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Bava Metzia, 102

1) THE POWER OF ACQUISITION OF RENTED PROPERTY

OPINIONS: The Mishnah (101b) states that when one rents a house, the Zevel that falls into the Chatzer of the house belongs to the owner and not to the tenant. The Gemara explains that the Mishnah cannot be referring to when the tenant is renting the Chatzer (in addition to the house), nor when the Zevel comes from the tenant's own animals, for in either case the Zevel would belong to him. The Mishnah also cannot be referring to when the Chatzer is not rented out and the Zevel is from the animals of the owner, because then the owner obviously gets it. Rather, asserts the Gemara, the Mishnah is referring to a case in which the tenant is not renting the Chatzer, and the Zevel that falls into it is coming from animals owned by other people.

When a Chatzer is rented by a tenant, for whom does the Chatzer acquire objects of Hefker that fall into it -- the owner or the tenant?

(a) According to Rashi's Girsa in the Gemara, the Mishnah is referring to a case in which the tenant was *not* renting the Chatzer (but only the house). Therefore, the Chatzer acquires the Zevel for the owner of the Chatzer. This implies that if the tenant had rented the Chatzer, then he would have acquired the Zevel.

From Rashi's version of the Gemara we learn that in the case of a Chatzer that was rented out, the tenant acquires objects of Hefker that come into the Chatzer, and the owner of the Chatzer does not acquire them.

(b) The RAMBAM (Hilchos Sechirus 6:5) understands the Gemara differently. According to the Rambam, the Gemara is explaining the Mishnah to be discussing a case in which the Chatzer was rented out, and, nevertheless, the owner of the Chatzer still acquires objects of Hefker that fall into it. The Rambam maintains that a rented Chatzer is Koneh for the owner, and not for the tenant. The VILNA GA'ON and the KETZOS HA'CHOSHEN, and other Acharonim, question the Rambam's ruling from a number of Gemaras in other places which seem to support the opinion of Rashi (see commentaries to Choshen Mishpat 313:3). (Y. Marcus)

102b

QUESTION: The Mishnah mentions a case in which a tenant agreed to rent a property "for twelve gold pieces for the year, one Dinar per month," and the year was made into a leap year with thirteen months. The Gemara explains that this case involves a contradiction in the terms of the rental. According to the first phrase ("for twelve gold pieces for the year"), the tenant should not be required to pay an additional gold piece for the extra month, since the extra month is part of the entire year. According to the second phrase ("one Dinar per month"), the tenant should be required to pay an extra Dinar for the extra month. Rav Nachman (whom the Halachah follows) rules that the tenant must pay for the extra month, even if he has already lived there for that extra month. Rav Nachman's reasoning is that since the property itself (the rented house) belongs to the owner, the owner is considered to be the one who is "Muchzak" in this case. Since he has a Chazakah that the house is his, the tenant is not entitled to live there without paying the additional fee.

Why, though, should the ownership of the property be the deciding factor? The dispute is not about who owns the house, but rather the dispute concerns the rental money for the additional month. Since the tenant is in possession of that money, *he* should be considered "Muchzak" and he should not have to pay!

ANSWER: The KUNTRUS HA'SFEIKOS (at end of Sefer) explains that in any case of a Safek in which we issue a ruling based on who is "Muchzak," we trace the Safek back to its origin, to the moment that the Safek began. Then, we determine who was "Muchzak" at that time. In the case of our case, the Safek began at the end of the twelfth month. The owner claims that the rental agreement was for "one Dinar per month." According to his claim, every month entails a new rental period, and thus the tenant is entitled to enter the house for the thirteenth month *only* on condition that he pays a thirteenth payment. According to the tenant's claim -- that the rental agreement was for "twelve gold pieces for the year," the original rental period (one year) has not yet terminated; it will end only at the conclusion of the thirteenth month. Therefore, the dispute between the owner and the tenant is whether or not the tenant may enter the house for the thirteenth month. Since the dispute involves the use of the house, the owner is deemed the "Muchzak," since he is the one in possession of the house.

(According to this explanation, Rav Nachman's ruling applies only in a case where the subject of the dispute is *Karka*, such as a house or a field. Regarding whether his ruling also applies to Metaltelin, see Insights to 103:1, where we mention that Tosfos in our Sugya (103a) and Tosfos in Bava Basra (61b) argue about this point.) (Y. Marcus)