ומודה רב הונא בחנותא דמחוזא דביממא עבדי ובליליא לא עבדי—And רב הונא admits concerning the shops of מחוזא since they function by day and do not function at night

OVERVIEW The גמרא stated that רב הונא admits that חנותא דמחוזא do not require consecutive years of חזקה, since they do not function at night. It is not clear from the גמרא whether the חזקה of חנותא דמחוזא can be accomplished in a total of three daytime-only years (as by fields, etc.), or six daytime-only years are necessary to establish a חזקה (similar to באגי דמוברי אתרי). Our תוספות will be discussing this issue.

פירוש¹ ומועיל להם אם החזיקו ג' שנים ואף על גב דלאו שלש רצופות אלא מפוזרות – The explanation as to what הונא רב admits to, is that it validates the חזקה for them if they possessed the shops for three complete years and even though these three חזקה years are not consecutive but rather spread out over six years since the nights are not included; nevertheless it is a valid חזקה – כיון דאורחייהו בהכי דהוי כאתרי דמוברי באגי – Since it is their customary way of conducting business; to be open by day and closed at night, for this is similar to the places where the farmers allow the fields of the valley to lie fallow. The requirement for חזקה there is three planting seasons (five [six] years). Similarly here too, it is a חזקה if they worked there six years of days. רב הונא requires ג' שנים רצופות only when the normal usage of the land/property is in a consecutive and continuous manner. תוספות asks a question: ואם תאמר אם כן פשיטא דמודה רב הונא כדפריך לעיל גבי באגי – And if you will say; if this is so that the customary usage is only by day (and it requires a six year חזקה of days), then it is obvious that הונא רב agrees that it is a valid חזקה, as the גמרא asks previously concerning the חזקה in a valley, where it was customary to have the land lie fallow on alternating years. The גמרא there asks פשיטא that it will be a חזקה if he had it for three planting seasons. Why does not the גמרא ask the same question here concerning דמחוזא חנותא; it seems identical to the באגא אתרי דמוברי?! תוספות answers: ויש לומר לפי שבני אדם שאינם חנוונים דרים בהן בין ביום ובלילה – And one may say, that the reason that it is not a פשיטא that six years of day חזקות are considered רצופות, is since the people of מחוזא who are not shopkeepers dwell in the same type of buildings both in the day and in the night – ואותן צריכים ג' שנים רצופות יום ולילה – And those people, in order to make a חזקה on their properties, are required to live there three consecutive years by day and by night – וסלקא דעתין דחנוונים נמי יצטרכו כן קא משמע לן² – So it would enter our minds; we might have assumed that the shopkeepers should have the same requirement to be there three consecutive years by day and by night; and not be permitted to establish a חזקה through six years of daytime occupation only, therefore the גמרא comes to let us know, that in the case of חנותא דמחוזא six years of daytime occupation is considered a proper חזקה. תוספות will now explain why the חזקה of דמחוזא חנותא is six daytime years and not merely three daytime years: ומהאי טעמא אתי שפיר דבעינן להו שלש שנים שלימות דהיינו ו' שנים – And from this very same logic (that others live in the same houses for three continuous years) it is well understood that we require of them three complete years which means six years of daytime חזקה, and it is not sufficient to merely have three years of daytime חזקה – אף על גב דבשדות ובית הבדים לא בעינן אלא שלש שנים בין הכל– Even though that by fields and olive presses we only require three years total, even though the שדות ובית הבדים are not functioning continually for three years without a stop. Why is it that by חנותא דמחוזא three complete years (six years) are required?– תוספות explains: (אלא) היינו משום דכמו שאר בני אדם הדרים שם שאין חנוונים בעו ג' שנים ביום ובלילה – The answer is because just like the other people who dwell there in מחוזא who are not shopkeepers; when they need to make a חזקה they are required to live there for three years by day and by night – הכי נמי חנוונים בעו ג' שנים שלימות דהיינו ו' שנים – It is the same also by shopkeepers; they require a חזקה of three complete years which is six years of daytime חזקה. The fact that the חנותא do not function at night exempts them from the rule of רצופות, but does not exempt them from the requirement of שלימות. תוספות anticipates an additional question: והא דלא אייתי להא לעיל גבי ומודה רב הונא – And the reason the גמרא did not cite this ruling (of ומודה רב הונא) previously by the previous הונא רב ומודה (concerning באגי דמוברי אתרי). It would seem that the two'ומודה רב הונא' should have been taught together. However after the first הונא רב ומודה, the גמרא went on to discuss a different issue and inserted there מר זוטרא ומודה (or רבא ומודה) and only after this intermission does the גמרא cite this second הונא ומודה רב. Seemingly the two הונא רב ומודה should be together without any interruption [of the other 'ומודה']. תוספות replies: אומר רבינו תם משום דלא סלקא שמעתתא דבתי – The ת"ר says that the reason the גמרא did not mention this רב הונא ומודה immediately, is because the discussion of houses did not arise (and was not concluded) as of yet. It was necessary to first establish that houses require חזקת ג"ש ביום ובלילה; otherwise even חנותא דמחוזא would not require six years. Once the גמרא ascertained that ג"ש ביום ובלילה are required, the discussion of houses continued with the statements of מר זוטרא and רבא clarifying the rulings of ג"ש ביום ובלילה Then after concluding discussing houses, the גמרא stated this last הונא רב ומודה. תוספות offers a similar example:

