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Bava Basra, 45

1) AVOIDING BEING CALLED A "RASHA" WHO DOES NOT PAY BACK LOANS

QUESTION: The Gemara here discusses Shmuel's statement that one who sells land to a buyer (without Achrayus) may not testify that the land belongs to the buyer, because he is Noge'a b'Edus. The Gemara explains that the reason why the seller may not testify is because he does not have any other land from which a creditor of his could collect the debt, and thus he benefits if his former field remains in the hands of the buyer. The creditor will collect the field from the buyer, and the seller will not be considered a Rasha who does not pay back his loans.

Similarly, the Gemara earlier (43a) discusses Shmuel's statement that when two people own property in partnership, one partner may testify on behalf of the other partner. The Gemara asks that the partners should not be allowed to testify for each other, because they are "Nog'in b'Edusan" -- the one testifying will benefit personally by his testimony for his partner, since he thereby will not lose part of his own share. The Gemara answers that the testifying partner was Makneh his share of the property to his partner, and thus he is no longer gaining from his testimony. The Gemara asks, though, that he is still Noge'a b'Edus, since he gains indirectly by having his former partner keep the land, because as long as it is in his partner's hands it can be collected by his creditors for loans that he owes. The RASHBAM there cites the Gemara here which explains that he is Noge'a b'Edus because he wants his loan to be paid back so that he will not be called a Rasha who does not pay back his loans.

If the person is worried about avoiding the Aveirah of not repaying a loan, then certainly he should be afraid of testifying falsely, which is a much greater Aveirah! Why, then, do we suspect him of lying in order to avoid being called a Rasha who does not pay back his loans, when lying is a much greater Aveirah? (RAMBAN (45a) in the name of the RI MI'GASH)

ANSWER: The RI MI'GASH answers that the witness is afraid of what other people say about him. If he does not pay back his loans, then everyone will call him a Rasha for not paying back. If, on the other hand, he gives false testimony, no one will know that he lied.

(The MAHARAM on 44a, cited by the SHACH (CM 37:1) suggests the same answer and adds that if someone who is Noge'a b'Edus is Pasul because he is a Karov, then perhaps even if we are convinced that he is telling the truth, his testimony would still be invalid.

However, this answer is difficult to understand. If the witness is more worried about testifying falsely than about not paying back his loans, then he is no longer Noge'a b'Edus in the first place and his testimony should be accepted!)

QUESTIONS: The Mishnah (42a) teaches that an Uman, a craftsman, cannot make a Chazakah on an object that he is holding and claim that the object in his hands belongs to him. Abaye and Rabah argue about the application of this Halachah. According to Rabah, if the claimant does not have witnesses to testify that he handed over the object to the Uman to fix, then the Uman *is* believed to claim that he bought the object, because he has a Migu that he could have said that he never received anything from the claimant. Abaye argues that even when there are no witnesses to testify that the object was given to the Uman to fix, the Uman cannot make a Chazakah on the object and is not believed to claim that the object is his.

According to Rabah, what is the alternate claim (the claim of the Migu) that gives the Uman credibility when he claims that he bought the object? The RASHBAM explains that the Uman could have said that the claimant sold the object to a third party, who then sold it to the Uman. (The Uman does not need to specify who that third party is, and therefore he does not have to worry that the third party will eventually come to court and contradict his claim.)

(a) Why does the Rashbam not give a much more basic explanation for what the Uman's Migu is? The Uman could claim that he received the object from the claimant by purchasing it from him, and not in order to fix it! When he says that he received the object to fix but then he purchased it from the owner, he should be believed with a Migu that he could have said that he purchased it from the owner directly. (TOSFOS (DH Aval), in fact, gives both examples of Migu. The RI MI'GASH and RABEINU YONAH also suggest the second Migu. See also TOSFOS RID.)

(b) The Rashbam himself seems to contradict his own explanation of what the Migu is, because, in other places, he seems to explain the Migu to be the Migu of Tosfos -- that the Uman could have said that he bought the object directly from the claimant. We find that the Rashbam asks why the Uman should be believed according to Rabah; he should not have a Chazakah, just as a person does not have a Chazakah on objects that are normally rented or loaned to others. If the Migu was that the Uman could say that he purchased the object from a third party (who is not an Uman), then this case cannot be compared to one of an object that is normally borrowed or rented, because he is claiming that he received it from a person who is not an Uman and who had a legitimate Chazakah. When the object is normally borrowed or rented, a person cannot claim that he purchased it from a third party, because the Chazakah of the third party does not prove ownership any more than the Chazakah of the Machzik, the one holding the object. (See AYELES HA'SHACHAR.)

Second, The Rashbam answers that the case of our Gemara is not comparable to a case of an object normally borrowed or rented, because the Uman is claiming that he usually does not receive objects from this claimant to fix. Therefore, his Chazakah is a valid Chazakah against the claimant. If the Chazakah of the Uman is a valid Chazakah, then he should even be believed to say that he purchased it directly from the claimant, and he does not have to say that he purchased it from a third party! (AYELES HA'SHACHAR)

Third, the Rashbam (beginning of 45b, DH Amar Lei) explains that Abaye disagrees with Rabah because he compares the case of our Gemara with the case of an object that is normally borrowed or rented. If the Rashbam learns like Tosfos, who explains that Rabah gives the Uman a Migu because he could have said that he purchased the object from the claimant, then the Rashbam's words are easy to understand: Abaye is arguing that the Uman cannot claim that he purchased it, since a person gives his objects to any Uman to fix, even if that person never gave objects to this Uman to fix in the past. According to the Rashbam, if the Migu is that the Uman could have said that he bought the object from a third party, then the argument of Abaye that this is comparable to objects that are normally borrowed or rented is irrelevant! Even if an object being held by an Uman is assumed to have been given to him to fix, he should be able to claim that he purchased the object from a third party, and the third party had a valid Chazakah since he was not an Uman! The Uman will not have to return the object to the third party, since the third party is not contradicting the claim of the Uman that the object was purchased. Instead, the Rashbam would have to explain that according to Abaye, the Uman does not have a Migu to say that he purchased it from a third party, perhaps because he is embarrassed to claim that a third party purchased it without identifying that person. On the other hand, he is also embarrassed to identify the third party, because that third party might then contradict his claim.

