Turn the book. Gemara tells a story: רבה בר שרשום נפק עליה קלא דקאכיל ארעא דיתמי. A rumor went out that Rabba bar Shershom is eating, is holding on to a field that belongs to יתומים. It belongs to orphans that their father died, and he has a field and the field, the rumor came out, is not his. It belongs to them. אמר ליה אביי, so Abaye said to him, אימא לי איזי, tell me, my friend, גופא דעובדא היכי הוה, tell me what's going on. What's happening here? אמר ליה, so he said, \"I'll tell you the truth, I'll tell you the story. ארעא במשכנתא הוה נקיטנא מאבוהון דיתמי. This field belongs to the belonged to the father of these orphans. I had it as a משכנתא. It means that I lent their father money, and he gave this to me as collateral, as a משכנתא. And there are two types of משכנתאות. This is the other type of משכנתא which is called a משכנתא דסורא. That means like this: sometimes you have a משכנתא that you hold on to property, that when you give back the loan, you give back the property. Then there's another type of משכנתא that you hold the property and you reap the benefit of the property, and when you get enough money that covers the loan, you give it back. That's a different type of משכנתא. So, he says, this field came to me In other words, the rumor is true, the rumor is right. It's not my field. It belongs to their father, and I hold it as a משכנתא. והוו לי זוזי אחריני גביה, but I had other money by him. So what happened like this: he owed me money, so I took the field as a משכנתא, but then besides the money that this field was the משכנתא for, he owed me other money. ואכלתיה שני משכנתא, I finished using up the years of the משכנתא, so really what should I have done? Given back the field. But since I had other money that he owed me, ואמינא, so I I said to myself, אי מהדרנא לה ארעא ליתמי, if I'll give back the field when the time is up, I'll give them back the field to these יתומים because it's their father's and they inherited, ואמינא, and I'm going to tell them, דאית לי זוזי אחריני גבי אבוכון, and I'm going to come to them and say now the field is gone back because that loan is up, but there's another loan that I would like you to pay on behalf of your father, so what will happen? אמרו רבנן, the

רבנן said, הבא ליפרע מנכסי יתומים לא יפרע אלא בשבועה. Whenever you come to collect a loan from the property of orphans, you have to swear. The חובת הדין you have to swear, and therefore, I will have to swear. So I have a better eitzah, he said. So I thought to myself, אחבשינהו לשטרא דמשכנתא, I'm going to hide the שטר that this is a משכנתא. In other words, I'm not going to say it's a משכנתא, I'm not going to give it back, ואיכול שיעור זוזי, and I'm going to continue eating the amount of money that is owed on the second loan, and and I'm going to טענה and then I'll give it back. And when I give it back, what am I going to say? When I give it back, I'm going to tell them the truth. And I'm going to tell them the truth that it's not my field, the field belongs to the father, and I ate it, and I gave it back, and the reason I held it longer was because of this. Now the שאלה, will they believe me? דמיגו דאי בעינא אמינא לקוחה היא בידי, מהימנא, since I could have said The case was that he had it for three years. So he had it three years, and he had a chazakah. So had he said that, \"I bought it,\" no one can say anything, he would keep it. So since I could have said that I bought it, I would have been believed. כי אמינא דאית לי זוזי גבייכו מהימנא. So if I'm going to טענה that the reason I held it because you owe me other money, and I wanted to take out the profit the money, I'll have to be believed. That's why I held it. אמר ליה, so Abaye said to him, לקוחה היא בידי לא מצית אמרת. Your whole taanah is you have a migo, you could have said that, \"I bought it.\" You couldn't have said it. Why not? דהא איכא קלא דארעא דיתמי, because there is a kol, there is a rumor that it's not yours, that's why you called me. So since there is a rumor like that, you cannot טענה לקוחה היא בידי, because this rumor contradicts the טענה לקוחה היא בידי. So since you can't טענה לקוחה היא בידי, you don't have a migo. So your migo is eroff. So therefore, אלא, what I tell you to do, זיל אהדרינהו ניהלייהו, give them back, וכי גדלי יתמי, אישתעי דינא בהדייהו, and wait till they grow up, and when they grow up, you'll come and you'll have a Din Torah with them, you'll claim the money and you'll claim your other other loan. In other words, the other loan will have nothing to do with this, and you have to give back the field. This is the maaseh. Now here we have like this: what did Abaye say to him? \"You could not say לקוחה היא בידי.\" Why? Because there is the rumor.

