whole פרק talks about חזקת הבתים, חזקה that a person can make over a house, house, a field. A חזקה means like this: someone is living in a house, or taking care of a field, and someone else comes and says, "It's mine! What are you doing here?" And obviously he proves that it used to be his, and there's no reason that it's not mine. And the guy who's in there says, "What do you mean? I bought it from you." So when the guy says, "I bought it from you," we tell him, "If you bought it, where is your שטר? Where is your document?" Because by קרקע, by land, when they used to sell, they always gave a document. And therefore, if he cannot produce the document, then the מערער—let's give them the names, you know who we're talking about—the one that comes to claim the land back is called the מערער, the one that's arguing. The one that's sitting in the field is called the מחזיק. So the מערער tells the מחזיק, "If you say you bought it, where is your שטר?" Well, if he produces a שטר, obviously he keeps it, the מחזיק stays with it. If he doesn't produce a שטר, then the מערער tells the מחזיק, "Get out of here," and the בית דין will פסקן. He has a ראיה that it used to be his, you have no ראיה that you bought it, you have no proof that you bought it, so he gets out. Unless he was there for three years. If he

could prove that he was there for three years, so then he doesn't have to keep the שטר, and even though What is, how do they, I assume they define by stay, what stay Okay, we're going to get to this. So then he doesn't have Since he the law is or the fact is, the nature is that a person does not keep a שטר, a document, for more than three years, so we can't tell the guy, "If you bought it, where is your שטר? I don't have to have the שטר, it's after three years," and he gets the field. What is the פשט that he stay, he proves that he stayed in the field? So the way we see from the משנה, he has to make use or he has to eat, the לשון is he has to eat the fruit of this field that it normally gives out in three years. So all the fruit that's given out in three years, and he took it, and he has witnesses to prove that he did everything there for three years, then he keeps the field. The same thing with a house: a house, you don't eat fruit, but you have benefit from it. What's called benefit of a house? Living in the house. So if you could prove that you lived in the house, and you gained from the house for three years, then you keep the you keep the house, the מחזיק keeps it. Then we know it for sure we that what you said that you bought it, you are right. That's the That's the general דין here. זאגט די גמרא אזוי: אמר רב הונא, רב הונא said: שלש שנים שאמרו והוא שיהו רצופות. The three years that we said have to be consecutive. You can't say you were in the field, you used you ate, let's say, the fruit of the field one year, then you skipped a year, then two more years, it doesn't count. You have to have three consecutive years. Then the גמרא asks a שאלה, תנן: חזקת הבתים. This says that one of the things you can make a חזקה in is a house. Now

בתים, to be ביממי ידעי ובלילי לא ידעי. In order to have the house the whole three years, that means you have to live there day and night for three years. Who is going to testify? Who knows if you lived there at night? מילא, during the day someone will know. People could always live around there, they could come and testify, "Yeah, we saw for three years you lived here." But for for the nights, who could testify? And since the law is that whatever use this area has, you must prove that you had that use. Now those places that you only use during the day, you have to prove that you used it for three years during the day. Those things that the use is day and night, you have to prove that you use it day and night. So a house, which you use day and night, who is going to be able to testify for you? אמר אביי, אביי said: מאן מסהיד אבתים? שיבבי. בכלל, who could you get to testify that you lived in the house? Neighbors. שיבבי מידע ידעי ביממא ובלילי. Neighbors will know day and night, also. The neighbors will be able to come and say they saw you coming in during the day, coming in in the night, also. רבא אמר, רבא says: כגון דאתו בי תרי, when who could testify? Two people could come, ואמרו, they could say: אנן אגרינן מיניה, "We rented the house from him, ודרינא ביה תלת שנין ביממא ובלילי, and we lived there for three years day and night." So the people who rented the house, they're the ones that could be to testify for him. They say, "We rented it from him, and since we rented it from him, and As if he lived there. as if he lived there, and therefore what we did and we testify we lived there day and night, and they know that they lived there day and night, that's the way to testify."

אמר ליה רב יימר לרב אשי, רב יימר asked of רב אשי: הא נוגעים בעדותן הן? How could you trust these people? They're נוגע בעדות! נוגע בעדות is it's they they have their a personal gain there. Why do they have a personal gain? They can stay in the house. דאי לא, no no, דאי לא אמרי הכי, if they're not going to say that, אמרינן להו, we will say to them: זילו הבו אגר ביתא להאי, "Go pay him." In other words, they come and say, "We rented it from him, and we paid him." Now when he's called, when they're called to testify, they have no choice but to testify that it's his. Why? Because if they wouldn't say that it's the מחזיק's, if they're going to say it's the מערער, know what's going to happen? The מערער will say, "So, yeah, pay me!" they'll have to pay again. So the fact that they're testifying is for their benefit. Any witness that testifies something which he gains from, is not a פסול לעדות, he's נוגע בעדות. So so the גמרא asked רבא, according to רבא that he says that what's going to happen? They're going to testify we lived there, he's נוגע בעדות. אמר ליה, so he said to them like this: דייני דשפילא הכי דייני דהכא. Only דיינים that don't know what they're talking about would even have a thought that that's the case that we're talking about. Obviously not! Who's going to פסק like that? אוודאי if עדים will come and say we lived there, and they had already paid the rent, obviously they're going to say they it belongs to the guy who they paid for, otherwise they're they're going to pay again. No, במה עסקינן, we're talking in a case כגון דנקיטי אגר ביתא, they didn't pay it. They have the money in their hands, ואמרי, they come to בית דין, they say, למאן ליתביה? So who should we give it to? So we ask them, who rented it to you? So they could have said either one. But they didn't pay for three years? They didn't pay, right. They didn't pay. That's the case. How could that happen? How could that happen? The guy trusted them, whatever, they didn't pay. The case is that they didn't pay, for three years they didn't pay, and they come and say we have the money ready to pay. Now, for them it makes no Doesn't have to be three years. No, the מעשה came you have תלת שני, yeah. אוודאי, if if less than three years, that testimony doesn't help. You have to testify that the guy you had it for three years. So in a case like this, it's not נוגע בעדות. Why? When is it נוגע בעדות? If they have a personal reason why to say it belongs to him, but here they don't care, what's the difference, they say to בית דין, tell us who to pay to, so we ask, בית דין asks them: נו, so who rented it to you? This guy. Okay, this guy, so that's testimony for this guy. They could have said for this guy just as well, and they would have paid the money to this guy. But they also have a נוגע בעדות there, because when they're renting from the other guy, they could stay maybe another year or two, when they're going to get a new landlord, maybe they won't. That's not We don't know, maybe the guy We don't know either, maybe the guy'll let him stay even longer, maybe this guy will let him stay longer. We don't know. Huh? Maybe they're about to leave. Maybe they're about to leave, I mean, you know, it's all the same. Okay. So this is what the גמרא says, so the case, when is and we have to hammer the לשון קודש Hebrew words, I shouldn't have to repeat every time, that when are they not נוגע בעדות? That means when do they not have a personal gain? If they haven't paid yet, but if they paid, the גמרא says, you're right. Okay, ווייטער to the גמרא, we're going to have to learn out of the גמרא here, so that's good. The גמרא is good, yeah. The גמרא is better than what I have to say. The גמרא is certainly true, what I have to say I don't know or it's good or it's not. So

