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Kollel Iyun Hadaf, Jerusalem

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Bava Basra 169



(a) We already quoted Rav Safra 'Ein Kosvin Sh'nei Sh'taros al Sadeh Achas'. It is to explain the Beraisa currently under discussion 'Chutz me'Acharayus she'Bo' - that Rav Safra comments 'L'fi she'Ein Kosvin Sh'nei Sh'taros al Sadeh Achas'

(b) Despite the fact that the purchaser has already paid the creditor who claimed the field from him, he will be able to claim again from other purchasers (if the Sofer did write Acharayus in the Sh'tar) - by asking the creditor (after he has already received written permission from Beis-Din to claim) to postpone taking payment from him for another few years until the property is established as being his, and then, when the creditor does come to claim, he will use his other Sh'tar to claim the field again from other purchasers, and share the profits with the creditor.

(a) We have a problem however, with the fact that the creditor is able to claim again later, from Rav Nachman's statement concerning a Tirfa that fails to record that the Sh'tar concerned was torn by Beis-Din, or an Adrachta that fails to record that the Tirfa was torn by Beis-Din.
1. A 'Tirfa' is - written authority from Beis-Din to search the debtor's property for a suitable field to claim in lieu of his debt, either from B'nei Chorin or from Meshubadim.
2. An 'Adrachta' - is the authority from the Beis-Din of that town to actually seize the property that he decides upon.
(b) And he says the same about a Shuma that fails to record that the Adrachta was torn by Beis-Din. A 'Shuma' - is the authority to take ownership of the property following the Beis-Din's assessment of the its value.

(c) Rav Nachman said - that unless Beis-Din stated clearly in each subsequent Sh'tar that the previous one had been torn up, it was not valid.

(d) The problem therefore is - how we can permit the creditor to claim from the purchaser without Beis-Din tearing the Sh'tar (to prevent him from claiming again, like Rav Nachman taught).

(a) The Beraisa (and Rav Safra) is therefore not concerned about a *creditor* claiming from the purchaser twice - but about a *Nigzal*, who claims that the seller who sold the field had stolen it from his father. Consequently, although he does have witnesses, he does not have a Sh'tar for Beis-Din to tear (and it him together with the purchaser whom we suspect of collusion).

(b) When Rav Acha from Difti asks Ravina why the purchaser needs to ask the creditor to postpone his claim, he means to ask - why we are not afraid that, once he has claimed from the one purchaser, the Nigzal will agree to claim from him again immediately in another Beis-Din, after which, he will claim from another purchaser with his second Sh'tar, and give the Nigzal half.

(c) Ravina replied - that although technically, Rav Acha was correct, a person would be unlikely to do that, as it would involve two consecutive court-cases, inviting more people to investigate his affairs, and increasing his chances of being discovered.

(d) We query even Ravina's explanation however - seeing as it would be possible to block the purchaser's second claim - by writing a receipt for the seller, stating that the purchaser lost the first Sh'tar, and that having claimed from the second purchaser with his second Sh'tar, he has no further claims against him (not B'nei-Chorin and not Meshubadim).

4) The Rabbanan in the presence of Rav Papa (or Rav Ashi) extrapolated from the previous Kashya - that we do not write a receipt, so as not to force the debtor to look after it against mice and the likes (placing the onus on the Ba'al ha'Sh'tar to look after his Sh'tar).


(a) Rav Papa (or Rav Ashi) disagrees. He holds that as a rule, 'Kosvin Shover', and the reason that we do not write one here is - because it is the debtor who holds the receipt, and not the purchaser. And by the time the latter discovers that the money was already paid, the first purchaser has already claimed the land and eaten the fruit (and we have a principle 'Once something is stolen, it is difficult to retrieve').

(b) When we say 'I Nami, le'Loke'ach she'Lo be'Acharayus', we mean - that he may even have purchased the field without Acharayus, in which case, he will not take the trouble to approach the seller, and will never find out that he has a receipt.

(c) Nevertheless, we write a receipt in the case of a loan - because there, we say, the purchaser knows that since the borrower owes the creditor money, before relinquishing his land, he will check whether the debtor did not come to terms with the creditor.

(d) We will not say that here (in the case of a purchaser) - because, since the seller owes the purchaser land (and not money), the second purchaser does not expect the latter to have settled for money, and relinquishes his land immediately.




(a) We learned in the Beraisa that if someone claims that he lost a Sh'tar Mekach u'Memkar, they write him a new one 'Chutz min ha'Acharayus', which Rav Nachman explains to mean - that they must specifically write that with this Sh'tar one may neither claim B'nei Chorin nor Meshubadin (becaue its sole function is as proof of sale).

(b) Rafram extrapolates from there - that if he were to write nothing, he would nevertheless be able to claim Meshubadim, because of the principle 'Acharayus Ta'us Sofer Hu' (failure to insert Acharayus in a Sh'tar is a Sofer's error).

(c) Rav Ashi however, disagrees with Rav Nachman (and Rafram). According to him, the Beraisa means - that the Sofer does not insert Acharayus (because he holds 'Acharayus La'av Ta'us Sofer Hu').

(a) In a case where a woman gave a man money to purchase a field on her behalf - he went and bought her the field without Acharayus.

(b) The woman claimed - that she sent appointed him a Sheli'ach for her benefit and not for her detriment (and that consequently, the sale was invalid).

(c) Rav Nachman therefore ruled - that the Sheli'ach was obligated to repurchase the field from the seller without Acharayus, in his own name, and to sell it to the woman with Acharayus.

(a) We already cited the Beraisa in which Raban Shimon ben Gamliel holds that when a Sh'tar Matanah is returned, the Matanah goes back with it. Rabah objects to Rav Asi's explanation that when Reuven gives Shimon a gift together with a Sh'tar, it is as if he stipulated that the gift is his only as long as he has the Sh'tar - because if that were so, Raban Shimon's ruling ought to extend to when the Sh'tar is stolen or lost, and should not be confined to when the beneficiary returns the Sh'tar.

(b) In fact, says Rabah, Raban Shimon ben Gamliel and the Rabbanan argue over whether 'Osiyos Niknos bi'Mesirah' or not, as we explained - and the Machlokes also extends to the Sh'tar of a sale.

(c) Rabeinu Chananel rules like the Chachamim, based on the principle 'Yachid ve'Rabim, Halachah ke'Rabim'. Nevertheless, the Halachah might be like Raban Shimon ben Gamliel - because that is the opinion of Rav Papa (or Ameimar) and Rav Ashi in ha'Mocher es ha'Sefinah, and it also appears to be the opinion of Abaye and Rava later in this Perek.

(d) Raban Shimon ben Gamliel's Chidush is - based on the fact that what he is acquiring is basically words, and the Machlokes hinges around whether words on paper are any better than spoken words, which are not subject to a Kinyan.

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