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Bava Basra, 41

1) A CHAZAKAH WITHOUT A CLAIM

QUESTION: The Mishnah states that a Chazakah is a valid proof of ownership of land only when it is accompanied by a claim (such as "I bought the land from you"). If, however, the Machzik says merely that he has been occupying the land for three years and no one told him to leave, his Chazakah does not establish his ownership of the field.

The RAMBAM (Hilchos To'en v'Nit'an 14:12), though, rules that even though a Chazakah without a claim is not a valid Chazakah, nevertheless the Machzik cannot be evicted from the property unless the claimant brings two witnesses who testify that the field belongs to him.

The VILNA GA'ON (Bi'ur ha'Gra to Choshen Mishpat 146:20) challenges the Rambam's ruling on the bases of the Gemara earlier (35b). The Gemara there discusses a case in which two people are arguing over the ownership of an object and neither of them has proof of ownership such as witnesses or a Chazakah. The Gemara states that in such a case, the Beis Din does not get involved, and whichever one of the disputants is able to seize the object for himself is entitled to do so. The Gemara continues and says that if a third party -- who makes no claim of ownership of the object -- comes and seizes the property, the Halachah is that he is considered a thief and he must return the property to each of the first two claimants.

The Gemara there clearly seems to contradict the ruling of the Rambam. How can the Rambam rule that a Machzik who has no claim to the property, but who has a Chazakah, is not evicted? The Gemara there states that the property *is* removed from the Machzik who seized it with no claim, even though the two claimants have no proof of prior ownership!

ANSWER: The NESIVOS HA'MISHPAT (146:9) answers that in the case of our Mishnah, even though the Machzik does not have a valid claim on the field, the claimant -- if he does not bring witnesses that he owned the field -- also does not have any proof that the field is his. Therefore, the Halachah in this case is comparable to a case of a lost object which belongs to the finder until someone else either brings witnesses that the lost object belongs to him, or is able to describe to the finder identifying marks on the object which would require the finder to give it back to him. Similarly, in our case, the field remains in the possession of the Machzik until someone else brings witnesses that it belonged to him. In contrast, in the case of the third party who seized the property from the two claimants, since each of those two claimants argues with certainty that the property is his, they both have a claim of "Bari" (even though they have no proof), while the third party has no claim at all and is therefore considered no better than one who has a claim of "Shema" (an uncertain claim). Therefore, the property is considered to be in the possession of one of the first two claimants, and, consequently, the third party who seized it must return it to them. We do not know with certainty to which of the claimants it belongs, but we do consider it a given that it belongs to one of them.

41b

QUESTION: The Gemara relates that a flood in Rav Kahana's field washed away the fence around his field. Rav Kahana replaced the fence, but it was not clear where the original fence had stood. Rav Kahana's neighbor brought two witnesses before Rav Yehudah. One witness testified that Rav Kahana had taken two rows of land from the neighbor's field and annexed them to his own field. The second witness testified that Rav Kahana had taken three rows from the neighbor's field. Rav Yehudah ruled that Rav Kahana must return two rows of land to his neighbor. The Gemara states that this ruling is in accordance with the view of Beis Hillel, who says that when one witness says that a debtor owes 100 Zuz, and another witness says that he owes 200 Zuz, the Halachah is that the debtor must pay 100 Zuz, because concerning the first 100 Zuz the two witnesses are in agreement.

The SHACH (CM 31:1) cites the "Chochmei Brisk" who discussed the Halachah in a case where there is conflicting testimony form the witnesses. Are those witnesses believed to give testimony in a different case? Perhaps they may not testify as witnesses in a different case, since the testimony of each one has been contradicted by the other, thereby labeling him as a liar. The Shach cites proof from the RAN in Kesuvos (10a of the pages of the Rif, DH Ed) who writes that both witnesses are invalid for future testimony because each one has been contradicted.

Why does the Shach not cite proof from our Gemara to the contrary? When one witness testified that Rav Kahana owes his neighbor two rows, and the other testified that Rav Kahana owes three rows, Rav Yehudah ruled that Rav Kahana must return two rows, and the witnesses are *not* rendered invalid as a result of contradicting each other!

ANSWER: The MINCHAS CHINUCH (end of Mitzvah #37) says that we can adduce proof for the Shach's ruling from the NIMUKEI YOSEF in our Sugya (22a of the pages of the Rif). The Nimukei Yosef asks why do we believe the witnesses at all, since one of them is certainly a liar? The Nimukei Yosef answers that in our case it is possible that neither of the witnesses is lying deliberately. Rather, one of the witnesses is merely making a mistake, because it is easy to err between two rows and three rows of land. Similarly, a person could make a mistake whether a borrower owes 100 Zuz or 200 Zuz.

We can infer from the words of the Nimukei Yosef that in a case in which it is *not* possible to justify the conflicting testimony of both of the witnesses, and it is clear that one of them is lying (but we do not know which one), the Halachah is that they are both invalid for any future testimony. Hence, our Gemara is actually a proof for the Shach's ruling that both witnesses are invalidated. (In fact, the Minchas Chinuch writes that he is perplexed that the Shach himself did not cite this proof from the Nimukei Yosef.) (Y. Marcus)