אמר מר זוטרא, then the גמרא continues, מר זוטרא said: ואי טעין ואמר, I'm going to read the words and then I'm going to say the פשט. The words are like this, מר זוטרא said: ואי טעין ואמר, if he claims and says, Wait. One sec, I'm reading the words and then we'll see: ליתו תרי סהדי לאסהודי ליה דדרו ביה תלת שני ביממא ובליליא, let them come bring two witnesses to testify that they lived there day and night for three years, הויא טענתיה טענה, דטענה איז א טענה. And what does that mean? What does מר זוטרא say? Understood. One sec. He said blanket. I said this is I quoted the words, now we're going to see the פשט. Did I First, I don't understand, because what difference does it make? They're renting the house. One sec, let let Let me explain it to you then. What does מר זוטרא mean? So here you have the רשב"ם's פשט. The רשב"ם on the spot. There's no רש"י here, there's רשב"ם here. The רשב"ם says this is what מר זוטרא said. We said before that you have to have witnesses to testify that they lived whoever it is, the guy himself or or he rented it to people that lived there day and night. So comes מר זוטרא and he says, when do we have to bring such witnesses? If he, meaning the מערער, claims, I want witnesses for day and night. I'm telling you, I once was here at night and I saw he wasn't there! He didn't live there! So if he claims, that's what he says, I'll read again: אי טעין ואמר, if he claims and he says ליתו תרי סהדי, bring two witnesses לאסהודי ליה דדרו ביה תלת שני ביממא ובליליא, that they're that they lived there for all three years, day and night, if he claims so, הויא טענתיה טענה, that's a טענה. Then we have to provide with witnesses. But if he does not claim that, then we don't have to provide. And the fact that two witnesses come and say that we saw him live there during the day, we can assume that he probably lived there at night. We don't have to specially find. And if the witnesses say we don't know if he lived there at night or not, so we say, probably he did. If he lived there during the day, during the night. But if the guy claims and he says, haha, I know he didn't live there at night, then we are forced to ask them, and if they say we don't know, the witnesses are no good, they have to bring different witnesses. And if he wasn't there at night, but he took the fruits, he he How what's the fruit? The fruit is living. In a house, the fruit is living. There's nothing else but living now. You have to live there every single night? Every single night for three years? Can't go on a vacation? Right! If whatever is normal to do, every בחור asked me that same good question: vacation? You have to live there the way normal people live in a house. It's normal, right, so if he goes away like normal people go, it's no problem. But if he went away a little bit more The guy came when he happened to have been away. So we say, but the guy did everything normal. The guy should understand. But if a guy if he did less than normal, then he loses it. He's renting it out. There's nothing to do with No, so the renters have to be there. And if they're not there? So then that's not a חזקה. The מחזיק still has his חזקה, because he's getting the use of it, he's getting the full money. One second. The money is a different problem, but the living there is what the thing is and they're living in another, where All this is going to be discussed. This is one פשט in מר זוטרא. There are other פשטים in מר זוטרא. The רבינו חננאל in תוספות, or there's a different פשט in what מר זוטרא meant. And what מר זוטרא said, and again the words of מר זוטרא were, if he claims, let עדים come to say that he lived there day and night, his טענה is a טענה. So what does he say? He says it means a different thing. It means to answer the original קשיא. We said before, who are the ones to testify? So אביי said, the neighbors could know, okay. רבא said, the renters, people who rented it could come and say, we rented it. But then we had a קשיא, it's נוגע בעדות! So first we answer a תירוץ, he's not, the case here is where they're not נוגע בעדות. Why? Because they didn't give the money yet. Comes מר זוטרא and he says, I have another way to answer that question, it's a different פשט in the גמרא, that what, when is it not נוגע בעדות? He says, if the מחזיק, the מחזיק brings three, two people who lived there for three years and are not living there now, the מערער doesn't even know that these guys lived there, and these guys come and say, we rented it from the מחזיק and we paid him already, it's not נוגע בעדות. Because what's נוגע? נוגע בעדות would be that if they don't say that, they'll make him pay to the מערער. The מערער will never make him pay anyway, because the מערער doesn't even know they were there. So therefore in a case like this, it's not נוגע בעדות. This ענין, it's not נוגע if you don't understand, because it's not נוגע to the whole המשך. I just want to say that in these words of מר זוטרא there are different פשטים. It seems like the רמב״ם has a complete different פשט in מר זוטרא. This is the רמב״ם, and this is going to be the main discussion, is פשט in the רמב״ם. The רמב״ם in הלכות טוען ונטען פרק י״ב הלכה ב׳. I'll read the רמב״ם inside: הביא עדים שהיה דר בחצר זו שלש שנים, if the מחזיק, the מחזיק, the one that's sitting there now, brings witnesses that he lived there for three years, או ששכרה שלש שנים, or that he rented it for three years, הרי זו חזקה, fine, but brings witnesses, it's חזקה. טען בעל החצר, comes the מערער and טענה's, שמא לא שכן בה ביום ובלילה, maybe he didn't live there day and night, או שמא אלו שהשכירה להן לא שכנו בה ביום ובלילה, maybe they did, they did, or the renters didn't live there, הרי זו טענה, fine. And then what do we do? אומרים למחזיק, we tell the מחזיק, אייתי עדים ששנים אלו גמורות ביום ובלילה או הסתלק. Yeah, bring witnesses day and night, and if not, get out of here. הסתלק, get out of here. Then he goes weiter: אפילו באו עדים, even if witnesses came, ואמרו, and they said, לנו השכיר, the witnesses that, the guys themselves, he rented it to us, ואנו דרנו בה ביום ובלילה, we lived there day and night, they themselves, טען בעל השדה, comes the original owner, the מערער, ואמר, and he says, יביאו עדים שדרו בה ביום ובלילה, let them, these renters, right, let them bring witnesses that day, I don't trust them. Let them bring witnesses. צריכין אלו השוכרין להביא ראיה שדרו בה תמיד, so these renters have to bring witnesses that they lived there constantly. And he says, שזה הדבר תלוי בהן, because now it depends on them, ואינו תלוי בטענת המחזיק שיעידו לו. Now it doesn't depend on the מחזיק that these two guys will be the witnesses for the מחזיק. Now these two guys have to bring other witnesses to prove that they lived there. In other words, what the רמב״ם says here is like this. It's a long piece, but the bottom line is, the רמב״ם

