THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Basra, 57
BAVA BASRA 57 & 58 - dedicated by an admirer of the work of the Dafyomi
Advancement Forum, l'Iluy Nishmas Mrs. Gisela (Golda bas Reb Chaim Yitzchak
Ozer) Turkel, A"H.
1) A CHAZAKAH MADE BY USING ANOTHER PERSON'S PROPERTY
QUESTION: The Mishnah describes acts through which a person is able to make
a Chazakah on the property of another person, and that Chazakah serves as
proof to his claim that he purchased the rights to use the other person's
property for that purpose. The RASHBAM explains that the Mishnah is
referring to acts that are done for *three* years on or with the property of
the other person, and the Mishnah means that if one does such acts for three
years, then he has a Chazakah of three years.
The Rashbam seems to contradict what he writes earlier. The Rashbam earlier
(41a, DH Kol Chazakah), as well as RASHI (or the Hagahah in Rashi, 6b) and
TOSFOS (6b, DH v'Iy Chavrei), write that a Chazakah made through the usage
of someone else's object takes effect immediately, as soon as the owner
fails to protest the usage of his object, and the Machzik can claim that he
purchased the rights of usage of that object from the owner. Why, then, does
the Rashbam here explain that the Chazakah made through the usage of
someone's object is only a Chazakah after three years of usage?
ANSWER: The TUR (CM 153) explains that the Rashbam holds that when giving
permission to someone to use one's property for small usages, it is not the
practice to write a Shtar. Therefore, the Chazakah takes effect immediately
if the owner does not protest, and the person using the property is believed
to claim that he bought the rights to use the property for that purpose. In
contrast, it *is* the practice to write a Shtar for *large* usages, such as
those mentioned in our Mishnah. Therefore, the Machzik can only claim that
he bought the rights to that usage after he has used the property for three
years, because within three years, the owner can demand to see the Shtar.
2) TAKING A SPIRITUALLY DANGEROUS ROUTE
QUESTIONS: The Gemara cites the verse in Yeshayah (33:15) which praises a
person who "closes his eyes from viewing evil." Rebbi Chiya bar Aba explains
that this refers to a person who does not gaze at women while they are
standing at the wash pool washing clothes (when they have to expose parts of
their legs to enter the pool). The Gemara asks what situation Rebbi Chiya
bar Aba is discussing. If he is referring to a situation in which there is
another route to take, then even if the person closes his eyes, he is a
Rasha for taking this route in the first place! If there is no other route
to take, then why does he need to close his eyes? He is an "Ones," and the
Torah exempts him! The Gemara answers that, indeed, there is no other route
to take, and nevertheless he is required to force himself not to look at the
forbidden sites and to turn away his head and close his eyes.
(a) The Gemara says that when there is another route for him to take, he is
a "Rasha" for taking the path with the forbidden sites, even if he closes
his eyes. The CHAFETZ CHAIM (Sefer Chafetz Chaim, Klal 6, Be'er Mayim Chaim
#14) asks that the Gemara in Pesachim (25b) rules that prohibited Hana'ah is
permitted when a person could have avoided it, as long as he did not have
the specific intention of benefiting from it ("Efshar v'Eino Mechaven").
Why, then, does our Gemara call the person a "Rasha" when he could have
avoided walking along the path but did not intend to derive pleasure from
the forbidden sites there?
(b) The Gemara says that when there is no other route for him to take, he is
an "Ones" and thus there is no reason for the verse to require him to close
his eyes. RAV MOSHE FEINSTEIN zt'l (Igros Moshe EH I:56) asks why should the
Gemara exempt the person with the rule of "Ones?" If there is no other route
to take other than the one which contains forbidden sites, then let the
person not go at all! Even if he needs to go in order to earn money or for
other needs, such necessities do not permit transgressing Isurim!
(a) The CHAFETZ CHAIM answers that the Isur of Arayos is different, because
a person has a strong lust for such Isurim (Chagigah 11b, Makos 23b), and
therefore a person must be especially stringent to avoid temptation. Even
though he feels that right now he has no desire for such pleasure,
nevertheless his Yetzer ha'Ra might overcome him later and, Chas v'Shalom,
he might have forbidden thoughts because of the sites that he saw. The IGROS
MOSHE (loc. cit.) adds that the Torah itself prohibits seeing things which
later will cause one to have forbidden thoughts, and warns a person not to
rely on himself to say that he will not have such thoughts: "v'Nishmarta
mi'Kol Davar Ra."
(b) RAV MOSHE FEINSTEIN answers that the problem here is not that the
person, by walking there, will certainly sin, but merely that there is a
possibility that the person might have forbidden thoughts. Therefore, since
it is not a certainty, when there is no other route to take a person is
permitted to rely on himself to remove his mind from the forbidden sites,
and he is not obligated to lose his money as a result. Only when there is no
pressing need for him to walk there is he prohibited to rely on himself to
remove his mind from forbidden thoughts.