Comes the Rashbam and the Rashbam explains what it means: אמר ליה אביי, הא דחשבת בדעתך, this that you thought in your mind, דאי בעינא טעיננא לקוחה היא בידי, that if I would want, I could have said I bought it, כיון דידיע מילתא דבמשכנתא נחית בה, so I'm telling you, he says, since it's known, there's a rumor, that you got it's not yours, that you only got it as a משכנתא, לא מצית למיטען לקוחה היא בידי. You cannot taanah that you bought it. דהא איכא קלא ועדות דארעא דיתמי היא, because there is a rumor and witnesses that this is יתומים's, והשתא שלימו שני משכנתא, and the days of the משכנתא are up, וכיון דידעי דאיכא קלא עלך דארעא דמשכנתא נפק בה, since there is kol that this field is a משכנתא ולא לקוחה, אין לך מחאה גדולה מזו. The fact that there is a rumor is the biggest mecha'ah. We learned the whole time that when you have a chazakah, in what could a person do who sold the field who didn't sell the field, who is the original owner, who's afraid that a גנב is going to move into my let's say I I had to leave town. So, the only עצה is to avoid him a chazakah is if I make a mecha'ah. Here there is a mecha'ah. The fact that there is a kol is a mecha'ah. And therefore, you had had you taanah'd it לקוחה היא בידי, you would have not been believed. And what normally happens when you make a mecha'ah? It stops it. And therefore, what do we tell the guy? הוי לך לזהורי בשטרך. You should have been careful with your shtar. Like this, he could taanah, \"I had that field for three years and that's why I don't need a shtar.\" Normally, if I come to a person, \"This field is mine,\" and you answer you bought it from me, we tell you, \"No. Where's the shtar?\" So, till three years, אנא חזי אבל if you don't have a shtar, you lose it. After three, you don't have to be careful with the shtar. If I make a mechah, then even after three years, you have to be careful for another three years. So, since there is a kol, that's like a mechah, so you had to be careful with your shtar. You don't have

a shtar. Anyway, the bottom line is that the Rashbam says very clearly that he told him that had you ta'anah'd it לקוחה היא בידי, you would not have been believed. So, your migo is lost. הלכך זיל אהדר ארעא, give it back, and that's all. And then כי גדלו יתמי Let's read the whole Rashbam, because it's noge'a. And therefore, give back the field now, and they say when they will become older, שיהיו בני מעבד מצוה, when they will be the age of bar mitzvah, when they are obligated to keep the מצוות, דהיינו מבן שלש עשרה שנה ומעלה, from 13 years and on, דהוו חייבי מצות, and they'll be חייב במצות, אשתעי דינא בהדייהו, then you will have a din Torah with them על שאר חוב שיש לך עליהן, on this other shtar if you have another money. So now, you can't ta'anah with them. Why? Because they're under bar mitzvah, and under bar mitzvah you can't collect, so wait till they come after bar mitzvah, you'll collect. But now you can't do it. This is What's This is what he's saying, huh? Okay. We'll see. We'll see in a second. We'll We'll see in one moment. Okay. Tosafot: אם לקוחה היא בידי לא מצית אמרת. When Abaye said, \"You couldn't ta'anah that it was bought.\" So, Tosafot says like this, אף על גב דאי הוה אמר לקוחה היא בידי הוה מהימן. Tosafot says, had he ta'anah'd לקוחה היא בידי, he would have been believed. Why not? Tosafot says, מכל מקום, לא הוי מיגו. What he meant to say to him, \"You ta'anah that you have a migo. You could have ta'anah'd לקוחה היא בידי, you wouldn't believe it's a migo. That you don't have.\" הכא פירושו, this is the peshat. The לא מצית אמרת, when he says you couldn't have said lekuchah, it doesn't mean if you would have said it, you wouldn't have been believed. But you want to use it as a migo, and a migo means, \"I could have ta'anah'd that other ta'anah.\" You couldn't have ta'anah'd it. Why? דהיאך אישתא יכל להעיז פניו ולומר כן? You wouldn't have the chutzpah to say it, כיוון דנפק קלא, since the קול went out. Therefore, אין כאן מיגו, because we have a rule like this: מיגו דהעזה לא אמרינן. If a person ta'anah's something, and we say like this, \"I have a re'ayah that you're saying the truth, because you could have ta'anah'd a different ta'anah, and if you would have been a liar, you would have ta'anah'd a better lie.\" But if that other lie is a bigger chutzpah, then it's not a migo. Now, it doesn't mean that if you ta'anah'd the other ta'anah, you wouldn't be believed. Could be had you ta'anah'd it, you'd be believed. But we're saying now that you're a liar and you should have lied that, \"No, I'm a liar, but I'm afraid to lie the other lie.\" So, but it doesn't mean that if I would ta'anah it, I wouldn't be believed. And that's the machloket between the Rashbam and Tosafot here. The Rashbam learns that in this case, had he ta'anah'd it lekuchah, he would have not been believed. And therefore, it's not a migo, because a migo is, if I would ta'anah the other ta'anah, I would be believed, so believe me in this. He would not have been believed. Comes Tosafot, and Tosafot says, \"No! Had you ta'anah'd the other ta'anah, you would have been believed. But what he meant to say is, you want to use it as a migo, as a migo you cannot use it, because it's a מיגו דהעזה.\" Now, what is the machloket between the Rashbam and Tosafot? What's the sevara behind it? Especially, the she'eilah is based mainly on Tosafot. Why would Tosafot take the Gemara out of its lashon? When the Gemara says you wouldn't be believed, אמר ליה: לקוחה, לא מצית אמרת, which is mashma you couldn't say it, which means you wouldn't believe. Okay, he taytsh'es in לא מצית אמרת, you couldn't say, you wouldn't have the chutzpah to say it. Well, it's almost like עקירת הכתוב מן ה. The Gemara should have said, לא יכולת להעיז. If he means to say it's a מיגו דהעזה, it's a migo which is a chutzpah, and a person can't do it because you don't have the chutzpah, if it's a lie, it should have said that. But you could kvetch in, but the she'eilah is, what is the basic machloket between the two? Now,