says that when these two witnesses come and they say we lived there day and night, you don't believe them. Comes the ראב״ד, and the ראב״ד says, what are you talking about? That's only בנתנו לו השכר! That's only if they claim we paid already. The ראב״ד learned the גמרא, and the גמרא says, when don't we believe them? When they already paid. But then the גמרא says, but if they didn't pay yet, then they're not נוגע, we believe them. So the ראב״ד comes to the רמב״ם and he says, רמב״ם, I don't know what you're saying. The רמב״ם didn't mention a word about paying. The רמב״ם comes and is saying that these guys are not believed. Now the רמב״ם cannot make up his own דין against the גמרא, obviously. How can you make up a דין and say, well, the גמרא says that if they didn't give the money, they are believed, the רמב״ם says they are not believed? Obviously, the מפרשים learn that the רמב״ם learned that's what מר זוטרא meant. That מר זוטרא meant to argue against רבא. רבא said that they are, if they already paid, they're נוגע בעדות. If they didn't pay yet, they're not. Comes מר זוטרא and he says, no, if the, if the מערער says, I want other witnesses, let's read the words: if טעין ואמר, he says, ליתו תרי סהדי, I want two witnesses. You brought these two guys, I don't accept them. I want two witnesses to testify that these guys lived there ביום ובלילה, טענתיה טענה. In other words, we accept the טענה and they're not accepted. And yeah, even if they didn't pay. So that's how obviously the רמב״ם learns פשט in the גמרא. That רבא, or the גמרא before of רב יימר to רב אשי, learns that if they paid, they're not believed, because נוגע בעדות, because he's going to make them pay again, they're afraid. If they didn't pay, they're okay. And מר זוטרא comes and says, no, if the guy says that I want him to bring, and then he's believed. But what's the logic from מר זוטרא's point of view according to the רמב״ם? Why are they not believed if they didn't pay? אט אזוי, אט אזוי, אט אזוי, we're getting, obviously, that's what we're going to discuss. So we see here that the רמב״ם learns that even if they didn't pay, they're still נוגע בעדות. The question is, obviously, No, even if If they did If they did pay, we said before everyone holds they're נוגע בעדות. Everyone holds like that. Because they're afraid they have to say for this guy, they're afraid to say for that guy because they'll make them pay again. But if they didn't pay, what's נוגע בעדות, הגמרא says. Comes So, one thing must be that רמב״ם learns פשט מר זוטרא like that. The question is why? What is the logic? Okay, so רמב״ם could say that's how I understood פשט מר זוטרא, but מר זוטרא has to make sense. What is the logic? Why are they not believed? And that's the ראב״ד's קושיא. The ראב״ד

says, רמב״ם, your דין is right only if they paid already. But if they didn't pay, it's not there's no logic why. What's your logic? So that's one קושיא to understand, what is the logic of the רמב״ם? Which according to the רמב״ם really means what's the logic of מר זוטרא? But that's the logic question. Now, another question. If they're not believed because they're נוגע בעדות, or for whatever reason, we don't know yet, but let's say they're not believed, what does it difference does it make if the מערער says that or he doesn't? What happens if the מערער didn't say anything? It says here in the גמרא in the רמב״ם, that if he brought these two renters, and the מערער says, ah, I don't believe them, I want, so then you have to bring two more. And if the מערער didn't say anything? If they're not If there's a דין that they're נוגע בעדות, if they're פסול, what's the חילוק what he says? If he says or not? Should be automatic. Automatic! It should be פסול. And the רמב״ם has his ראיה from the גמרא, because מר זוטרא says the לשון, אי טעין ואמר, if he says. Good, so so he has the גמרא. But what's the פשט? So, one שאלה, what's the logic, why are they נוגע בעדות? But then we see another thing, that only when who says נוגע בעדות and that they're פסול, is if the מערער טענה'ס. What is this טענה? Another שאלה here. The רמב״ם says here, that if the מערער, if he says, if he comes and says, טען בעל השדה, and he calls him the בעל השדה, the original owner of the field, says יביאו עדים שדרו בה יומם ולילה, let these guys bring witnesses day and night, צריכים אלו השוכרים להביא ראיה שדרו בה, these renters have to bring a ראיה. Why do these renters have to bring, what do they care? It's not these renters have to bring a The renters have to bring a proof? The מחזיק is the one, he's fighting with the מחזיק. The מחזיק brought these two guys. He says, I don't trust these two guys. Okay, and then, for some reason, we accept his טענה, and we don't trust them. So what happens now? So now, the