And there is a similarity to this in the end of פרק הכונס concerning the משנה which states that the חכמים admit to ר"י, etc. This admission of the חכמים to ר"י is not cited immediately after their מחלוקת, but rather the משנה first discusses there other issues (in which there is no מחלוקת between the חכמים and ר"י, and) which do not seem relevant to the 'ומודו'. We can derive from there that occasionally a 'ומודו' can somewhat be postponed.**** ⁴

SUMMARY A חזקה in דמחוזא חנותא requires six daytime years, as opposed to a regular field, etc. which requires only three (daytime) years. Three complete years are required by דמחוזא חנותא since other homeowners require three complete years as well.

THINKING IT OVER

1. If we are to assume the explanation offered in footnote # 2, then, a) why does תוספות even ask that the גמרא should have asked פשיטא, when the answer is obvious, and b) why indeed does the גמרא have to teach us the second ומודה by דמחוזא חנותא, seemingly we can derive it from the first הונא רב ומודה by באגי מוברי?
2. Why is תוספות so sure that הונא רב requires six years by דמחוזא חנותא; from where does he derive it?⁵
3. It seems from תוספות that if there were only shops in מחוזא then three daytime years would be sufficient. However by אתרי דמוברי באגא even if everyone is מוביר, nevertheless three planting seasons are required. How do we explain this difference?⁶

footnotes: ¹ When תוספות uses the term 'פירוש' it generally indicates that he is disagreeing with some other interpretation. Here תוספות is disagreeing with those [see (ומודה ה"ד) ם"רשב] who maintain that three daytime only years are sufficient to establish a חזקה by דמחוזא חנותא. ² This seems to be the same answer the גמרא gives by באגי דמוברי אתרי to explain that it is not פשיטא (that three alternate years are sufficient), since there are those who are not באגי מוברי and always plant their fields. The reason the גמרא here does not ask פשיטא and give the same answer is, because by דמחוזא חנותא it is self-understood that there are many people who live in מחוזא and are not shopkeepers. There is no need to inform us (by דמחוזא חנותא) that we are discussing a particular situation. However by באגי מוברי the original assumption was that all were באגי מוברי. Therefore there is the question of פשיטא, and the subsequent answer that we are discussing a particular situation of מוברי דלא ואיכא דמוברי איכא. See, however, ‘Thinking it over’ # 1. ³ The משנה there first cites the מחלוקת between וחכמים ר"י if באש טמון is פטור or not. Following this מחלוקת the משנה cites other unrelated דינים in which there is no מחלוקת. The משנה concludes י"לר חכמים ומודו that there is a case where באש טמון is חייב. ⁴ This is certainly true in our case where תוספות offers a reason for the postponement (as opposed to the משנה in הכונס). ⁵ See (ו"ס אות) ד"סוכ ,א"מהרש. ⁶ See י (אות עג)"בל. This may also explain # 1.

