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Bava Basra, 150


QUESTION: The Gemara says that when a person (either a Shechiv Mera or a healthy person, with a Kinyan (RASHBAM)) gives away his property by saying, "My Metaltelin shall be given to so-and-so," all of his movable property are included in his statement and are given away as a gift.

We know that throughout the Gemara there is a rule that whenever a word is expressed in the plural form, the minimum (and maximum) number of items to which that word refers is two, unless otherwise specified. This is called "Mi'ut Rabim, Shenayim." (This is similar to the rule of "Tafasta Merubah Lo Tafasta" (see Sukah 5a). Why, then, in the case of our Gemara, do we assume that the person intended to give away all of his movable property, and not just two items? Why do we not invoke the rule of "Mi'ut Rabim Shenayim?"


(a) The RITVA answers that whenever a person refers to his own items, such as in our case in which he says, "Metaltela'i" ("my movable possessions"), we do not say that he means only two, but rather that he means all of his property. The rule of "Mi'ut Rabim Shenayim" applies only to general unmodified plural nouns, such as "Metaltelin l'Ploni" ("give movable possessions to so-and-so").

The reasoning behind this seems to be that by adding the word "*my* Metaltelin," the word "my" is a description of which possessions he wants to give. All of the possessions that he owns (and not just two of them) fit that description. (Had he wanted to give away only two possessions, then he would have said, "Metaltelin," without adding "my.")

(b) The BA'AL HA'ME'OR explains that when a person is referring to a specific type of object (for example, houses, orchards, or fields), then the rule of "Mi'ut Rabim Shenayim" applies. In contrast, when a person is generalizing, such as in our case when a person refers to many different types of objects with one word, "Metaltelin," then we say that he means everything, because the word itself is not a "Mi'ut," but rather it is including more items. (Y. Montrose)

OPINIONS: The Gemara asks whether Avadim, slaves, have the status of land (Karka) or movable objects (Metaltelin). The RASHBAM and TOSFOS point out that we already know that they have the status of land with regard to Torah law (based on the Hekesh, as described in Kidushin 22b and Shevuos 42b). Tosfos says that the question of the Gemara is whether or not Avadim have the status of land with regard to laws that are mid'Rabanan. The Rashbam says that the Gemara's question is whether or not *people*, in their normal speech, refer to Avadim as "Metaltelin" (such that Avadim would be included in a gift or sale of "Metaltelin"). The Gemara attempts to prove the status of Avadim but it comes to no definite conclusion. What is the Halachah?
(a) The RIF says that Avadim are deemed to be movable objects, as Rav Nachman rules earlier (128a) when he states that a lender may not collect an Eved as repayment for his loan from the heirs of the borrower. The reason is obviously because an Eved is considered a movable object, and a lender is not permitted to collect movable objects from the heirs of the lender. The Gemara there says that the Halachah follows the view of Rav Nachman, and thus we rule that Avadim have the status of Metaltelin.

(b) The SHITAH MEKUBETZES cites an opinion that argues that if the Rif's proof is correct, then why does the Gemara itself not mention it here as proof? He explains that the case of Rav Nachman cannot be used as proof for the Gemara's question here. In the Gemara there, Rav Nachman states that an Eved is considered Metaltelin only with regard to collecting a debt from the orphans of the borrower. Our Gemara is asking a different question -- whether or not a person, in his normal speech, refers to Avadim as Karka or as Metaltelin (as the Rashbam explains). Since the Gemara does not answer its question here, when a person gives or sells his "Metaltelin" or his "Karka," whether or not his Avadim are included is a doubt regarding a monetary matter, in which case the rule of "ha'Motzi me'Chaveiro" applies and the Avadim remain in the possession of their present owner.

