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Bava Basra, 38

1) THE DIFFERENCE BETWEEN A "CHAZAKAH SHE'LO B'FANAV" AND A "MACHA'AH SHE'LO B'FANAV"

QUESTION: The Mishnah states that a Chazakah (Chezkas Shalosh Shanim) is not effective unless the Machzik (occupant) and the Me'ar'er (the claimant) are living in the same country. The Gemara asks that if the Mishnah is of the opinion that a Macha'ah -- a protest against occupation -- is effective even when it is not done in the presence of the Machzik, then why is it not effective even when it is done in a different country?

The RASHBAM (DH Iy Kasavar) explains that according to the opinion that "Macha'ah she'Lo b'Fanav" *is* a valid Macha'ah, when the two litigants live in the same city the Macha'ah will be effective even if it is not done in the presence of the Machzik. We can infer from this that according to the opinion that maintains that "Macha'ah she'Lo b'Fanav" is *not* a valid Macha'ah (but, rather, the Macha'ah must be in the presence of the Machzik), the applies even when they both live in the same city.

The Gemara continues to ask that if the Mishnah holds that a Macha'ah is ineffective when it is not made in the presence of the Machzik, then even when they are living in the same country, the Chazakah should not be effective. Here, the Rashbam (DH Afilu Hayah) explains that the question of the Gemara applies when the two litigants live in different cities in the same country.

The Rashbam seems to contradict his earlier explanation. Earlier, the Rashbam implies that according to the opinion that the Macha'ah must be made in the presence of the Machzik, this applies even when they both live in the same city. The Rashbam later, though, says that the Macha'ah (that is not made in the presence of the Machzik) is not effective only when they live in *different* cities, but when they live in the same city the Macha'ah (and hence the Chazakah) would be effective!

How are we to reconcile the two contradictory explanations of the Rashbam?

ANSWER: The PNEI SHLOMO answers that there is a difference between a *Macha'ah* made not in the presence of the Machzik, and a *Chazakah* made not in the presence of the original owner. TOSFOS earlier (29a, DH Ela) states that if the two litigants live in different cities, then according to the opinion that holds that the Macha'ah must be made in the presence of the Machzik, it follows logically that a Chazakah made not in the presence of the original owner is ineffective, because the original owner is not aware that someone is living in his field such that he should protest. However, when they live in the same city, the Chazakah is valid even if the original owner does not actually see the Machzik occupy his property, because we can assume that he will hear about it. In contrast, even when they live in the same city, the original owner must appear in front of the Machzik personally in order to protest, because otherwise he will not hear of the protest.

This explains the apparent contradiction in the words of the Rashbam. The Rashbam, in his second explanation, is discussing the act of making a Chazakah, and thus he says that only when the two litigants are in different cities is the Chazakah not effective. In his first explanation, the Rashbam is discussing the act of making a Macha'ah, and thus he says that even when the two litigants are in the same city, the Macha'ah (not in the presence of the Machzik) is not effective, because the one who is protesting is obligated to appear in front of the Machzik to issue his protest. (Y. Marcus)

38b

OPINIONS: Rav Zevid states that when the claimant protests against the unauthorized use of his field, he must declare, "So and so is a thief, because he is eating from my field through theft, and tomorrow I will summon him to Beis Din!"

Does the claimant have to use exactly this formula in his protest in order for his protest to be valid?

(a) RABEINU CHANANEL maintains that if the claimant does not declare that he will soon summon the occupant to Beis Din, the protest is invalid because he did not emphasize that he intends to take action. Those who hear his protest interpret his protest merely as a complaint about the occupant, and therefore they do not bother to tell the occupant about it.

The ROSH disagrees, arguing that if Rabeinu Chananel is correct, then Rav Zevid should have stated this explicitly.

(b) If the claimant did not say, "So and so is a thief," but he said merely, "So and so is eating from my field through theft, and tomorrow I will summon him to Beis Din," RABEINU YONAH maintains that this suffices. However, if the claimant said only, "So and so is a thief," Rabeinu Yonah maintains that this does not suffice, because the claimant did not stress that the occupant is a thief in reference to his field; he might be referring instead to other objects that he accuses the occupant of having stolen from him.

(c) If the claimant declares that the occupant does not own the field but is merely occupying the field as collateral for a loan, Rabeinu Yonah maintains that he does *not* have to say that he will soon take the occupant to Beis Din, because in this case the claimant is not arguing that the occupant is behaving wrongly. Rather, he is simply informing us that the field does not belong to the occupant, in order for the claimant to be able to reclaim his field without difficulty at the expiration of the term of the collateral.

The RAMBAM (Hilchos To'en v'Nit'an 11:7), however, writes that even when the field is being held as collateral, the original owner must declare, "If the occupant should argue later that I sold it or gave it to him, I will take him to Beis Din." It appears that the Rambam maintains that if the claimant did not stress at the time of his protest that he is prepared later to contest the ownership of the field in Beis Din, we may assume that his Macha'ah is not serious. This also seems to be the view of the RASHBA, who writes that the claimant must say, "Tomorrow I will remove him from the field," even when the field is being held as collateral.

The S'MA (CM 146:7) says that the Rosh -- who holds that when the claimant declares that the field is stolen he does not have to say that he will soon take the thief to Beis Din (as we mentioned above) -- would certainly disagree with the Rambam who holds that in the case of a field being held as collateral the claimant must state that later he will summon the creditor to Beis Din if he does not return the field. The Rosh will hold like Rabeinu Yonah in this regard. (Y. Marcus)