he could טענה, but he didn't. No, he didn't, he's מודה that it's not his. Yeah, he said, \"I didn't buy it. I didn't hold to this.\" So according to the Tur that the מחזיק is the מוחזק, so there is even no hava amina that the מערער is better than him. הגם he's מודה that it's not his, but the מערער, if he has no עדים, has nothing but a טענה. This guy has possession, has a חזקה, מוחזק. So that's why he doesn't say אף על פי. He said it's a clear דין. You should know, לפיכך אם יש עדים למערער, there's no hava amina the מערער doesn't need עדים, the מערער needs עדים, and if the מערער has עדים, he'll take it away. And he adds, he'll have to swear. Because after all, we're taking it away from a מוחזק. So you have to have עדים, you have to have a a shevuah, a טענה דאיסורא, but a shevuah, because this guy has some hold on it according to the to the Tur. Because of that, we look further also. The Tur says, אבל אנו לא נפתח לו. Since the Tur holds that the מחזיק is the מוחזק, the one that's sitting there, he's the מוחזק, which means that the fact he's sitting there is a ראיה that it's his. The only reason we'd say it's not his cause he himself said, \"I didn't buy it.\" So maybe, since he has a חזקה, maybe we should bring out from him and maybe tell him, \"Maybe you're right. You're after all you're the מוחזק.\" So the Rambam באווארענט... So the Tur says, אבל אנו לא נפתח לו. But it's a

chiddush, that's the chiddush that we don't start. According to the Rambam, it's the opposite. Since the Rambam holds that the מערער is the מוחזק, this guy has nothing. There is even no hava amina that we should go and start him off and, \"Maybe it's yours. Where does he come in?\" That's why the Rambam just says simple, ואין פוסקין לו, just as a fact. He has to say it cause the Gemara said it, but he doesn't say אבל, \"but\". So just like the opposite, in the other place he had af al pi chen, af al pi, and he didn't, here's farkert. And the same thing, he finishes off, the Rambam says ואין פוסקין לו דין זה, since the מערער is, this guy's nothing, עד שיטעון מעצמו. Makes it very clear, this guy has nothing. We don't start him off, he has nothing till he ta'ent by himself. The Tur doesn't finish off those words, because he doesn't want to make it so clear till he ta'ent, cause without a טענה he's a טורף. He also has something. Maybe he forgot, so the chiddush is we don't ask him. If he'll remind himself, fine, but we won't fool not of him, we don't say it here. But he says it in a לשון of He doesn't finish off עד שיטעון מעצמו, he doesn't make it so clear. So this, we could say the machloket between the Rambam and the Tur in in this ענין.

Based on this, be'emet we could Is Is there more machloket'n in different ענינים of חזקת הבתים that we could explain, whether it's in the the Tur and the Rambam or other ראשונים, to explain that there's based on these two ways. And I'll just go into one, one small one. Here in this Gemara, right in the beginning... Excuse me, according to the Rambam, it says he doesn't have anything. He's sitting there, the מחזיק has nothing, right? He has nothing. So why does the Rambam say that the the one who wants to take it away from him has to has to have עדים? Because after all, because because על פי דין, it's just, cause if the other has nothing... Yeah, but the טענה is the טענה is also nothing. Anybody off the street could have a טענה. Lefo'al, it's nothing. Lefo'al, you need עדים. But the Rambam has to b'avarenen it. Lefo'al, the fact is if a guy comes a טענה, any guy off the street could come and say it's my house. Means nothing. So lefo'al, a טענה without backing is worthless. That's the fact. But it's the לשון אף על פי, because after all, this guy is gantz going because of a ta'anah. So the Rambam says אף על פי כן, you need edim, but without edim you're nothing. But a But a shevuah you don't need. Here on דף כ״ט, the same דף we're in the beginning, we

have a whole discussion here לגבי a person who חזקת הבתים, a person who is in a house, and you have to have three years to make chazakah, and the three years chazakah have to be רצופות, the Gemara says. רצופות means constant. You can't say, well, one year and then one year he didn't live there, another year he lived, you could have ten years like that, and you have has to be consecutive, has to be consecutive years, רצופות, which means it has to be day and night. If a person lived there only during the day and sleeps someplace else, then it's not consecutive. You could even have six years of just days, which is the same equivalent as three years, it's not, you have to have at night. What if you leave just a little bit, there's a מחלוקת in the Rishonim here, that's a שאלה, but that's what the Gemara talks about. So the Gemara says here, אמר מר זוטרא, מר זוטרא said, and the Gemara said before you have to bring witnesses, למשל neighbors, that saw you there day and night. So Mar Zutra said, ואי טעין ואמר ליתו תרי סהדי דאסהידו לי דדרו בה תלת שני ביממא ובליליא, טענתיה טענה. When do you actually have to bring witnesses who will testify for physically day and night? If the

