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Bava Basra, 55

1) "DINA D'MALCHUSA DINA" IN THE CASE OF AN INDIVIDUAL KING'S PERSONAL LAW

QUESTION: Rav Huna brei D'Rav Yehoshua says that it is the law of the land ("Dina d'Malchusa") that all property, even "barley [that has been harvested and placed] in the barrel," is considered Meshu'abad to the taxes of the king, both the land tax and the head tax, and thus if a person pays the tax of another person to the king, he is entitled to take even the "barley in the barrel."

Why should Rav Huna brei d'Rav Yehoshua say that such a specific item is Meshu'abad to the king's taxes? He should say instead that we inquire about this particular king's policies and determine what is Meshu'abad to his taxes based on his policies!

ANSWER: The RAMBAN, RASHBA, and RAN answer that Rav Huna brei d'Rav Yehoshua is saying that such an object is Meshu'abad to the taxes in all kingdoms, and therefore it falls within the category of "Dina d'Malchusa Dina." A policy that is unique to only this specific king does *not* fall under the category of "Dina d'Malchusa Dina" (for the rule is not "Dina *d'Melech* Dina," but rather "Dina *d'Malchusa* Dina").

(The RAMBAM (Hilchos Gezeilah 5:13-14), however, rules that any law that the king establishes for all of the constituents of his kingdom is considered "Dina d'Malchusa" and is binding. Only when the king takes property with no legal grounds (even under a law that he himself makes) is it not considered "Dina d'Malchusa.")

QUESTION: The Gemara asks that if, in a certain country, the law is that a person's property is Meshu'abad to the king until the tax is paid, then the Torah's law of the Bechor receiving a double portion of his father's inheritance will never apply, because a Bechor only receives a double portion of the property actually in his father's possession ("Muchzak") and not a double portion of the property that will eventually come into his father's possession ("Ra'uy"). The Gemara answers that the law of a Bechor's inheritance will apply when the father paid the tax before he died, and thus the property entered his possession completely.

Why does the Gemara assume that the Shi'abud of a king on the property of the father makes the property "Ra'uy," and not "Muchzak," with regard to the Bechor's ability to inherit it? In all other cases of property that is Meshu'abad to someone else, we do not find that the Shi'abud makes the property "Ra'uy" and not "Muchzak." For example, in a case where the father's property is Meshu'abad to the Kesuvah of his wife, or his property is Meshu'abad to a lender, that property is still considered to be "Muchzak" and the Bechor receives a double portion of it (see Bava Basra 124a)! Why, then, is the Gemara bothered by the Shi'abud that a king has on a person's property?

ANSWER: TOSFOS (DH Im Ken) answers that the Shi'abud of a king is much stronger than the Shi'abud of a wife's Kesuvah or of a lender. In the case of a Kesuvah or a lender, the property is still in the complete possession of the man, and is considered "Muchzak;" if the man's creditors, or former wife, wants to collect that property, then they must initiate a prolonged judicial process (see Background to the Daf to Bava Metzia 35:22) in order to obtain the property. In contrast, a king, by law, may simply evict the person from his property with no further ado. Therefore, property that is Meshu'abad to a king is not considered to be fully in the possession of the owner (and it is "Ra'uy"), whereas property that is Meshu'abad to a Kesuvah or to a creditor is considered fully in the possession of the owner ("Muchzak"). This also seems to be the explanation of the RASHBAM (DH Im Ken) as well.

The ALIYOS D'RABEINU YONAH adds that the Shi'abud of a king to a person's property is actually more than just a Shi'abud. As long as the taxes have not yet been paid, the king actually owns the property (and can sell it to whomever he wishes). In contrast, the Shi'abud of a creditor to the borrower's property is merely a lien; the borrower still fully owns his property, though. The RAMBAN explains further that the Shi'abud of a creditor merely obligates the borrower, or his heirs, to pay back the loan, or to give the property to the creditor as repayment. The Shi'abud of a king actually places the property into the king's possession until the taxes are paid. Proof for this difference, the Ramban points out, is that the creditor is not entitled to sell the property of the borrower that is Meshu'abad to him, while the king is entitled to sell the property that is Meshu'abad to him.

55b

OPINIONS: Rav Asi says in the name of Rebbi Yochanan (55a) that a boundary fence or a Chatzav tree divides a field of Hefker (such that one who does an act of Chazakah on one side does not acquire the other side), but they are not divisions with regard to Pe'ah or Tum'ah. Ravin in the name of Rebbi Yochanan argues and says that they serve as divisions even with regard to Pe'ah and Tum'ah.

The Gemara here explains what relevance a division in a field has to the laws of Tum'ah by quoting the Mishnah in Taharos (6:5). The Mishnah there discusses a case in which a person entered a valley in the wintertime (when people normally do not walk in a valley, and thus the valley is considered a Reshus ha'Yachid), and there was Tum'ah, such as a grave, in one field in the valley, and the person does not know whether he entered that field or not. Rebbi Elazar says that if the doubt is whether he even entered the field that contained the Tum'ah, then he is Tahor, but if he certainly entered the field with the Tum'ah but the doubt is whether he touched the Tum'ah, then he is Tamei. Hence, according to Rebbi Elazar, if there was something dividing the land in the valley into at least two fields, then the person is Tahor. The Chachamim argue and say that the person is Tamei regardless of how many fields there are in the valley, because the rule is that a Safek Tum'ah in a Reshus ha'Yachid is also Tamei.

