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Bava Metzia, 14

1) ARGUING A CASE IN COURT FOR SOMEONE ELSE

QUESTION: The Gemara says that if Reuven sells a field to Shimon with Achrayus, and then Reuven's lender comes and tries to take the field from Shimon, *Reuven* may defend Shimon's case in court in order to stop the Malveh from collecting the land from Shimon, since Shimon's loss will ultimately affect Reuven.

What difference, though, does it make whether Reuven comes to court or not? If there is a valid claim which can prevent the Malveh from collecting, then why does Shimon not use that claim without bringing Reuven to court? (Reuven could always tell Shimon the claim out of court and let Shimon make the claim himself in court.)

ANSWERS:

(a) RASHI here (and in Kesuvos and Bava Kama) explains that the reason Reuven would have to come to court is because he has a claim of *certainty* ("Bari") that he is claiming against the Malveh's Shtar. Shimon, who does not know the details first hand, can at best make a tentative claim ("Shema") and say that "I *think* that the Shtar is not valid" (because Reuven paid you or because you owed money to Reuven for some other reason and therefore that paid for the debt). A claim of "Shema" will have no validity against the Shtar. Reuven, though, can present a claim of certainty ("Ta'anas Vadai"), for the Rabanan instituted a Shevu'as Heses whenever someone challenges a claimant who has a "Ta'anas Vadai." Therefore, only Reuven can cause the Malveh to swear a Shevu'as Heses in court.

TOSFOS RABEINU PERETZ asks what difference does it make if Reuven can cause the Malveh to swear a Shevu'as Heses? The Malveh must swear to *Shimon*, anyway, before collecting from him, because the Rabanan instituted a different Shevu'ah, requiring anyone who collects a debt from Yesomim or Lekuchos to swear that he was not paid already for the debt. (The Rabanan enacted that we speak up for the Lekuchos, who are not expected to know how to counter the claim.)

TOSFOS in Kesuvos (92b) answers that the difference that Rashi gives for when Reuven makes the claim instead of Shimon (i.e. the ability to make the Malveh swear a Shevu'as Heses) will apply where Shimon was Mochel to the Malveh the Shevu'ah of Lekuchos. In such a case, only Reuven can make the Malveh swear, through a "Ta'anas Vadai" and a Shevu'as Heses.

(b) TOSFOS explains that the difference might be in a case where Shimon announces in court that he has no evidence to disprove the claim of the Malveh. If afterwards he does try to bring testimony, we do not accept it (Sanhedrin 31a). Reuven, who never announced that he had no witnesses, may still bring witnesses to court to disprove the Malveh.

(c) The RASHBA and NIMUKEI YOSEF (in Bava Kama) and the RAN here explain that the reason Shimon might need Reuven to make the claim for him in court is because of a case where the land that Shimon bought is an Apotiki for the loan. The Halachah is that a buyer cannot redeem land that is an Apotiki for a loan -- the Malveh is entitled the take the land itself. The borrower, though, may redeem the Apotiki by paying back, with money, the loan that he received, and thereby prevent the Malveh from collecting the Apotiki. Therefore, if Reuven comes to court and says that he will pay back the loan to the Malveh, he can prevent Shimon from losing the property.

However, if this is the case, then why is Reuven, the borrower, permitted to become involved in the case for the benefit of Shimon? We only permit Reuven to become involved since Shimon's loss affects Reuven, since Reuven will need to reimburse Shimon if he loses the land. If Reuven is agreeing to pay the loan, then it should make no difference to him whether Shimon wins the case or the Malveh wins; in either case he will have to pay someone back -- either the Malveh or Shimon!

They answer that it will still be to the benefit of Reuven for Shimon not to lose his land, because when a Malveh collects land, he prices the land at the value that it was worth at the time that Shimon purchased it. If it naturally rose in value (without Shimon investing anything into it) before the time that the Malveh takes it from Shimon, then the Malveh keeps the profit. Shimon, though, may claim from Reuven, the borrower, *full* reimbursement of his loss, including the rise of value. Therefore, if Shimon loses his field, Reuven will have to pay more than if Reuven just pays back the original loan.