These three comments of the Rashbam seem to show that the Rashbam understands the Migu as Tosfos explains it -- that the Uman could have claimed that he purchased the object directly from the claimant. How are we to reconcile this apparent contradiction in the words of the Rashbam?

ANSWERS:

(a) The Rashbam did not accept the explanation of the Ri mi'Gash that the Uman is believed with a Migu that he could have said that he purchased the object directly from the claimant, because, according to that explanation, Abaye (who compares this to a case of an object that is normally borrowed or rented) and Rabah are arguing not only about a case in which the Uman claims that he received the object to fix and then later purchased it, but they are even arguing about a case in which the Uman claims that he purchased it directly from the claimant. Why, then, does Rabah state his ruling by teaching a case of an Uman who is believed with a Migu? He should have said simply that an Uman is believed to say that he purchased the object from the claimant, because that is the case in which he and Abaye argue! In fact, the TOSFOS RID rejects the explanation of the Ri mi'Gash for this reason.

In addition, if people normally give their objects to one Uman in particular, and that is why this case is not comparable to a case of an object that is normally borrowed or rented, then why should Abaye argue and compare it to such an object? It should depend on whether the practice of the person is to give his objects that need repair to one particular Uman or to give it to any Uman!

The Rashbam, therefore, preferred to explain that the Migu is that the Uman could have claimed that he purchased the object from a third party. Both Rabah and Abaye agree that the Uman would not be believed to claim that he purchased it from the claimant himself, if not for the Migu, because a person indeed gives his objects to any Uman to fix, and therefore it would be comparable to an object that is normally borrowed or rented. (This is the same as the logic of Abaye, according to the Rashbam's explanation (45b) that Abaye and Rabah are arguing whether the case of an object in the hands of an Uman is comparable to the case of an object that is normally borrowed or rented.)

The Tosfos Rid rejects the Rashbam's explanation as well. He asserts that the Uman's claim that he purchased the object from a third party should be no stronger than the claim that he purchased it from the claimant himself. With either claim, if the object in the hands of the Uman is considered like an object that is normally borrowed or rented since people normally give such objects to an Uman to fix, then the Chazakah of the Uman should be worthless.

The Rashbam, on the other hand, might be following his own opinion in this regard as expressed earlier. The Rashbam (32b, DH Hilchesa, and 43b, DH v'Iy Ba'is Eima (see Insights there)) explains that even when a person occupies a field for less than three years, if Beis Din has a doubt regarding who the owner of the land is, and the Chezkas Mara Kama cannot be used to resolve the Safek (for example, in a case of "Trei u'Trei," or when there is a Safek in the Halachah), then the person occupying the land is allowed to keep the land because of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." Apparently, a Chazakah that does not provide proof of purchase is still sufficient to give that person the object when there is no Chezkas Mara Kama opposing his possession, in which case Beis Din rules "ha'motzi me'Chaveiro Alav ha'Ra'ayah." Similarly, when the Uman claims to have purchased the object from a third party, the Chezkas Mara Kama of the claimant is no longer pertinent, since the Uman claims that there is another person who had a Chazakah on the object *after* the claimant (thus harming the Chezkas Mara Kama of the claimant). Even though the Chazakah of the Uman is not enough to prove that the object is his (because it is like an object that is normally borrowed or rented), nevertheless, since it is not opposed by a Chezkas Mara Kama, we may leave it with the Uman instead of saying "Kol d'Alim Gevar." (Even those who argue with the Rashbam and maintain that we do apply "Kol d'Alim Gevar" or "Yachloku" in such a situation will agree that in the case of the Uman, the Uman has a stronger claim, since there is no person to contradict his claim that he bought the object from the third party (since the third party is unidentified).)

(b) The Acharonim suggest that the Rashbam maintains that neither Migu is sufficient by itself for the Uman to win the case. The Migu that he could have said that he purchased the object from a third party is not a strong Migu, for the reason that we wrote above. The Migu that he could have said that he purchased it from the claimant is also a weak Migu, since it should be similar to a case of an object that is normally borrowed or rented. The combination of the two Migus, though, is enough to allow the Uman to be believed and to win the case. Consequently, Abaye only has to argue with one of the Migus by saying that an object in the hands of an Uman *is* comparable to an object that is normally borrowed or rented, and therefore the Uman cannot say that he purchased it. Since only one weak Migu remains, the Uman does not win the case with his claim.

It is not clear what forced the Rashbam to assume that Rabah is relying on two Migus, when he could have explained the Gemara just as well to be discussing one Migu (that he bought it from someone else who bought it from the claimant).

Alternatively, the Rashbam's first words -- that the Uman could claim that he purchased the object from a third party who purchased it from the claimant -- indeed argue with what he writes later, and those words are a later addition that the Rashbam added because of the question that he had on the explanation of the other Rishonim (see (a) above). The Rashbam added this second explanation at the beginning of his comments, but did not remove the original explanation that he wrote which was based on his original understanding of the Gemara (see Insights to 30b and 44a).

45b