It's a תקנת חכמים for the benefit of both people. For the benefit of the person who moves in, that he shouldn't be bothered by having the שטר for more than three years. It's a big bother to keep your שטר. Those days, I mean, you have to be careful from mice and from all rotting, so they helped him out forever. The חכמים also cared about the מערער. What happens if a guy moves into someone's house and שלא כדין, against the דין? So they gave him an עצה, too, make a מחאה. You're here, make a מחאה, so the חכמים did it. So it's a תקנת חכמים for the betterment of the people, that's all it is. So he said that this is a מחלוקת between the, so then pshat says a מחלוקת between the נמוקי יוסף and the רמב"ן. According to the רמב"ן, we have a ראיה that if the מחזיק by the מחאה, according to the נמוקי יוסף, it's not. According to this, what would be the שיטה of the בית יוסף? We look in שולחן ערוך, the בית יוסף brings this דין: אכלה בפני האב שנה ובפני הבן שתים. If he had it, his father lived a year and the son two years, so he doesn't make a חילוק between a קטן and a גדול. He says even if the child is a קטן, this guy has a חזקה. Now, if he says like that, it fits to the רמב"ן. That means he holds like the רמב"ן, that the חזקה is right away because the the is right the ראיה is right away because he should have made a מחאה right away. Because if the ראיה would be only after three years of not making a מחאה, then if the two years were by a קטן, you can't count those two years. So from here we have a ראיה that the רמב"ן learns, I mean that the בית יוסף learns like the רמב"ן. Wait, but why would have, why would a קטן have an obliga-, a קטן have an obliga-? He doesn't have. He טאקע doesn't. But the guy keeps it anyway because it's not the ראיה that those two years didn't make a מחאה, the ראיה is from the first minute he didn't make a מחאה. The only reason that you need wait for three years, because till then we have a ראיה against you. You don't have to make a מחאה to that קטן. See, that's right. So why so why the whole subject come up if there's a קטן? So can't someone claim for the קטן? No, I mean, don't have to. You can't blame. You could have from the first second that the מחאה is best. Yeah, right, right. After three after three years, he gets it, right. So if someone else could come and take it show be take him to בית דין. But if no one does anything for these three years, then he would keep it. Yeah. Someone have to come for the קטן. Yeah, someone would come, call him to בית דין. The אפוטרופוס, I know, could call him to בית דין. The אפוטרופוס, yeah. Look, but even if no מחאה was made, according to other שיטות, since no even if no מחאה was made, the מחזיק doesn't keep it, because you can't blame them for not making a מחאה. But according to the רמב"ן, the fact that we can't blame him doesn't we don't care, because it started when he didn't make a מחאה, the original owner didn't make a מחאה. And according to the רמב"ן, the ראיה is from the first moment! From the first moment the father didn't make a מחאה, the ראיה is his, that's what the רמב"ן says. And obviously, we're saying that since the בית יוסף in שולחן ערוך פסקנס that there is no difference between a קטן and a גדול, so the בית יוסף follows the דרך of the רמב"ן. So according to the בית יוסף, the מחאה should have made been made the first should have been made the first minute. So, you mean before the father died, you mean. In this case, yeah. No, every case, when the before the father died, right. And from here we learn out not only in the case of the father died, from here we see for every normal case, where there is the same person, that the דין of מחאה is that a person should make a מחאה right away. And the fact that he didn't make it right away, there is right away a ראיה that it belongs to the מחזיק. We won't give it to him, because we have a קושיא, "Where is your שטר?" נמוקי יוסף holds that it's a תקנת חכמים. What's the תקנת חכמים? That for three years. So it comes out from here that there's a מחלוקת between the נמוקי יוסף and the בית יוסף: what is the גדר, the concept of the three years of חזקה, according of of the מחאה that's supposed to be in order to avoid the חזקה? According to the בית יוסף, well, even though there are three years, it's only that you have a span of three years to be מוחה, but really the מחאה should be done right away. And if you didn't do it, you lost right away, but we gave you a chance, the second minute to do it, the next day to do it, so that... But if the רמב"ן says that the מחאה is you should still do right away, so why why do they give you the three years for? That's what I don't understand. We gave you three years is because otherwise we have a קושיא on him, "Where is your שטר?" טאקע after a minute, so now it's his, right, but what could be of a שטר? So till three years, we can't keep it for that reason. And because of that, we gave the guy a chance to be to make a מחאה more times within the three years. But the original דין of מחאה is not that way. The original דין of מחאה according to the בית יוסף, according to the רמב"ן, is that you should do it immediately. So according to the בית יוסף, you have to do a מחאה immediately. So according to the בית יוסף, the span of time is that originally you should do it right away, but you have a chance to do it later, do it later. According to the...

but according to the נמוקי יוסף, he says that you לכתחילה have a span of three years in order to do it. And that's where the מחלוקת is here. Since the בית יוסף holds that לכתחילה you have to do it right away, therefore, if you didn't do it right away, you're called a פושע. Even though later you were an אונס, but still, since לכתחילה you could have done it, and you should have done it right away, and you didn't, you're a פושע, and the fact that later you didn't do it באונס, you're not called an אונס, you're called a פושע. And therefore, the בית יוסף holds that in the case over here, if לכתחילה you were in a place where you could have made a מחאה, and you didn't, and at the end you were in a place where you couldn't make a מחאה, you're not called an אונס. You're called a פושע. But the נמוקי יוסף holds that you have לכתחילה three years to make a מחאה, so the span of time is not that you have to do it לכתחילה, and if not, you have time later, but you have לכתחילה a chance to do it when you want throughout the three years. So here, even though לכתחילה you had a chance to do it, and you didn't make the מחאה בכוונה, you were a פושע. But since at the end you were an אונס, you're considered an אונס. Ah, you could have done it לכתחילה, who said you had to do it לכתחילה, since the לכתחילה of the time is that you have three years. And that's why according to the נימוקי יוסף, if לכתחילה you had a chance to do it, but you didn't, and at the end you were an אונס, you were אנוס, you have a דין of an אונס. So it comes out that the reason why here the בית יוסף and the נימוקי יוסף argue is the same reason why they argue about תפילה, but in the opposite directions. By

