Tuesday's Thoughts on the Daf - Bava Basra 39

Bava Basra 39 contains some well needed clarification of the concept of macha'a - protest. Since the commencement of the perek (Chezkas Habatim) the gemara has laid out disputes about whether macha'a must be done in person, the length of time one can occupy and work the field (without macha'a) before having a chazaka of adverse possession and what percentage of the field must be worked in order to justify the chazaka.

On the bottom of Bava Basra 38b (spilling over to the top of 39a) the gemara begins a discussion of how the protest is lodged. It must be done in front of witnesses, but there is a dispute as to whether the macha'a is effective if the witnesses either say that they will not inform the occupant of the field or are instructed not to inform the occupant of the field that there has been a macha'a. At the root of the dispute is the use of the doctrine of chavreich chavra ees beh - literally translated as your friend has a friend. As applied, this means that although these witnesses may not have contact (either by instruction or otherwise) with the occupant of the field, they will tell their friends who will tell others, until the protest reaches the occupant. [Kind of reminds me of that old commercial - they told two friends and they told two friends and they told two friends - my wife Sarah tells me that was a commercial for Pert shampoo.]

Towards the bottom of 39a, the gemara mentions a dispute as to whether R' Yochanan held that the macha'a must be in front of two or three witness. Initially, the gemara attempts to link this machlokes to the position of Raba Bar Rav Huna that anything said in front of three is not embarrassing talk (lishna bisha). The Rashbam explains (what at the time is the position attributed to) R' Chiya Bar Abba as stating that only two is required because the protest will become well known and there will be no danger of lashon hara.

I found this interesting as whether the protest is said before one, two or three, I would not have thought that one making the protest that someone stole his property has committed the aveira of lashon hara. Assuming the statement to be true (otherwise it would be surely motzi shem ra) the protester must be loud and clear that he is protesting the occupancy or he stands to lose his property.

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