מערער says that I want witnesses for day and night. I think that he didn't live there at night. You cause to make a chazakah you have to have witnesses that you live there. So this guy brings witnesses, he has the witnesses come and say this guy yeah, we're neighbors, we see for the last three years we saw him living there. That's all they have to say. If the מערער doesn't could say anything, that's fine. Because מן הסתם, we assume that the fact that they went and lived, they were מן הסתם a day and night. שוקא דמחוזא, אבל אי טעין ואמר, if the מערער claims, \"No, ליתו סהדי, I want witnesses to come and say דדרו בה כשני ביומי ובלילי, they lived three years,\" הויא טענה, it's accepted as a ta'anah and we like... Comes the Rashbam here, and the Rashbam says like this within middle of the words, he says כדאמר רב זוטרא, you look at the Rashbam here, three lines from the bottom, Rav Zutra says דאי טעין ואמר, if he claims and says, אייתי סהדי, bring... הויא טענה, he said, \"I want witnesses for day and night,\" טענה, וצריך שיביאו עדים שלילות וימים, and you have to bring witnesses day and night. And he says, דכיון דטעין טענת ברי, since the מערער claims a טענת ברי, טענת ברי means a definite טענה, דקאמר, he says, אני ראיתי שלא דר בלילה בבית. If the מערער says, \"I'm telling you, you bring witnesses that he lived there. I know he lived there, but I know there were nights, I know, I watched him and I saw there were nights he wasn't there, ולכך לא מחיתי, why didn't I make a מחאה? Because we tell the guy... Because I know the guy didn't have a real חזקה, ואין חזקתו חזקה. ולכך אני אומר, therefore, I ask אייתי סהדי דדרו בה כשני ביומי ובלילי, I want him to bring day and night, צריך להביא עדים להכחישו, you have to bring witnesses to disprove him, ולמימר דשכיח התם,\" that's what he says. Okay, now let's see, and this is the way the Tur says. The

Tur learned like the Rashbam. The Rambam has... There are a lot of פשטים in the Gemara, but the Rambam learns mainly the same, it's one difference. Let's see which הלכה this is. Let's see. Shulchan Aruch, אה, פרק י״ב, טוען ונטען, הלכה ב׳, אוקיי. הלכה ב׳. Okay, let me read this הלכה here. הביא עדים שזה היה דר בחצר זו שלש שנים, he brings עדים that he lived there for three years, הרי זה חזקה. טען בעל החצר, that's the מערער, ואמר, שמא לא שכן בה ביום ובלילה, the מערער says, \"Well, I don't know, maybe he didn't live there day and night, אי שמא or if you rented it to people, maybe they didn't live...\" הרי זו טענה, it's a טענה, אומרים למחזיק, so we tell the מחזיק, bring עדים for day and night, if not, הסתלק, get out of here. What do we see? It's the same Shulchan Aruch as the Rashbam, which is the same, the Rashbam and the Tur learn like the Rashbam, but one difference. The Rashbam and the Tur learn that when is the מערער accepted his טענה, only if it's ברי. Oh, he has ברי. He said rented also... No, the Gemara talks about rented also, so that's... No, I just didn't bring all the shades yet. But he says that the מערער claims for sure, definitely, \"I know for sure, I was there,\" his ta'ana is a טענת ברי. What, according to this, the מפרשים say that, what would be if the מערער comes and says, \"I don't know if he lived there day and night. I'm not sure. I don't know. So the witnesses came, I want you to bring witnesses.\" According to the Rashbam, that's nothing, what's a טענת שמא? Anybody can say, \"Maybe you're lying, maybe it's not...\" Witnesses come, we assume, we don't have to. If he claims ברי, then you do it. Now,