there are a lot of ways you could say the machloket, but they're all basically a dochak. And let me just mention a few possible ways of explaining the machloket, and we'll see how really it's a dochak. One way to explain it is that the machloket between the Rashbam and Tosafot is when did this rumor go out? According to the Rashbam, the rumor went out בחיי האב, when the father was still alive. When the father was alive and he had the field, there was a rumor that this guy has the field of this man. Then the father died. And when Abaye called Rabbah bar Shershom, it was already after the father died, but the rumor came out before. Now what does that mean? Therefore, since the Rashbam explains that the rumor is like a mecha'ah, So if it came out in the in the lifetime of the father, it's a mecha'ah of the father. So it's a mecha'ah of the owner. That's called a mecha'ah. And you could look at it even two ways: or the rumor itself is a בחינה of a mecha'ah. What does a mecha'ah mean? A mecha'ah means that the owner says, \"Be careful. It's my field and this guy is sitting in my field.\" So if there is a rumor out, this is in the place of a mecha'ah, or better said, probably the rumor came as a result of his mecha'ah. אמת דהרא״ש, פארקערט says that. The Rosh uses that lashon, that we assume that the rumor came as a result of the mecha'ah. Huh? No. First I'm saying, could be he takeh never made a mecha'ah. Could be the father didn't make a mecha'ah, but the fact that a rumor came out is as if he made a mecha'ah. The result is the same. How come the result is coming to be the same? No, but the fact that there was a rumor. The fact The whole idea of a mecha'ah is that I have to be careful with the shtar. No, no, no, no, that's what the Rosh says. What Or you could say the rumor didn't come The father never made a מחאה. The rumor itself is the מחאה. And since it was done in the lifetime of the father, so it's as if the father made a מחאה. Or you could say farkert, the rumor is the מחאה How did the rumor come out? Because the father, wherever he was, made a מחאה. And he takeh uses that לשון. What does it mean that there's a rumor? I mean how do you know that it's But but that's people talk. All the neighbors. Everybody knows. Everybody knows, people are talking. The next thing I know somebody else Anyway, this is what the So, according to the Rashbam, since the rumor came out בחיי האב, it's a מחאה. Tosafot will learn that the rumor did not come out בחיי האב. The rumor came out after the father died. Now, if it came out after the father died, there was no מחאה from the father. Now, them, the יתומים, don't make a מחאה, they don't know. It's not their field. They didn't They don't know, so it's not called a מחאה. So according to Tosafot, if it's not called a מחאה, then why is the חזקה no good חזקה? Then why couldn't he say, \"I bought it\"? So according to the Rashbam, the Rashbam learns that had he said, \"I bought it\", he wouldn't have been believed. איי, he has a חזקה? It's not a חזקה, because there was a good מחאה. משא״כ according to Tosafot, Tosafot learns that the מחאה came out later, the rumor came out later, so mimela there is really no מחאה. So had he טענ׳ט, \"לקוחה היא בידי\", he would keep it. So Tosafot learns the pshat differently. So what does the Gemara mean that you have no migo? It's a bigger chutzpah. You would never טענ׳ it, because it's a chutzpah. But not that he can't. There's no argument on הלכה, only what the Gemara Only what the Gemara is talking about. The שאלה is What was that last point you made? What? So according to Tosafot, the pshat is that if had you טענ׳ט it, you would have been believed. But we don't assume you would have the chutzpah to טענ׳ it. Could be you're טאקע a liar, we don't know you're saying the truth. The reason you lied this rather than that, because that's a bigger chutzpah to lie. You'd rather lie this lie, and the other one you don't have the guts to say, that's all it is. Does it have to do with the fact that they're יתומים? You don't have the guts to do it so much so that they know that? Or to anybody? No, no, but still, to say to say something, \"I bought it from you\", memeila if you say that really it's not mine, but you owe me other money, fine. But to say on a field, \"I bought it\", that's that's hard That's how Tosafos learns. It's hard to say this pshat, I'll tell you why. Because if it's a מחלוקת במציאות, where do we see in the Gemara either way? Where do we see an indication in the Gemara whether it came out בחיי האב or not? In other words, what's מכריח תוספות to say that it's talking in a case where it came out, the rumor, after the father died? And memeila, you cannot say that he would not be believed, and memeila you have to say that it's not a meigo. And what was מכריח? You got to find We've said a sevara, but you need a sevara for the sevara. I mean there's no הכרע for this. You could say a different thing. How do you know that it's because of a sevara? Maybe they're סוברים in halacha? It's a halacha. Why? The she'eilah is, what would be the argument in halacha? Why would they argue in halacha? That's what we're asking. The she'eilah is whether לקוחה בידי would be believed here or not. That's a machloket. The she'eilah is, why do they argue this halacha? So I'm saying, trying to say sevarot. You could say one sevara is that they're not even arguing in halacha, they're arguing in the metziut. Now I'm saying that's not such a פשוט׳ע זאך, because what would be the reason. Now I'm saying what would be the other reasons. You could say there's a machloket whether a whether a kol is enough mechaah. That itself is a she'eilah. It's a she'eilah in halacha. Since the father did not make a mechaah, normally mechaah is we have edim who say that the father, or I mean the the original owner, the מערער, we call him, said in front of two עדים, \"You should know that this guy is sitting in my field and I plan to call him to din Torah.\" Here, obviously, there was no such thing. And therefore, it's only a rumor. Is a rumor enough to be a mechiah? That's a machloket, the Rashbam and Tosafot. The Rashbam holds a rumor is enough, Tosafot not. But the she'elah is, hu gufa, what's the sevara behind that? Why would we look at that? You could say another vort here: if you look medayek in the לשון of the Rashbam, it's a משונה לשון. He says that you wouldn't be believed had you said לקוחי, \"דהא איכא קלא ועדות דארעא דיתמי היא\". So could be that Rashbam learns that there were not only a קול, but עדות. Tosafot says there are no עדות. And if there are עדות, it's a mechiah. It's a mechiah, you couldn't say לקוחה. According to Tosafot, there are no עדות, so it's not a mechiah. It's fine, but hu gufa, we're just answering, why would we say there are עדות here? Where do we take here this מציאות? It's again a מחלוקת במציאות whether there were עדות or not. Where do we see in the Gemara any indication? You could say that a machloket is a different machloket. whether מיגו דהעזה אמרינן or not. The Rashbam holds, because there is a machloket in the ראשונים. Some say that you do say a מיגו דהעזה, that if I טענה a טענה, and I could have טענה'ד another טענה, a better one, and that one was a chutzpah, we still give him the migo. So if the Rashbam holds