מחזיק has to find different witnesses. What Why are the שוכרים? צריכים אלו השוכרים להביא ראיה, these these renters have to bring a ראיה? The רמב״ם makes these renters that they have to bring a ראיה. Yeah, they have no relationship with the original guy. They they have no relationship with the original guy, so therefore they shouldn't have to be the Yeah, they shouldn't be the ones. That's what the רמב״ם saying. If if they don't bring proof, they're going to owe the original guy, even if the original guy didn't know, they're still getting unpaid rent. They paid him already. No, even if they didn't pay, they owe them all, fine, so we So that's what the רמב״ם says. No, but that means They don't care whom they're going to owe. They owe him, or they owe him, but they didn't pay yet. But they they claim they paid the the the second, the the מחזיק. No, according to what we're saying, according to the רמב״ם, they didn't If they paid, there's no question. The רמב״ם learns even if they didn't pay they're נוגע בעדות. If they didn't pay, why are they נוגע בעדות? They could give anybody. So for whatever reason we don't know why, but לפועל, they have nothing to do here. If they say, קלאפסט א קאפ אין וואנט, go, you want, bring עדים, tell the מחזיק. But why do they have to bring? Why why are we talking to them בכלל? Then he says, שזה הדבר תלוי בהם ואין תלוי בטענת המחזיק שיודה לו, because it's not this depends on them and doesn't depend on the טענה of the מחזיק that that they should testify. The רמב״ם should have said, that their testimony is not good enough for the מחזיק. The מחזיק is trying to prove that he lived there, so we're saying that their testimony is not good. What do you mean, it's not it's it's not dependent on the טענה of the What's the טענה of the And if the שוכרים lived there more than three years, it belongs to the מחזיק? Same thing. No, it's three or four or five, same thing, as long Yeah, as long as it was the minimum of three. Now, there are different מפרשים who answer פשט in the רמב״ם. A lot of מפרשים talk about everyone talks about the לחם משנה and the אור שמח and the פני שלמה and everyone. I'm just going to mention one or two תירוצים, just to The

חתם סופר has a תירוץ. The חתם סופר says he learns different, he makes it very not משמע like that from the רמב״ם, he says that the רמב״ם is טאקע talking in a case where they already paid. When the רמב״ם says they're not believed, it's in a case where they paid. And when the ראב״ד adds, but you know it's only if they paid, he's only explaining the רמב״ם! He's not arguing. The רמב״ם just didn't explain himself. Comes the ראב״ד and and the לשון the ראב״ד is a little bit, because usually the ראב״ד attacks the רמב״ם, in this case, the ראב״ד just added three words. On the דין that the רמב״ם says they're not believed, the ראב״ד says, ונתנו לו השכר, and they paid him. That was, he's trying to explain where what it is. So the רמב״ם is not really saying that they're not believed even if they didn't pay. The whole main קושיא we asked, what's the logic, why are they not believed, they didn't pay yet? So we say so the חתם סופר said the רמב״ם means that. It's not משמע like this from the לשון of the רמב״ם. And also the other שאלה'ס is is still there. What's it נוגע to the טענה? If in a case like this, if the case is that they already paid, they're not believed. Why are they not believed? They're נוגע בעדות! What's נוגע what the מחזיק says, what the מערער says? The רמב״ם says, if the מערער claims I don't believe you, they're not believed. That קושיא still remains, even if you say the case is you'll say the case is where they paid the money. So what's נוגע to the מערער's טענה? That, he could say they're in bed together. This if if if this guy keeps the land, the guy who's claiming the מחזיק, and they get away three years without paying rent. And it would work out for both of them. No, they'll give him. They won't give him. They paid the first the the the מערער. They claim But if he's going to win, that's that's why they're נגוע בדבר. They don't want the מערער to win, because if the מערער Why are they נגוע בדבר? That's what the גמרא says. Yeah, but But it's nothing to do if they if he doesn't טענה that. We טענה. From the גמרא we see if the מערער doesn't say anything, and the מחזיק brings these witnesses, and they paid already, we, בית דין, will tell them, the מחזיק, "Sorry." We'll make the טענה for the מערער? Sure! That's the whole matter. We won't accept them. They're נגוע בדבר. עדים that come It's not Let's say if they paid already. אדרבה, that's why they're נגוע בדבר. So we'll tell them, "Your your testimony's not accepted." When two עדים come and they testify בכלל, any case in בית דין, and they're נגוע בדבר, will בית דין accept them or will בית דין wait? Maybe the other guy is an עם הארץ, and פשוט doesn't know the הלכה that נגוע בדבר is no good, and he doesn't say anything. So, בית דין will accept them? Has nothing to do with the טענה. נגוע בדבר is a דין that you're not accept בית דין won't accept you, so this is no What's to do with the טענה? Now, he brings another תירוץ, just to mention another תירוץ, they bring the תירוץ of the תומים. The

