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March 13, 2017 | 讟状讜 讘讗讚专 转砖注状讝

  • This month's learning is dedicated by Debbie and Yossi Gevir to Rabbanit Michelle and the Hadran Zoom group for their kindness, support, and care during a medically challenging year.

Bava Batra 50

The mishna says that a man can’t create a chazaka on his wife’s usufruct property. 聽This seems to imply that if he brought a document attesting to ownership, he could prove purchase of the land. 聽This is questioned from another mishna (regarding a different case) that a wife can claim she agreed to the sale only because she wanted to make her husband happy聽and can thus invalidate the document of sale. 聽The gemara explains why that mishna is referring to a different case and would not be relevant here. 聽The inference is also questioned by Ameimar’s statement that a man and woman聽who sell usufruct property did not do anything – the sale is invalid. 聽2 possible answers are given. 聽Another question on the mishna itself is brought from Rav who says that a married women needs to protest (otherwise one can create a chazaka on her property). 聽At first the gemara thinks this is referring to her husband and then needs to provide an answer. 聽Rav Yosef explains that it could be referring to another man in which case his statement has nothing to do with our mishna.


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讜讗讞转 砖讬讞讚 诇讛 讘讻转讜讘转讛 讜讗讞转 砖讛讻谞讬住讛 诇讜 砖讜诐 诪砖诇讛

and one that he specified to her as payment for her marriage contract, even though it was not stipulated explicitly in the contract; and one in a case where she brought into the marriage an appraisal of a field from her own property that she owned prior to the marriage, which took on the status of guaranteed property, meaning that she will receive it if her husband dies or divorces her. If a field of one of these three types is sold with her approval, she can claim that she did not truly consent to this sale, but stated her consent only in order to please her husband.

诇诪注讜讟讬 诪讗讬 讗讬诇讬诪讗 诇诪注讜讟讬 砖讗专 谞讻住讬诐 讻诇 砖讻谉 讚讛讜讬讗 诇讬讛 讗讬讘讛 讚讗诪专 诇讛 注讬谞讬讱 谞转转 讘讙讬专讜砖讬谉 讜讘诪讬转讛

The Gemara clarifies: To exclude what type of property did Rabba specify these three types of fields? If we say that he intends to exclude the rest of the husband鈥檚 property secured to pay her marriage contract, it is all the more so the case that he will bear her enmity if she does not agree to the sale, as he will say to her: You have placed your eyes on divorce or on my death, i.e., you will not allow me to sell my property because you are expecting and planning for my death or our divorce. Therefore, she should be able to claim that she consented to the sale only in order to please her husband with regard to other property as well.

讗诇讗 诇诪注讜讟讬 谞讻住讬 诪诇讜讙 讛讗诪专 讗诪讬诪专 讗讬砖 讜讗砖讛 砖诪讻专讜 讘谞讻住讬 诪诇讜讙 诇讗 注砖讜 讜诇讗 讻诇讜诐

Rather, these three types of fields were specified in order to exclude usufruct property, i.e., property that belongs to the wife and remains in her possession while the husband has the right to enjoy the profits, in which case if the wife consents to the sale, it is valid. The Gemara asks: But doesn鈥檛 Ameimar say that if there was a man or a woman, i.e., a husband or a wife, who sold the wife鈥檚 usufruct property, they did not accomplish anything, as the sale does not take effect?

讻讬 讗讬转诪专 讚讗诪讬诪专 讛讬讻讗 讚讝讘讬谉 讗讬讛讜 讜诪讬转 讗转讬讗 讗讬讛讬 讜诪驻拽讗 讗讬 谞诪讬 讝讘谞讛 讗讬讛讬 讜诪转讛 讗转讗 讗讬讛讜 讜诪驻讬拽 讘转拽谞转讗 讚专讘谞谉 讜讻讚专讘讬 讬讜住讬 讘专 讞谞讬谞讗 讚讗诪专 专讘讬 讬讜住讬 讘专 讞谞讬谞讗 讘讗讜砖讗 讛转拽讬谞讜 讛讗砖讛 砖诪讻专讛 讘谞讻住讬 诪诇讜讙 讜诪转讛 讛讘注诇 诪讜爪讬讗 诪讬讚 讛诇拽讜讞讜转