דלא תחזקו אהדדי—That you should not establish rights of possession against each other

OVERVIEW רמי and עוקבא מר, the two sons of חמא, bought a maid in partnership. To insure that neither should be able to make a חזקה against his brother and claim sole ownership to this maid; they had the maid serve each brother on alternating years so neither would have three consecutive years of חזקה. Our תוספות questions and explains the need for such a scheme and what it accomplished.

תוספות anticipates the following question: ואף על גב דתנן לקמן (דף מב,א) השותפין אין להם חזקה זה על זה – And even though we learnt further in a משנה that partners cannot establish a חזקה against each other. Any possessions which partners own in partnership cannot be subsequently claimed by either partner as belonging solely to him on the basis that he is in possession of this item or property. The reason is that since they are partners, neither of them minds if the object is in the possession of either partner. The question arises here, why did the two brothers have to make this special arrangement in order that neither can claim ownership on the basis of חזקה, since they bought this maid in partnership, neither can make a חזקה on this maid against his brother-partner? תוספות cites an explanation: פירש רש"י¹ דהכא הוזקקו לעשות כן לפי שלא היה להם עדי שותפות – רש"י explained that here it was necessary for them to do this; to divide the servitude of the maid in alternating years, for they did not have witnesses that they were partners. Therefore if one of the brothers would have been in possession of this maid for three consecutive years, he could have claimed that the maid is his, and his brother was never a partner with him in the maid. The ruling that שותפין have no חזקה is only if there are עדים that they were partners. In the absence of such עדים, if one partner makes a חזקה and claims that he is the sole owner, he is the מוחזק. תוספות rejects this answer: וקשיא לרבינו יצחק דאם כן אותו שהחזיק שנה ראשונה יאמר שהוא שלו – and the ר"י has a difficulty with s'י"רש answer for if this is so; that there were no witnesses that the brothers were partners in this maid, then they have not accomplished much by their scheme, because that one that was in possession of the maid for the first year will claim that the maid is entirely his – כיון שאין עדים שיש לחבירו חלק – Since there are no witnesses that his partner owns a share in this maid. A חזקה of three years is required if the plaintiff - מערער can prove that he was the original owner. If however the מערער cannot prove that he is the original owner, then the person in possession now, needs no חזקה to be the מוחזק. He is automatically the מוחזק, since he is in possession. If, in our case, there were no עדים that the brothers owned this maid in partnership, then whoever is in possession of the maid now, can claim sole ownership and is considered to be the מוחזק. He will not be required to give the maid to his brother at the end of the first year. What did they accomplish by alternating her years of servitude?! תוספות offers a different solution:

And it appears to the ר"י that even though there were עדים concerning the partnership, and seemingly there was no need to be concerned about any חזקות, nevertheless they made this alternating arrangement because they did not want that any one of them should be in possession for three years, in order that the partnership should not be forgotten. Presently there were עדים who knew that they were partners. Therefore there was no concern that the one who is in possession of the maid now (in the first year) will claim that it is solely his. However if one would be in possession of this maid for three years, then by that time, (even) the עדים would have perhaps forgotten the partnership. The fact that he is in possession for three consecutive years would lead to the false assumption that he is indeed the sole owner. Therefore by alternating yearly, that would serve as a reminder to all, that they are partners.

SUMMARY רש"י maintains that since there were no witnesses that the brothers were partners therefore either could have made a חזקה. The ר"י argues that if there were no עדים, then whoever was in possession could have claimed ownership. The ר"י maintains that there were עדים, nevertheless they did not want that either should possess the maid for three years, lest people forget that they are partners.

