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Bava Metzia 67



(a) When Rav Nachman made his statement conceding that the seller cannot reclaim any fruit that the purchaser actually picked and ate (because he holds 'Mechilah be'Ta'us Havya Mechilah') Rava had in mind to ask him from Ona'ah - whose return the Mishnah in the previous Perek obligates, even though it also appears to be a case of Mechilah be'Ta'us.

(b) Rav Nachman however, preempted his Kashya, by proving from Aylonis that 'Mechilah be'Ta'us is indeed Mechilah. The Tana of the Mishnah in Kesuvos rules - that a Mema'enes, a Sheniyah and an Aylonis do not receive a Kesuvah, Peiros, Mezonos or Bela'os (the worn-out clothes that her husband used).

(c) The reason for this, regarding ...

1. ... a Mema'enes is - because she leaves her husband against his will.
2. ... a Sheniyah is - because we assume that she persuaded her husband to perform the sin of marrying her (so Chazal penalized her).
3. ... an Aylonis - because it was a Mekach Ta'us (an erroneous sale).
(d) Rav Nachman proves his point from here - because, despite the fact that the woman was Mochel be'Ta'us (thinking that the Kidushin was valid), her Mechilah nevertheless stands.
2) Rava concludes however, that neither is Ona'ah a Kashya on Rav Nachman, nor is Aylonis a proof.
1. Ona'ah is not a Kashya - because the person who is being overcharged is not aware of it, in which case it is not even Mechilah, let alone Mechilah be'Ta'us.
2. And Aylonis is not a proof - because the woman would want to live with her 'husband', even if he eats her Peiros ... , in order to attain the status of marriage (even if they are not legally married).
(a) After Reuven purchased a field on behalf of a woman called Navla, and Shimon the seller asked him whether Navla would return the field if he obtained the money with which to buy it back - he replied that he (Shimon) and Navla were siblings; in other words, since he and Navla were relatives, they would work out a plan between them.

(b) 'At ve'Navla Achi' might also mean - 'You and she are siblings'.

(c) Initially, Rabah bar Rav Huna ruled - that 'At ve'Navla Achi' is always an 'Asmachta'. The seller does not sell with a full heart, and the sale is therefore invalid.

(d) The field certainly had to be returned - and that is what he eventually ruled with regard to the Peiros that Navla had eaten in the meantime. Rava concurred with this ruling.

(a) Abaye asked Rabah what the Din would be in the equivalent case of Mashkanta - where the debtor gave the creditor a Mashkon without making any conditions, and the latter proceeded to eat the Peiros of his own volition.

(b) We might consider the fruit Avak Ribis, like in the previous case, because there was no stipulation permitting the creditor to eat the fruit. We might nevertheless obligate the creditor to return the fruit as if it was Ribis Ketzutzah - because it is a case of a loan (see foot of previous Amud).

(c) Rabah, who replied that here too, the fruit is considered Avak Ribis - disagrees with Rav Nachman, who ruled earlier (with regard to our Mishnah), 'Hadri Ar'a, ve'Hadri Peiri'.

(d) Ravina is even more stringent than Rabah bar Rav Huna. Rav Papi cites him as having ruled in the case of a purchase - that the purchaser was obligated to return the fruit that he ate.

(a) Mar B'rei de'Rav Yosef rules in the name of Rava 'be'Asra de'Mesalki, Achal Shiur Zuzi, Mesalkinan Lei'. When Rava says ...
1. ... 'be'Asra de'Mesalki' - he is referring to a place where it is customary for the creditor to eat the Peiros of the Mashkon, but to return the Mashkon the moment the creditor pays his debt.
2. ... 'Achal Shiur Zuzi, Mesalkinan Lei', he means - that the moment the creditor has eaten the equivalent of the debt, the borrower can retrieve his field and insist that what the creditor ate is in lieu of the debt (because that fruit is no worse than the money with which he could have paid off his debt and redeemed his field).
(b) Rava ...
1. ... rules in a case where the creditor ate in excess of the loan - that the debtor cannot claim what he ate, since it is Avak Ribis (like Rabah above).
2. ... means when he adds 've'Lo Mesalkinan mi'Sh'tara li'Sh'tara' - that in the event that the creditor has another Sh'tar Chov on the same debtor, the excess Peiros (of Ribis) that he eats from the Mashkon cannot be counted as payment of that debt.
(c) With regard to the two latter Dinim, if the field belonged to Yesomim, Rava ruled - that if the creditor ate in excess of the loan, we claim the difference on their behalf ('Mafkinan Mineih'), and 'Mechashvinan mi'Sh'tara li'Sh'tara'.

