This question arises from the weekly Gemore shir in which I participate-- we're not synchronized with Daf Yomi. We're on B"B 39a. In the Mishna on 38a, R Yehuda states the opinion that "khazake" requires three years in case the owner of the land is in "Aspamye," and he needs time to get back to protest. As the discussion in the Gemore makes clear, this seems to imply that according to R"Y, "mekho'e sheloy befanav eynoy mekhoe" -- that you have to be in front of the makhzik to make an effective protest.
On 39b, however, the Gemore concludes that R Yehuda is only giving an "eytze toyve" -- good advice, since if the owner goes back, he can keep the "makhzik" from using up the land's produce.
Fine -- except all along, it has appeared that R Yehuda is in fact proposing a different "shite" than the one presented in rest of the Mishna. Rashbam says on the Mishna that R Yehuda "lekhok ba" -- he comes to disagree with the Mishna. We have found the Toysefes on this question difficult, but the conclusion of "Sharey Toysefes" on d"h "Eyn makhzikin beNikhsey boyreakh" is also that R Yehuda's "shite" is different from that in the Misha. The Meforshim think so too -- The Rambam takes the trouble to say that the halakha is not with R Yehuda -- and I could go on quoting.
The question is, if there's a makhaloykes here, and R Yehuda has a different view than the rest of the Mishna on the question of "mekhoe sheloy befanav," why does the Gemore conclude that he's only giving an "eytze toyve?" Are we missing something? Toysefes d"h leysev adukhtey velimkhey seems particularly shver, but one theory we have is that the assumption that R Yehuda had a different "shite" than the Mishna turns out to be only a "hava amina" -- we thought he did, but he doesn't.
However, in that case, why does the Rambam need to pasken the way he does? Plus, why do none of the meforshim comment on this particular issue, that it's not clear whether R"Y is merely giving advice or not?
It's a difficult masekhta, but this daf in particular has been a challenge. Thank you for help.
Yankel Levitow, Los Gatos CA
(1) Yes, this is a tricky Sugya. The key to it is to see that there are 2 separate disputes between Chachamim and Rebbi Yehudah:
(a) Rebbi Yehudah maintains that a person does not allow someone to eat up his field even for one hour without permission, and three years is only required in order for him to arrive home from Spain.
(b) Is a protest not in the presence of the occupier valid?
It is correct that (b) is only a Havah Amina while according to the conclusion of the Gemara everyone agrees that Mecha'a she'Lo Befanav is effective. However (a) remains a dipute between Rebbi Yehuda and Chachamim.
(2) Now I will try and explain this a litle more. Look at the Nimukei Yosef 19b DH Matn in Rif pages, on the Mishnah. He writes that Rebbi Yehudah maintains that if the owner of the field is in town and does not protest about the field being used this means he has given up on his field immediately. The Nimukei Yosef continues and wries that when the Mishnah states that Rebbi Yehudah requires that he should come back "for one year" this is not to be taken literally (but is only an Eitzah Tovah) because everyone agrees that Macha'a does not have to be made in the presence of the occupier.
(3) What this means is that even though the Gemara 39a attempted to suggest that Rebbi Yehudah's reasoning is that Mecha'a she'Lo Befanav is innefective, nevertheless the Gemara rejected this and concluded that coming to the field is only an Eitzah Tovah. So at the end of the day there is only one dispute between the Chachamim and Rebbi Yehudah: does the fact that a person does not protest immediately if he is in town mean that he gives up on the field immmediately (Rebbi Yehudah's position) or does he only give up after 3 years (the Chachamim's position).
(4) The Nimukei Yosef concludes that the Gemara rules that the Halachah does not follow Rebbi Yehudah. This is referring to the Gemara below 41a which states that the Halachah does not follow Rebbi Yehuda and Rebbi Yishmael who maintain that if the owner is present and does not protest, this would mean that he immediately indicates that he lets the occupier own the field.
(5) So when the Rashbam 38a writes that Rebbi Yehuda "Lachclok Ba" he means that he disagrees with the reason one needs three years - it is not because a person only looks after his deed for three years like the Chachamim maintain, but is instead because if a person is quiet for one hour that means he gave up. The Rashbam does mention that the Gemara explains whether Rebbi Yehudah requires Macha'a in front of the occupier or not, but if you look carefully he does not write that this is the dispute between Rebbi Yehudah and the Chachamim but rather he writes that the dispute between them is whether a person gives up only after three years or even after one hour and at the end of the day everyone agrees that three years is only an Eitzah Tovah according to Rebbi Yehudah.
Kol Tuv and a Kesivah u'Chasimah Tovah,