona," since there, too, we have valid reason to assume that the occupant of the land is the true owner. Tosfos, though, says that we would not give him the land since his Chazakah is not strong enough to establish him as the owner if it would not have been a case of "Derara d'Mamona." In a similar manner, Tosfos maintains that since the possession of Godros cannot establish the Machzik to be the owner when there is no "Derara d'Mamona," it is not enough of a Chazakah to give him the object (through the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah) even when there *is* a "Derara d'Mamona."

According to the Rashbam, it is possible that even though the possession of Godros does not establish the Machzik as the owner when there is no "Derara d'Mamona," it *would* give him the right to the object when there is a "Derara d'Mamona," such as in a case of a S'feika d'Dina (a Safek what the Halachah is), or when it is not clear when the baby cow was born (even when the Machzik himself does not claim to know when it was born).

36b

QUESTION: The Gemara explains that Rebbi Yishmael and Rebbi Akiva in our Mishnah (28a) argue whether a Chazakah can be made on "small Peros" ("Pera Zuta"). The RASHBAM explains that according to Rebbi Akiva, even if the Machzik harvests fruit that grow in only thirty days, it is considered a Chazakah, such as when he harvests "Shachas" (underdeveloped grain that is used as animal fodder), or when he harvests a vegetable which grows to maturity in thirty days. Rebbi Yishmael, though, holds that harvesting such produce is not sufficient for making a Chazakah.

A number of questions may be asked on this explanation.

First, how can the Gemara assert that Rebbi Yishmael will not allow a Chazakah to be made by harvesting a fruit that grows in one month? The Gemara says earlier (28b) that according to Rebbi Yishmael, if a person harvests "Aspasta" three times in three months, it is a Chazakah! Whether Aspasta is Shachas (as RASHI explains on 20b, DH Aspasta) or whether it refers to a different type of plant that becomes fully mature in thirty days of growth (as Rashi explains on 28b), in either case it should *not* be a Chazakah according to Rebbi Yishmael!

Second, why does Rebbi Akiva say that a Chazakah can be made in only 14 months? If he maintains that a one-month harvest suffices as a complete year for a Chazakah, then one should be able to make a Chazakah in three months, as the Gemara says earlier (28b)!

Third, the Gemara earlier (36a) cites Rav Yosef who teaches that when a person harvests the field for three years while the grain is still "Shachas," it is not a Chazakah, because the occupant did not harvest it in the normal manner (this will be true even if the occupant is constantly planting and harvesting Shachas throughout the three years). How can the Rashbam write that according to Rebbi Akiva, harvesting the grain while it is Shachas is sufficient to constitute a Chazakah?

ANSWERS:

(a) The RAMBAN, RASHBA, and RITVA (28b) explain that Rebbi Yishmael would allow a Chazakah to be made in three months if the field was *normally* used for planting Aspasta or Shachas. The Mishnah is referring to a field which is normally *not* used for growing Shachas. That is why a one-month harvest of Shachas is not sufficient. Rebbi Akiva argues and holds that even a harvest of Shachas is sufficient, since at least *some* people plant Shachas in their fields (ALIYOS D'RABEINU YONAH on 28b).

Regarding the second and third questions, they explain that even though the field is sometimes used for growing Shachas, since it is not a field that is *designated* for growing Shachas, people only use it for Shachas during the alternating fallow years. Therefore, if the occupant plants a full crop in the middle year, and in the first and third years he plants Shachas, he is using the field in the normal manner, and it will be a Chazakah. However, if he plants Shachas for three consecutive years, he is not using the field in the normal manner and it will not be a Chazakah. In Mechoza, even if the fields are planted with Shachas for three consecutive years, it will be a Chazakah, because animal fodder is in such high demand there that even fields that are normally used for growing grain are sometimes used for growing Shachas as their main crop (RITVA to 36a).

(b) TOSFOS (28b) has a different approach to this Sugya. Tosfos explains that when the Gemara says that according to Rebbi Yishmael, "small fruit" cannot make a Chazakah, it is not referring to a person who raises a full crop of fruit in thirty days, for that indeed would be a Chazakah according to Rebbi Yishmael, as the Gemara says earlier (28b). Rather, the Gemara means that if a person lets his grain grow only a small amount, it is not a Chazakah according to Rebbi Yishmael; he must let it grow for three months. This is why Rebbi Akiva does not say that a Chazakah can be made in three months: the Mishnah is discussing a Chazakah being made on a field of grain and not a Chazakah being made on a field of vegetables.

Regarding our third question (how Rebbi Akiva can give a Chazakah to a person who grows grain for one month if Shachas (which is grain grown for one month) is not a Chazakah), Tosfos explains that there are two ways of growing Shachas. One could harvest the grain before it develops seeds, in which case it will grow back and can be re-harvested after another thirty days. Alternatively, one can wait until after the grain develops and then harvest it, in which case it will not grow back. Rav Yosef (on 36a) is teaching that Shachas is not a Chazakah when the occupant lets the Shachas develop seeds and only reaps one harvest of Shachas per year. Rebbi Akiva is saying that Shachas is a Chazakah when the occupant harvests it before it develops seeds and continues to harvest it throughout the year.