what was the lashon of the Rambam? If the בעל החצר says שמא לא שכן בה ביום ובלילה, הרי זו טענה and אומרים למחזיק, bring עדים. So there's a machloket, prima facie, between Rambam and the Rashbam, which is the Rambam and the Tur, because in the Tur he brings the Rashbam's peshat, and he said learns like the Rashbam, that only a טענת ברי, not a טענת שמא. What is the yesod of this machloket? I want to say that the yesod of this machloket, we said before, the yesod is one thing: who is the muchzak? Is the מערער the muchzak or is the machzik the muchzak? Now what what are the differences? If the machzik is the muchzak, then and he has to, he's there in it, when he has to bring the three the the witnesses that he was there for three years, it's only, what will the three years accomplish? Only to take off the kushya, where is your shtar? So if he lived there for three full years, we take off the kushya. But be'etzem, he is the muchzak. If, and that's according to the Tur. If he is the muchzak, how could the מערער, who says שמא, force the muchzak, saying that your chazakah is no chazakah? Again, שמא is no טענה. So therefore, according to the Rashbam and the Tur, the טענה has to be ברי. But the Rambam, the Rambam goes לשיטתו, the Rambam holds that the מערער is the מוחזק, and the חזקה is just he's trying to get himself into a חזקה just to make it a חזקה, and the only reason is because he didn't make a מחאה. And in this case, \"I didn't make a מחאה because I I I wasn't sure you were there.\" But a טענת שמא is good enough, because if he has the upper hand, and the other guy has the bur- burden of proof, the other guy has to bring a ראיה even if it's a טענת שמא, that's why the רמב״- the Rambam holds טענת שמא. And in the שיטה they bring two שיטות, and he brings שיטת Rambam is שמא, שיטת haTur ה- רש- Rashbam is ברי, and he doesn't say why. So there are all kinds of ביאורים what the difference is, but I want to say that this ביאור could be תלוי in this machloket, whether who is the מחזיק or... באמת, just to get into that itself, I'll finish in a second. Who's bringing the witnesses each time? No, a מחזיק, in order to be a מחזיק, you have to bring witnesses that you lived there for 3 years. Now the שאלה is, he brought witnesses. The only thing is, this guy makes a doubt in the in how good the witnesses are. What do you mean you make a doubt? You can make if you טענה ברי, then that's a טענה. You say that you saw he wasn't there. But if you טענה שמא and that guy has the upper hand, it's nothing. But if he has the upper hand This guy is first trying to get his חזקה together because otherwise he's nothing. He says, well prove it completely. באמת, there is a machloket in Gemara later, which seems to be the source of this machloket. But it's hard to say, because if it's a machloket between the Amoraim, you can't say it's a machlokes between the the Tur and the Rambam. So there are different ways to learn the Gemara, but one of the ways, just to bring a re'iyah, is the machlokes there. I'll just bring this Gemara just to give a The Gemara here says, I'm not that's what it says. ההוא דאמר ליה לחבריה מאי בעית בהאי ביתא? A guy says to this friend, \"What are you doing in my house?\" אמר ליה מינך זבינתיה ואכלית שני חזקה. He says, \"What do you mean? I bought it by you and I have a chazakah.\" And obviously, he brought edim he had a chazakah. אמר ליה אנא בשכונות גוואי הוא דהואי. So, he answered him, the way the mefarshim learn, you lived in this house, you're right, you was in this house for 3 years, I know that. I lived in the house with you. It's my house. I lived there. I had a different a different room, you had a different room, I just let you You're my guest and I always used to walk by. When I used to I lived in the back, I used to walk by your house. That's a chazakah? Every guest that stays in your house for 3 years makes a chazakah? He said, \"I was there.\" Obviously, what does this guy answer? While he doesn't finish, he answered, he answered, \"You're you're a liar. You did You didn't go through my place. Maybe maybe it says he was modeh, you lived in the back, so you had your apartment in the back, but you had nothing to do with my house.\" If he walked through constantly, this means it's His she'eilah is here, so he has a chazakah, but this guy says, \"I lived there.\" אזלו לקמיה דרב נחמן. They came to Rav Nachman. אמר ליה, רב נחמן says, זיל ברר אכילתך. Rav Nachman