(d) TOSFOS here further suggests that there would be a difference in the case of a Gilgul Shevu'ah. If, for some different case in which they are involved, the Malveh needs to make a Shevu'ah d'Oraisa to Reuven, the borrower, then Reuven can then make the Malveh make a Shevu'ah *d'Oraisa* that he did not yet receive the loan repayment, through the Halachah d'Oraisa of "Gilgul Shevu'ah." This will make the Shevu'ah more severe than a Shevu'ah d'Rabanan, and therefore it is to Shimon's benefit for Reuven to come to court.

The ME'IRI cites others who suggest, in a similar vein, that the practical difference would be in a case where Reuven has other claims for which he wants to make the Malveh swear. If Reuven represents this case for Shimon, then he may make the Malveh swear to his other claims as well through the Halachah of Gilgul Shevu'ah (d'Rabanan). (According to the Me'iri, Reuven is coming to court for his own benefit, and not for Shimon's benefit as the Gemara implies.)

(e) TOSFOS RABEINU PERETZ and TOSFOS here explain that it is beneficial for Reuven to come to court, simply because he is more knowledgeable than Shimon and he might think of a claim that Shimon might not think of. Why does Reuven need to come to court, though? Let Reuven simply make suggestions to Shimon and Shimon can then make the claims for himself!

Perhaps the court would not let Reuven advise Shimon in the middle of the case, because the Mishnah in Avos (1:8), cited in Kesuvos (52b), teaches that a person should not act like "Orchei ha'Dayanim."

Tosfos here suggests further that a person may insist that his opponent come with him to a greater Beis Din. If Reuven has the strength to go to a greater Beis Din, and Shimon does not have the strength, then Reuven may insist that the Malveh go with him to a greater Beis Din.

In addition, Tosfos suggests that it is beneficial for Reuven to argue the case in Beis Din because the Malveh might not be so brazen as to lie to Reuven's face and say that he was never repaid, whereas he would be brazen to lie to Shimon and say that he was never repaid, since Shimon does not know the truth.

(f) The RITVA upholds one of the differences that Tosfos here refutes. Tosfos says that it is incorrect to say that a difference between whether Reuven goes to court against the Malveh or whether Shimon goes to court is when the witnesses who can testify that Reuven paid back the loan are relatives of Shimon, and thus Shimon cannot bring them to court. They are unrelated to Reuven, though, and therefore he can bring them to testify. Tosfos refutes this, saying that since the outcome of their testimony will also benefit Shimon (letting him keep the land that he bought from Reuven), these witnesses may not testify even for Reuven. Tosfos proves from the Gemara in Makos (7a) that the witnesses in such a case -- where their testimony is given primarily for an unrelated person, but it will affect a relative -- may not testify for the unrelated person. The Gemara there discusses a case of a debt in which the witnesses testifying on behalf of the Loveh were related to the *guarantor* of the Loveh. The Gemara there says that the witnesses are *invalid* in that case and may not testify on behalf of the Loveh or Malveh, because if the Loveh has no money to pay back the debt, the Malveh will go to guarantor to collect the money.

The Ritva says that there is a difference between our case and the case in Makos. In the case in Makos, the guarantor's property is also Meshu'abad to the loan, and thus when the witnesses testify about the loan, their testimony directly affects the guarantor. In the case of our Gemara, though, Shimon -- who bought the field from Reuven -- has nothing to do with the loan, and his property is not Meshu'abad to the loan. The witnesses, therefore, should be permitted to testify that Reuven paid back the loan, even though as a result of that testimony Shimon, their relative, will be able to keep the land that he bought from Reuven. Their testimony is about the repayment of the loan, which has nothing to do with Shimon. Therefore, says the Ritva, this case can also be a difference between whether Reuven goes to court against the Malveh or Shimon goes to court.