תומים, that's the רבי יונתן אייבשיץ, he brings a תירוץ, ספר אורים ותומים, he says פשט in רמב"ם, the way the רמב"ם learns פשט, this is what מר זוטרא meant. What's the logic behind it? So he says, because it's still נגוע בדבר, and מר זוטרא holds that it's still נגוע בדבר. אי they didn't pay yet, so what difference does it make? They don't want that the מחזיק should be angry at them. Should be angry? תרעומת. The מחזיק brought them as testimony, and they're going to say that it belongs to the מערער? So it's very uncomfortable for them to say מערער, so they have to, for their own feelings, have to say it's for him. The moment you have to say it, you're not accepted. But isn't that true in every case when you bring עדים witnesses, that that you can they they can say that he's going to be angry at them? No, witnesses you could testify for him or not testify, but here it's opposite. Here it's going the other way. Usually you could say, "If I bring that, you want to testify for you." That's not נגוע בדבר. "I could have not testified." But here, the question is to testify for his be- on his behalf or on his behalf. That's the worst thing. That they won't want to do. But anyway, the קשיא still remains. The other קשיות that we asked are still there, doesn't answer. So what we need here is to explain, what is the What does the רמב"ם learn? So let's start off with this שאלה. There's a קשיא that the ראב"ד, not this ראב"ד, the ראב"ד in שיטה מקובצת, asks. The רשב"א brings the ראב"ד. He asks a קשיא on the גמרא. Which when you start thinking with the קשיא, it's such an open קשיא. He asks a קשיא like this: The גמרא says that רבא's way of how could you bring witnesses to testify that they lived there day and night, the guys who rented it will come and testify. And the גמרא says that if they paid already, then they can't accept them. But if they didn't pay yet, then you accept. If they didn't pay yet, how does this their living there work as a חזקה for the מחזיק? We said before that the only way it's a חזקה if you reap benefit. If they didn't pay him, then how did he reap benefit? Right. מילא if he lives there himself, he lives there. If they lived there because he rented, and they paid him, so he didn't live there, but he got the money for the living. He didn't get money yet. So how what did he get? So how is he a מחזיק בכלל? We're saying he will prove his חזקה by bringing these two guys who he rented, who never paid him. בכח. So the ראב"ד answers that the case is he had a שטר. What? He has a שטר. He has a שטר to them that they rented it from him and they're going to have to pay him, so he knows like he's That ultimately Ultimately he's going to get the money because of the שטר. That's what the ראב"ד says. The רשב"א says different. The רשב"א says that the reason their living there is works for him as a חזקה for the מחזיק, because they're his שלוחים. They are living there on his behalf. They're like his שלוחים. That's why he didn't pay? No, no, whether they paid or not. They'll eventually pay, but their living there is like he lived there. שלוחו של אדם כמותו. When you send a שליח, it's like you. דמילא, he is like you, so ממילא it's like you lived there. Do they have to know that that's their job to be Well, if you rent it, you're automatic a שליח. No, but do you know that you're making a You don't have to make a No, you don't have to make a חזקה. You don't have to know. You have to live there. And you're living on his behalf, so to speak, and it turns out to be a חזקה. That's what the רשב"א answers. I want to make do some investigation in this this רשב"א's פשט. How do we apply the ענין of of שליחות here? שליחות, and we say שלוחו של אדם כמותו, a שליח is like somebody else, applies when there's a חלות. When there's something that has to be accomplished. Right. למשל, if I want this to be given to somebody across the street, now I ask you, "Please take it there. You're my שליח." Do we say שלוחו כמותו? There's no הלכה here. There's no חלות. There's nothing that has to happen. But I can do a שליח, for instance, if I want to מקדש an אשה, there's a דין that when I do a certain act, she becomes מקודשת to me. הלכה, חלות, we call it a חלות, something happens. Now the דין is, normally I have to מקדש. הלכה says that if I send a שליח, שלוחו של אדם כמותו, שליח is like me and as if I did it. That's when there's a חלות. But when there's no חלות, I just ask you, "Please go across the street and bring this across the street," there's no הלכה of שליחות here. We could use the לשון here שלוחו של אדם, but you can't use the word כמותו. So if I ask you to throw this in the garbage for me, it's as if I threw it in the garbage? It's not a מצוה for a משל. It's not a מצוה! Doing something, מצוה זה חלות. Yeah, but if I

ask you, "Please throw this in the garbage," so there's a הלכה that it's as if I threw it in the garbage? There's no דין I don't have to throw in the garbage, it's? And we find a גדר like that, I want to explain where we find a גדר. It's in ענינא דיומא, that the, something closer to our time, פורים. There's a famous שאלה that was asked by the רבי עקיבא איגר. The שאלה is, by משלוח מנות, the דין is משלוח מנות איש לרעהו. Says the לשון משלוח. משלוח means to send presents. And because of that we know that you can't, you shouldn't give it yourself. That's why we always know you have to give it to somebody else to give it, because it says משלוח, you have to send. So he asked him a שאלה, if there's a דין שליחות here by the משלוח מנות, if you have to send over a שליח, how could he send this with a קטן? We always ask a child to send, to bring. אין שליחות לקטן! A קטן can't be a שליח. We send it through a גוי! Sometimes throw it, no, through the, through a delivery boy, we send a גוי, we send it to him. How can, it says משלוח מנות, משלוח שליח, אין שליחות לעכו״ם! There's no שליחות by a גוי. And there's another שאלה, I don't remember if, because this is not in his ספר, this is, I once saw there was a, a, they used to give out like you give out now journals, תורה journals, so they gave out in the time of the רבי עקיבא איגר תורה journals. So he wrote a פלפול in one, and so, so another שאלה he wrote was about this, someone asked it. So I don't remember if this שאלה was also asked, but it's asked in ספרים. There's a דין by שליחות, this is a כלל, כל מילתא דאיהו לא מצי עביד, שליח לא מצי מעביד. Something that I cannot do myself, I can't make a שליח. I can only make a שליח something that I could do myself, so I can make a שליח, but if I can't do it myself, I can't. So by משלוח מנות, if there is a דין that I cannot send it myself, so how can I make a שליח? How can you send it? Yeah, understand me? If there's a דין of משלוח מנות, so the only way I can send it is to send it through a שליח, cause I myself can't do it, so ממילא שליח won't work either! Cause you can't make a שליח if you can't do it. But the מצוה is משלוח, so but how is it supposed to work? You're asking a שאלה, that's the מצוה. So the מצוה makes no sense. So if this is the way the מצוה is set up, it's the מצוה! Okay, so you look, you can answer this is this doesn't make sense, no, this is, doesn't make sense in הלכה, not doesn't make sense in שכל. The הלכה'דיקע כללים don't fit. So you'll say, okay, this is a, there's a מצוה against the כללים of הלכה. He says much different, very simple. When it says משלוח, it doesn't mean the הלכה of שליחות. It means send it with somebody! Like I said before, send it, I'm sending this with somebody to the garbage can. Is that a דין of כמותו? When is there a דין of אין שליחות לקטן? When it has to be כמותו. It has to be a הלכה that שליח is like me, so if he's a קטן, the שליח can't be like me. If a גוי, can't be like me. But when there's no, it says משלוח, send it! Just like this. You're sending it! I, there's no הלכה שליחות, there's no הלכה שליחות. The same thing, the כלל that if you can't do it yourself, you can't send a שליח. That's when there's a הלכה of שליחות, there's a, not הלכה of שליחות, there's a, in other words, there's a דין of, there's a גדר of שלוחו של אדם, have a messenger bring it. But it doesn't say כמותו, it doesn't have to be כמותו, there's no הלכה. The כמותו is the הלכה. And that's בפירוש not כמותו, yeah, yeah, exactly. So we find,