מיגו דהעזה אמרינן, so he can't learn like Tosafot. Tosafot says מיגו דהעזה לא אמרינן, so Tosafot can learn this peshat. But again, where do we see an indication here for this machloket? Or you could say another vort, the machloket is whether this is called העזה or not. Could be both hold מיגו דהעזה לא אמרינן. Is this העזה? Even according to Tosafot holds that this is העזה, and the Rashbam holds not. Now I'll show you, even according to Tosafot, it's not so simple whether it's העזה or not. Even according to Tosafot, it's a machloket between Rabbah bar Shershum and Abaye. What did Rabbah bar Shershum thought he has a migo? He knew the דין מיגו ד if there is a דין מיגו דהעזה לא אמרינן, he knew it. What did Rabbah bar Shershum think? It's not a העזה. I could have the migo. Comes Abaye and tells him it's not. So could be that Rashbam says that I hold so much not a העזה, I don't believe that Abaye held like that. Just like ר Just like Tosafot holds peshat in Rabbah bar Shershum, so the Rashbam says that sevara of Rabbah bar Shershum is so clear that I can't believe Abaye said it, so obviously it must be a different thing. But again, it's it's hard to see In other words, all this needs still a piece more ביאור behind it all. It's all a bit דחוק to say that the machloket is מיגו דהעזה, because most most Rishonim hold מיגו דהעזה לא אמרינן. And the machloket is pashut, is this called a העזה or not? It's not mashma from the Rashbam that this is He doesn't talk about it at all. It must be something more here. So we're need really what we need is to answer the shaila, why does the Rashbam hold that in this case had he said לקוחה היא בידי he would not be believed, and according to Tosafos, had he said לקוחה היא בידי, he would be believed? What was the bigger migo he could have done? He could have said לקוחה היא בידי. All right. Ach al pi chen he said that it's not mine, but I have he owed me all other money, that's why I'm holding it. He has a migo, he could have said לקוחה היא בידי. So according to Tosafos, had he said לקוחה he'd be believed. He just wants to use this as a migo, we tell him he can't, but he would have been believed. And the Rashbam says, \"No, he can't even say so, he wouldn't be believed.\" Now, what's the machloket? Then there's another machloket, seemingly a machloket in the Rashbam and Tosafos. Tosafos says here, \"ונראה דרבה בר שרשום סבר כרב הונא בריה דרב יהושע.\" Which is like this It's an arichut, but the Gemara says later on in דף קע״ד עמוד א׳, a כלל, אין נזקקין לנכסי יתומי, that when there is יתומים who ירש'ן, someone comes and claims, we don't get involved. You tell Not nothing You mentioned

shevuah, it has nothing to do with a shevuah. You don't get involved with יתומים קטנים. You don't get involved. הבא ליפרע מנכסי יתומים has nothing to do with קטנים, but this is קטנים. If the יתומים are קטנים and you want to come, beit din says, \"We don't get involved. You have to wait until they grow up.\" What's the reason? There's a machloket between Rav Pappa and Rav Huna brei de-Rav Yehoshua, what is the reason? Okay. Rav Pappa holds because פריעת בעל חוב מצוה. To pay a loan is a mitzvah. Since they're קטנים, they don't have a mitzvah. So how can you come and claim the loan? So you have to wait till they grow up. That's the reason. Rav Huna beriah deRav Yehoshua says a different reason: משום צררי. We're afraid that the father maybe paid the loan. Obviously he didn't pay the loan, maybe he gave a משכון to you. Maybe you have some kind of thing that is payment for the loan. And since they're קטנים, they they can't defend themselves, so you have to wait till they grow up. When they grow up, then they'll get themselves a lawyer, I don't know what they'll do, but that that's the reason. So Tosafos says that in our Gemara, Rabbah bar Shershom must have held like Rav Huna beriah deRav Yehoshua, that the reason that we don't get involved with יתומים is because of צררי. Why? If we would hold like Rav Papa, then we have a big problem with Rabbah bar Shershom. What did Rabbah bar Shershom say? \"I don't want to be מודה that the field I wanted to keep the field in order to do what? So I should collect now.\" What kind of right do you have to collect now? They're קטנים. You want Whichever way you're going to go about it, they are קטנים, you're collecting a חוב of קטנים. And קטנים don't have a mitzvah. If you say the reason is משום צררי, according to Rav Huna beriah deRav Yehoshua, it makes sense. The whole reason you can't get involved with קטנים because we're afraid he paid, but he himself knows that he never got paid. So the migo is to be believed, but he took the field. He says, \"I'm taking the field because I know I wasn't paid. Now I want to take the money.\" Because be'emet, according to Rav Huna beriah deRav Yehoshua, they have to pay, and we would get involved with it, we just are afraid maybe But according to Rav Papa, he he even if he knows that he didn't get paid, they pashut how could you go take away their money when they have no חיוב? So therefore, Tosafos says, Rabbah bar Shershom definitely holds like not like Rav Papa. Now, in the

piece of Rashbam I read before, what did Abaye say to Rabbah bar Shershom? You have no migo, okay, and therefore what should you do? Give back the field and wait till they grow up. Why do you wait till they grow up? So Rashbam says, \"זיל הדר ארעא ליורשין, דהשתא, וכי גדלי יתמי שיהיו בני מעבד מצוה.\" Wait till they grow up, they'll be חייב במצות, דהיינו בן שלש עשרה שנה ואילך, they're חייב במצות, then you will go and and take it from them. So obviously he hakt arayn here that the reason why you have to wait is because of מצות. But how could you say that the reason was that he that Rabbah bar Shershom says it? Now the truth is if Rashbam says In Abaye. In Abaye. But what, do we want to make a machloket between Abaye and Rava bar Sheshum in this inyan? Why, why do we make the machlokes in here? We don't come up with a, if you, if Rava bar Sheshum definitely didn't hold like that, why come up to say that Abaye holds like Rav Papa? Why make a new machlokes here? Why does Rashbam have to throw that in? Maybe that's why, that was the argument. Maybe that's the argument between them, Abaye held like Rav Papa and... No, it has nothing to do with our sugya. Our sugya is a different sugya, whether he's allowed to keep this field or not. It's nothing to do with the reason why you have to wait until he become 13. And Rava bar Sheshum definitely, the way Tosafos is מסביר, holds that the reason is because of צררי, because we're afraid he got paid, not because of. So why say that Abaye argued with him? I