14b

OPINIONS: Rav Nachman in the name of Shmuel rules that the purchaser of a stolen field is not entitled to collect the "Shevach," the value of the improvements that he made to the field, from the thief who sold it to him. He may collect only the money that he paid for the field. The Gemara questions this ruling from a Beraisa which states that one may not collect "Shevach Karka'os" from Nechasim Meshu'abadim, implying that one *may* collect it from Nechasim B'nei Chorin. The Gemara assumes that the Beraisa is referring to the Shevach in the case of a purchaser who bought a stolen field, and thus the Beraisa contradicts the ruling of Rav Nachman in the name of Shmuel.

The Gemara answers that the Beraisa is not referring to the Shevach of a purchaser who bought a stolen field, but rather it is referring to the Shevach of a field that one bought from a borrower, and the creditor (Ba'al Chov) came to collect that field. It is in that case that the Beraisa says that the purchaser is entitled to collect the value of the Shevach of the field from the seller (i.e. the borrower).

The Gemara asks that the Beraisa cannot be referring to land appropriated by a Ba'al Chov, because the Reisha of the Beraisa says that a purchaser whose field was confiscated may not collect the "Achilas Peros," the value of the consumption of the produce, from the seller's Nechasim Meshu'abadim, implying that he may collect it from the Nechasim B'nei Chorin. However, Shmuel himself rules that when a Ba'al Chov appropriates a field from one who purchased it from his debtor, he collects the field together with the field's Shevach, but he may not collect the Peros of the field. Hence, the purchaser obviously will not be collecting the Peros from the seller, since the Peros were not taken from him! The Gemara concludes that, indeed, the Reisha ("Achilas Peros") is not referring to the case of a Ba'al Chov, but rather to the case of one who purchased a stolen field from the thief, while the case of "Shevach Karka'os" is referring to a Ba'al Chov.

When Shmuel states that a Ba'al Chov is not entitled to take the Peros grown on his land by the purchaser, to what Peros is he referring?

(a) RASHI (DH l'Achilas Peros) explains that the Ba'al Chov may not collect the fully-grown Peros that are still attached to the ground but which no longer need to be attached. Rashi implies that Peros that still need to be attached to the ground *are* collected by the Ba'al Chov.

According to Rashi, though, the Gemara should answer that the Reisha of the Beraisa is indeed referring to a case of a Ba'al Chov, and when it implies that the purchaser may collect the value of the Peros that were confiscated from him, it is referring to the young Peros that still need to be attached to the ground!

The Rishonim (RAMBAN, RASHBA, and others) answer that the Gemara could not have given this cause such Peros are included in the Shevach of the field, and they would not be referred to separately as "Achilas Peros."

The Ramban and Rashba maintain that the Rif also learns like Rashi.

(b) Some Rishonim, such as the RITVA, explain that the RIF holds that the Ba'al Chov may collect the land even with Peros that do not need to be attached to the ground but are still attached. The Gemara, when it asserts that the Ba'al Chov may not collect the Peros, is referring to Peros that are detached from the ground. (Even though there is a principle that "anything which is [attached to the ground but is] ready to be picked is considered to be picked already," this principle applies only to making the Peros have a status of Metaltelin and not a status of Karka. The purchaser of the land, though, is not entitled to keep them, for the belong to the Ba'al Chov.)

(c) Another view is cited in the name of RAV HAI GA'ON. This view states that even Peros that are attached to the ground, and which need to be attached to the ground, may not be collected by the Ba'al Chov. Why, though, may the Ba'al Chov not collect them? If they need to remain attached to the ground, they should still be considered part of the field and the Ba'al Chov should be able to collect them!

The SHACH (CM 98:9) writes that since the purchaser has the ability to pick the Peros, the Ba'al Chov does not have them in mind (to collect the debt from them) at the time of the loan. (I. Alshech)