ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Basra 50
BAVA BASRA 50 (27 Iyar) - Dedicated by Gitle Bekelnitzky in honor of the
Yahrzeit of her father, Zev ben Ephraim v'Chaya Krause
(a) We just established the Mishnah in Gitin 'Lakach min ha'Ish ve'Chazar
ve'Lakchah min ha'Ishah, Mekcho Bateil' (because the woman can say 'Nachas
Ru'ach Asisi le'Ba'ali'), when the husband sold one of the three fields that
we just discussed. We refute the initial implication that in the case of all
other fields, 'Mekcho Kayam' - because there (even more than with the three
fields, which after all, her husband designated for her) it would most
certainly lead to a breach in Shalom Bayis, if she would not sign her name
on the sale (in order to make him happy) in which case she can argue 'Nachas
Ru'ach Asisi le'Ba'ali'.
(b) Rabah bar Rav Huna (the author of the previous ruling) therefore comes
to exclude - Nechsei Milug, where a woman is not believed to say 'Nachas
Ru'ach Asisi le'Ba'ali' ...
(c) ... because it is her personal property, and she would therefore not
hesitate to veto her husband's sale without fear of breaching their
(a) Ameimar stated 'Ish ve'Ishah she'Machrah be'Nechsei Milug' - Lo Asu
(b) Rabah bar Rav Huna will explain Ameimar's ruling (seeing as, according
to him, if a woman sells her Nechsei Milug after her husband, the sale is
valid) - to mean (not 'a man and a woman', but) 'a man or a woman'.
(c) Other than when they both sold the Nechsei Milug, the sale is also
valid - if the woman sold the field to her husband.
(a) In the case where the woman alone sold her Nechsei Milug, the husband
can re-claim the field from the purchaser be cause of a statement of Rebbi
Yossi b'Rebbi Chanina - who cited Takanas Usha that if a woman sold her
Nechsei Milug, the husband (whom they declared the first purchaser) can
claim the property from the Lekuchos.
(b) This Takanah will apply even if she sold the field (over which the
husband has no rights in his wife's lifetime), and died. Takanas Usha
declares him the first purchaser ... (as we just explained).
(c) This does not mean that the woman's sale is completely invalid - because
in fact, should her husband die first or divorce her, the sale stands (and
it is only as long as they are married or in the event that she dies first
that the sale is invalid).
(a) Alternatively, when Ameimar says 'Ish ve'Ishah', he means even if both
of them sold the Nechsei Milug, and he holds like Rebbi Elazar, who
discusses in a Beraisa the Din of Yom O Yomayim - which absolves a master
who strikes his Eved Cana'ani from the death-penalty, should he survive
twenty-four hours before succumbing to his wounds.
(b) Rebbi Elazar rules - that if Reuven sold his Eved to Shimon on condition
that he may still continue to use him for thirty days, and then after one of
them struck him, he died after twenty-four hours, neither of them is
absolved from the death-penalty, Shimon because he cannot currently use him
(Kinyan Peiros), and Reuven because he does not own him (Kinyan ha'Guf).
(c) Rava derives this from the Pasuk "Ki Kaspo Hu" - because either the
entire phrase is superfluous (because it unnecessary for the Torah give a
reason why the owner is Patur from Miysah), or because it could just as well
have written "Ki Kesef Hu" (and the 'Vav' in "Kaspo" is redundant).
(d) Ameimar applies the same logic to the case of a man and his wife who
sold her field of Nechsei Milug - which belongs to neither of them, since he
has a Kinyan Peiros, and she, a Kinyan ha'Guf. Consequently neither of them,
individually or even combined, has the power to sell it.
(a) Ameimar now reconciles his opinion with our Mishnah, which validates a
man's sale of his wife's Nechsei Milug if she substantiates the sale - by
establishing the author as the Rabbanan of Rebbi Elazar (i.e. Rebbi Meir,
Rebbi Yehudah and Rebbi Yossi, as we shall now see).
(b) The reasoning of ...
1. ... Rebbi Meir, who holds in the Beraisa of Rebbi Elazar, that the seller
is subject to the Din of Yom O Yomayim, but not the buyer is - because he
holds that the one who has use of the Eved (the Peiros), is considered the
owner ('Kinyan Peiros ke'Kinyan ha'Guf Dami').
(c) Rebbi Meir's opinion is based on the Pasuk "u'Meis Tachas Yado". Rebbi
Yehudah's source is - "Ki Kaspo Hu".
