1) THE CLAIM OF THE OCCUPANT WHO BOUGHT THE FIELD FROM A THIRD PARTY

QUESTION: The Gemara relates an incident in which a person occupied the property of another and claimed that he bought the land from a third party who bought it from the original owner. The original owner claimed, "You admit that the land is mine, and you also admit that you did not buy it from me, and thus you have no claim to the land!" Rava ruled in favor of the claimant (the original owner).

The RASHBAM explains that the Machzik did not claim that he saw the third party buy it from the claimant, but that the third party told him that he bought it from the claimant. Since the Machzik did not mention that he has a Chazakah, apparently he still had the Shtar that showed that he purchased the field from the third party. Nevertheless, regardless of whether or not he has a Chazakah, he is not entitled to the land because he has not presented a definitive claim to validate his ownership of the property. Even if it is true that he bought the property from the third party, there is no evidence that the third party had the right to sell it to him.

There are a number of important questions on some of the points that the Rashbam makes in his explanation of this Sugya.

First, the Rashbam (near the beginning of DH Amar Lei) explains that the claimant did not have witnesses to testify that he was the original owner of the land. Rather, he relied on the admission of the Machzik to prove his ownership of the land. Why, then, does the Rashbam write later (in DH Amar Lei, and DH v'At) that the Machzik would have won the case had he said, "I saw the third party buy it from you," but only if the Machzik had occupied the field for three years? Even if he had not occupied the field for three years, the Machzik should be believed with a Migu that he could have said that the field never belonged to the claimant, since there are no witnesses to contradict that statement! (TOSFOS 30a, DH Lav)

Second, the Rashbam (DH Zil) writes that the claimant won the case because the Machzik did not occupy the field for three years. This seems to contradict what he writes earlier -- that even if the Machzik did occupy the field for three years, he still loses the case because he does not have a definitive claim to validate his occupancy of the field ("Chazakah she'Ein Imah Ta'anah"). (BEIS HA'LEVI 3:36:2), PNEI SHLOMO, KEHILOS YAKOV #20)

Moreover, the Rashbam repeatedly mentions that the Sugya is discussing a case in which the Machzik had not occupied the field for three years (end of DH Amar Lei, DH v'At, DH Zil). If the ruling of the Gemara applies whether or not the Machzik had a Chazakah of three years as the Rashbam initially writes, then why does he later write that in the Gemara's case the Machzik did not have a Chazakah of three years?

ANSWERS:

(a) With regard to the first question, the DERISHAH (CM 146:24) and the BEIS HA'LEVI (3:36) explain that the Machzik would not be believed to say that he saw the third party purchase the field from the claimant (or that he himself purchased the field from the claimant) with a Migu that he could have said that the field never belonged to the claimant, if he did not occupy the field for three years. The reason for this is that it is so uncommon for a person to lose his Shtar within three years of the purchase of a field that the lack of a Shtar is tantamount to testimony of witnesses that he did not purchase the field. Accordingly, the Migu is a "Migu b'Makom Edim" which is not a valid Migu (as the Gemara says on 31a).

When the Mishnah in Kesuvos (15b) says that a person is believed to say "this field was your father's and I purchased it from him" because he could have said that the field was always his, the Mishnah must be referring to a person who had occupied the field for three years.

However, the Rashbam does not explain this way (29b, DH Alav, and 34a, DH Ela, as the YOSEF DA'AS points out).

Moreover, in the beginning of his explanation, the Rashbam himself writes that the only reason why the Machzik's claim cannot win the case for him is that he did not witness the third party purchase the field from the original owner. This implies that had he witnessed the purchase, even though he did not have a Chazakah of three years he would have been believed. (SHACH CM 146:13)

Similarly, in the end of the Rashbam's explanation here (DH Amar Lei), when he discusses what the Halachah is in this case (where the Machzik did not have a Chazakah of three years), he writes that even if witnesses testify that the third party occupied the field for at least one day, the Machzik would not win the case since he did not occupy the field for three years. If the Rashbam maintains that the Machzik would not win even if he said that he saw the third party buy the field, then he should have included that point in his statement. The Rashbam should have added that whether the Machzik brings testimony that the third party occupied the field for a day, or whether the Machzik claims that he saw the third party purchase the field, he will not win the case. The Rashbam's omission of this point implies that he agrees with Tosfos' assertion that the Machzik would win in such a case, where he claims that he saw the third party purchase the field, because he has a Migu. (Shach loc. cit.)

With regard to the second question (why does the Rashbam imply that the Machzik would have won had he had a Chazakah of three years), the Beis ha'Levi explains as follows. The reason why the position of the Machzik is considered a "Chazakah she'Ein Imah Ta'anah," a Chazakah that has no claim, is that the Machzik does not have personal knowledge that the third party purchased the field from the claimant. The Machzik does have, however, personal knowledge that the third party claimed that he bought the field from the claimant. The Beis ha'Levi points out that later in Bava Basra (135a) Rava and Abaye argue about whether or not a claim based on what was heard from another person is considered a "Bari" claim, a claim of certainty. Rava rules that it is considered a Ta'anas Bari, while Abaye does not consider it a Ta'anas Bari. The Halachah follows the opinion of Abaye in this regard.