so what I'm trying to bring out is that when it comes to Why is the קנין a חלות? Huh? Why is the קנין a חלות? One second, let me just finish, and we'll see. So לכאורה, when they're in this case, it seems like there is no חלות, so how do you have שליחות? How do you say that these guys who live there, live there on his behalf? What kind of חלות is that? They live there on his behalf, what do you mean on his behalf? They live there! Even if he asked them to live there, like I asked you to throw this in the garbage. So what kind of דין שליחות is this to say that therefore they're working for him? So the answer is, let's say there is no שליחות. If there is no שליחות, then the guy, the מחזיק is out of the picture. The מחזיק didn't live there, they lived there. There is a discussion now between the מערער and these guys, not on behalf of the מחזיק, with them! So you know what they are? They're not נוגע בעדות! They're בעלי דבר, בעלי דין! That's what you came for when I asked you, you lived there three years, it's their house, it's not the מחזיק. So they're בעלי דין now! That's even worse. A בעל דין can't be a, you know what a בעל דין is? A בעל דין is the, the the litigant, the defendant himself. They are the defendants, they're not testifying! They don't make a טענה. Huh? They don't make a טענה that it's theirs. They're טענה'ינג for somebody. Yeah? You're saying, but, but, I understand, but the discussion is between him and them. That was, he's telling them, "You want to prove something? It's you." So let me just finish. If he says, "I don't care," or he doesn't say and he טאקע doesn't care, and he accepts their being there on his behalf, there's nothing wrong. The moment he טענה'ס, and he says, "I don't accept it," then what happens? They become בעלי דין! And that's what the רמב״ם says here. The רמב״ם holds even if they didn't pay yet, they are בעלי דין, they're not נוגע בעדות! They're פשוט, they're the defendants here. And therefore, the רמב״ם says, what was the question? Question is, why don't we trust them? No, why would we trust them? Because, because that קשיא that the רשב״א asked, that what does the מחזיק got to do here? אלא מאי you answer? Because שלוחים, there's no שלוחים. The only way it could be שלוחים if the, if the מערער says, "I don't mind if you, you and him are the same," I accept it. But the moment he טענה'ס that, "I don't accept it," then what is it? Let's read inside the רמב״ם. If טען בעל השדה ואמר יביאו עדים, let them to bring witnesses. We ask, why should they bring witnesses? The מחזיק should! פאַרקערט, in this case if he says they have to bring witnesses, שירדו בה בלילה, צריכים אלו השוכרים, they, we ask the שאלה, why do they get involved? Because now it's theirs! So this שוכרים have to bring עדים שדרו בה תמיד. And the רמב״ם adds, now I understand the words, שזה הדבר תלוי בהם. Now we know the פשט, it depends on them now! And he's, listen, ואין תלוי בטענת המחזיק. The words fit exactly, it's not anymore the טענה of the מחזיק, כדי שיעידו לו, that they should testify for him. But if they are living in the house and they're they're not considered the מחזיקים, right, what's difference if they paid or they didn't pay? אין הכי נמי, exactly! That's what the רמב״ם says, they're not believed no matter what! Right, that's why. That's why I said the רמב״ם, really it doesn't matter. That's why the רמב״ם, that's what the... That's why he left it out! That's why he left it out, that's what the רמב״ם learns פשט in מר זוטרא, that מר זוטרא comes to רבא and tells, "You say that when are they believed and they're not נוגע בעדות only if they didn't pay yet, and I'm telling you if the guy claims even if they did didn't pay they're also not believed." I have another question just there. So why didn't the רמב״ם just say that they're בעלי דין? I think he said To make it that we... I I made it clearer, he could have said with all the words and he could have said they became בעלי דין. There wouldn't be a שיעור to help him. First of all, I want to tell you that whatever תירוץ you're going to give you'll have the same קשיא, because whatever תירוץ you're going to give it's not clear in the רמב״ם, because if it'd be clear in the רמב״ם, you wouldn't have a קשיא. So whatever, and you could ask that on everything. Any time תוספות asks a קשיא on the גמרא and he comes with a תירוץ, so why didn't the גמרא make it clear? That's a very good קשיא, you have that whole סדר of whatever, they write in a way that there's so much there that we you have to add, but that's the that's the system. But here, regard it, I think he says it בפירוש. I says, I think when you look into the words, of the רמב״ם, it says in the רמב״ם, צריכים אלו השוכרים, they have to bring עדים, and he says why, these words, שזה הדבר תלוי בהם. What does the word תלוי בהם mean? That they are בעלי דין! שזה הדבר תלוי בהם. But you can also say תלוי בהם, they happen to be the ones that are there instead of the... No, that we know, he's adding something, no. תלוי is dependent. It's dependent! Exactly, dependent on them, because if there's no... No, he wants to say listen to the whole thing. It's not dependent on them, it is dependent on them, and not the and not תלוי בטענת המחזיק, which means it's not תלוי בטענת המחזיק anymore. Cuz he wasn't there and he he... I think to say different is a קוועטש, to say what I'm saying is fits much to the words. But what are they proving? Huh? What are they proving? That they did the חזקה. They're establishing it? All right, but they are, if, in this case if they prove it, if they prove it and they rented it from him, automatically it works for him. But you can't deal with him. But you can't deal with him, you have to deal with them. Why do they have to wait for the מערער to to to say he doesn't accept the... Because if the מערער... If he accepted then then it's obvious, he loses the property. Yeah, but he accepted, in other words, he doesn't We're not talking about a liar here. He He wants to do על פי דין, and he accepted, and says, "If you guys say you did it for him, I I accept it." But what do they benefit from... Not benefit. A בעל דין doesn't have to be a A בעל דין is not believed, whether he benefits or not, if he's a בעל דין. And how does it work according to מר זוטרא? That's I'm saying, this is what מר זוטרא meant. The רמב״ם has to learn that that's what מר זוטרא meant. The רמב״ם can't argue against the גמרא. He has to learn that the גמרא said that. Doesn't a doesn't a

בעל דין have to win or lose? He's not winning or losing... What happens if the guy doesn't care? What does he win or lose? What happens if there's a בעל דין here that's involved, and the money is going to go anyway someplace else? But he has no... בעל דין has nothing to do. הנוגע is one thing, and a בעל דין is a different thing. A בעל דין is is not נוגע whether he gains or loses. בעל דין is the person himself who is involved. Sometimes in lawsuits you bring in a third party because the third party doesn't know what to do with the money. Yeah, but in this case, the whole time we're talking about people that are נוגע בדבר. That's the ענין that we're talking about here. The גמרא used the לשון נוגע בדבר, the רמב״ם didn't even use the לשון נוגע בדבר. The גמרא did. The גמרא did, but not מר זוטרא. That's what the רמב״ם is talking... Not מר זוטרא, no, the רמב״ם is מר זוטרא, the רמב״ם... מר זוטרא is going on the same topic. Yeah, but that's what I say, why? That's even further than נוגע בדבר, that's the worst thing than נוגע בדבר. Yeah, technically it's worse, but... Right, that's what it is, it's a דין, it's a דין of בעל דבר, בעל דין. I want to go further. We got the time. I want to go further. You have to catch up for three weeks. Still has a עין הרע. And say like this, and באמת if you start thinking, what was our whole base here? Why are they בעל דבר? They're the they're the people they're the the defendants, not the מחזיק? Because the שליחות doesn't work here. You can't say that they are on his behalf.