The Gemara answers: When the statement of Ameimar was stated, it was to say that neither the husband nor the wife can sell the property unilaterally. Where he sold the property and then died, she can come and remove it from the buyer. Alternatively, in a case where she sold it and then died, he can come and remove it, due to a rabbinic ordinance, and in accordance with the statement of Rabbi Yosei bar 岣nina, as Rabbi Yosei bar 岣nina says: When the Sanhedrin convened in Usha, they instituted that in the case of a woman who sold her usufruct property in her husband鈥檚 lifetime and then died, the husband repossesses it from the buyers.

讗讘诇 讛讬讻讗 讚讝讘讬谞讜 转专讜讬讬讛讜 诇注诇诪讗 讗讬 谞诪讬 讝讘谞讛 讗讬讛讬 诇讚讬讚讬讛 讝讘讬谞讛 讝讘讬谞讬

But where the two of them sold it to someone, or if she sold it to her husband, the sale is valid. The inference that the Gemara drew from the mishna, that if the husband produces evidence that his wife sold usufruct property to him then he is regarded as the owner, is relevant when she sells her usufruct property to him.

讜讗讬讘注讬转 讗讬诪讗 讗诪讬诪专 讚讗诪专 讻专讘讬 讗诇注讝专

And if you wish, say instead that Ameimar said his statement in accordance with the opinion of Rabbi Elazar, who holds that one can sell property only if he possesses the item itself and also has the right to enjoy its profits.

讚转谞讬讗 讛诪讜讻专 讗转 注讘讚讜 讜驻住拽 注诪讜 砖讬砖诪砖谞讜 砖诇砖讬诐 讬讜诐

This is as it is taught in a baraita: In the case of one who sells his Canaanite slave to another, and contracted with him that the sale is on the condition that the slave will serve the seller for thirty days before he is transferred to the buyer, the outcome of this sale is that during those thirty days, the first master enjoys the use of the slave and the buyer is the owner of the slave himself. As detailed in the Torah (Exodus 21:18鈥21), if one strikes another and the injury leads directly to the victim鈥檚 death, the one who struck him is subject to court-imposed capital punishment. But if a master strikes his Canaanite slave, and the slave lingers with his injuries for more than a day or two days and then dies, the master is exempt from court-imposed capital punishment. The baraita addresses who is considered the owner of the slave with regard to this halakha.

专讘讬 诪讗讬专 讗讜诪专 讛专讗砖讜谉 讬砖谞讜 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 诪驻谞讬 砖讛讜讗 转讞转讬讜 讜讛砖谞讬 讗讬谞讜 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 诪驻谞讬 砖讗讬谞讜 转讞转讬讜

The baraita states four opinions: Rabbi Meir says that during those thirty days, only the first master is included in the halakha of 鈥渁 day or two days鈥 (Exodus 21:21). Rabbi Meir holds that in this case, the first master is included in this exemption, because the slave is under his authority, as he enjoys the use of the slave, but the second master is not included in the halakha of 鈥渁 day or two days,鈥 because the slave is not under his authority.

拽住讘专 拽谞讬谉 驻讬专讜转 讻拽谞讬谉 讛讙讜祝 讚诪讬

Rabbi Meir鈥檚 reasoning is that he holds that ownership of the rights to use an item and the profits it engenders is like ownership of the item itself. The status of the first master as the owner negates the possibility that the second master would be regarded as the owner with regard to this halakha, and he would not be included in the exemption.

专讘讬 讬讛讜讚讛 讗讜诪专 讛砖谞讬 讬砖谞讜 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 诪驻谞讬 砖讛讜讗 讻住驻讜 讛专讗砖讜谉 讗讬谞讜 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 砖讗讬谞讜 讻住驻讜 拽住讘专 拽谞讬谉 驻讬专讜转 诇讗讜 讻拽谞讬谉 讛讙讜祝 讚诪讬

The baraita continues: Rabbi Yehuda says that the second master is included in the halakha of 鈥渁 day or two days,鈥 because the slave is 鈥渉is money鈥 (Exodus 21:21), i.e., his property; but the first master is not included in the halakha of 鈥渁 day or two days,鈥 because the slave is not 鈥渉is money.鈥 Rabbi Yehuda鈥檚 reasoning is that he holds that ownership of the rights to use an item and the profits it engenders is not like ownership of the item itself. Therefore, the first master, who currently enjoys the use of the slave, does not have the status of an owner with regard to this halakha.