HALACHAH: The SHULCHAN ARUCH (CM 248:10) seems to rule that Avadim are included in a person's statement when he sells "all of his Metaltelin," because that is the way people speak. The BE'ER HA'GOLAH and BI'UR HA'GRA state that the Shulchan Aruch is ruling in accordance with the RIF. The S'MA says that the reason of the Shulchan Aruch's ruling is because people refer to Avadim as Metaltelin in their normal speech. (Y. Montrose)


QUESTION: The Gemara states that there are five types of gifts which have a different status when the owner gives away *all* of his possessions (than when he gives away only part of his possessions). The Gemara explains that in all of these cases, even Metaltelin, movable objects, must be given away to attain that status (of a gift of *all* of his possessions), except for the case of Kesuvah. The reason the Gemara gives is because movable objects were never included by the Chachamim as being a valid monetary security for the collection of a woman's Kesuvah -- only land was included.

It follows logically that even if the husband has movable possessions, they cannot be collected against his will by the woman for her Kesuvah since they were not included as part of this transaction at all. Why, though, can she not collect Metaltelin for her Kesuvah? We find that a borrower's movable objects can be collected by a lender. Why is a Kesuvah different?


(a) The RASHBA (Teshuvos 4:152) answers by first explaining why a lender cannot collect his loan from the movable objects that the borrower bequeathed to his children. He explains that the lender never expects to get paid back from an inheritance of *movable objects*. The children never received any favor from the lender, and they would therefore not hesitate to hide those objects so that the lender does not know about them, or thinks that they were sold and the money already spent. However, the lender does not expect such behavior from the borrower himself while he is alive, because the borrower certainly appreciates the favor that the lender has done for him and he would not try to deceive the lender, and thus the lender expects the borrower to pay him back in any way possible. Furthermore, the borrower does not want to be called an evildoer, as the verse says, "The evil person borrows and does not repay." His children, though, do not feel indebted to the lender, nor do they consider themselves to be evil if they do not pay back, since they did not personally take the loan (AYELES HA'SHACHAR in explaining the Rashba).

Based on this, the Rashba says that, similarly, a Kesuvah cannot be collected from movable objects even in the lifetime of the husband. The circumstances of divorce usually are filled with animosity between the couple. As such, a woman would never expect that her husband would eagerly want to pay her the Kesuvah, just like a lender would never expect the heirs of his debtor to want to pay back the loan. Just like a borrower's children would hide any movable objects, so would a woman's husband. She therefore never has these objects in mind to collect them for her Kesuvah.

(b) The KOVETZ SHI'URIM questions the Rashba's explanation, for it only explains why the woman cannot forcibly collect from the husband's children, as they only have an obligation to pay back what is owed to the woman. Since the movable objects were not involved, they need not give them to her. A living ex-husband, however, has an obligation to pay back his debt in any way possible ("Shi'abud ha'Guf"), just like a lender may collect any property of the borrower ("even the cloak upon his back"). This Shi'abud should obligate the husband to pay his debt of the Kesuvah in any way possible, even if he must pay with movable objects.

The AYELES HA'SHACHAR adds a similar question. If a borrower specifies that the lender can only collect from a certain item, and the lender agrees, then the borrower does not have to pay back from anything else ("Apotiki"). The same question applies in that case. Why is there no "Shi'abud ha'Guf?" The borrower has an obligation to pay back the debt in any way that he can! It must be, the Ayeles ha'Shachar answers, that the Rashba maintains that the reasoning that he gives means that the woman can also negate the husband's actual debt to her with regard to those items. However, he continues, the Rashba cannot mean that if a husband does not own property, then he has no obligation to pay back his wife. Since he must attempt to buy land in order to pay her the Kesuvah, he must sell his movable objects for that purpose (in order to buy land) and, thus, essentially he is using his movable objects to pay her the Kesuvah. Rather, the Rashba must mean that she does not have these movable objects in mind to the extent that Beis Din can force him to pay her with them because of his "Shi'abud ha'Guf." Nevertheless, Beis Din's inability to force him to pay with them does not negate the fact that the husband's movable objects are connected to his "Shi'abud ha'Guf" according to Torah law, and this forces him to pay her with them in order to pay his debt according to the Torah. The same is applicable to the case of "Apotiki," where a lender is able to collect only from a certain item. This limited ability to collect is only with regard to Beis Din being able to force him to pay from other sources. His Torah obligation to pay, however, remains unchanged. (Y. Montrose)

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