Wednesday, December 05, 2007

Kesubos 96b - Property in Chazaka of Almana

The gemara has a discussion whether the widow has a chazaka in the property of the estate for the part that she is claiming for her mezonos. Does she have a chazaka so that the yorshim have to prove that she received the mezonos, or do they have the chazaka so that she has to prove that she did not receive the mezonos. Rashi and Tosafos argue whether the discussion is about mezonos for the past year (tosafos) or for the upcoming year (rashi). They also seem to argue why she has a chazaka - Rashi says it is because of the tnai beis din to receive mezonos gives her a chazaka in the property. Tosafos says that her right to sell the property to collect mezonos indicates that she actually has a chazaka in the property. It seems that they go l'shitasam. Tosafos who says that the discussion is for past mezonos where her silence is indicative of perhaps receiving payment, but for future mezonos she certainly has the upper hand because of t'nai beis din, cannot say that the chazaka on the past mezonos is due to t'nai beis din. Tosafos understands that t'nai beis din will give her the upper hand even without a chazaka, therefore tosafos does not use the t'nai beis din to create a chazaka for past mezonos, and instead says that her right to sell indicates a chazaka. Rashi who says the discussion is regarding future mezonos, explains simply that the chazaka is created through the t'nai beis din.

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