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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.



(a) In the list issued by Rava Amar Rav Nachman, both Mecha'ah and Moda'ah require two witnesses. 'Moda'ah' is - where Reuven is forced to sell or to give away his belongings against his will. Therefore, in order to negate the transaction retroactively, he first testifies in front of two witnesses that he is being forced into it, and hereby negates it.

(b) When he says that in neither case, is it necessary to say 'Kesuvu', he means - that once the owner has given his testimony, the witnesses write the relevant Sh'tar automatically (without his express consent).

(c) The third item belongs together with the above two is - Kinyan (if Reuven admits that he owes Shimon money, reinforcing his admission with a Kinyan Sudar (Chalipin).

(d) Rava states all the three cases separately, as if they were three different Halachos - because he learned them independently from Rav Nachman, and as he learned each case, he added it to the list.

(a) He also issues the ruling 'Hoda'ah bi'Fenei Shenayim ve'Tzarich Lomar Kesuvu', because Hoda'ah is a Chov (to his detriment). Despite the fact that the debtor has admitted to owing the creditor money, writing a Sh'tar is a disadvantage for him - because as long as the debt is an oral one, the debtor is believed when he claims to have paid, which is not the case by a written Sh'tar.

(b) The sole case cited by Rava that requires three people and not two is Kiyum Sh'taros - which the creditor normally initiates when he has reason to suspect that the witnesses who signed on the Sh'tar are either about to travel overseas, or are about to die. He then takes them to Beis-Din, where they verify their signatures. Beis-Din then corroborate the Sh'tar in writing and add their signatures. (This is also known as 'a Henpek').

(c) There where two Dayanim judged a case of money-matters - we normally hold that although they are termed 'a Beis-Din Chatzuf' (an impudent Beis-Din), their ruling is acceptable Bedieved.

(d) This does not however extend to Kiyum Sh'taros - where there are already two witnesses, and another two witnesses signing resembles two witnesses testifying that they heard testimony from two other witnesses ('Eid mi'Pi Eid'), which is unacceptable.

(a) Rava had a problem with Rav Nachman's ruling regarding Kinyan. What makes Kinyan appear to be a Ma'aseh Beis-Din is - the fact that as a result of the Kinyan, money changes hands from Reuven to Shimon.

(b) The problem is - that, in that case, why will two people suffice, and not three?

(c) Whereas if it is not a Ma'aseh Beis-Din, the problem is - that seeing as the Kinyan is to Reuven's detriment, why do we write a Sh'tar without his consent?

(d) Rava later concludes that Kinyan is not a Ma'aseh Beis-Din, and the reason that we write the Sh'tar even without Reuven's consent is because of the principle 'Stam Kinyan li'Chesivah Omed'. The logic behind this principle is the fact - that Reuven followed his admission with a Kinyan Sudar, a sign that he considered his obligation absolute (otherwise, he would have delayed finalizing the issue until Shimon acquired the Metaltelin with Kinyan Meshichah or the Karka with a Chazakah.

(a) If Reuven had not made a Kinyan - then the witnesses would be obligated to obtain his consent before writing a Sh'tar ...

(b) ... even if he had specifically instructed the witnesses to write the Sh'tar.

(a) Rabah and Rav Yosef qualified the Din of Moda'ah - confining it to there where the man who is suspected of forcing the transaction, is someone who is known not to adhere to Beis-Din's rulings.

(b) Abaye and Rava both ruled - that even against them, one would be entitled to write a Sh'tar Moda'ah.

(c) The basis of the Machlokes is - that Rabah and Rav Yosef rely on the fact that the claimant can take the suspect to Beis-Din, whereas Abaye and Rava counter that there is not always a Beis-Din available.




(a) According to the Neherda'i, for the Sh'tar to be valid, one has to add - 'Anan Yad'inan Beih be'Unsa di'Pelanya'.

(b) The Neherda'i cannot be referring to Sh'tarei Gitin and Matanah, we argue, because it is only a Giluy Milsa - 'a revelation of the truth', without any personal bias. This is because since donor or the husband does not stand to lose anything, it is obvious that his claim that he is being forced, is genuine. Otherwise, if he wants to give the Get, why is he making a Moda'ah, and if not, then why give it to her?

(c) The Chachamim issued a Takanah - that before giving his wife a Get, a man is obligated to nullify all Moda'os.

(d) They also ruled that any Moda'os that are not the result of an O'nes are not valid - provided the Get has not yet been written, but not if it has.

(a) Neither can they be referring to Sh'tarei Zevini (Mechirah) - because Rava has already taught that we do not write a Moda'ah on a Sh'tar Mechirah.

(b) The reason for this ...