mean, why make a machlokes for no reason? We try to avoid מח-, stam azoy an Abaye and Rava bar Sheshum which Rashbam didn't have to. So obviously it's not a machlokes here. So it's mashma according to the Rashbam that this Gemara fits even according to Rav Papa, which even about Rava bar Sheshum. So it's as if Tosafos says clearly Rava bar Sheshum holds like Yehuda brei d'Rabbi Yeshuah, and the reason why you have to wait is because of צררי, not because of mitzvah. And that's why Rava bar Sheshum said that if I am taking it, I have a right to take it. And the Rashbam says no, that Rava bar Sheshum could hold like Rav Papa, but the reason is because of waiting for mitzvot. So what the reason of the machlokes is, but besides that, the kushya of Tosafos is a good kushya on the Rashbam. How could Rashbam hold that Rava bar Sheshum holds that the reason is because of mitzvah, if there is a mitzvah, then how did he plan to take it now? You can't take it from them now. They're still not בני מצוה. So it's a kushya on the Rashbam, Tosafos's kushya is a kushya on the Rashbam. To answer this, we could say like this. There is a Ketzos. The

Ketzos brings a Mahari"t and argues on the Mahari"t. The she'eilah is, it's another she'eilah, but it'll have a effect on our Gemara. Can you be mesh'abed a דבר שלא בא לעולם? Can I be mesh'abed to you something that's not there yet? Mesh'abed to, and then, commit, and that it should דיחול, שעבוד, דבר שלא בא לעולם. Comes the Mahari"t, and the Mahari"t says that you could. Why not? Because the shi'abud is not on the object, the shi'abud is on the person. If I'm mesh'abed, I say like this, I'm going now to catch fish. I didn't go yet, I don't have them yet. And I'm telling you I'm mesh'abed anything I catch will become yours, right? So can I be mesh'abed? So the Mahari"t says yes. Why? Because the shi'abud is not on the fish, the shi'abud is on me. That I am mesh'abed myself that whatever I catch, I will give you. I'm a בא לעולם. Ketzos argues, obviously each one brings re'ayot to this thing, and the Ketzos says no, the shi'abud is on the karka, the shi'abud is on the chefetza. When I'm mesh'abed something, this is mesh'ubad to you. According to the Mahari"t, this has nothing to do with you. If I'm mesh'abed this, bichlal, the result is דבר שלא בא לעולם, but it's noge'a to what the whole geder of shi'abud is. It's not נוגע to דבר שלא בא לעולם, that's the result. The מחלוקת is what is a שעבוד? According to the Mahari"t, a שעבוד is that this is משועבד to you, if I own something, it's not yours. If it's yours it's yours, but if it's mine, and it's משועבד to you, the pshat is that this is משועבד to, you have a certain ownership over this. That's the גדר שעבוד. That's what the Ketzos says. Mahari"t says no, this is mine, nothing to do with you, I am obligated to give this to you in a certain case. The result of this מחלוקת is, and that's how we start, is if you hold that the שעבוד is on the חפץ, then if it's לא בא לעולם, there's no שייכות of שעבוד because the thing is not in the world. If the שעבוד is on me, so yeah, I'm around, and I'm משעבד that when I will get it, I will give it to you. So that's the מחלוקת in, so come on, here look, we

have a general מחלוקת, what is the גדר of שעבוד? Is it on the thing or not? If you hold the שעבוד is on the person, then like this: קטנים, לאו בני מעבד מצוה. The חפץ, the קרקע that belongs to the קטנים now, that they ירש from the father, has nothing to do with the other person. It's only on them. If it's on them, and they are not בני מעבד מצוה, so finished. So he טענ'ט, he wants to take the loan from the field, because after all, the נכסים are משועבד to me. What kind of, the נכסים are nothing. Any time נכסים are משועבד, is because the person is מחוייב to give you, so ממילא you take the נכסים. Here the person isn't מחוייב. So according to that, he had no right of taking this money, because they have no אחריות to give, there is nothing. On the other hand, if you hold that the שעבוד fell on the חפץ, so באמת the חפץ is mine. So אדרבה, I have no right to come to the יתומים and say, \"Give me that,\" because they, they say, \"We have nothing to do with you.\" But if I have it already, am I doing something wrong? And that's the מחלוקת of the Rashbam and Tosafos. Tosafos learns that if he would hold that לאו בני מעבד מצוה, he couldn't have taken it. If he would hold like Rav Pappa, he couldn't have taken it, because Tosafos goes with the שיטה that the שעבוד goes on the person. And Tosafos says clearly that Rava bar Shershom had no right to take take this money now, even though he had the field already, because Tosafos says if he would hold the סברא of not being בני מיעבד מצוה. So that's what Tosafos is מכריע, that how does Rava bar Shershom hold? Probably the other reason, because had he held the reason of מצוה, he couldn't take it. And the Rashbam holds no, no problem. Takeh he couldn't come to them and take money, he couldn't come and call them to din Torah, because they're not מחויב to give, they have nothing. But he's not calling them, he's talking with the field. The field is his, and the field has a שעבוד on it. So he's allowed to take it, as long as he doesn't come... And that's why Tosafos says that this fits even according to Rav Pappa, that Rava bar Shershom could have said, \"I'm taking the field because I have a right to.\" If you hold like that, that this is a מחלוקת between the Rashbam and Tosafos, we could go and explain the other מחלוקת also, takeh a little bit more difficult. What we explain the first שאלה, this I explained the second מחלוקת, it's actually an earlier מחלוקת, but it's the second one I mentioned. The other way you could explain the other מחלוקת is whether in our case he could have said לקוחי בידי, which means the שאלה is

