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Bava Basra, 48
BAVA BASRA 48 & 49 - these Dafim have been dedicated anonymously l'Iluy
Nishmas Tzirel Nechamah bas Tuvya Yehudah.
1) A FORCED SALE, GIFT, AND DIVORCE
QUESTION: Rav Huna rules that when a person sells his property under
coercion, the sale is valid. The seller resolves to sell the object with
full intent due to the coercion. The Gemara questions Rav Huna's ruling from
the Mishnah in Gitin (88b) which teaches that when Jews force a Jew to give
a Get to his wife, the Get is valid, but when Nochrim force a Jew to give a
Get to his wife, the Get is not valid, unless the Nochri forces the man by
telling him to do what the Jews tell him to do. According to Rav Huna, even
when a Nochri forces a Jew to give a Get, the Get should be valid, just like
when a Nochri forces a Jew to sell his field!
Why is forcing a man to give a Get comparable to forcing a man to sell his
property? When a man divorces his wife, he does not receive anything in
return, and thus forcing a man to give a Get should be comparable to forcing
a person to give a *gift*, in which case the Kinyan is *not* valid since the
giver receives nothing in return!
(a) The RASHBAM writes that the reason why the Kinyan takes effect according
to Rav Huna is not because the seller receives something in return, but it
is because the seller does not *lose* anything by selling (since he has been
reimbursed). Therefore, in a case where the seller does not lose by giving
away the object (such as when he would have had to give it away even without
being forced), the Kinyan is valid even though the seller does not receive
anything in return.
In the case of a divorce, since the wife hates the man, he will not gain
anything by not giving a Get (since she is not going to live with him
anyway). Therefore, when he gives a Get under coercion, he is not losing
anything from which he otherwise would have benefitted, and the Kinyan
should be valid.
The KOVETZ SHI'URIM (#202) questions the Rashbam's explanation from the
Gemara in Gitin (88b, as cited by Tosfos here, DH Ileima). The Gemara there
teaches that when a Nochri forces a Jew to give a Get, the Get is not valid,
but the Get nevertheless causes the woman to become Pesulah to a Kohen after
her husband dies. However, when a Nochri forces a Jew to give a Get
unlawfully (that is, when the law does not require him to give a Get), the
Get is not valid and the woman may even marry a Kohen after her husband
dies. It is evident from the Gemara there that Rav Huna's ruling that a
forced sale is valid applies to a divorce only when the husband divorced his
wife under force when the law *required* him to divorce her. The Rishonim
here explain that when the man is not required to divorce his wife, it is
comparable to giving a gift under coercion, and not to a sale under coercion
(see Tosfos, DH Ileima). According to the Rashbam's explanation, even when
the man is not required by law to divorce his wife, we should say that a Get
given under coercion is comparable to a sale executed under coercion!
Some Acharonim answer that according to the Rashbam, our Gemara (which
follows the opinion of Rav Mesharshiya in Gitin 88b, see Tosfos DH Devar
Torah) argues with the above statement of the Gemara in Gitin and maintains
that even if the man is *not* required to divorce his wife by law, the Get
will invalidate her from marrying a Kohen, because of Rav Huna's ruling that
a sale under coercion is valid. The Get is valid, but the Rabanan
invalidated it (lest the woman go and have a Nochri force her husband to
divorce her, as our Gemara says). See ONEG YOM TOV (#168).
(b) TOSFOS (DH Ileima) answers that the giving of the Get is considered a
sale, because the husband is required to divorce his wife by law. When a
person accomplishes -- through the coerced sale -- something that he is
required to accomplish, it is considered a gain.
The intention of Tosfos might be similar to the explanation of the Rashbam:
even though the husband is not gaining, he also is not losing, since he
would have had to divorce his wife anyway, even had he not been coerced.
However, it seems more likely that Tosfos is presenting a different logic.
Tosfos maintains that even when the seller receives in return a benefit that
is minor in comparison to his loss, it is considered a sale and the Kinyan
is valid. (We look at the actual gain (gross revenue), and not at the net
gain.) The BI'UR HA'GRA (CM 42:2) proves this from the words of Tosfos later
(48b, DH Kadish), who seems to accept the suggestion that a forced Kidushin
(i.e. when a woman was forced to accept Kidushin) is comparable to a forced
sale (and it takes effect), since she receives a Perutah in return, even
though she is losing much more (such as her ability to marry any other man).