1. ... by Sadeh S'tam is - because we rule 'Talyuhu ve'Zavin Z'vineih Zevini' (if someone is suspended on a tree until he sells one of his fields, his sale is valid (because anyone who sells because he needs the money is an O'nes, yet his sale is valid) and according to Rava, one only writes a a Sh'tar Moda'ah when there is a genuine O'nes.
2. ... by Sadeh Zu - because then his sale is invalid anyway, and all he needs to do is to bring witnesses that he was forced and Beis-Din will negate the sale (see also Ritva).
(c) Rav Huna disagrees with Rava in the case of Sadeh S'tam. According to him - one may write a Moda'ah even when there is no genuine O'nes (see also Maharsha).
(a) The Neherda'i are therefore referring to a case of a sale ...

(b) ... where Shimon the creditor threatens Reuven the debtor that, unless he sells him the field that he is currently holding as a Mashkon, he will hide the Sh'tar Mashkanta and claim that he bought it from him.

(c) The reason that this case is more eligible for a Moda'ah than the case of Talyuhu ve'Zavin by Sadeh S'tam is - because, due to the fear caused by Shimon's threat to claim that the field is his, which will cause him to lose it completely, he agrees to sell it only to rid himself of the threat, and not because he really wants to sell it.

(a) Bearing in mind that the witnesses must know about the O'nes, we have a problem with the current case. The witnesses cannot know about the O'nes through having heard Shimon's threats to Reuven - because then their testimony would suffice to procure the field on behalf of Reuven, and a Moda'ah would not be necessary.

(b) Rabeinu Chananel therefore establishes the case, starting with the fact that, after informing the witnesses of Shimon's intentions, he then asked Shimon for the return of the field in their presence, and he retorted that he had purchased it (and had already eaten the fruit for three years). The case continues - with Reuven approaching Shimon secretly, offering to sell him the field (as per his original request), at which the latter asked the former to write him a Sh'tar not in his presence (which is perfectly legal), which he showed to the witnesses before writing a Moda'ah on the sale.

(c) The case ended when Reuven once again asked for the return of his field in the presence of the witnesses, and Shimon produced the Sh'tar Mechirah that Reuven had previously handed to him (rather than claim that he had a Chazakah going back three years).

(d) The witnesses discovered that Reuven was an O'nes - when they saw Shimon produce the recently dated Sh'tar to counter Reuven's claim (despite his earlier claim that he had already purchased the field three years earlier.

(a) Rav Yehudah invalidates a Matnasah Temirtah, which, according to ...
1. ... the first Lashon, is - a Sh'tar Matanah which the benefactor asks the witnesses to hide.
2. ... the second Lashon is - a Sh'tar Matanah which the benefactor does not ask the witnesses to write in a public place.
(b) The difference between the two Leshonos is - in a case where he asked the witnesses without mentioning either (which is valid according to the first Lashon, but invalid, according to the second.

(c) We reject Rabeinu Chananel's version of the second Lashon ('a Sh'tar Matanah which the donor specifically asks the witnesses not to write in a public place'), on the grounds - that the given difference between the two Leshonos would then not make sense (since either way, if he had been silent, the Sh'tar would be valid).

(a) When Rava said, with regard to the previous case, that it serves as a Moda'ah for 'its friend', he means - that should he subsequently donate the same gift to someone else, then the Sh'tar Matnasa will serve as a Moda'ah for that Matanah, and negate it.

(b) And when Rav Papa said that Rava did not really say that but that we imply it from his ruling in a case that came before him, this implies - that the implication is incorrect (as we shall now see).

(c) When Reuven asked Sarah to marry him, she accepted only on condition - that he write her all his property.

(d) When, after Reuven accepted and wrote her a document to that effect, his oldest son complained, he told witnesses to go and hide in Eiver Yemina and write a predated document, giving all his property to his oldest son.

(a) When the case was brought before Rava, he granted the property to neither of them, the one, because it was a Matanah Temirta, and the other, we initially think, because a Matanah Temirta is a Moda'ah for any subsequent Matanah.

(b) However, Rav Papa concludes that is not a general ruling that we can extrapolate from Rava to be applied in other cases. In fact, it is confined to this case - because Reuven was an O'nes, forced into making this move by the woman's stipulation.

(c) In the case of a regular Matnasa Temirta, Rava will hold - that the first Sh'tar (the Matnasa Temirta) is not valid, whereas the second, which he gave wholeheartedly, is.

(a) We ask what the Din will be by S'tam (in the case of Matnasa Temirta). We cannot be asking whether perhaps, even though a Matnasa Temirta is not a Moda'ah for its friend, maybe a Matanah that is given S'tam is - because according to the Lashon cited above that invalidates a Matanah S'tam, that is Matanah Temirta (and the She'eilah would then make no sense).

(b) The She'eilah is - simply which of the two Leshonos (regarding S'tam Matanah) cited above do we accept.

(c) Ravina validates it. Rav Ashi says 'Lo'Chayshinan', by which he effectively means that it remains a Safek, and wherever the money is, it remains (i.e. the beneficiary cannot claim with the Sh'tar. In the event that he did however, the donor cannot claim it back).

(d) The Halachah is - 'Chayshinan', in which case one should be careful to insert in the Sh'tar that the donor gave instructions to 'write it in the main street and sign it

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