专讘讬 讬讜住讬 讗讜诪专

The baraita continues: Rabbi Yosei says that

砖谞讬讛诐 讬砖谞谉 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 讝讛 诪驻谞讬 砖讛讜讗 转讞转讬讜 讜讝讛 诪驻谞讬 砖讛讜讗 讻住驻讜 讜诪住驻拽讗 诇讬讛 讗讬 拽谞讬谉 驻讬专讜转 讻拽谞讬谉 讛讙讜祝 讚诪讬 讗讬 诇讗讜 讻拽谞讬谉 讛讙讜祝 讚诪讬 讜住驻拽 谞驻砖讜转 诇讛拽诇

both of them are included in the halakha of 鈥渁 day or two days.鈥 This first master is included because the slave is under his authority, and that second master is included because the slave is 鈥渉is money.鈥 The Gemara explains Rabbi Yosei鈥檚 reasoning: And he is uncertain if ownership of the rights to use an item and the profits it engenders is like ownership of the item itself, in which case only the first master would be exempt, or if it is not like ownership of the item itself, in which case only the second master would be exempt. And where there is an uncertainty in a case of capital law, the ruling is to be lenient. Therefore, neither of them would receive court-imposed capital punishment in this case.

专讘讬 讗诇注讝专 讗讜诪专 砖谞讬讛诐 讗讬谞谉 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 讝讛 诇驻讬 砖讗讬谞讜 转讞转讬讜 讜讝讛 诇驻讬 砖讗讬谞讜 讻住驻讜

The baraita continues: Rabbi Elazar says that both of them are not included in the halakha of 鈥渁 day or two days,鈥 and both would receive court-imposed capital punishment. This second master is not included because the slave is not under his authority, and that first master is not included because the slave is not 鈥渉is money.鈥 Rabbi Eliezer holds that one must both own the slave himself and enjoy the use of the slave to be included in the exemption.

讜讗诪专 专讘讗 诪讗讬 讟注诪讗 讚专讘讬 讗诇注讝专 讗诪专 拽专讗 诇讗 讬拽诐 讻讬 讻住驻讜 讛讜讗 讻住驻讜 讛诪讬讜讞讚 诇讜

The Gemara explains how Ameimar鈥檚 statement is in accordance with the opinion of Rabbi Elazar. And Rava says: What is the reason for the opinion of Rabbi Elazar? The verse states: 鈥淣otwithstanding if he continue a day or two days, he shall not be punished; for he is his money鈥 (Exodus 21:21), and he understands this to be referring to a slave that is 鈥渉is money,鈥 a slave that is unique to him, so this exemption does not apply to one who does not have total ownership of the slave. Rabbi Elazar holds that one is considered to own an item only if he owns the item itself and also enjoys the use of it. This is the source of Ameimar鈥檚 statement that neither the husband nor the wife can sell usufruct property: The husband cannot sell it because he does not own it, and the wife cannot sell it because only the husband has the right to enjoy the profits.

讜诇讗 诇讗讬砖 讞讝拽讛 讘谞讻住讬 讗砖转讜 讜讛讗诪专 专讘 讗砖转 讗讬砖 爪专讬讻讛 诇诪讞讜转 讘诪讗谉 讗讬诇讬诪讗 讘讗讞专 讜讛讗诪专 专讘 讗讬谉 诪讞讝讬拽讬谉 讘谞讻住讬 讗砖转 讗讬砖 讗诇讗 诇讗讜 讘讘注诇

搂 The mishna teaches that a man does not have the ability to establish the presumption of ownership with regard to his wife鈥檚 property. The Gemara asks: But doesn鈥檛 Rav say that a married woman must protest? The Gemara clarifies: With regard to whom must she protest? If we say: With regard to another, i.e., one who is not her husband who has taken possession of her property, that is problematic: But doesn鈥檛 Rav say that one cannot establish the presumption of ownership with regard to the property of a married woman, as she can claim that she did not lodge a protest because she expected her husband to do so? Rather, Rav鈥檚 intention must be that she must lodge a protest with regard to the husband. This indicates that absent her protest, it is possible for a husband to establish the presumption of ownership with regard to her property, in contrast to the ruling of the mishna.