Why did I say it doesn't work? Because there's no חלות. But why is there no חלות? Like you you ask, there is a חלות. There's a change of ownership. There's a change of ownership. Till now the מערער has ראיות it used to be his, now through this חזקה you want that the ownership should go over to the מחזיק. So going over ownership is a חלות, where there Something has to happen. Now, in that case the שליחות would work. But the thing is like this. This is going to be a little bit tough. What's חלות? The change of ownership, the change of the the an event takes place From the מערער to the מחזיק. They're testifying, they're ones for the מחזיק. Who loses the house basically? He said that he got he acquired it the other... Right, he said he bought it, but לפועל when do we פסקן that it becomes his, that we know it's his? Through their testimony, through their living there. That's just how we know about it. Right, right, but their living there accomplishes us to פסקן that, and the פסק דין of בית דין will come, till then it won't come. So this itself is a חלות, that this brings a פסק דין of בית דין. If this brings a פסק דין of בית דין, this could be a חלות, so you could look at them as שלוחים. You could look at them as שלוחים. The only... How does that form a כת? Huh? חזקה דקניין? No, not this חזקה. It's a different חזקה, that's if you dig. When it says בכסף בשטר ובחזקה, it does mean חזקת קניין. It's like putting money on the floor in front of a horse. No, but this is, when it says you can מקנה קרקע בכסף בשטר ובחזקה, it means a different חזקה, you make a wall, or you dig. That's when you acquire it. No, this is חזקה ג' שנים, this is only a proof. But the proof is in הלכה, the proof is the one that comes over, לפועל, now he'll פסקן because till then if you would come, you would take it away from the מחזיק. And now you give it, now he'll have it. The only thing is, when it comes on here is like this: when does this, when does this change of ownership or the ראיה for the change of ownership take place? Through their testimony. Their testimony is going to make it. So, before that it didn't change yet, so it's not a דין שליחות. We want to say that they lived there on this on this שליחות, so when they're testifying it's on his שליחות. So we're saying, and that's why, and the whole שליחות works here. But how would שליחות work here when לפועל the שליחות is only good when it changes and this is before it changes? אלא מאי what we'll say here is גיטו וידו באין כאחד, it happens at the same time. We find sometimes that the two things which one depend on the other happen at the same time. Here the two things depend on each other. The fact that their testimony should be accepted depends on the fact that שליחות. The fact that their שליחות depends on the fact that their testimony is accepted. You see what I'm saying? If their testimony is not accepted then there is no change of ownership. If there's no change of ownership then there's not no שליחות. They had to be living three years of that before. No, we're talking about change of now. עובדא is that that they're saying and we accept the fact that they are living there on his שליחות. So we accept now the דין of שליחות. But we accepted only, we could only look at as a דין of שליחות if it if it goes over. When does it go over? If we accept it. So the acceptance is dependent on the going over, and the going over is dependent on the acceptance. They had to be living the whole three years on the שליחות. Yeah, but this this it's done now. To us it comes now. עובדא, לפועל, it was there before. We don't know if it was. We're getting it now. So what we're getting now depends one on the other whether we get this or not, whether we look at as שליחות or not now. No, it happened לפועל, but the פסק דין it's now. Now, what is there a דין? There's a דין of גיטו וידו באין כאחד. What's the case of גיטו וידו באין כאחד? The גמרא says like this: a woman, let's say an עבד is even clearer, so we'll make it by an עבד. An עבד, עבד כנעני, a גויישער עבד, whatever he is קונה is for the master. מה שקנה עבד קנה רבו, goes to his master. So the fact is that an עבד doesn't have a יד to be קונה for himself, whatever he's קונה is for the master. How do you free an עבד? By giving him a שטר. He has to be קונה the שטר. Now the question is, how can he be קונה the שטר? Because anything he's קונה goes to the owner, so he's never קונה it. So in order to be קונה the שטר, he has to be free. In order to be free, he has to be קונה the שטר. So which way does it work? So the