whether the fact that there was a rumor, a קול, is a מחאה or not. That that that's what we said, that's the שאלה here. According to Tosafos, according to the Rashbam he couldn't, and according to him he could. The שאלה is like this: What was the rumor? The rumor was that he got it as a משכנתא. That the rumor, that it's not his field, he didn't buy it, he got it as a משכנתא. What's a משכנתא? A משכנתא means I have a shibud. So this thing is meshubad to me. It's not mine, it's only meshubad to me. Now, automatically it falls under the she'eila. What is the pshat? Is the pshat the field is meshubad to me, or is the pshat that the person who owns the field is meshubad to let me have the field? If we learn that the shibud is on the field, then, and that's the rumor, the rumor is basically, it's going to sound very weird when I say it, but I'll explain it with more ביאור in a moment, I just want to give the yesod. The rumor is the exact contradiction to my ta'anah. His ta'anah would have been לקוחי בידי, that means my ownership is full. Comes the rumor and says, \"Your ownership is not full. Your ownership is only limited. You have a shibud.\" If the shibud is on the chafza, so your ownership is limited. So it's as if the rumor is a direct contradiction to what I am to'en, to what the the inyan of chazakah is. If you hold the shibud is not on the chafza, so the shibud doesn't deal with the same thing, so I'm saying, I'm saying I own it, comes the the other the other one and says that he has a shibud. And that is not a direct contradiction to what I'm saying. איי, לכאורה it's a bigger contradiction, it says you have nothing to do with it? So I want to explain like this, it says in the rishonim here, many of the rishonim say here, it's not clear until I explain it, many of the rishonim say here that be'etzem, the rumor is not really a re'ayah it's not his. Because after all, could be originally he got it as a mashkanta, and later he bought it. What's the re'ayah that he didn't buy it? So the fact that we know that he got it as a mashkanta, so memeila like this: The rumor that it's a mashkanta is not really a mechah against the fact that he bought it. Not really. Nevertheless, if we look at it that the mashkanta is the pshat, that it's not, it's yours in a limited fashion, then the pshat is that bediavad, after all, we do accept the rumor as as a contradiction, otherwise what's the whole she'eila here? The rumor came out that it's not his, he claimed, everyone, he sat in the field as if it's his, came a rumor that it's not his. So the Gemara does assume it's a contradiction, but be'etzem it's not a contradiction. It just normally, if you got it as a mashkanta, and as long as we don't hear anything different, we assume it's a mashkanta, but be'etzem it's not a contradiction. But on the other hand, so we have two inyanim here. Depends what the idea of mashkanta is talking about. If the idea of mashkanta is talking about the ownership of the field, how much ownership you have, then it's called a contradiction, and mimela it's a mecha. If you hold that the mashkanta is not anything to do with the ownership of the field, the mashkanta is just a דין בנוגע the owner, the original owner, what's does he have to give it to me or not, then it's not talking against what I'm saying. And therefore, it goes l'shitaso. The Rishbam who we said before, that he holds that the the the the the shibud is on the chefetza, it's not yours, it's not a problem because it was never to be yours because it's not on the field, it's on the loan on the loveh, on the person, and you maybe bought it. We don't know what you did, who says that you didn't buy it? So again, according to the Rishbam who holds before, like we said before, that in this case it's on the chefetza, it's on the field, and therefore he said that he had a right to take it before, says that contradicts. So the rumor of the mashkanta is on the field, so you're saying the field is yours, and the rumor says the field is not yours, so he holds that's called a mecha. And if it's called a mecha, had he טענ'ט לקוחי בידי, wouldn't accept it. שאין כן Tosafos goes l'shitaso, and Tosafos says that it's not on the field, it doesn't even talk about the field, talks about the person, how much he gave it, how much he has to give. And as far as the field is concerned, be'etzem could be he bought it. The fact that originally he had a shibud, maybe he bought it. Who does it say he's not? So if you look at it that way, the mecha is not that there, a kol is not a mecha. Because not a mecha, why couldn't he טענה לקוחה בידי? Tosafos says yes, avadai could he טענה לקוחה בידי. Ai, why does he not have a migo? Because when a migo, it's a chazakah. But it's all goes l'shitaso. Now how could it be, or how could it be something that was on the on the chefetz itself? Because how it's not normal for someone to say he owed me I here I have I'm using this field because he owed me money, and then that gets eaten up, but he also owed me other money, so I'm going to keep possession of the field. Since when? Unless that was the actual thing that No, he's modeh that it's not. The she'eilah is that he wouldn't be modeh for this. The whole machloket here is, had he not said anything, had he continued keeping the field, saying it's mine, what would be the din there? So Tosafos, so Rishbam says he wouldn't he wouldn't have been believed. That's what Abaye told him, you're mistaken, he wouldn't have been believed. And Tosafos says he would have been believed. So the question is why, what the reason is why he would have been believed. So the basis of the machloket is there is a kol, as we told, there's a kol. So the she'eilah, what does that kol do? So according to Rashbam that kol spoils your chazakah, and Tosafot says it doesn't spoil, just makes him, it's a chutzpah, but not that it spoils chazakah. So I'm saying why, because according to the Rashbam, is the kol is a direct contradiction to your chazakah. And according to Tosafot, it's not a direct, like a contradiction. And therefore, as long as not a mecha'ah, not a mecha'ah, you you could be believed. Based on this sevara, whether it's talking about, no, this sevara that we're saying from the Rishonim, that be'etzem it's possible that after, originally it was a משכנתא, and afterwards he bought it, that sevara itself, I'm using it for this, could be another way of explaining the machloket. That could be a, using that in itself, not connected to what we said before, just that sevara could be another way. What could be the other way? There's a machloket later on in the Gemara, which in the Rishonim it talks about what the pshat in the Gemara, but it comes out that there is a machloket: What is the geder of a mecha'ah? How a mecha'ah works. If a person comes and says, the original owner says, I know he is in my field, but it's not his field, because לפירות הורדתיו. You know why he's eating the פירות? How do you make a chazakah? How do we learn the whole time? I move into a house, and I reap the benefit, whether it's eating the fruit of the trees, or eating this, or living in the house, whatever benefit. So the מערער says, I let him come into my field to take the פירות. לפירות הורדתיו, I told him to go in to take my פירות, it doesn't mean that the field is his. And that's the lashon he says before the three years are up. Is that a mecha'ah or not? Seems like one. But it's a machloket. One sevara is, that it's a mecha'ah, why not? That's