תפילה we said that the נימוקי יוסף holds it's a פושע, and the בית יוסף holds he's an אונס. And the reason is because by תפילה the the נימוקי יוסף holds that the תורה or the חכמים gave you the זמן of תפילה, they said לכתחילה you have to do it right away. And if you didn't do it right away, you're a פושע. The fact that later you were an אונס, you're not called an אונס because the the time was לכתחילה to be done. The only thing that they gave you those amount of hours is in case you didn't do it לכתחילה, you could do it later. So therefore, if you didn't do it לכתחילה, you're already a פושע. And the fact that you were an אונס later doesn't count. You're still a פושע. The בית יוסף holds that by תפילה it's the opposite. That by תפילה לכתחילה they gave you a certain amount of time. Not that you have to do it first minute, you could do it any time during the time. And therefore, if you didn't do it לכתחילה בכוונה, you were a פושע, but since you still had a chance to do it later and you were an אונס, you're considered an אונס. So therefore, בנוגע to תפילה, the בית יוסף holds in a case like this, you're called an אונס. If לכתחילה you were a פושע, you left it for later, and later you were an אונס, you're called an אונס. And the נימוקי יוסף holds that since you had to do it לכתחילה, you're called a פושע, even though later you were an אונס. When it comes to the קרקע, just the opposite. By קרקע, the בית יוסף holds that the time of the מחאה is לכתחילה. And therefore, if you didn't do it לכתחילה, you're called a פושע. Ah, later you were an אונס, too bad. לכתחילה you should have done it, and you're called a פושע. The נימוקי יוסף holds that the opposite. That by the מחאה there is no דין that you have to make a מחאה right away. You could do it any time of the three years. So therefore, even though לכתחילה you didn't do it בכוונה, you did it בפשיעה, but since you still could have done it later, and later wouldn't have been anything wrong, you still have the time to do it later. Therefore, if later you were an אונס, you're called an אונס. But if so, why does the בית יוסף write that according to the יש מפרשים it does fit? So we have to sit the פשט like this: that according to the יש מפרשים, we see an interesting thing. The

יש מפרשים say that if his excuse was only that I didn't have a chance to make a מחאה, it's acceptable. In other words, according to the יש מפרשים, even if he gives a weak reason, that reason is good enough for him why he didn't make a מחאה. Which means that as long as it is not clear that the reason he didn't make a מחאה was because it's not his, it's not called a חזקה. When does the lack of making a מחאה make the other guy have a חזקה? If it's sure that the reason he didn't make a מחאה was because it's not his. In other words, he has no excuse why he didn't make a מחאה. The moment he has an excuse why he made a מחאה, he didn't he didn't make the מחאה, even though the excuse is a weak excuse, it's acceptable, and we don't hold it against him that he didn't make a מחאה, וממילא the other guy doesn't have a חזקה. That's what we see from the יש מפרשים, because the יש מפרשים say that the excuse of not having time is acceptable that it doesn't work against him, the fact that he didn't make a מחאה, because he has a small excuse, and the other guy's חזקה is no חזקה. Now if you learn that way, in this case, where the guy didn't make a מחאה לכתחילה, even though according to the בית יוסף you have to make a מחאה לכתחילה, but an excuse he has. He could have say he could say that the reason I kept my מחאה from making it לכתחילה is because the דין is that from when you make a מחאה you have three years till you have to make the other מחאה. So he thought to himself, "Why should I make a מחאה right away, and then in three years from now I'll have to make another מחאה? Let me wait till the end, close to the end of the three years, then I'll make a מחאה, I'll have three more years." Even though it's not such a strong excuse, but according to the יש מפרשים a small excuse is acceptable. So according to the יש מפרשים, the בית יוסף says we could say that in the case where לכתחילה he didn't make a מחאה, even though he should have had to, he should have made a מחאה, he didn't, and at the end he was an אונס, we don't hold it against him, according to the יש מפרשים, because they say any small excuse works, that that shouldn't be held against. And

therefore, the בית יוסף says that according to the יש מפרשים, I could accept the נימוקי יוסף's סברא. Even though I hold that a מחאה has to be done לכתחילה, and therefore if you were a פושע לכתחילה, even though you were an אונס later, it's not called an אונס. But according to the יש מפרשים, I could understand, because as long as there is a small excuse. But if not for the יש מפרשים, which means if a small excuse is not acceptable, then I say it's called a פשיעה, and his not making a מחאה is called a פשיעה, and therefore we hold it against him, and the other guy gets a חזקה. But the נימוקי יוסף holds that since the whole דין of מחאה is not supposed to be done לכתחילה, you could do it any time you want, so the fact that he didn't do it לכתחילה is not called a פשיעה. So he פסקנ'ס that if לכתחילה he didn't do it בכוונה, he could have made a מחאה and didn't, and later on he was an אונס, we consider him an אונס, and therefore we don't hold it against him. And since it's not against him, his lack of מחאה is nothing wrong, and therefore the other guy's חזקה is not a חזקה. [Non-speech audio] [Non-speech audio] Testing. Testing. [Non-speech audio] [Non-speech audio]