ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Basra 43
BAVA BASRA 43 - 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.
(a) The problem with Shmuel's statement permitting one Shutaf to testify for
the other is - that he is prejudiced, seeing as, should his friend lose the
case, the loss will affect his too.
(b) To solve the problem, we establish Shmuel when the second Shutaf
declared 'Din u'Devarim Ein Li al Sadeh Zu'. We might equally well have
answered - that he actually presented him his half with a Kinyan (only this
is a bigger Chidush).
(c) The Beraisa states that if someone withdraws from a field that is
already his (using the above Lashon or one that is similar) - the field
remains his (because one cannot withdraw from something that he already
(d) This Lashon would however, be effective - if he used it to withdraw from
something that he had a right to claim but did not yet own.
(a) We cannot answer that 'Ein Li Din ... ' (in the future tense) is not
effective because he did not say 'Lo Yehei Li Din ... ' - because this is
not a conventional Lashon used by Chazal.
(b) We know for sure that this is correct - because the Sugya does not use
this answer to resolve the problem.
(c) Even after we answer that his declaration 'Din u'Devarim ... ' was
accompanied with a Kinyan, a problem remains, as we learn from a statement
by Ravin bar Shmuel quoting his father, who said that someone who sells a
field without Achrayus - cannot testify on his behalf (to establish it in
(d) The reason for this is - because (on the assumption that he himself does
not own any other fields) he offers his creditor the opportunity of claiming
his debt, which he would otherwise have lost (rendering him [the Shutaf] a
wicked man who fails to pay his debts).
(a) So we establish the Beraisa when the Shutaf accepted Achrayus. This
cannot be referring to general Achrayus for claimants even not directly
connected with him (e.g. who claim that the field was originally their
father's or theirs) - because then, he is certainly interested to ensure
that his Shutaf retains the field, since otherwise, he will come back to him
to be reimbursed.
(b) We must therefore be referring to - Achrayus concerning claims that
emanate from him (such as his creditor claiming his debt), which is no
longer a case of 'Ma'amido bi'Fenei Ba'al-Chovo, seeing as either way, he
will not be paying somebody, and will therefore be branded a 'Loveh Rasha
ve'Lo Yeshalem' (whether his Shutaf wins his case or not).
(c) The Beraisa rules that the Dayanim and the people of a town in which a
Sefer-Torah was stolen - cannot judge or testify in the case if the Ganav is
(d) We do not allow those concerned to withdraw from their rights with a
Kinyan - because we suspect a Kenunya (collusion [that they are only
withdrawing temporarily in order to establish the Sefer-Torah in the hands
of the Ganav, and once the case against the Ganav is closed, they will
negate their withdrawal]).
(a) The problem this Beraisa posed on our Mishnah (according to the way we
interpreted it) is - why we do not permit potential Dayanim and witnesses to
withdraw from their rights with a Kinyan like we do in our Mishnah (where we
are not worried about Kenunya).
(b) And we reconcile the two Tana'im by establishing the Beraisa
specifically by a Sefer-Torah which is different - because seeing as
everyone is obligated to hear Keri'as ha'Torah, nobody has the right to
withdraw from their rights in it (see Maharam).
(c) We ask the same Kashya with regard to local Dayanim or residents
deciding how to spend the Manah that someone donated towards the town's
communal needs. Besides withdrawing from his rights - a potential Dayan or
witness would be able to donate his portion of the Manah towards those
(d) We reconcile this Beraisa with our Mishnah however - by establishing it
too, by money that was donated specifically towards the purchase of a
(a) We ask the same Kashya from yet another Beraisa regarding a case where
someone donated a Manah to the poor people of the city. Initially, we
answer the Kashya 'Aniyim Shakli, Dayni Mifseli' (If the poor receive the
money, why should the Dayanim be invalidated) - by establishing the case
where it is those poor who cannot judge or testify.
(b) We answer the Kashya that cuts through the Sugya 'Let some of the people
withdraw from their municipal rights with a Kinyan and judge or testify' -
by establishing this Beraisa too by a Sefer-Torah (and the reason the Tana
speaks about the poor is because without a Sefer-Torah, everybody is poor).