exact The other sevara is, he has to say that now he's stealing my fruit. He says, if he has to say he's stealing my fruit, not לפירות הורדתיו, he has to say he is eating it בגזילה, that's a mecha'ah. What if he says, first of all I let him go on my field, and later on, after there was trouble? Why couldn't he say, he came to my field, and I'm letting him He says I הורדתיו, I told him to go into my field. So he went there, and he's לפירות. But now, he's not saying anything about now, not stealing it. But he could still be eating it Right, right, right. Especially if I'm out of town. So so one sevara is that it's not a מחאה. And the other sevara is no, it is a מחאה. How does a person who You'll see in a second, yeah, and connected. Does this has is it on the on the on the property, or is it that No, that's I'm trying to say that maybe you could connect it to that also, but that was not I wasn't trying to say based on on the vort of the ראשונים, but a different vort. So the peshat in that Gemara, the way it seems in the מחלוקת, is One of the ways, there are other ways also, but one of the ways to explain it is: Is a חזקה a המשך to the מכירה, or is it a קנין for itself? He טענת: I bought it. How do you know, you prove you bought it? So normally, how do you prove it? You bring a שטר. You don't have a שטר, so חזקה would be instead. Now, a שטר is really the peshat, when you're קונה a field, you could קונה it with a שטר. Now that קנין that you made with the שטר continues to be used as a ראיה. The חזקה could be the same. The חזקה is the המשך to the קנין. You made a claim you bought it, and as a המשך to the buying, the buying is continued, if that כח of buying is continued for three years, then that's a חזקה. Because it's an interesting thing, it's not that is what I'm saying now is not really real, but I'm just the vort is, we find this לשון חזקה by one of the forms of קנינים. Say,

how are you קונה a field? Through one of the three ways: בכסף, בשטר, ובחזקה, or by paying money, or giving a שטר, or a חזקה. Then you have חזקת ג' שנים. Some people don't know the Gemara, they don't learn it, they're confused, they think חזקת ג' שנים is a חזקה of kinyan, it's not true. חזקת ג' שנים is just a re'ayah. How are you koneh the field? I'm koneh it I paid for it, or I gave a shtar, so it's whatever kinyanim. Then, what's your re'ayah? That I lived there for three years, and I ate the peirot. But it's interesting that we have the same expression, here we use the word chazakah is chazakah So I'm trying to say, again this is not the real thing, it's just like a חידודא, because in truth one peshat is that the chazakah of ג' שנים is a המשך of a חזקת קנין. The peshat is you make a חזקת קנין, and that חזקת קנין continues for three, in other words you're continuing your your kinyan for three years. It's like call it a פועל נמשך or whatever we'll use the word, and that is נמשך, and therefore by doing it for three years that's that's chazakah that you have a re'ayah that it's yours. Or another way is to learn not like that, that has nothing to do with the kinyan. Kinyan is my ta'anah, I claim I bought it, and then I have a re'ayah. The re'ayah is I lived there for three years, but it's not that this is a המשך to the kinyan, it's two separate inyanim. The nafka mina would

be, if I want to break the chazakah by mechi'ah, do I go back to the mechirah, or do I have to break it with what's now? If I can say you're stealing, I'm breaking against what's now. Or I could say you took it away from me then, it goes back to before, and that's the machloket here. He says, \"לפירות ירדתי,\" he's not saying anything about now. All he's saying bad is about, \"You claim you bought it and you have a chazakah, you're trying to make a chazakah, I'm telling you you never bought it, לפירות ירדתי.\" So if you say it's a המשך of the kinyan, the whole chazakah is the expression of the kinyan, so the macha'ah is farbundn with the kinyan. But if you say it's a inyan for itself, nothing to do with the kinyan, so all the macha'ah is that you are now stealing from me. You are now in my field שלא כדין, that's what macha'ah is. So therefore if you say לפירות ירדתי, would not be enough. That's the machloket over there. Let's see if that same machloket will apply here. Here we're saying, what do the rishonim say? That the fact that he had it as a mashkanta, the kol said it was a mashkanta, is no re'ayah that later on he didn't buy it. Could be later he bought it. So what is the rumor? The rumor is not noge'a now, the rumor doesn't say that it's not his now, the rumor says noge'a the kinyan. Is that called a macha'ah or not? Depends on these two sevarot. If you hold a macha'ah the peshat you have to be mocheh against the against the beginning how you got it, and in this case it's a good macha'ah, you made a macha'ah against how he got it, he got it in a mashkanta. But if the geder of macha'ah is you have to make a macha'ah against what's now, that kol doesn't say anything. And that could be the machloket between Rashbam and Tosafot. The

Rashbam says it is a macha'ah, and therefore he could not טענה לקוחה בידי, why? Because he holds that the macha'ah is noge'a the kinyan, not noge'a now. The now is the result, but it starts again, that's the macha'ah. Tosafot will say the macha'ah is not noge'a to the kinyan, the macha'ah has to be now, and now there was no macha'ah. Nobody says it's not his, I didn't say it was not his. This could be the מחלוקת. באמת you could say that there's a מחלוקת between the Rambam and the Raavad in a certain דין that could be תלוי on this מחלוקת. I'm afraid, you see בכלל when you say two סברות, the more מחלוקת the more Rishonim you can explain shows more that there is something to it. So there is a מחלוקת between the the Rambam and the Raavad that לכאורה seems to be the מחלוקת in this case, in this סברא, whether the מחאה goes back to before, or the מחאה is for now. There's a דין like this. If you took over a field when when the מחזיק went into a field that belonged to a קטן, here's a בנכסי קטן, means a person died, left over a ירושה to a קטן, and then this guy says I and he made a he made a חזקה there. So, the שאלה is like this. If the מחלוקת is, let's see I had a paper written down exactly the לשון of the Rambam, I'll look it up, let's see which place it is. Just let's see here the לשון is נוגע, it's in Hilchos To'en VeNit'an, פרק י\"ד הלכה ז'. Okay, let's put it on, פרק י\"ד הלכה ז'. Okay, אין מחזיקין בנכסי קטן אפילו הגדילו. You can't make a חזקה in the נכסים of a קטן even when he grows up. כיצד? אכלו בפניו כשהוא קטן שנה אחת או שתים, שנה אחת I'm sorry, ושתים אחר