讗诪专 专讘讗 诇注讜诇诐 讘讘注诇 讜讻讙讜谉 砖讞驻专 讘讛 讘讜专讜转 砖讬讞讬谉 讜诪注专讜转

Rava said: Actually, Rav is referring to her lodging a protest with regard to the husband, and is speaking of a case where he dug pits, ditches, and caves in her property. In other words, he did not simply work and profit from the land, but damaged it in a way that demonstrates that he considered himself the owner. If he does this for three years and she does not lodge a protest, he establishes the presumption of ownership. The mishna, which states that he cannot establish the presumption of ownership, is referring to standard use.

讜讛讗诪专 专讘 谞讞诪谉 讗诪专 专讘讛 讘专 讗讘讜讛 讗讬谉 讞讝拽讛 诇谞讝拽讬谉

The Gemara asks: But doesn鈥檛 Rav Na岣an say that Rabba bar Avuh said: There is no presumptive ownership with regard to damage? This is understood to mean that one cannot establish the presumption of ownership of another鈥檚 field by damaging it, as it is not considered to be standard use. Therefore, even after three years have passed the owner can remove one from his field. Since in this case the husband is damaging the field, he should not be able to establish the presumption of ownership.

讗讬诪讗 讗讬谉 讚讬谉 讞讝拽讛 诇谞讝拽讬谉

The Gemara answers: Say that this means that the halakha of presumptive ownership does not apply with regard to damage, meaning that one who damages another鈥檚 property without the owner lodging a protest does not need three years to establish the presumption of ownership, but does so immediately, as an owner who sees another damage his land is expected to protest without delay. Consequently, a husband who digs pits and the like in his wife鈥檚 property without her lodging a protest establishes the presumption of ownership immediately.

讗讬 讘注讬转 讗讬诪讗 诇讗讜 讗讬转诪专 注诇讛 专讘 诪专讬 讗诪专 讘拽讜讟专讗 专讘 讝讘讬讚 讗诪专 讘讘讬转 讛讻住讗

The Gemara offers an alternative answer. If you wish, say instead: Was it not stated with regard to the halakha that there is no presumptive ownership with regard to damage that Rav Mari says: Damage is referring specifically to smoke, and Rav Zevid says that it is referring to a bathroom? The statement that there is no presumptive ownership [岣zaka] with regard to damage was not stated concerning establishing the presumption of ownership of property, but concerning acquiring the privilege [岣zaka] to engage in certain activities on one鈥檚 own property, and is stating that even if one has engaged in activities that produce smoke or foul odors, the fact that the neighbors did not lodge a protest in the past does not prevent them from doing so in the future.

专讘 讬讜住祝 讗诪专 诇注讜诇诐 讘讗讞专 讜讻讙讜谉 砖讗讻诇讛 诪拽爪转 讞讝拽讛 讘讞讬讬 讛讘注诇 讜砖诇砖 诇讗讞专 诪讬转转 讛讘注诇 诪讬讙讜 讚讗讬 讘注讬 讗诪专 诇讬讛 讗谞讗 讝讘讬谞转讛 诪讬谞讱 讻讬 讗诪专 诇讛 谞诪讬 讗转 讝讘讬谞转讛 诇讬讛 讜讝讘谞讛 谞讬讛诇讬 诪讛讬诪谉

Rav Yosef said: Actually, Rav is referring to her lodging a protest with regard to another, and is speaking of a case where the one who has possession of her property worked and profited from the field for part of the time necessary to establish the presumption of ownership during the husband鈥檚 lifetime, and for three additional years after the husband鈥檚 death. In this case, if the woman does not lodge a protest, the possessor establishes the presumption of ownership, since if he wanted to, he could say to the woman: I purchased it from you and then possessed the field for three years, and he would be awarded the field. When he said to her as well: You sold the field to your husband and he sold it to me, he is deemed credible.