2. ... Rebbi Yehudah, who holds that the buyer is subject to the Din of Yom
O Yomayim, but not the seller - because he holds 'Kinyan Peiros La'av
ke'Kinyan ha'Guf Dami' (because the one who actually owns the Eved is
considered the owner).
(a) According to Rebbi Yossi - both owners are subject to the Din of Yom O
(b) ... because he has a Safek whether 'Kinyan Peiros ke'Kinyan ha'Guf Dami'
or ' ... La'av ke'Kinyan ha'Guf Dami'. Consequently, he follows the
principle 'Safek Nefashos Lehakel' (whenever there is a Safek whether
someone is Chayav Miysah or not, we rule leniently).
(a) We learned in our Mishnah 've'Lo Ish Chazakah be'Nechsei Ishto'. Rav
seems to clash with this when he says - 'Ishah Tzerichah Li'mchos'.
(b) When Rav says ...
1. ... 'Eishes Ish Tzerichah Li'mchos', he cannot be referring to a third
party attempting to establish a Chazakah on the woman's property - because
he holds 'Ein Machzikin be'Nechsei Eishes Ish'.
(c) We finally establish 'Eishes Ish Tzerichah Li'mchos' with regard to her
husband, and Rava establishes Rav - when he spoils her field by digging pits
in a field which is not designated for that.
2. ... 'Ein Machzikin be'Nechsei Eishes Ish', he cannot be referring to her
husband's attempts to do so - because a. 'Ein Machzikin' (in the plural)
implies the world at large, and b. he would then merely be mimicking our
(a) Rav Nachman Amar Rabah bar Avuhah rules - that one cannot establish a
Chazakah through damaging.
(b) To reconcile this with Rav - we establish it by a Din Chazakah of three
years (which does not apply), though in fact, he will acquire the field
immediately, unless the woman protests (since no person will stand idly by
and watch someone ruin his property, even for one day).
(c) Alternatively, even digging pits in a field is subject to a three-year
Chazakah - and Rav Nachman is referring to establishing neighbor's rights
based on the neighbor's silence. This does not, he teaches us, extend to
damages, about which the neighbor may lodge a complaint at any time.
(d) Rav Mari gives an example of Rav Nachman's ruling as producing smoke.
Rav Z'vid - as having established bathroom facilities in the field at ground
level (not in the form of a pit), rendering it visible and therefore
(a) Rav Yosef establishes Rav's statement 'Eishes Ish Tzerichah Li'mchos'
with regard to a third party (other than her husband). We asked earlier from
here on to Rav's other ruling 'Ein Machzikin be'Nechsei Eishes Ish'. In this
latter case, the Machzik is not believed when he claims that he bought the
field from the husband - since the woman can claim that she did not bother
to make a Mecha'ah, either because she relied on her husband to do so, or
because she assumed that her husband had sold him his own rights on the
Peiros, but not the field itself (on which he had no rights).
(b) To reconcile the two statements of Rav, Rav Yosef establishes Rav's
statement 'Eishes Ish Tzerichah Li'mchos' - when the Machzik ate the Peiros
for one year whilst the husband was still alive and for another three years
after his death.
(c) Should the woman fail to make a Mecha'ah, the man will establish a
Chazakah on the basis of a 'Migu' - that he purchased the field from the
man, whom he knows purchased it from his wife, since he could have claimed
that he purchased it directly from her after her husband's death.
(a) If not for Rav's ruling, we would have otherwise compared this case to
that of an Aris, who cannot establish a Chazakah on the field of Arisus -
because the Machzik admits that he went down to the field on the basis of
having purchased the Peiros from the husband (which is not subject to a
Chazakah), just like the Aris, who cannot establish a Chazakah, because we
know that he first went down to the field on the basis of Arisus.
(b) Rav differentiates between the two cases - based on the fact that,
unlike the case of the Aris, which was not subject to change, in our case,
the original contract was only due to last as long as the seller remained
married to the owner of the field. Consequently, once the seller dies, it is
as if he went down to the field afresh, to begin a new Chazakah.
(a) The Daynei Golah - Shmuel and Karna, disagree with Rav.
(b) They hold - 'Machzikin be'Nechsei Eishes Ish'.
(c) When Rav ruled like the Daynei Golah, Rav Kahana and Rav Asi asked him
whether he had retracted - he replied that he was referring specifically to
the case referred to by Rav Yosef (although Rav Yosef himself lived a few
generations after Rav), where the Machzik had eaten the fruits for one year
during the husband's lifetime, and for three more years after his death.
(d) In fact - the Daynei Golah were not referring specifically to Rav
Yosef's case, but even to where the Machzik established a Chazakah for three
years during the husband's lifetime.