said to the machazik, \"You go prove. Prove that he didn't walk through. You claim he didn't, you bring re'iyah he didn't walk through.\" אמר ליה רבא, so Rava said, הכי דינא? Is this the right din? המוציא מחבירו עליו הראיה. That guy wants to take away the חזקה, עליו הראיה. And the Gemara goes into sevarot, but what what's the pshat? Even though one of the simple ways to learn Obviously, the Rishonim, some of them have to learn a different pshat because it will work against them, because of the So, the machlokes is very simple, it seems like. Rav Nachman said that the machazik has to bring a re'iyah. Why? Because there's a question whether his chazakah is a good chazakah. The fact that he's sitting in it is nothing. אלא מאי, his chazakah will prove it. Since it's a question, he is the motzi now, and the מרא דקמא is the מוחזק. So, עליו הראיה. Comes Rava and says, \"דינא הכי, המוציא מחבירו עליו הראיה. This guy is the מוציא. He's the מוחזק, obviously.\" So, this will fit, the only thing, this peshat in that Gemara will fit according to the Rishonim who pasken the halacha is here like Rav Nachman. That the מחזיק has to bring a ראיה, so the מרא דקמא is the מוחזק. Those Rishonim that learn that the מרא דקמא is the מוחזק, will learn that peshat in the Gemara. And they say this is the machloket between Rava and Rav Nachman. Since the halacha is like Rav Nachman, that's where I get my source. Those Rishonim that learn that the מחזיק is the מוחזק can't learn this peshat in the Gemara, because if they learned it so they would go against it. So they have different peshat. There are different peshatim in the Gemara to learn, but this could be the basis of their machloket. You were saying that he can be considered one עד. Not as an עד, as an עד. And does עדות? Does עדות, but that's what I said before, that's, it's not a פיקוח ספק, I mean, a לבד. If a guy dies, but they nobody really knows if he died, and that is if he's dead or not. That's this question. We know what happened in certain circumstances, that Not so if someone comes in if you pass that ראיה. after a certain amount of time, no. Not even No, no, no. You have no time. missing person or something? Then you never could get married. The lady could never get married, Until they until they never find the body? till Mashiach comes and straightens it out. Right, yeah. Yeah. Or there are other proofs, there are ways to prove it. You got to look into ways, certain all kind of she'elot, after the war it was Rabbanim were sitting for hours and thousands of agunot. I mean, hundreds and thousands of agunot. Okay, but if you have no way of proving and no witnesses come, no people saw, Well, and if I ask somebody to come and see the my contract that I make for a loan, isn't that an execution? No. You mean without signing it? Ask him to see it, you didn't ask him to sign it? No, no, he has to sign. To sign or to see it? I don't know which one. That's, that's not a kinyan, anyway, is not a kinyan, anyway, no matter what The contract is there if you make up with somebody, and you make a kinyan, the contract is there. Don't, don't need, then we don't need the witnesses. You definitely don't need, But if you don't trust, since you don't trust the guy, so you're afraid he'll dispute this, that's why you need a witness. The witness is there just to be מברר. To be מברר. And at that time it's not established No, no, without it, you don't need it. But to say the other way, when you run out of the proofs, the husband himself, or the baal is like 100, right? As Rashi says. And 100, we sounds like it's like two, because that's the reason he says 100. So then the husband is like two now. So the same The reason that says the לשון 100 is to tell you just to use an example of how strong it is. No, it's farkert, then it should say two. If two and a hundred are like one, why does it say like a hundred? Should say there's a גזירת הכתוב he's like עדות, like two עדים. Should say like a hundred עדים? 'Cause we have learned that a hundred עדים is like two עדים. So, how how is it that we are to establish and verify Hashem's existence? Is it one and the same? Yes. No, I'm asking you. How does that work? See, the the place where we learn a lot about עדי קיום and עדי בירור is in Likutei Sichos חלק ט׳ פרשת שופטים. So, if you look up there, the second half of the שיחה talks about this. It says, ״אתם עדי״, Yidden are עדים. What kind of עדים are we? Are we just like a בירור or עדי קיום? And both, we're מברר, we verify that there is Hashem, we are here to prove that there is Hashem in the world, and we also are part of, we make it up. בכלל, what what make him, we're מקיים, we make a דירה בתחתונים. We make it. Not only we verify that it's happening, we make it. And also he says בכלל עדות is for something that's not known. So for דרגות of עלמא דאתגליא, which is known, they reveal מדרגות, we don't need us. We are מגלה אלוקות of עלמא דאתכסיא, of סובב כל עלמין, 'cause that's hidden. So here, is is it there also that there it's what about it makes us us מקיים? Is our בירור that makes us מקיים? Or is it Maybe. We are מגלה אלוקות in the velt. מגלה is מברר. We are מגלה, that is קיום. The fact that we are מגלה אלוקות makes the דירה בתחתונים. The only thing is there's one place Yeah, 'cause we're 'cause there's there's Kiddushin between us and Hashem, so There's one place which seems to contradict what I said, because like this there are a lot of things that can be explained. And that's from one of the Reshimos that came out just a few weeks ago. There was one of the Reshimos that came out talking about this subject of עדי קיום and עדי בירור. And there, there's one par- one paragraph which the same whole thing is in Likutei Sichos, and that paragraph is not in Likutei Sichos. In other words, when the Rebbe said it, this is what the Rebbe wrote for himself years ago, but when the Rebbe said that שיחה, he didn't say this part. It seems like this part doesn't fit with what I'm saying. Now, I'm not saying that's why he didn't say it. I have an explanation to that, too, but he explains there, based on this, he explains something. It happens to be very interesting, but it seems not to fit. It seems that that קיום means פשוט קיום, the fact that they created. But it's late. Go ahead, tell us. No, no, no, go on. Okay. Whoever wants to leave will leave. Okay. 'Cause this part I know. Like you said, either either hold simple, it goes off, or, right? There in the Reshimah, he says that based on the difference between עדי ממון, regular עדות and עדי קידושין, that this is קיום and this is בירור, he says we'll understand the din. The din is like this. There's a din of שבועת העדות. שבועת העדות means that if a person is a witness and he swears false and whole whole thing, there's a certain din, has to bring a korban, all kinds of dinim. What happens if a person is פסול לעדות? He's not a כשר עדות. Then there's no din of שבועת העדות. All the dinim involving the שבועה of עדות doesn't apply. What happens if a person is pasul as an עדות only mid'rabbanan, mid'oraita he's kasher? Now, you can look at it two ways. You can say, well, since mid'oraita he's kasher, so he's a real witness, so he is chayav. On the other hand, mid'rabbanan they said he's pasul. The din is he's not שבועת העדות. There's no din of שבועת העדות, because after all, his