THINKING IT OVER Does the expression דלא תחזקו אהדדי lean more towards either one of the two interpretations given in תוספות?²

footnotes: ¹ It is not clear to which 'י"פירש' our תוספות is referring to. This lends some credence to the notion that there was an earlier manuscript of רש"י on ב"ב that did not reach us. Others maintain that the גירסא should be 'ש"ר', and תוספות is referring to the ם"רשב on ק"ודו ש"ועיי ,דלית ה"ד ב,מב דף. ² See עליות דר' יונה.

אבל כתוב עיטרא קלא אית לה—However, if a contract of division was written up; it is publicized

OVERVIEW An עיטרא is a contract describing the rights of (two) partners in whatever they may own in a partnership. Our גמרא states that if an עיטרא is written up, it is assumed that its content will be public knowledge. No one will be able to claim that he was not aware of the partnership. תוספות will cite a גמרא which seems to contradict this assumption and then resolve it.

תוספות anticipates a question: והא דאמר בהמפקיד (בבא מציעא לט,א ושם דיבור המתחיל לא) גבי אין מורידין¹ לנכסי קטן – And that which the גמרא states in המפקיד פרק, concerning the rule that we do not allow [relatives] of a minor to administrate and descend into the estates of a minor, which the minor received as his share of an inheritance. The reason given there is because we are concerned that if the relative will be administrating these fields, he may make a חזקה in these fields and claim them as part of his inheritance; since this relative is also an heir to these properties. The גמרא there concludes that this rule is valid – לא שנא עביד עיטרא לא שנא לא עביד אין מורידין – Regardless if an עיטרא was written up or if an עיטרא was not written up; in either case we do not allow any relative to descend and administrate the estate of the minor. Even if there is an עיטרא document that clearly states which properties belong to the minor and which belong to the relative, nevertheless we do not allow the relative to administrate the properties of the minor. The question is; we say in our גמרא that if an עיטרא is written up, then the partnership is well publicized so that everyone knows that it belongs to both partners. Why, therefore, by the קטן if there is an עיטרא written up, do we not allow his relative to administrate his properties? Seemingly there is nothing to be concerned about! Everyone knows which properties belong to the קטן! תוספות replies:

Concerning orphans who are minors they were more stringent. Minor orphans are completely defenseless; בי"ד must protect their rights with extra diligence. Therefore even though usually an עיטרא provides sufficient publicity; nevertheless there is an outside chance that in this case with the orphans, the עיטרא will not provide the protection needed. Therefore בי"ד will not allow any relative to administrate the properties of the minor orphans, lest he claim them as his own inheritance.

SUMMARY An עיטרא, while able to publicize a partnership, is however not considered sufficiently reliable in the case of minor orphans. Therefore a relative is not permitted to administrate the properties of a minor orphan, lest he claim them as his own.

THINKING IT OVER Seemingly we could answer תוספות question in a different manner. An עיטרא establishes that there was a partnership. Therefore in our גמרא it prevents the מערער from claiming that they did not make a proper חזקה since they were alternating years. However in the case of minor orphans there is a different concern. Granted that we know that the orphans had a share in the property, however the relative may claim that he bought it from them (after they grew up). The עיטרא cannot protect against this claim. Therefore אין מורידין קרוב לנכסי קטן at all!

footnotes: ¹ The ש"רש inserts the word 'קרוב'.

בשכוני גוואי הואי—I was in the inner apartments

OVERVIEW The גמרא is discussing the following case. The מחזיק had witnesses that he lived in the house for three years. The מערער claimed that during these three years he – the מערער – lived in an inner apartment. [The גמרא does not clarify what the מערער meant by that.¹] The ruling was that the מחזיק had to disprove the claim of the מערער.

