Protest in his Presence
Before I start, a recommendation to read this Unherd article: How the NYT undermined mask evidence.
Some people don’t see what the bother was with masking, saying there was no downside. For me, it impacted me greatly. Fogged glasses due to the mask so I couldn’t see, having to regularly lecture sometimes 3 hours straight (OK, 10 minutes in between two sessions) in an N95 mask, where I had to speak louder than usual so that I could project my voice through the mask and getting out of breath, not being able to hear students’ muffled voiced and seeing their mouths move, where I already have hearing issues. So if it was necessary, OK. But if it wasn’t, and this was being politicized…
Anyway, I had intended my Jewish Link article this past Shabbos to be about Protesting in his Presence. The topic turned out to be to complicated for a column, and I didn’t like how it turned out, and painted myself into a corner, so I ran with a different idea.
Still, I’ll present a few of the ideas from the larger, now-suppressed column.
On Bava Batra 37b,
אָמַר רַבִּי אַבָּא בַּר מֶמֶל אָמַר רַב, לְעוֹלָם קָסָבַר: מֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה, וּמִשְׁנָתֵינוּ – בִּשְׁעַת חֵירוּם שָׁנוּ. וּמַאי שְׁנָא יְהוּדָה וְגָלִיל דְּנָקֵיט?
Rabbi Abba bar Memel says that Rav says: Actually, the tanna holds that a protest lodged not in his presence is a valid protest, and the Sages taught our mishna with regard to a period of crisis, when travel is perilous and information cannot be transmitted between Judea and the Galilee. Therefore, although no word of a protest was received, the possessor does not establish presumptive ownership of the field. The Gemara asks: But if it is due only to the exigent circumstances that word of the protest does not reach the one possessing the field, what is different about Judea and the Galilee that the tanna cited? Ostensibly, even within one of the three lands, if travel and communications are restricted the same halakha would apply.
Amoraim, especially early Amoraim like Rav, will tend to speak in short, apodictic statements. (See HaLivny.) So, the careful structure of “really, the tanna holds the following about the nature of protest” would not be part of Rav’s original statement. Rav would just have said מִשְׁנָתֵינוּ – בִּשְׁעַת חֵירוּם שָׁנוּ, that our Mishnah is taught with regard to a period of crisis. The idea of מֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה would then be a Stammaic insertion, putting it into a sensible framework based on discussions made explicitly by later Amoraim like Rav Nachman or Rava, or by something Shmuel said in reaction.
I think this confounded a later stratum of Stamma. On the very next folio, 38a, we get this one-sided exchange. One sided because Rav Yehuda studied with Shmuel after his teacher Rav’s death.
אָמַר רַב יְהוּדָה אָמַר רַב: אֵין מַחֲזִיקִין בְּנִכְסֵי בוֹרֵחַ. כִּי אַמְרִיתַהּ קַמֵּיהּ דִּשְׁמוּאֵל, אָמַר לִי: וְכִי לִמְחוֹת בְּפָנָיו הוּא צָרִיךְ?!
§ Rav Yehuda says that Rav says: One cannot establish the presumption of ownership with regard to the property of one who is fleeing, as he is unable to lodge a protest. Rav Yehuda reports: When I said this ruling before Shmuel, he disagreed and said to me: But does the owner actually have to protest in the presence of the possessor? Since that is not the case, and he can lodge a protest wherever he is, one can establish the presumption of ownership with regard to the property of one who is fleeing.
Since it is one-sided, we don’t know how Rav would respond, for instance, what distinctions he would make, perhaps especially for the complex case of a boreach, a fleer, who isn’t so free to register his protest, or hear about it. This is confounding because it seems like Rav is reversing himself. So, the Stamma has two options:
harmonize by saying this is the real Rav position, and there he was only explaining the position within the Mishnah
revise the present statement, so that Rav is not contradictory.
Thus, first the gemara has:
וְרַב – מַאי קָא מַשְׁמַע לַן? מֶחָאָה שֶׁלֹּא בְּפָנָיו לָא הָוְיָא מֶחָאָה?! וְהָאָמַר רַב: מֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה! רַב – טַעְמָא דְּתַנָּא דִידַן קָמְפָרֵשׁ, וְלֵיהּ לָא סְבִירָא לֵיהּ.
