THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
Previous daf
Bava Basra, 56
BAVA BASRA 56 (4 Sivan) - Dedicated by Rabbi Kornfeld's father, Mr. David
Kornfeld, in memory of the members of his family who perished at the hands
of the Nazi murderers in the Holocaust and whose Yahrzeit is observed today:
his mother (Mirel bas Yakov Mordechai), brothers (Shraga Feivel, Aryeh Leib
and Yisachar Dov, sons of Mordechai), grandfather (Reb Yakov Mordechai ben
Reb David [Shpira]) and aunt (Charne bas Yakov Mordechai [wife of Reb Moshe
Aryeh Cohen]).
|
56b
1) TESTIMONY OF "CHATZI DAVAR"
QUESTION: The Mishnah states that when a different pair of witnesses
testifies for each year of a Chazakah, the testimonies of the three pairs of
witnesses combine and the Chazakah is established. The Gemara says that this
does not follow the view of Rebbi Akiva, who learns from the verse, "Al Pi
Shnei Edim... Yakum *Davar*" (Devarim 19:15), that the entire matter
("Davar") must be made known to us by the two witnesses, and not half of the
matter by two witnesses and half of the matter by another two ("Davar v'Lo
Chatzi Davar"). How do the Rabanan -- who accept the testimony of three
different sets of witnesses, testifying about three different years, to
establish a Chazakah -- understand this verse? The Gemara answers that
according to the Rabanan, this verse is teaching that "Chatzi Davar" in a
different case is not accepted. In order to prove that a girl has reached
maturity (and is Chayav for Onshim), witnesses must testify that she has two
hairs, even if one is on the back and one is on the front. When one pair of
witnesses testifies that they saw a hair on the back, and another pair
testifies that they saw a hair on the front, the Rabanan consider this to be
"Chatzi Davar" and is not acceptable testimony.
What is the difference, according to the Rabanan, between the case of our
Mishnah and the case of the testimony about the hairs? In each case, there
is a valid pair of witnesses testifying on *part* of a matter, and, when,
combined, their testimony attests to a full Chazakah, or to a full sign of
maturity!
ANSWERS:
(a) The RASHBAM explains that the difference is that in the case of the
hairs, neither pair of witnesses saw everything that it was possible to see
at the time. Had the witnesses checked more extensively, they would have saw
the hair in the other place as well. Therefore, their testimony about one
hair is considered testimony on an incomplete matter, and it cannot combine
with the other pair's testimony on an incomplete matter. In contrast, in the
case of a Chazakah, each pair of witnesses saw everything that it was
possible to see at that moment -- they witnessed the Machzik occupying the
field for a year. During that year, it was impossible, obviously, for them
to see the Machzik occupying the field for any other year. Therefore, their
testimony about that year is considered testimony on a complete matter. This
is also the explanation that the BA'AL HA'ME'OR here prefers. Tosfos in Bava
Kama (70b) gives this explanation in the name of the RI.
The KOVETZ SHI'URIM (#255) explains that the Rashbam understands the Pesul
of "Chatzi Davar" to be a lack not in what the witnesses *say* ("Hagadas
ha'Edus"), but in what the witnesses *see* ("Re'iyas ha'Edus"). That is, at
the moment that they saw the matter, were they seeing only half of what
there was to see (as in the case of the hairs), or were they seeing
everything that there was to see (as in the case of the Chazakah)? It is not
a Pesul in what they say to Beis Din (that is, one pair of witnesses *says*
that they saw one part of the Chazakah, and another pair of witnesses *says*
that they saw another part of the Chazakah).
(b) TOSFOS (DH Ela) cites RASHBA (Rabeinu Shimshon mi'Shantz) who explains
that the difference is that testimony of two witnesses about the presence of
one hair has absolutely no ramifications at all. Without testimony about the
second hair, it is completely irrelevant and useless testimony. In contrast,
testimony about a single year of occupancy of a field is considered a
complete and valid testimony in itself for a different matter -- to prove
that the Machzik ate Peros of the field and must reimburse the owner of the
field (if no Chazakah is established) for a year's worth of Peros. This is
also the explanation of the RIF here.
The CHIDUSHEI RABEINU MEIR SIMCHAH explains that Tosfos, too, learns that
the Pesul of "Chatzi Davar" is a Pesul in the "Re'iyah" of the witnesses, in
what they saw, and not in what they say. Hence, if, at the time that they
see the event, what they saw is relevant in itself for a complete matter,
then it is considered a valid testimony that can combine with the testimony
of other witnesses. (See, however, the CHASAM SOFER's explanation of the
RIF.)
(c) The RI MI'GASH and the RIF in Teshuvos explains that the reason why the
witnesses do not combine in the case of the hairs is because the Halachah is
that the two hairs must be in the same place. This is the subject of a
Machlokes Tana'im in Nidah (52b), and we rule that the two hairs must be in
one place. Therefore, even if *one* pair of witnesses testifies about two
hairs, one on the back and one on the front, that testimony is not valid.
The Rishonim (BA'AL HA'ME'OR, RAMAH, RASHBA) reject this explanation,
because it gives an entirely different reason for why the testimony of the
witnesses in the case of the hairs is not valid. It is not because of
"Chatzi Davar," but because of a specific requirement in the location of the
hairs that has not been fulfilled. Accordingly, this explanation is not
consistent with out Gemara, which says that the reason the testimony is not
accepted is because of "Chatzi Davar."
(d) RASHI in Bava Kama (70b) writes that in the case of the testimony about
a girl's hairs, according to the testimony of each witness the girl is still
a Ketanah and therefore their testimonies do not combine, while in the case
of a Chazakah, according to the testimony of each witness the Machzik is
occupying the field. The RAMBAN and RASHBA explain that Rashi means that
when two witnesses testify about one hair, that in no way indicates anything
about the girl's maturity, since even a very young girl has a single hair.
Therefore, that "Chatzi Davar" is not acceptable testimony. In contrast,
when two witnesses testify that they saw the Machzik occupying the field for
one year, they are testifying about the Chazakah itself -- that the Machzik
acted in a way that demonstrated his ownership of the field. Even though we
need further testimony to tell us that the field did not leave the Machzik's
possession during the next year, nevertheless if we were to assume that the
testimony about the first year remained with its status quo (i.e. the
Machzik continued to occupy the field), then the Machzik would have a
Chazakah. Hence, the testimony about the first year is the beginning of the
proof about the subsequent years, and thus the testimonies about the
different years combine. (See AVI EZRI, Hilchos Edus 21:9.)
The RAN explains Rashi differently. The Ran explains the mechanism of a
three-year Chazakah like the RAMBAN (see Insights to Bava Basra 29:2): even
when the Machzik occupies a field for one day without the protest of the
original owner, that is enough to establish proof of his ownership. The fact
that the previous owner did not protest immediately is proof that he is not
the true owner. A true owner would *immediately* object to someone else
using his land. However, the fact that the Machzik cannot show a Shtar
weakens the Machzik's claim of ownership. The weakened Chezkas Mara Kama
overrides the weakened Chazakah of the Machzik. Only after three years have
passed is the claim of the Machzik no longer weakened by his lack of
possession of a Shtar, since he is not expected to keep a Shtar for that
long, and therefore his Chazakah prevails. Accordingly, when the first two
witnesses testify that the Machzik occupied the field for one year, that
suffices to establish a Chazakah of his ownership. The other two pairs of
witnesses, testifying about the second and third years, are necessary only
to remove the element that weakens the Machzik's claim.
Next daf
|