שהגדיל, let's say he took the field and had a חזקה, but the first year of his חזקה was while he's a קטן, two years was after he became a גדול, and then he טענ'ס like a regular case, אתה מכרת לי, I bought it, where is your שטר? I don't have a שטר. What happened? I have a חזקה. אין זה כלום, it's no good, by a קטן's time, עד שיאכל שלש שנים רצופות אחר שהגדיל. Unless you have it for three years after he became a a גדול, so then the חזקה is a חזקה. Comes the Raavad, and the Raavad says on the Rambam, a קושיא on the Rambam, this is it's not true. Even if you would have it for three years after he became a גדול doesn't help. As long as he took it when he was a קטן, it doesn't help, 'cause it started by a קטן. What's the מחלוקת? What's the יסוד of the מחלוקת of the Rambam and the Raavad? Now I really think the סברא of the מחלוקת is what I said before: whether the חזקה is a המשך to before, or it's a new thing. If the חזקה is only an expression of your קנין, now this what the Raavad holds, so he says, since you claim your קנין started as a קטן, and by a קטן you can't be מחזיק, so who cares if you have a חזקה later? The חזקה is now three years, but now is only if the beginning is good. And there was no good beginning. A shtayger der Rambam, der Rambam says that if you ate it three years now it's okay, even if it started as a קטן, because by him the עיקר is the way it's now, not the way it's before, and therefore this is good enough. The other Rambams that we say תלוי בשיטתו, the Rambam and the Raavad. Other places. Other places that they argue in different things which would also seem that goes whether it goes back to before or not. פועל נמשך? Yeah, this סברא whether it's a פועל נמשך. But you know, the other just one more

דין. What? קידושין, פועל נמשך. Always. But that's not נוגע קנינים, that's נוגע קידושין. Yeah, that's that's what first פועל נמשך as it starts. Der Rogatchover said that Kiddushin is a פועל נמשך, so it's every second Kiddushin is renewed like it's. Rav Chaim Brisker had once an argument with him. They met at a מסיבה and he told him the sevara and he said, why should you say that? Anyway, the next day, he met him in the lobby, the hallway of the hotel, and Rav Chaim walks over to der Rogatchover, says, mazal tov, mazal tov. So, what happened? You just got married. You claim it's a פועל נמשך, you just got married. Going back to our din here, there's a machloket in the Rambam and Raavad. There are a few machloket's, but let's just chap on one. If the original, if the father, our case was he held the the the the field of this yetomim because he got it as a mashkanta from the father. What would be if the father didn't have a חזקת מרא קמא? If the father has no re'iyah that it used to be his. Normally, the case by a regular chazakah is that if someone is on a field comes a me'arer and says, you know, the field is mine. The first thing we tell the me'arer, prove that it used to be yours. So, if he proves that it's his, then the שאלה is, nu, why how do you get it? I bought it. You have a shtar? No. Chazakah? Yeah, okay. What happens if the original owner has no has nothing? He has no possession. So then, so then then there's nothing. So, what happens in our case here? In a case like this, if Rava bar Shershom would have said, לקוחין הן בידי, and the father would not have a חזקת מרא קמא, but he admitted. But would he say לקוחין בידי? No. In our case, לפועל, he admitted. Not the The פועל here was he admitted it's not mine. He had a migo, could have said, לקוחין בידי, with chazakah. And he had a migo, therefore you should believe him that the field that he has other money that's owed. What would be if the father wouldn't have a חזקת מרא קמא, what would be the din? And he would have admitted it or not admitted it? In the same way it's here, yeah. He would have admitted it? Yeah, I'll read you the lashon of the Rambam. Let's see. I'll look up the the the exact halachah. הלכה הלכה ח, let's see the next halachah. Oh, here, here, this is it. מי שהחזיק בנכסי קטן שנים רבות וטען ואמר משכונה הן בידי. This is our case. This is the Rambam's case. Someone had נכסים of a קטן many years, טענתו it's a משכונה, ויש לי חוב עליהן כך וכך, הואיל ואילו רצה אמר לקוחין הן בידי, נאמן, שהרי אינה מוחזקת שהיה לאביו של זה. Because it wasn't מוחזק by that father. So, because it wasn't, that's why he has a migo. אבל אם יצא עליה קול שיש של יתומים, in other words, if there's a kol, eino ne'eman. So, the Rambam holds that because there was a kol, he's not ne'eman with a migo, even though there's no chazakah that belongs to the father. And on this the Raavad argues, and the Raavad says, it's not true, that's not the pshat in the Gemara, because the whole thing is based on the Gemara. He says in our Gemara, the reason why he's not ne'eman with the migo because the father had a chazakah. Had the father not have a chazakah, He would have been believed. He would have been No, he says, אם יצא עליה קול, אינו נאמן. The Rambam says, יצא עליה קול is אינו נאמן, even though the father had no chazakah. There's no חזקת מרא קמא. Comes the Raavad and says that if the father had no חזקת מרא קמא, he would be believed even if there is a kol. And the שאלה The Raavad says, even if I admit that it was never mine, it would still be mine? Still enough to Yeah, no, we believe not it's his, he's believed with his ta'anah that he owes him other money. He would still have the migo. If he had said לקוחין בידי, he would have been believed. Had no chazakah. Oh, so according to the Rambam, if he would have said לקוחין בידי, he would have been believed, but only if there was we would have said, you're not believed, only if there's a if there's a rumor. Right, only if there's a rumor. And according to the Raavad, if there was a rumor, He still would be believed. He still would be believed. And it would still be his. Still be his, because the father has no chazakah. Now, what's the machloket here? Now, one of the ways to say the machloket is, in this case where the father has no chazakah, so definitely the מחאה, no, definitely the I mean the חזקה ג׳ שנים of this guy doesn't come בהמשך, doesn't come בהמשך to the to the מכירה. There there is no מכירה here to begin with, because we have no ראיה it used to be his. According to the Rambam, that it's always like that, it never comes בהמשך to the מכירה, we said before, so he says says this is not different than any other case. Since this is not different than any other case, so then then he has the same ne'emanut. According to the Raavad in a regular case it comes בהמשך to the מחירה, here it doesn't, therefore in this case it's takeh, it's ניחא. That would be good.