והואי לי אורח² עלך – And I (the מערער) had a right of way through you.³ This right of way disqualifies the חזקה. The מחזיק did not use his property exclusively; the מערער used it as well; as a pass through. A חזקה established jointly with the מערער is not considered a חזקה. תוספות qualifies this ruling: ונראה לי שהיה לו עדים שהיה בשכוני גוואי אבל לא היו יודעים באיזה דרך היה יוצא – And it appears to me that this ruling is valid (only) in a case where the מערער had witnesses that the מערער lived in the inner apartments, however the witnesses did not know by which way did the מערער exit his apartment. They were not sure if he exited through the apartment of the מחזיק (thereby invalidating the חזקה), or if he used a different exit; not through the apartment of the מחזיק (in which case, the חזקה would be maintained). תוספות now explains the necessity for this requirement: דאי לא היה לו עדים כלל דהוה בשכוני גוואי היכי הוה קאמר רב נחמן זיל ברור אכילתך – for if the מערער had no witnesses at all that he lived in the inner apartments; but rather it is a claim that the מערער is making without supporting evidence, then how could have נחמן רב ruled, saying to the מחזיק go verify your consumption; prove that your חזקה was not invalidated by the מערער passing through your house, this cannot be – דאטו יש להם לעדי חזקה לידע שלא היה המערער באותו בית כל שלש שנים – For is it indeed a requirement that the witnesses, who testify on the חזקה, should know that the מערער was not in the house of the מחזיק the entire three years! It does not seem reasonable; for if that indeed were the case, then it would turn out that – ואם יאמר המערער הייתי עמך שני ימים ואין לך שלש שנים שלימות – if the מערער will claim I was with you for two days in your house and therefore you do not have three complete years of חזקה –

And the witnesses do not know for sure whether the מערער was there or not; then it would turn out that the מחזיק would lose his חזקה and property because the witnesses cannot substantiate that the מערער never trespassed into the domain of the מחזיק. This seems too extreme.⁴ Therefore it is more reasonable to assume that the מערער had עדים that he lived in the inner apartments. The only question is how did the מערער exit his apartment; through the house of the מערער or an alternate exit. Therefore since this is a reasonable doubt it is up to the מחזיק to resolve it; otherwise he has no חזקה. If however the מערער claims that he spent time in the s'מחזיק house, but has no evidence to support it, the חזקה will be valid.

SUMMARY A right of way by the מערער through the property of the מחזיק is sufficient to invalidate the חזקה. However there must be at least reasonable doubt that the מערער had this right of way. In our case the מערער needs to prove that he lived in an inner apartment; even though he may not have exited through the s'מחזיק property, it casts sufficient doubt on the חזקה to invalidate it, unless the מחזיק proves otherwise.

THINKING IT OVER Why should a right of way invalidate a חזקה? Perhaps the מחזיק bought the house with the stipulation that the מערער has a right of way.⁵ How can תוספות compare a right of way to being in someone’s house (for two days!)? ⁶ A right of way means that you may trespass this property at will; however being in someone’s home for a while merely indicates that you were his guest.

footnotes: ¹ The (אנא ה"ד) ם"רשב explains the argument of the מערער to be as follows. I lived in the inner rooms and I would pass through your home (to exit) and I would use, together with you, the outer room, where you lived with my permission. That is why I did not protest ט"י ק"ס מ"ק 'סי מ"חו ע"סמ 'ועי (See however the רא"ש סי' ד' ה'). ² The הגהות הב"ח amends this to read לי דרך עליך. ³ It seems that תוספות disagrees with the ם"רשב (see footnote # 1), and requires only that the מערער claim that he used the s'מחזיק house as a pass through. However the מערער need not claim that he used the outer room for his other needs. See ‘Thinking it over’ # 1. ⁴ See ‘Thinking it over # 2. ⁵ See footnote # 3. See (ב 'סעי) ז"ע אות ד"סוכ 'ועי 'וכו ן"רמב. ⁶ See footnote # 4.