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Bava Basra 40

BAVA BASRA 39 & 40 - dedicated by an admirer of the work of the Dafyomi Advancement Forum, l'Iluy Nishmas Mrs. Gisela (Golda bas Reb Chaim Yitzchak Ozer) Turkel, A"H.

1) [line 1] V'EIN TZARICH LOMAR "KESOVU!" - and he (the Me'ar'er) does not have to tell them (the witnesses), "Write [a document recording my protest]!"

2) [line 1] MODA'A
Moda'a is a legal declaration, made in front of witnesses, that a sale or Get that a person is about to enact is going to be made under duress, and should not take legal effect.

3) [line 2] HODA'AH
Hoda'ah is a legal declaration, made in front of witnesses, in which a person admits that he owes a debt to a creditor.

(a) When a person acquires an object, he must make a Ma'aseh Kinyan, a formal Halachically-binding act denoting his acquisition of the object, in order for the acquisition to be irrevocably binding.
(b) One of the forms of Kinyan that may be used for the acquisition of Metaltelin (mobile items) or Mekarke'in (real estate) is Kinyan Chalipin (exchange or barter), i.e. taking another object to demonstrate one's consent for the Kinyan (or for an agreement). In our Sugya, Rava quotes Rav Nachman who rules that witnesses to the Kiyan write a record of the transaction whether they are so instructed or not.
(c) The source for Kinyan Chalipin is the verse in Ruth 4:7-8, in which this Kinyan is used by Bo'az. Although Kinyan Chalipin may be accomplished through the barter of two equally-valued items, it is normally no more than a symbolic act in which an object of little value is exchanged in order to represent the acquisition of an object of value. For example, Chalipin may be accomplished by taking possession momentarily of a scarf or piece of cloth (Sudar) that belongs to the other party in order to make a Kinyan on another object that is being transferred. For this reason, Chalipin is also known as "Kinyan Sudar." (The other object is not simply handed over to the buyer to make the Kinyan with Meshichah either because it is not present or because it is too large or it is unfeasible to hand it over, for example in the case of the transfer of land.)
(d) The Gemara records a Machlokes among the Amora'im as to whether the Sudar used in the symbolic Kinyan is given by the buyer (in *exchange* for the object that is being acquired) or by the seller (*along with* the object that is being acquired). The Halachic ruling is that the buyer gives the Sudar, and in return he acquires the object that is being transferred (Bava Metzi'a 47b).

5) [line 4] KIYUM SHETAROS
(a) Mid'Oraisa, a Shtar (contract) or Get which was written legally and signed by witnesses is considered absolute proof. The Chachamim, out of fear of forgeries, required that every Shtar be validated ("Kiyum") in one of the following manners:

  1. The witnesses themselves attest to the validity of their signatures.
  2. Two other witnesses who recognize the signatures attest to their validity.
  3. The signatures are matched to those on a previously validated Shtar or Get.
(b) In our Sugya, Rava quotes Rav Nachman who rules that the three judges of the Beis Din who witness the Kiyum write a record of it at the bottom of the Shtar, whether they are so instructed or not.

6) [line 5] (SIMAN MaMHa"K) - this is a mnemonic device for remembering the *previous* four subjects of the Gemara, said by Rava in the name of Rav Nachman, that described words said or actions performed in front of witnesses, and whether a direct command is necessary to have the subject matter written down:

  1. *M* (Mem) refers to *M*echa'ah bi'Fnei Shenayim (last line, Daf 39b)
  2. *M* (Mem) refers to *M*oda'a bi'Fnei Shenayim (line 1)
  3. *H* (Heh) refers to *H*oda'ah bi'Fnei Shenayim (line 2)
  4. *K* (Kuf) refers to *K*inyan bi'Fnei Shenayim (line 3)
7) [line 6] MA'ASEH BEIS DIN - a verdict passed by Beis Din
8) [line 12] LO CHASVINAN MODA'A ELA A'MAN D'LO TZAYIS DINA - Beis Din only writes a Moda'a (see above, entry #2) with regard to a person who does not listen to the rulings of Beis Din


9) [line 6] PARDEISA - a vineyard

A person who claims to have bought a piece of land from another person, but has no proof of purchase may, nevertheless, support his claim with a "Chazakah." A Chezkas Shalosh Shanim (a "Chazakah of three years") means that he has proof (witnesses) that he has been living and working on the land for three years as an owner normally would, and his opponent has no witnesses to attest to the fact that he voiced any Mecha'ah (objection) during those three years. This Chazakah serves as proof to the claim that he bought the land (see Bava Basra 28a et seq.).

10) [line 9] KEVISHNA LI'SHTAR MASHKANTA, V'AMINA LEKUCHAH HI B'YADI - I will hide the document of the security and I will claim that [I am the true owner of the field and that] I bought it from you

11) [line 11] MATNASA TEMIRTA - the hidden gift [of a field or the like]
12) [line 14] ZILU ITMORU V'CHISVU LEI - [he says to the witnesses,] "Go hide yourselves and write it (the document)."

13) [line 15] TEISVU B'SHUKA UV'VARYESA V'TICHTEVU LEI - [he says to the witnesses,] "Sit in the marketplace in the open and write it (the document)."

14) [line 17] V'HAVYA MODA'A L'CHAVERTAH - however, it can be used as a Moda'a for a subsequent Shtar Matanah (a gift) or Mechirah (a sale) [to prove that the later gift or sale is invalid, having been made under duress]

15) [line 17] LAV B'FEIRUSH ITMAR, ELA MI'KELALA ITMAR - it was not said explicitly by Rava, rather it was derived through something else he said [and the deduction is mistaken]

16) [line 19] HAVINA LACH [L'ITESA] - I will become your [wife]
17) [line 20] ASA BREI KESHISHA - his eldest son came [to him to complain]
18) [line 21] ITMORU B'EVER YEMINA - Hide yourselves in the place named Ever Yemina

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