讙讜驻讗 讗诪专 专讘 讗讬谉 诪讞讝讬拽讬谉 讘谞讻住讬 讗砖转 讗讬砖

The Gemara returns to discuss Rav鈥檚 statement: With regard to the matter itself, Rav says that one cannot establish the presumption of ownership with regard to the property of a married woman,

  • This month's learning is dedicated by Debbie and Yossi Gevir to Rabbanit Michelle and the Hadran Zoom group for their kindness, support, and care during a medically challenging year.

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Bava Batra 50

The William Davidson Talmud | Powered by Sefaria

Bava Batra 50

讜讗讞转 砖讬讞讚 诇讛 讘讻转讜讘转讛 讜讗讞转 砖讛讻谞讬住讛 诇讜 砖讜诐 诪砖诇讛

and one that he specified to her as payment for her marriage contract, even though it was not stipulated explicitly in the contract; and one in a case where she brought into the marriage an appraisal of a field from her own property that she owned prior to the marriage, which took on the status of guaranteed property, meaning that she will receive it if her husband dies or divorces her. If a field of one of these three types is sold with her approval, she can claim that she did not truly consent to this sale, but stated her consent only in order to please her husband.

诇诪注讜讟讬 诪讗讬 讗讬诇讬诪讗 诇诪注讜讟讬 砖讗专 谞讻住讬诐 讻诇 砖讻谉 讚讛讜讬讗 诇讬讛 讗讬讘讛 讚讗诪专 诇讛 注讬谞讬讱 谞转转 讘讙讬专讜砖讬谉 讜讘诪讬转讛

The Gemara clarifies: To exclude what type of property did Rabba specify these three types of fields? If we say that he intends to exclude the rest of the husband鈥檚 property secured to pay her marriage contract, it is all the more so the case that he will bear her enmity if she does not agree to the sale, as he will say to her: You have placed your eyes on divorce or on my death, i.e., you will not allow me to sell my property because you are expecting and planning for my death or our divorce. Therefore, she should be able to claim that she consented to the sale only in order to please her husband with regard to other property as well.

讗诇讗 诇诪注讜讟讬 谞讻住讬 诪诇讜讙 讛讗诪专 讗诪讬诪专 讗讬砖 讜讗砖讛 砖诪讻专讜 讘谞讻住讬 诪诇讜讙 诇讗 注砖讜 讜诇讗 讻诇讜诐

Rather, these three types of fields were specified in order to exclude usufruct property, i.e., property that belongs to the wife and remains in her possession while the husband has the right to enjoy the profits, in which case if the wife consents to the sale, it is valid. The Gemara asks: But doesn鈥檛 Ameimar say that if there was a man or a woman, i.e., a husband or a wife, who sold the wife鈥檚 usufruct property, they did not accomplish anything, as the sale does not take effect?

讻讬 讗讬转诪专 讚讗诪讬诪专 讛讬讻讗 讚讝讘讬谉 讗讬讛讜 讜诪讬转 讗转讬讗 讗讬讛讬 讜诪驻拽讗 讗讬 谞诪讬 讝讘谞讛 讗讬讛讬 讜诪转讛 讗转讗 讗讬讛讜 讜诪驻讬拽 讘转拽谞转讗 讚专讘谞谉 讜讻讚专讘讬 讬讜住讬 讘专 讞谞讬谞讗 讚讗诪专 专讘讬 讬讜住讬 讘专 讞谞讬谞讗 讘讗讜砖讗 讛转拽讬谞讜 讛讗砖讛 砖诪讻专讛 讘谞讻住讬 诪诇讜讙 讜诪转讛 讛讘注诇 诪讜爪讬讗 诪讬讚 讛诇拽讜讞讜转

The Gemara answers: When the statement of Ameimar was stated, it was to say that neither the husband nor the wife can sell the property unilaterally. Where he sold the property and then died, she can come and remove it from the buyer. Alternatively, in a case where she sold it and then died, he can come and remove it, due to a rabbinic ordinance, and in accordance with the statement of Rabbi Yosei bar 岣nina, as Rabbi Yosei bar 岣nina says: When the Sanhedrin convened in Usha, they instituted that in the case of a woman who sold her usufruct property in her husband鈥檚 lifetime and then died, the husband repossesses it from the buyers.