What is the basis of the Machlokes between Rebbi Elazar and the Chachamim?

(a) The RASHBAM explains that Rebbi Elazar says that the person is Tahor because of a S'fek S'feika. The first Safek is that perhaps the person did not enter the field that contains the Tum'ah. The second Safek is that even if he did enter the field that contains the Tum'ah, perhaps he did not touch it. The Chachamim, on the other hand, maintain that there is only one Safek: perhaps the person walked until and reached the Tum'ah and stood over it, and perhaps he did not reach it. Since it is a single Safek, the rule is that Safek Tum'ah in Reshus ha'Yachid is Tamei.

(The Acharonim discuss certain problems with the Rashbam's explanation that, according to Rebbi Elazar, this is a S'fek S'feika, from certain rules that govern the application of the principle of S'fek S'feika. See BINAS ADAM (S'fek S'feika, #53), BEIS ME'IR (YD 110:14), SHACH (YD 110:15) cited by OHEL TORAH.)

(b) TOSFOS cites RASHI in Avodah Zarah (70a) who explains that the Mishnah in Taharos is discussing a case of a field that is full of Tum'ah. The Machlokes between Rebbi Elazar and the Chachamim is as follows. Rebbi Elazar holds that even though there is only a single Safek, since the Safek is not whether the person touched the Tum'ah, but rather whether he entered into that field or not, Rebbi Elazar holds that Safek Bi'ah is Tahor. The reason is because the rule of "Safek Tum'ah in Reshus ha'Yachid is Tamei" is learned from the laws of Sotah. A woman who was warned by her husband not to seclude herself with another man, and nevertheless she went and secluded herself, is Asurah ("Teme'ah") to her husband even though there is only a doubt whether she sinned or not with the other man. The reason is because the Torah teaches that a Safek Tum'ah of Sotah in Reshus ha'Yachid is considered to be Vadai Tamei and thus she is Asurah to her husband. There, in the case of Sotah, the Safek is a Safek *Maga* -- the Safek is whether the woman "touched" the man or not. The Safek is not a a Safek *Bi'ah* -- a Safek of whether she entered the place or not. Therefore, Rebbi Elazar holds that in a case of a Safek Bi'ah, a Safek of whether or not the person entered a certain place (such as a field containing Tum'ah), the Safek is Tahor even in Reshus ha'Yachid. According to Rashi, Rebbi Elazar says that the person is Tahor *not* because it is a case of a S'fek S'feika, but because the *type* of Safek is not the type to which the rule of Safek Tum'ah in Reshus ha'Yachid applies.

The Chachamim argue and hold that since there is only one Safek in this case, even though it is a Safek Bi'ah, the rule of Safek Tum'ah in Reshus ha'Yachid applies and the person is Tamei.

(c) TOSFOS cites RABEINU TAM who questions the explanations of Rashi and the Rashbam. According to both Rashi and the Rashbam, both Rebbi Elazar and the Chachamim agree that a S'fek S'feika in Reshus ha'Yachid is Tahor (the Machlokes is only whether this case is considered one Safek or two S'feikos (Rashbam), or whether this case is the type of Safek to which the rule of Safek Tum'ah in Reshus ha'Yachid applies (Rashi)). Rabeinu Tam asks that the Mishnah in Taharos seems to contradict this. The Mishnah there (6:4) states that regardless of how many S'feikos there are in Reshus ha'Yachid, a Safek Tum'ah is still Tamei.

Rabeinu Tam therefore explains that the Machlokes between Rebbi Elazar and the Chachamim is whether a S'fek S'feika in Reshus ha'Yachid is Tamei or not. The Chachamim hold that a S'fek S'feika in Reshus ha'Yachid is Tamei, even if there are multiple S'feikos. Their reasoning is because, m'Ikar ha'Din, even a single Safek in Reshus ha'Yachid should be Tahor, because the person has a Chezkas Tahor; that is, until now he was Tahor, and therefore once the Safek arises, we should view his status as being what it was until the Safek arose (as we say in all other cases of Safek), and he should be Tahor. However, we learn from the laws of Sotah that we do not apply a Chezkas Tahor in the case of a Safek Tum'ah in Reshus ha'Yachid, but rather the person is deemed to be Vadai Tamei. Accordingly, it makes no difference whether there is one Safek or multiple S'feikos -- the law of Sotah that Safek Tum'ah in Reshus ha'Yachid is Tamei overrides the rule of Chezkas Tahor.

Rebbi Elazar holds that we only apply the Chidush (that Safek Tum'ah in Reshus ha'Yachid is Tamei) to the extent that the Torah applies it with regard to Sotah. In the case of Sotah, there is only one Safek, and the Torah teaches that the Safek Tum'ah of a Sotah (in Reshus ha'Yachid) is Vadai Tamei. This is a Chidush, since we would have otherwise determined the status of the woman based on the Chazakah that the Sotah is permitted to her husband. Therefore, we apply this Chidush only to a case similar to the case of Sotah -- where there is only a single Safek. Where there is a S'fek S'feika, though, we apply the normal rule of Chazakah, and thus the person is Tahor.