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Bava Basra, 147


QUESTION: Rebbi Zeira says in the name Rav, "From where in the Torah do we know that a Shechiv Mera's [verbal command, without an act of Kinyan, to make a] transaction is binding? We know it from [the extra word in the verse], 'v'Ha'avartem' (Bamidbar 27:8)." Rav Nachman in the name of Rabah bar Avuha derives it from the extra word, "u'Nesatem." The Gemara explains why Rav Nachman does not learn the principle of Matnas Shechiv Mera from "v'Ha'avartem," as Rebbi Zeira learns, and why Rebbi Zeira does not learn it from "u'Nesatem."

The Gemara seems to be saying, according to Rebbi Zeira and Rav Nachman, that the principle of Matnas Shechiv Mera is mid'Oraisa; the verbal instruction of a Shechiv Mera to give a gift is binding mid'Oraisa. The Gemara later (147b), however, Rava in the name of Rav Nachman who says himself that a Matnas Shechiv Mera is an enactment of the Rabanan which was made in order to calm the Shechiv Mera and give him the assurance that his word will be carried out. The Rabanan gave it the strength of a Kinyan d'Oraisa.

Why, then, does Rav Nachman here say that a Matnas Shechiv Mera is mid'Oraisa?


(a) The MAHARSHA (to Tosfos DH Minayin) answers that Rava there is arguing with the Gemara here. Rava maintains that Rav Nachman is of the opinion that Matnas Shechiv Mera is mid'Rabanan. The Gemara here maintains that Rav Nachman understands it to be mid'Oraisa.

The Maharsha points out that this is why the Gemara there says, "v'Rava Amar Rav Nachman," meaning, "and Rava says that Rav Nachman holds...," and not simply, "Amar Rava Amar Rav Nachman," which would mean that Rava is merely quoting Rav Nachman.

(b) TOSFOS answers that, indeed, Rav Nachman maintains that a Matnas Shechiv Mera is only mid'Rabanan. When Rav Nachman says that it is derived from the verse of "u'Nesatem," he is merely saying that the verse is an Asmachta, a scriptural support, to the enactment of the Rabanan, but that it is not actually a Halachah d'Oraisa. (The Maharsha suggests that Tosfos had the Girsa of "Amar Rava Amar Rav Nachman" in the Gemara on 147b; see (a) above. Indeed, this is the way that Tosfos earlier (76b, DH Keni) and in Kesuvos (85b, DH ha'Mocher) cites our Gemara, as the PNEI SHLOMO points out.)

Tosfos asks further that if finding a verse for the "source" of Matnas Shechiv Mera is really only a matter of finding an Asmachta, then why is there an argument, between Rebbi Zeira and Rav Nachman, concerning which verse to use as the Asmachta, and why does the Gemara ask why one Amora does not learn it from the same verse as the other Amora? Tosfos answers that it is the style of the Gemara to ask why one verse is used as an Asmachta and another verse is not, and he brings proof that this is legitimate Talmudic methodology from the Gemara in Moed Katan (5a). However, he does not explain the logic for why the Gemara should want to be so precise in finding a verse as an Asmachta for the Takanah d'Rabanan.

It seems that Tosfos is following only one of the opinions expressed in the Rishonim with regard to the nature of an Asmachta.

The RAMBAM, RAMBAN, and TASHBATZ maintain that an Asmachta is merely a way of remembering the Takanah d'Rabanan by finding an allusion to it in a verse. The law that the Rabanan established, though, is not actually the intent of the verse. This is why it is called an "Asmachta" -- the Chachamim "leaned" or "supported" their enactment on the verse as a memory tool.

The RITVA in Rosh Hashanah (16b), on the other hand, explains that every Asmachta is a hidden intent in the verse which Hashem intended to teach as the law, but which He did not make obligatory. Rather, Hashem gave the power to the Chachamim to decide whether or not to make it obligatory as a rabbinic law. He strongly rejects the view that it is merely a mnemonic device and not the intent of Hashem conveyed in the verse.

Tosfos seems to agree with the second approach, that of the Ritva. Since an Asmachta means that Hashem actually included this law in the intent of the verse, it is important to find which verse is the Asmachta. If, however, an Asmachta is merely a memory tool, then it does not matter which verse one uses for that purpose.


OPINIONS: Rav Nachman states that a lender who sells a loan document (Shtar Chov) to a third party is still able to forego payment on the loan, nullifying the borrower's debt to the third party. He further states that even if the lender died, his heir is able to cancel the debt as well. The exception, he states, is when the third party acquired the loan as a present from a dying man distributing all of his possessions through a Matnas Shechiv Mera. In such a case, when the benefactor dies, his heirs cannot cancel the loan.

This law requires explanation. Why should someone have the right to negate a loan he sold to someone else? Why is a Shechiv Mera different?

(a) The RID and RIAZ explain that the lender can still forgo the loan as his sale of the document only gives the buyer the power of collecting the loan, not ownership of the money loaned. This is because a loan is given to use (Milveh l'Hotza'ah Nitnah), making the money post transaction too intangible to be transferred to a third party. This results in his ability to forgo the loan after its sale. A dying man's present is different, as he is giving over all his rights on this world. Therefore, just as his word is his transaction without needing to be tangible, he can also give over non-tangible rights.

(b) TOSFOS, ROSH, RASHBA, and RAN explain that the selling of a loan document is only rabbinic in nature, while the obligation of a borrower to a lender is of a Torah nature ( as opposed to the opinion of RABEINU TAM, who says that a sale of a loan document is also of a Torah nature). Therefore the original lender still owns the loan according to the Torah and may forgo it. A deathly ill person is different because his transaction is learned from the Parsha of inheriting, causing any of his transactions to have the strength of a Torah transaction. This causes his inheritor to have no more power than the person to whom he sold the loan, making him unable to forgo it.

(c) RABEINU CHANANEL opines that the original owner can forgo the loan because he can always claim that he had received payment before the sale thereby negating the loan (see Riaz in Kesubos 86b that explains he would have to reimburse the third party). A dying person is different because he is exacting when distributing his belongings, and we assume he did not make a mistake and was never paid for the loan.

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