讗讘诇 讛讬讻讗 讚讝讘讬谞讜 转专讜讬讬讛讜 诇注诇诪讗 讗讬 谞诪讬 讝讘谞讛 讗讬讛讬 诇讚讬讚讬讛 讝讘讬谞讛 讝讘讬谞讬

But where the two of them sold it to someone, or if she sold it to her husband, the sale is valid. The inference that the Gemara drew from the mishna, that if the husband produces evidence that his wife sold usufruct property to him then he is regarded as the owner, is relevant when she sells her usufruct property to him.

讜讗讬讘注讬转 讗讬诪讗 讗诪讬诪专 讚讗诪专 讻专讘讬 讗诇注讝专

And if you wish, say instead that Ameimar said his statement in accordance with the opinion of Rabbi Elazar, who holds that one can sell property only if he possesses the item itself and also has the right to enjoy its profits.

讚转谞讬讗 讛诪讜讻专 讗转 注讘讚讜 讜驻住拽 注诪讜 砖讬砖诪砖谞讜 砖诇砖讬诐 讬讜诐

This is as it is taught in a baraita: In the case of one who sells his Canaanite slave to another, and contracted with him that the sale is on the condition that the slave will serve the seller for thirty days before he is transferred to the buyer, the outcome of this sale is that during those thirty days, the first master enjoys the use of the slave and the buyer is the owner of the slave himself. As detailed in the Torah (Exodus 21:18鈥21), if one strikes another and the injury leads directly to the victim鈥檚 death, the one who struck him is subject to court-imposed capital punishment. But if a master strikes his Canaanite slave, and the slave lingers with his injuries for more than a day or two days and then dies, the master is exempt from court-imposed capital punishment. The baraita addresses who is considered the owner of the slave with regard to this halakha.

专讘讬 诪讗讬专 讗讜诪专 讛专讗砖讜谉 讬砖谞讜 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 诪驻谞讬 砖讛讜讗 转讞转讬讜 讜讛砖谞讬 讗讬谞讜 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 诪驻谞讬 砖讗讬谞讜 转讞转讬讜

The baraita states four opinions: Rabbi Meir says that during those thirty days, only the first master is included in the halakha of 鈥渁 day or two days鈥 (Exodus 21:21). Rabbi Meir holds that in this case, the first master is included in this exemption, because the slave is under his authority, as he enjoys the use of the slave, but the second master is not included in the halakha of 鈥渁 day or two days,鈥 because the slave is not under his authority.

拽住讘专 拽谞讬谉 驻讬专讜转 讻拽谞讬谉 讛讙讜祝 讚诪讬

Rabbi Meir鈥檚 reasoning is that he holds that ownership of the rights to use an item and the profits it engenders is like ownership of the item itself. The status of the first master as the owner negates the possibility that the second master would be regarded as the owner with regard to this halakha, and he would not be included in the exemption.

专讘讬 讬讛讜讚讛 讗讜诪专 讛砖谞讬 讬砖谞讜 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 诪驻谞讬 砖讛讜讗 讻住驻讜 讛专讗砖讜谉 讗讬谞讜 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 砖讗讬谞讜 讻住驻讜 拽住讘专 拽谞讬谉 驻讬专讜转 诇讗讜 讻拽谞讬谉 讛讙讜祝 讚诪讬

The baraita continues: Rabbi Yehuda says that the second master is included in the halakha of 鈥渁 day or two days,鈥 because the slave is 鈥渉is money鈥 (Exodus 21:21), i.e., his property; but the first master is not included in the halakha of 鈥渁 day or two days,鈥 because the slave is not 鈥渉is money.鈥 Rabbi Yehuda鈥檚 reasoning is that he holds that ownership of the rights to use an item and the profits it engenders is not like ownership of the item itself. Therefore, the first master, who currently enjoys the use of the slave, does not have the status of an owner with regard to this halakha.