(c) Alternatively, we interpret 'Aniyim' literally. And to answer the Kashya
that we asked earlier 'Aniyim Shakli, Dayni Mifseli' - we establish the
Beraisa by poor people whom the community are obligated to support (in which
case the community is prejudiced).
(d) We might establish this when the amount each Ani receives is not fixed.
But we might even establish it when it is (where we at first assumed that
they could donate that amount and no longer be prejudiced) - because the
Dayanim are nevertheless interested for the poor to receive the extra Manah,
since once there is sufficient money in the kitty, why should they need to
give more (see Maharam)?
(a) The problem with Shmuel, who rules that Shutfin are Shomrei Sachar for
each other is why it is not a case of Shemirah be'Ba'alim - like a case of
'Sh'mor Li ve'Eshmor Lach', where the employer is working for the Shomer at
the time when the latter first starts working for him.
(b) Rav Papa solves the problem - by establishing the case when one Shutaf
looks after the field today and the other one, tomorrow (see Rashash).
(c) Shmuel's Chidush is - that they are Shomrei Sachar and not Shomrei
(d) We might have thought otherwise - because seeing as each Shutaf must
anyway look after his own half, the fact that he also looks after his
friend's half (which he does without extra effort) does not render him a
Shomer Sachar (though this is extremely difficult to understand, seeing as
his friend certainly benefits from not having to look after his half today,
and he will benefit when his friend looks after his half tomorrow, so why
should he be anything but a Shomer Sachar).
(a) The Beraisa rules that if Reuven sells Shimon a house or a field, and
Levi claims that it is his - Reuven *is not permitted* to testify (together
with a second witness) on behalf of Shimon.
(b) In an equivalent case, but where Reuven sold Shimon a cow or a cloak
(Metaltelin), the Tana rules - that he *is*.
(c) The reason the Tana gives for the distinction between the two cases is -
because in the case of the house or the field (Karka), Reuven accepted
Achrayus (responsibility should the property turn out to be Meshubad to a
creditor or simply not his), wherever in the case of the cow, he did not.
(d) The problem with this is - on what grounds the Tana draws a distinction
between Karka and Metaltelin, when it is possible to accept Achrayus by
Metaltelin, and not to accept it by Karka.
(a) Rav Sheishes therefore establishes the Reisha by a case where Reuven
stole a house or a field from Shimon and sold it to Levi, when along came
Yehudah and claimed that the field belonged to him. Shimon is not permitted
to testify on behalf of Levi (that Yehudah is a Ganav) - because we suspect
that he is prejudiced (since Levi might be an easier character to deal with
(b) Nor will it make any difference even if Shimon was Meya'esh from the
field (in which case there has been Ye'ush and Shinuy Reshus) - because of
the principle 'Karka Einah Nigzeles'. Consequently, there is no such thing
as Shinuy Reshus by Karka.
(c) The Tana's words 'Mipnei she'Achrayuso Alav' now mean - that ultimately,
the owner (Shimon) will have to go to the purchaser (Levi) to retrieve his
property (which renders him prejudiced).
(d) In spite of having testified that the property belongs to Levi,
prejudice apart, Shimon would later be able to claim that the field was
his - if his testimony was worded in a way that merely stated that it did
not belong to Yehudah.
(a) We have already explained that Shimon might prefer his property to be in
Levi's hands than in Yehudah's, because Yehudah is a tougher character to
deal with than Levi. Alternatively, he might prefer to deal with Levi -
because he knows that both he and Yehudah have two witnesses to prove their
ownership. Consequently, should Yehudah win his case against Levi, then,
when Shimon opens a claim against him, he knows that the land will remains
where it is. It will therefore be to his advantage if the property lands
with Levi, from whom he will later be able to claim it with witnesses who
saw Reuven steal it.
(b) The testimony that Shimon would testify to place the property in the
hands of Levi is - either that Yehudah's witnesses are Pasul, or that
Yehudah admitted in his presence that the property belonged to Levi (though
it is unclear why he could not achieve the same result if Yehudah won the
case against Levi).
(c) Yehudah will not be able to reclaim the property from Shimon after the
latter wins it from Levi - for the same reason as Shimon had to win it from
Levi before it fell into the hands of Yehudah (i.e. the principle that when
there are two witnessess against two witnessess, the property remains where