גמרא says גיטו וידו באין כאחד, it happens together simultaneously. So, yeah, so here also you could say it happens simultaneously. The only thing is, there is a כלל of the אבני נזר that not in all cases we say it. The אבני נזר says this כלל, he asks a שאלה, there's a קצות about it, he asks a שאלה like this: according to this logic of גיטו וידו באין כאחד goes together, what happens like this? We know as a כלל that קרקע, a חצר, land, you could acquire by acquiring a שטר. If I give you a שטר that says I'm giving you away my house, and the house could be who knows where, you're here, I give you the שטר, the moment you acquire the שטר, the house becomes yours. That's one דין. Then there's another דין, that if you own a land and something falls into it, you're קונה the object through the קניין חצר, because it's in your חצר. So here he asks a שאלה, what would be, I want to be מקנה to you, I want to give you a חצר, a house, let's say, a yard, and the yard is someplace else, and you're not even here, you're not here, you're not here and I can't give you anything. I'll write a שטר, I'll put it into the חצר. A חצר you want to give over? Yeah, what will happen here? It comes out this, that it's the same problem here. In order to be קונה the שטר, you have to own the חצר. In order to be own the חצר, you have to קונה the שטר. Let's say גיטו וידו באין כאחד. So the guy doesn't even know about it, the guy's not here, has nothing to do not with the שטר, not with the חצר, and he'll be קונה the חצר? Says, לא דמי, you've got to have some connection. How in the world is he קונה? He has nothing to do here. This guy doesn't own the חצר, doesn't own the שטר, how could the חצר be קונה the שטר? It makes no sense. Because it's good for him. Even if it's, no, that's, you could be זוכה for somebody, but not a חצר. So he says a כלל: when do we say גיטו וידו באין כאחד, like the case of the עבד? Because there is some beginning. Some what? Some beginning. The עבד has a יד. There is something not allowing his יד to work. When there is some beginning, then we could say, even though להלכה they both depend on each other, but there's something where to start, some connection, he has a יד, he takes, they give him the שטר, he takes it. But when the guy has nothing to do here, like in the case the חצר the guy has nothing to do here. I mean, there is no beginning, how in the world will it ever get to him? How does it connect to him? So, there we don't say באין כאחד. Here, there is a beginning. So, I'm saying in our case, there is a beginning. What's the beginning? That this is only going to be proof like we said before, so there is a connection that he has because of living there before. We're just looking לגבי the ראיה that we're trying to bring. So, ממילא, normally we would say גיטו וידו באין כאחד. On the other hand, on the other hand, in this case, where if the guy comes and טוען's, if the מערער comes and טוען's that, "I don't want to accept it," so now we have to push away the טענה of the מערער. It's not just a regular case of two things that come together. There is something that has to happen before. Their testimony has to accomplish an original, earlier step, to push away his טענה. So, here we can't say באין כאחד, it's not באין כאחד. באין כאחד means when they come together. But here, this is supposed to accomplish something before. Not in time, in היגיון, in in in in היגיון, what do you say, in abstract logic. Because the רמב״ם says in פירוש המשניות that there are many times where you have two things come together, but if one is needed before the other, one is the cause to the other, we look at it as if it came in time before. So, in this case, what you have to do, and this would be the דין, if he doesn't טוען anything, then we say like this, he doesn't טוען, then we accept their testimony. How do we accept their testimony and we give it to the מחזיק? Because they're there on the שליחות of the מחזיק. איי, how are they on שליחות? שליחות is only if there is a חלות. There is a חלות here, the קנין changes. איי, in order for the קנין to change they have to accept the testimony, in order to accept the testimony it has to be שליחות, it comes together, and there's no problem, גיטו וידו באין כאחד. The moment he טוען's, then there is something else that we got to work on, to push away his טענה, and that's an earlier thing. And how do you want to push it away? Through their testimony. לגבי that which is earlier before the second step, so there we won't say באין כאחד. If you won't say באין כאחד, then the testimony is not accepted against this טענה. And that's what the רמב״ם will mean. That's a good פשט in the רמב״ם. If he doesn't טוען, then it's accepted. On what base accepted? איי, what do they prove for him? Because they're שלוחים. How do they prove with שלוחים? Because there is a גדר of of change of חלות. How do they get it? Because they're Because they're testifying for him and they're giving it to him, and they come together. But אם טען, if he טוען's, if he טוען's then we

have to do something earlier. So, their testimony has another function, to push away his טענה, that extra טענה that he טוען's. And to push away the טענה is something that is in logic, in היגיון, something before. Before the guy gets it, so before there is a גדר of שליחות. If there's no גדר of שליחות, you can't believe them. So, if he טוען's, he makes that you can't believe them. According to this answer, he didn't make them שלוחים. If we're making them שלוחים by by accept- by making them come Where's the part that he gave over to them and and and he made them their If we accept their testimony. Yeah, but you're still Every It's so nice, but you don't have a beginning. Where's the time where he Here's a beginning. Why? How did he Because they lived there! We know, it's even more beginning than in the case of the of the But we're creating the שליחות. No, that they lived there is not we created, that's a fact, they lived there. But we're creating the idea that if it's become a שליחות. But but we could No, if if the he פסק's, if we פסק that he gets it, then they're שלוחים. Yeah, so you're retroactively making him a How do we how do we פסק? Because we accept the testimony. How can we accept the testimony? Because we פסק they're שלוחים. So, it goes together, there's no problem. We do that. That's always גיטו וידו באין כאחד. We say that always. But if there is something that we their testimony has to accomplish besides the general דין, with the new טענה that he has, so for that they're not שלוחים, and for that we can't accept. And if we can't accept, we can't accept their testimony at all. And therefore, the רמב״ם says, if he טוען's, שזה הדבר תלוי בהן, ואין תלוי בטענת המערער, it doesn't depend on the מערער anymore, it's depended on them. And therefore, you won't believe. How can you say somebody is a שליח? If you're going to say they're שלוחים, you have to go, you must go back to the minute they started there. If their שליחות started three years ago Yeah, we don't know that. We're trying to that they came together. We're trying to establish that now, and the establishment is a הלכה. That's a חלות. The establishment is a הלכה. But once you establish it, it must But how do we how do we establish it? Even if you want to establish We can't establish it unless he gets it. I understand what's bothered He's bothered by the fact that in 2000 when it was rented, now it's 2003, the mere fact, now we're it's all dependent, the שליחות is all dependent on whether they're the the מערער He accepts that they lived there in 2000. is going to complain or not complain. If he doesn't complain, they're שלוחים, and we look at them like שלוחים. If he does complain, we don't look at them like שלוחים. No. Oh, no. If he if he complained If he doesn't complain, we don't have to look at them as שלוחים, there's no problem. If he doesn't complain, then we don't care if they're שלוחים or not. Then the guy keeps it. The only problem if he complains. But I'm saying here's an extra complaint. There are two complaints here. There's a normal complaint: "It's my house! It's my house! Get out of here!" That's the normal complaint. And that's we're trying to prove. Then there's a new complaint here now, that he טוען's that, "I don't accept you guys as as witnesses." That's an ex- That's an earlier complaint, and for that we don't say that's not כאחד. And if that's not כאחד, that we can't accept. We can't accept their testimony against this. But we can accept the other test- But if this this doesn't allow it. And therefore, in this case, they won't get it. Interesting, that's why the רמב״ם doesn't You know what's funny? tell you why, like he asks, why did the ראב״ד say that in the first, רמב״ם say that in the first place? Because if all of these things wouldn't fit, now, like like you fit what you just— Yeah, now it fits into the words, you know? You know what's funny, the last שיעור I was here was so long ago, the exact the topic that night was also שליחות by a גט. Oh, yeah? A משלח can give— He can give, yeah.