专讘讬 讬讜住讬 讗讜诪专

The baraita continues: Rabbi Yosei says that

砖谞讬讛诐 讬砖谞谉 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 讝讛 诪驻谞讬 砖讛讜讗 转讞转讬讜 讜讝讛 诪驻谞讬 砖讛讜讗 讻住驻讜 讜诪住驻拽讗 诇讬讛 讗讬 拽谞讬谉 驻讬专讜转 讻拽谞讬谉 讛讙讜祝 讚诪讬 讗讬 诇讗讜 讻拽谞讬谉 讛讙讜祝 讚诪讬 讜住驻拽 谞驻砖讜转 诇讛拽诇

both of them are included in the halakha of 鈥渁 day or two days.鈥 This first master is included because the slave is under his authority, and that second master is included because the slave is 鈥渉is money.鈥 The Gemara explains Rabbi Yosei鈥檚 reasoning: And he is uncertain if ownership of the rights to use an item and the profits it engenders is like ownership of the item itself, in which case only the first master would be exempt, or if it is not like ownership of the item itself, in which case only the second master would be exempt. And where there is an uncertainty in a case of capital law, the ruling is to be lenient. Therefore, neither of them would receive court-imposed capital punishment in this case.

专讘讬 讗诇注讝专 讗讜诪专 砖谞讬讛诐 讗讬谞谉 讘讚讬谉 讬讜诐 讗讜 讬讜诪讬诐 讝讛 诇驻讬 砖讗讬谞讜 转讞转讬讜 讜讝讛 诇驻讬 砖讗讬谞讜 讻住驻讜

The baraita continues: Rabbi Elazar says that both of them are not included in the halakha of 鈥渁 day or two days,鈥 and both would receive court-imposed capital punishment. This second master is not included because the slave is not under his authority, and that first master is not included because the slave is not 鈥渉is money.鈥 Rabbi Eliezer holds that one must both own the slave himself and enjoy the use of the slave to be included in the exemption.

讜讗诪专 专讘讗 诪讗讬 讟注诪讗 讚专讘讬 讗诇注讝专 讗诪专 拽专讗 诇讗 讬拽诐 讻讬 讻住驻讜 讛讜讗 讻住驻讜 讛诪讬讜讞讚 诇讜

The Gemara explains how Ameimar鈥檚 statement is in accordance with the opinion of Rabbi Elazar. And Rava says: What is the reason for the opinion of Rabbi Elazar? The verse states: 鈥淣otwithstanding if he continue a day or two days, he shall not be punished; for he is his money鈥 (Exodus 21:21), and he understands this to be referring to a slave that is 鈥渉is money,鈥 a slave that is unique to him, so this exemption does not apply to one who does not have total ownership of the slave. Rabbi Elazar holds that one is considered to own an item only if he owns the item itself and also enjoys the use of it. This is the source of Ameimar鈥檚 statement that neither the husband nor the wife can sell usufruct property: The husband cannot sell it because he does not own it, and the wife cannot sell it because only the husband has the right to enjoy the profits.

讜诇讗 诇讗讬砖 讞讝拽讛 讘谞讻住讬 讗砖转讜 讜讛讗诪专 专讘 讗砖转 讗讬砖 爪专讬讻讛 诇诪讞讜转 讘诪讗谉 讗讬诇讬诪讗 讘讗讞专 讜讛讗诪专 专讘 讗讬谉 诪讞讝讬拽讬谉 讘谞讻住讬 讗砖转 讗讬砖 讗诇讗 诇讗讜 讘讘注诇

搂 The mishna teaches that a man does not have the ability to establish the presumption of ownership with regard to his wife鈥檚 property. The Gemara asks: But doesn鈥檛 Rav say that a married woman must protest? The Gemara clarifies: With regard to whom must she protest? If we say: With regard to another, i.e., one who is not her husband who has taken possession of her property, that is problematic: But doesn鈥檛 Rav say that one cannot establish the presumption of ownership with regard to the property of a married woman, as she can claim that she did not lodge a protest because she expected her husband to do so? Rather, Rav鈥檚 intention must be that she must lodge a protest with regard to the husband. This indicates that absent her protest, it is possible for a husband to establish the presumption of ownership with regard to her property, in contrast to the ruling of the mishna.