This is also the opinion of RABEINU YONAH, who proves this from the Gemara
here that says that Rav Bibi argues with Rav Huna, because he says that a
coerced sale is not valid. If Rav Huna agrees that a coerced sale is not
valid unless the seller is reimbursed in full, then how does the Gemara know
that Rav Bibi is arguing with Rav Huna? Perhaps Rav Bibi agrees that a
coerced sale is valid, but only when the seller is reimbursed in full! It
must be that Rav Huna considers the sale valid even when only a minimal
amonut was paid to the seller.
However, the RASHBA and RITVA disagree with Rabeinu Yonah, and this seems to
be the opinion of the Rashbam as well, since the Rashbam requires that the
seller not lose anything as a result of the coerced sale. The Rashba refutes
the proof from Rav Bibi by suggesting that the words of Rav Bibi imply that
*any* sale under coercion would not be valid, even when the seller is paid
in full. The Rashba finds support for this view from the wording of the
Mishnah in Gitin (55b) cited by the Gemara, which says that if a person
"bought" a field from its original owner after buying it from a "Sikrikon"
(a Nochri who kills Jews who do not give him their land) who stole it from
the original owner, the sale is not valid if it was executed with a Shtar
and not with the transfer of money. If the owner sold the field without
receiving money in exchange for it, then why does the Mishnah refer to it as
a "purchase?" It must be that the buyer *did* give some money, but since he
did not pay the field's true value, it is considered a gift through coercion
and not a purchase through coercion.
(c) The RAMBAN and other Rishonim explain that at this point in the Gemara,
the Gemara understands that according to Rav Huna, even a gift given through
coercion is valid. It is only later that the Gemara differentiates between a
gift and a sale.
According to this opinion, a Get indeed is comparable to a gift. The only
reason it is valid when given under the coercion of another Jew is because
even a gift given through coercion is valid when the giver fulfills the
Mitzvah of listening to the Chachamim by giving the gift, as the Gemara
originally suggests. In contrast, when a Nochri forces the Jew to give a
Get, the Get is not valid, because he is giving a gift through coercion and
he is not fulfilling the Mitzvah of listening to the Chachamim by giving it.
Therefore, according to the Gemara's conclusion, Rav Mesharshiya's teaching
is not necessary (see TOSFOS RID).
This seems to be the opinion of the RAMBAM as well (Hilchos Gerushin 2:20).
The Rambam writes that when a person is forced to give a Get by Beis Din, it
is considered as though he agreed to give it of his own accord because it is
a Mitzvah for him to divorce his wife in such a case, and every Jew really
wants to do Mitzvos. His refusal to divorce was his Yetzer ha'Ra's decision
and not his "real" decision. Therefore, as soon as he is forced to say
"Rotzeh Ani" ("I agree to divorce her"), the divorce is considered to be
done with the husband's full consent. As the MAGID MISHNAH there explains,
the Rambam is citing the reasoning of "it is a Mitzvah to listen to the
Chachamim" as the true reason for why a forced Get is valid. (See NESIVOS
HA'MISHPAT 201:1, ZECHER YITZCHAK 23:2.) Apparently the Rambam does not
consider a Get to be similar to a sale, but to a gift, and that is why it
would not be valid if not for the Mitzvah to listen to the words of the
Chachamim. (M. Kornfeld)
(This contradicts the words of the AVNEI MILU'IM (42:1) and KETZOS
HA'CHOSHEN (9:11) who write that according to the Gemara's conclusion, the
fulfillment of the Mitzvah of listening to the Chachamim is not a factor to
take into consideration in a forced sale.)
2) A FORCED PURCHASE
OPINIONS: The Gemara says that the sale of one who is forced to sell his
property is valid. What is the Halachah in a case in which one is forced to
*buy* something? In addition, what is the Halachah in a case in which a man
who is forced to be Mekadesh a woman, which is comparable to a purchase? Is
the Kidushin valid in such a case?
(a) The RASHBA (Kidushin 2b) writes that when a person is forced to sell an
object, the sale is valid, as our Gemara says, and *all the more so* when a
person is forced to *buy* an object, the purchase is valid.
Why is it logical that a forced purchase should be more valid than a forced
sale? It seems that the Rashba's reasoning is that in a sale, the seller is
losing a personal possession which he was using until then and which he
values. He might never be able to get back the same object, or the same plot
of land. When a person is forced to buy an object, if he does not like what
he receives he can sell it and receive money it return for it.