The Gemara asks: And Rav, who ruled that one cannot establish the presumption of ownership with regard to the property of one who is fleeing, what is he teaching us, that a protest that is lodged not in his presence is not a valid protest? But doesn’t Rav say: A protest that is lodged not in his presence is a valid protest? The Gemara answers: Rav was explaining the reason of the tanna of our mishna, but he himself does not hold accordingly. Rav holds, in accordance with the opinion of Rabbi Yehuda, that the protest is valid.
and then, alternatively, has Rav say something consistent with the above, and Shmuel saying that this is peshitta, obvious, concurring.
וְאִיכָּא דְּאָמְרִי, אָמַר רַב יְהוּדָה אָמַר רַב: מַחֲזִיקִים בְּנִכְסֵי בוֹרֵחַ. כִּי אַמְרִיתַהּ קַמֵּיהּ דִּשְׁמוּאֵל, אֲמַר לִי: פְּשִׁיטָא! וְכִי לִמְחוֹת בְּפָנָיו הוּא צָרִיךְ?!
And there are those who say a different version of the previous discussion: Rav Yehuda says that Rav says: One can establish the presumption of ownership with regard to the property of one who is fleeing. Rav Yehuda reports: When I said this ruling before Shmuel, he said to me: Isn’t that obvious? But does the owner actually have to protest in the presence of the possessor?
וְרַב – מַאי קָא מַשְׁמַע לַן? מֶחָאָה שֶׁלֹּא בְּפָנָיו הָוְיָא מֶחָאָה?! וְהָא אַמְרַהּ רַב חֲדָא זִימְנָא! אֶלָּא הָא קָא מַשְׁמַע לַן – דַּאֲפִילּוּ מִיחָה בִּפְנֵי שְׁנַיִם שֶׁאֵין יְכוֹלִין לוֹמַר לוֹ, הָוְיָא מֶחָאָה –
The Gemara asks: And Rav, who ruled that one can establish the presumption of ownership with regard to the property of one who is fleeing, what is he teaching us, that a protest that is lodged not in his presence is a valid protest? But Rav already said this halakha one time, and he would not need to repeat it. Rather, Rav teaches us this: That even if the owner protested in the presence of two witnesses who are personally unable to tell the possessor about the protest, it is nevertheless a valid protest.
I’d personally endorse the first version of the Rav / Shmuel dispute. And it was never an explicit contradiction within Rav, both because here Rav isn’t even quoted by Rav Yehuda as saying something about מֶחָאָה שֶׁלֹּא בְּפָנָיו, it is just inferred from Shmuel’s response, and earlier, in Rabbi Abba bar Mamal’s quote, that bit about מֶחָאָה שֶׁלֹּא בְּפָנָיו was interpolated into Rav’s shorter statement. Also, Shmuel’s statement might be an expression of surprise just about a boreach. Usually a chazaka of three years works because we interpret his silence in one way. Here, that presumption and interpretation doesn’t work — we wouldn’t expect the boreach to protest in person.
There’s a lot more to explore, for instance Rava’s arguing with Rav Nachman, the contradiction with his stand-alone statement about hilcheta where Tosafot say that Rava must have reversed himself after hearing from Rav Nachman.
I’ll just suggest that we should consider that Rava’s hilcheta are actually enmeshed. He talks both about boreach and about מֶחָאָה שֶׁלֹּא בְּפָנָיו. This is the place in my suppressed article that I painted myself in the corner and couldn’t get it to work in the particulars in the direction I wanted. But Rava might not be discussing מֶחָאָה שֶׁלֹּא בְּפָנָיו generally, only about the boreach. Or he might be saying that these go in different directions, because a boreach is different from the general case, so we shouldn’t read what people are proposing about the Rav / Shmuel disagreement. This might also allow us to have Rava consistent and opposing Rav Nachman.
The parts of the above don’t really fit, but might fit better if we were able to emend a הָוְיָא מֶחָאָה into a lo havya mecha’a or vice versa, as the later Stamma feels free to do in the case of Rav’s statement as quoted by Rav Yehuda.