讗诪专 专讘讗 诇注讜诇诐 讘讘注诇 讜讻讙讜谉 砖讞驻专 讘讛 讘讜专讜转 砖讬讞讬谉 讜诪注专讜转

Rava said: Actually, Rav is referring to her lodging a protest with regard to the husband, and is speaking of a case where he dug pits, ditches, and caves in her property. In other words, he did not simply work and profit from the land, but damaged it in a way that demonstrates that he considered himself the owner. If he does this for three years and she does not lodge a protest, he establishes the presumption of ownership. The mishna, which states that he cannot establish the presumption of ownership, is referring to standard use.

讜讛讗诪专 专讘 谞讞诪谉 讗诪专 专讘讛 讘专 讗讘讜讛 讗讬谉 讞讝拽讛 诇谞讝拽讬谉

The Gemara asks: But doesn鈥檛 Rav Na岣an say that Rabba bar Avuh said: There is no presumptive ownership with regard to damage? This is understood to mean that one cannot establish the presumption of ownership of another鈥檚 field by damaging it, as it is not considered to be standard use. Therefore, even after three years have passed the owner can remove one from his field. Since in this case the husband is damaging the field, he should not be able to establish the presumption of ownership.

讗讬诪讗 讗讬谉 讚讬谉 讞讝拽讛 诇谞讝拽讬谉

The Gemara answers: Say that this means that the halakha of presumptive ownership does not apply with regard to damage, meaning that one who damages another鈥檚 property without the owner lodging a protest does not need three years to establish the presumption of ownership, but does so immediately, as an owner who sees another damage his land is expected to protest without delay. Consequently, a husband who digs pits and the like in his wife鈥檚 property without her lodging a protest establishes the presumption of ownership immediately.

讗讬 讘注讬转 讗讬诪讗 诇讗讜 讗讬转诪专 注诇讛 专讘 诪专讬 讗诪专 讘拽讜讟专讗 专讘 讝讘讬讚 讗诪专 讘讘讬转 讛讻住讗

The Gemara offers an alternative answer. If you wish, say instead: Was it not stated with regard to the halakha that there is no presumptive ownership with regard to damage that Rav Mari says: Damage is referring specifically to smoke, and Rav Zevid says that it is referring to a bathroom? The statement that there is no presumptive ownership [岣zaka] with regard to damage was not stated concerning establishing the presumption of ownership of property, but concerning acquiring the privilege [岣zaka] to engage in certain activities on one鈥檚 own property, and is stating that even if one has engaged in activities that produce smoke or foul odors, the fact that the neighbors did not lodge a protest in the past does not prevent them from doing so in the future.

专讘 讬讜住祝 讗诪专 诇注讜诇诐 讘讗讞专 讜讻讙讜谉 砖讗讻诇讛 诪拽爪转 讞讝拽讛 讘讞讬讬 讛讘注诇 讜砖诇砖 诇讗讞专 诪讬转转 讛讘注诇 诪讬讙讜 讚讗讬 讘注讬 讗诪专 诇讬讛 讗谞讗 讝讘讬谞转讛 诪讬谞讱 讻讬 讗诪专 诇讛 谞诪讬 讗转 讝讘讬谞转讛 诇讬讛 讜讝讘谞讛 谞讬讛诇讬 诪讛讬诪谉

Rav Yosef said: Actually, Rav is referring to her lodging a protest with regard to another, and is speaking of a case where the one who has possession of her property worked and profited from the field for part of the time necessary to establish the presumption of ownership during the husband鈥檚 lifetime, and for three additional years after the husband鈥檚 death. In this case, if the woman does not lodge a protest, the possessor establishes the presumption of ownership, since if he wanted to, he could say to the woman: I purchased it from you and then possessed the field for three years, and he would be awarded the field. When he said to her as well: You sold the field to your husband and he sold it to me, he is deemed credible.

讙讜驻讗 讗诪专 专讘 讗讬谉 诪讞讝讬拽讬谉 讘谞讻住讬 讗砖转 讗讬砖

The Gemara returns to discuss Rav鈥檚 statement: With regard to the matter itself, Rav says that one cannot establish the presumption of ownership with regard to the property of a married woman,

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