The VILNA GA'ON (Bi'ur ha'Gra to Even ha'Ezer 42:1) adds that the Rashba and
many Rishonim maintain that even if the seller is paid a minimum amount for
what he was forced to sell, the sale is valid. The compensation he receives
does not need to be commensurate with the object he sells, since he has
received some money in return for his object. Accordingly, when a person
purchases an object against his will, even if he pays more than its value,
the Kinyan should be valid, since he has received something in exchange for
The RAMBAM (Hilchos Ishus 4:1) also seems to be of this opinion. The Rambam
writes that if a man is forced to be Mekadesh a woman, the Kidushin is
valid. The Rambam does not usually cite Halachos that are not discussed
explicitly in the Gemara. What is his source for this ruling?
The S'MAG explains that, in our Gemara, when Ameimar says that a forced
Kidushin is valid, he is referring a Kidushin that is forced upon the *man*,
and not a Kidushin forced upon the woman. Our Gemara, then, is the Rambam's
source for his ruling. However, the S'mag asks that Mar bar Rav Ashi argues
with Ameimar's ruling, and the Ge'onim and Rishonim accept Mar bar Rav
Ashi's opinion. In addition, the HAGAHOS MAIMONI asks how can the Rambam
possibly explain that it is the man who is being forced? It is clear from
Mar bar Rav Ashi's words that it is the man who is the one forcing the woman
and doing an improper act, and that is why the Rabanan invalidate the
Kidushin! If the man was being forced, he could always divorce his wife
later and it would not be necessary for the Rabanan to invalidate the Kidush
It seems that the Rambam understands that although Ameimar is discussing a
man who is forced to be Mekadesh a woman, Mar bar Rav Ashi is addressing the
case of a woman who is forced to accept Kidushin, and he is not arguing with
Ameimar. That is why Mar bar Rav Ashi adds the word, "b'Ishah" -- because
Ameimar was *not* discussing the woman, but the man. (The S'mag, who does
not explain the Gemara in this way, might have had the Girsa mentioned in
the DIKDUKEI SOFRIM in which Mar bar Rav Ashi does not say the word,
"b'Ishah," and thus he clearly is arguing with Ameimar.) According to the
Rambam, just as a forced Kidushin is valid, a forced purchase is also valid.
(b) The SEFER HA'ITUR (Erech Moda'a, p. 41) writes that when a man is forced
to be Mekadesh a woman, the Kidushin is not valid, because the Gemara says
that a forced *sale* is valid, implying that a forced purchase is *not*
The AVNEI MILU'IM (42:1) questions the view of the Ba'al ha'Itur from the
Halachah that a man who is Me'anes a woman is required by the Torah to marry
her, and if he does not want to marry her, Beis Din may force him to marry
her (Tosefta Kesuvos 3:9). According to the Ba'al ha'Itur, how can Beis Din
force the man to marry her?
According to the Rishonim (see previous Insight) who explain that even
according to the Gemara's conclusion, when a man is forced by Beis Din to
divorce his wife the divorce is valid because the man accepts to give the
divorce because of the Mitzvah to listen to the Chachamim, the same can be
said with regard to Kidushin. A forced Kidushin in the case of a man who was
Me'anes a woman will be valid even according to the Ba'al ha'Itur because
the man is fulfilling the Mitzvah to listen to the Chachamim.
Alternatively, the Ba'al ha'Itur admits that when a person is forced to
accept a gift, he acquires the gift (see CHOCHMAS SHLOMO, Choshen Mishpat,
end of 205, and NESIVOS HA'MISHPAT 205:8). Accordingly, a person can be
forced to be Mekadesh a woman with a Shtar, since he is not losing anything.
(Even though he is required to support his wife later, that is not taken
into account with regard to the validity of the Kidushin. See Rashba here.)
(c) The ME'IRI in Kidushin (2b) writes that although Kidushin which a man is
forced to make is valid, as the Rambam writes, nevertheless a purchase that
a person is forced to make is not valid. He explains that since a Kidushin
is made by giving a Perutah, the man loses only a minimal amount. However,
when a person is forced to purchase an item for its full value, the purchase
is not valid. (The Me'iri also is not taking into account the obligations
that the husband will have later, as we wrote above.)
It is worth noting that the VILNA GA'ON (EH 42:2) suggests that the opposite
is true. If a forced Kidushin is valid, then certainly a forced purchase is
valid, because people are more selective about whom they marry than about
what they buy, as the Gemara says in Yevamos (63a).