In the beginning of the Sugya, the Rashbam explains the Gemara according to the Halachic opinion (on 135a), that what one hears from a third party is not considered a valid claim. Accordingly, this case is one of a "Chazakah she'Ein Imah Ta'anah," and therefore even if the Machzik occupied the field for three years, he would not win the case.

However, later (in DH Zil) the Rashbam is explaining the ruling of Rava. It is Rava who maintains that this would be considered a "Chazakah she'Yesh Imah Ta'anah," as he rules later (on 135a). That is why the Rashbam explains that Rava would have ruled differently had the Machzik had a Chazakah of three years.

Another approach to the second question is proposed by the KEHILOS YAKOV (#20). The Gemara does not rule simply that the claimant wins the case. Rather, the Gemara adds that the Machzik is not a "Ba'al Devarim" of the claimant at all -- he cannot even bring the case to court (as explained by TOSFOS to 30a, end of DH Lav, in the name of RABEINU CHANANEL and the GE'ONIM). Perhaps the Rashbam maintains that if the Machzik occupied the field for three years, then even if his Chazakah is a "Chazakah she'Ein Imah Ta'anah" he is considered to be at least a party in the case and he has the right to bring the claimant to court. He might lose in court, but the claimant would not be able to ignore his claim entirely. Since the Gemara rules that the Machzik cannot even bring the claimant to court, it must be that he did not have a Chazakah of three years.

This explanation is difficult to understand. Since the reason why the Machzik cannot bring the case to court according to the Ge'onim is that he admits that he does not have a definitive claim to the field, what difference does it make whether or not he had a Chazakah of three years?

Moreover, according to both explanations it is clear from Rava's words that the Sugya is discussing a case in which the Machzik did not have a Chazakah of three years. Why, then, does the Rashbam write at the beginning of the Sugya (DH Amar Lei) and at the end (DH Amar Rava) that the Machzik could have occupied the field for three years?

(b) There are two ways to explain the incident recorded in the Gemara. The simple way is that the reason why the Machzik's claim was not accepted is that he did not know on his own that the third party purchased the field from the original owner.

A second way may to understand the incident may be suggested as follows. Perhaps the Machzik did make a definitive claim that he saw the third party buy the field from the original owner. (The Rishonim did have the words "d'Amar Li" in their text; see Bach #4). Why, then, was his claim not accepted? Apparently, his claim was not accepted because he did not occupy the field for three years. Why was the Machzik not believed with a Migu that he could have said that the field never belonged to the claimant? It must be that the claimant had witnesses who testified that he once owned the field.

According to this explanation, when the claimant said, "Lav ka'Modis" -- "Do you not admit that the field was mine," he did not mean to base his claim of ownership on the admission of the Machzik. Rather, he meant that the Machzik must admit that the field belonged to him, since the claimant either had witnesses or it was known to all that he once owned the field.

The reason why the claimant won the case is that the Machzik's Shtar was only from the third party, and the third party did not have a Shtar that he bought the field from the claimant. Since the Machzik did not occupy the field for three years, he did not have a Migu and therefore he lost the case.

(This may be the intention of RABEINU GERSHOM on 30a. The ALIYOS D'RABEINU YONAH also gives a similar explanation.)

It seems that the Rashbam originally explained the Gemara according to the second way of understanding it. Later, he changed his mind and explained the Gemara in accordance with the first way of understanding it. (His change was based on the words "Lav ka'Modis," which imply that the claimant did not have witnesses to prove his prior ownership of the field.) When Rashi (or the Rashbam) changed his explanation, he often added the new explanation before the original explanation but left the original explanation in place. He removed only the comments that explicitly contradicted the new explanation. (See end of Insights to Bava Kama 18:1.)

The comments of the Rashbam in the beginning of the Sugya (DH Amar Lei) until the words "Aval Hichzik" (and in DH v'Lo ka'Modis and DH Amar Rava) reflect his final explanation, in which the Machzik did have a Chazakah of three years, but he did not have a valid claim. All of the other comments of the Rashbam reflect his original explanation, in which the Machzik did not have a Chazakah of three years, but he did have a valid claim.

This answers the questions posed above. Why does the Rashbam write that the Machzik would have been believed to say that he saw the third party purchase the field from the claimant, but only if he had occupied the field for three years? Even if he had not occupied the field for three years, the Machzik should have a Migu that he could have claimed that the field never belonged to the claimant! The answer is that the Rashbam at that point was following his original explanation, that the claimant had witnesses who testified about his prior ownership of the field. This is also why the Rashbam does not discuss (at the end of DH Amar Lei) what the Halachah is when the Machzik says that he saw the third party buy the field from the original owner but does not have a Chazakah of three years (as the Shach asks). The Rashbam does not need to discuss this case, because this is the case of the Gemara itself. When the Rashbam (in the beginning of the Sugya, beginning of DH Amar Lei, as quoted above in the name of the Shach) implies that there is a Migu, he is following his later explanation that the claimant had no testimony about his prior ownership.

This approach answers the second question as well. When the Rashbam (end of DH Amar Lei, DH v'At, DH Zil) writes that the Machzik did not occupy the field for three years, and had he occupied the field for three years he would have won the case, he is following his original explanation, that the claimant brought testimony to prove his prior ownership.