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Bava Basra, 39

1) HALACHAH: PERMISSIBLE LASHON HA'RA

OPINIONS: The Gemara quotes Rabah bar Rav Huna who states that "anything which is said in front of three people does not involve the prohibition of speaking Lashon ha'Ra."

Does this mean that one may speak Lashon ha'Ra about another person in front of three people?

(a) TOSFOS (39b, DH Leis) explains that it is permitted to say Lashon ha'Ra in front of three people (in contrast to the view of the Rashbam, see below). However, this does not mean that one may say outright Lashon ha'Ra. Rather, as Tosfos in Erchin (15b, DH Kol) explains, Rabah Bar Rav Huna is talking about a statement which could be construed in two ways. For example, when one says, "There is always fire in the oven in Reuven's house," this could mean that Reuven is very hospitable and always has hot food available for guests. On the other hand, it could mean that Reuven is a glutton, always cooking food for himself. When such a statement is said in front of three people, we assume that it will be publicized (by virtue of having been said in front of three) and eventually heard by the person about whom it was spoken. Since the person who made the statement is aware that the subject of his words will learn of the statement, we can assume that he did not intend to harm or insult the person about whom the statement was made, but instead he meant his statement to be complimentary, and not derogatory. In contrast, an unquestionably degrading statement always constitutes Lashon ha'Ra and may not be repeated even in front of three people.

(b) RABEINU YONAH here, RASHI in Erchin (15b, DH d'Misamri), and RABEINU GERSHOM explain that the Gemara is not referring to a negative statement at all. Rather, it is forbidden to divulge to others any information a person disseminates if there is reason to assume that the one who made the remark wants it to remain secret. If, however, the remark was originally made in the presence of three people, and it was not stipulated that the information should not be further publicized, we can assume that the one who made the remark does not care whether or not the information is made public, and it may be said over to others. The Gemara, then, is not referring to damaging or negative statements said about another person.

(c) The RASHBAM here (DH d'Mis'amra) and the RAMBAM (Hilchos De'os 7:5) explain that if a person spoke forbidden words of Lashon ha'Ra in the presence of three people, one of those three people may repeat the statement to others (even though it was forbidden for the first person to tell it initially). The reasoning behind this is that since the statement was made in the presence of three people, it can be assumed that it is already public knowledge. Repeating what was said will in no way give the statement added publicity, and therefore it does not constitute Lashon ha'Ra.

The Rashbam adds that since it may be assumed that the statement is public knowledge, one of the three people who heard the Lashon Ha'Ra may even tell the subject of the Lashon ha'Ra that he was spoken about.

The CHAFETZ CHAIM (Hilchos Lashon ha'Ra 2:3) lists five conditions which have to be met in order to implement the lenient ruling of the Rambam:

1. The Rambam disagrees with the Rashbam and rules that it is forbidden to quote what was said to the victim of the Lashon ha'Ra himself.
2. If the original bearer of the Lashon ha'Ra told the listeners not to repeat the story, or if any one of the three is known to be a G-d-fearing person who would not gossip, or if one of them is a friend of the victim of the Lashon ha'Ra, then we cannot assume that it is public knowledge and it is forbidden to repeat the story.
3. Only *one* of the original three who heard the story may repeat it.
4. It may be repeated only in the same city where it was originally told.
5. When repeated, the story must be told with perfect accuracy. One may not change even the smallest detail from the original story.

The Chafetz Chaim concludes that in practice, it would not seem appropriate to rely on the lenient ruling of the Rambam, because, first, it is almost impossible to meet all the conditions we have mentioned. Second, according to the way the other Rishonim learn the Gemara, there is no source at all to permit Lashon ha'Ra even under these circumstances.

39b

QUESTION: The RASHBAM (DH Im Machmas) explains that when the claimant protested repeatedly within the three-year period from the time that the Machzik occupied the property, the protest is valid only and the Machzik does not have a Chazakah only when all of the protests contain a single argument (for example, "So and so is occupying my field because he stole it from me"). If, however, the protests contain different, inconsistent arguments (for example, he first protests that the Machzik stole the field from him, and later he protests that the Machzik is holding his field as collateral for a loan), the contradiction in arguments nullifies the protests and the Machzik thus has a valid Chazakah. The Rashbam explains that since the claimant's second argument contradicts his first argument, he has established himself to be a "Kafran," a liar, whose word is not accepted in Beis Din.

The ROSH (3:29) questions the Rashbam's explanation. A person cannot be proven to be a Kafran unless two witnesses testify that he lied. If, however, a litigant presents two contradictory arguments in Beis Din, he may choose one of the arguments and claim that he was mistaken with regard to the other. Why, then, in the case of inconsistent protests, do we not let the claimant retract his first argument with the claim that he was mistaken?

ANSWER: The BACH (CM 146:11) explains the Rashbam's view. The Bach points out that the Halachah (Choshen Mishpat 79) is that a person can be proven to be a Kafran only through the testimony of two witnesses, and that the Rashbam certainly does not dispute with this. However, the Rashbam's assertion does apply to the case of protests against the occupation of property. In such a case, the Machzik can argue that because the claimant gave contradictory arguments, he did not bother to keep his Shtar for more than three years. The Rashbam, when he writes that the claimant establishes himself to be a Kafran, does not mean that henceforth he will not be believed in Beis Din, but rather that *the Machzik* considers him a Kafran. Any logical reason that the Machzik can provide for why he did not pay attention to the claimant's protests is valid and his three years of occupancy establish for him a valid Chazakah. (Y. Marcus)