testimony would never be accepted. Whether it's מדאורייתא or מדרבנן, he's not an עדות. Yeah, and they're not gonna, they won't accept it. There's a דין that if a person gives קידושין to somebody in front of two witnesses which are פסול מדרבנן, she needs a get. She doesn't need, which means that safek, but but there's a certain דרגה that she needs a get. The question is why. If they're not If the witnesses are פסול, but the רבי says based on this, you know, it's understood. By שבועת העדות, the whole concept of עדות by everything else is בירור. בירור means their verification. Their verification will never be, because the בית דין will not listen to them. But by kiddushin, the whole thing is that they have to stand there. And since they're only פסול מדרבנן, if they'd be פסול מדאורייתא, then they're not standing, that's not even a body, because their whole they're not עדים. But since מדאורייתא they are, so they are a body, so they are standing there. So the kiddushin is kiddushin. איי, we won't listen to them, but who cares? It's עדי קידושין. Now, if since I'm saying that the whole thing of קיום is בירור and the בירור will not be accepted, so then there should also be no good. Do you have an explanation for how it still works? Yeah. When we say that עדי When the whole explanation here, this is going to make the whole explanation of before a little bit more more abstract. Till now it was a little bit tangible, this will be more abstract.

When we say that the עדי קיום really are עדי בירור, but the בירור is a קיום, we don't mean the בירור of what they're going to come later and say. That's a second step already. There is an עצמותדיקע בירור. There's the fact that witnesses are there, that itself is their בירור. Then later on, we will ask them, they'll say. Now, when that they still have. When they're פסול מדרבנן, all it is is they cannot come later and testify. In other words, when the רבנן made them פסול, they didn't do anything to them. They didn't touch them at all. What they did was they turned to the to to the בית דין. That's, it's a דין on בית דין, to tell בית דין: ever a guy that did this and this and this will come, don't listen to him. That's all it is. They didn't say to the guy, \"You did this and this, you're פסול.\" וממילא, the בירור that we're discussing here is not the level of בירור that בית דין will want to find out. It's something that's a בירור that's there on the spot. And that בירור didn't change, and therefore that בירור that the Rabbi gives there fits even according to this. [Non-speech audio] If you take a look at the psak in Rambam, Rambam says in פרק כ' מאיסורי ביאה הלכה ו', אין מחזיקין עדים בבדיקה אלא בנאמנות. The question is what does that mean? There's a Maggid Mishneh, there's a Migdal Oz, there's a Kiryat Sefer, what does that mean?