(d) The reason for this is - because Beis-Din are the father of the Yesomim, and they take into account the fact that the Yesomim (Ketanim) are not Mochel even the Avak Ribis (and it is as if they had already claimed back the field as soon as the creditor ate the equivalent of the debt).

(a) Rava confines the above rulings to a place where it is customary for the debtor to redeem his field with money ('be'Asra de'Mesalki'), because in a place where it is not (and where the creditor deducts whatever he eats from the loan for a given umber of years) - the Mashkon is considered a regular sale, and the debtor cannot even stop the creditor from eating the fruit in excess of the loan.

(b)We just learned that Rava obligates the creditor to return the field before he continues to eat any more fruit (if the debtor so claims). Rav Ashi - restricts that obligation to where the debtor pays his debt in full (because he does not agree with Rava, that the fruit that he ate becomes payment of the debt retroactively) ...

(c) ... because the debtor did not stipulate to that effect originally.

(d) With regard to Yesomim, Rav Ashi rules - that we do not claim the Peiros that the creditor ate in excess of the loan on their behalf (like Rava ruled earlier).




(a) Rava B'rei de'Rav Yosef in the name of Rava only permits a creditor to eat from a Mashkon be'Asra de'Mesalki by means of Nachyasa - which entails deducting a fixed amount each year (irrespective of how much or how little he eats, and even in those years when the field produces nothing).

(b) And he adds that a Tzurba mi'de'Rabbanan (a Talmid-Chacham) should avoid doing so - because he needs to sanctify himself, to enact stringencies even where the Torah is otherwise lenient, so that people should not learn from him to treat Mitzvos in a disrespectful manner (by searching for leniencies).

(c) Rava restricts the initial ruling to Asra de'Mesalki - because in an Asra de'Lo Mesalki, where the creditor may eat for the fixed number of years , it resembles a regular sale, and Nachyasa is not necessary.

(a) Initially, we advise a Tzurba mi'de'Rabbanan to accept a Mashkon 'be'Kitzusa', according to those who permit it (in fact, it is a Machlokes between Rav Acha and Ravina). According to the first Lashon, 'Kitzusa' means that the creditor eats the fruit for five years without deducting from the loan, but from then on, he assesses all the fruit that grows and deducts it from the loan. The second Lashon disagrees with this. According to them - Mashkanta has no Heter without Nachyasa.

(b) The second Lashon then defines 'Kitzusa' as - the first five years the creditor deducts the fruit that he eats from the loan, and from then on, he assesses all the fruit that grows and deducts it from the loan.

(c) According to the first Lashon, everyone will agree that the way the second Lashon defines 'Kitzusa' is permitted even for a Talmid-Chacham. The only concession for a Talmid-Chacham according to the one who is strict in the second Lashon is - 'Mashkanta de'Sura' (when they specifically stipulate that when the years of the Mashkon terminate, the field goes back and the debt is settled [giving the fruit the appearance of having been sold - see also Tosfos DH 'be'Mishlam']).

(a) Rav Papa and Rav Huna B'rei de'Rav Yehoshua state that the Ba'al-Chov (creditor) of a creditor who has a Mashkon be'Asra de'Mesalki and who died, cannot claim the field or the Peiros from his heirs - because a creditor only acquires the Peiros, but not the field, and the Metaltelin of Yesomim are not Meshubad to their father's Ba'al-Chov.

(b) On the other hand, he could have claimed the Peiros from their father in his lifetime - because even the shirt on the debtor's back is Meshubad to his Ba'al-Chov.

(c) Similarly, they said that, in the event of the creditor's death, his Bechor does not receive a double portion from that field, and Sh'mitah cancels the debt. The reason that ...

1. ... the Bechor does not receive a double portion is - because the field and the Peiros are only a Milveh (which will later be returned), and we rule that a Bechor does not receive a double portion in a Milveh (which his father had yet to claim).
2. ... Sh'mitah cancels the debt (in spite of the Mashkon) - is because the Din of a Milveh al ha'Mashkon, which Sh'mitah cancels, is confined to Metaltelin, which the creditor acquires and which is therefore considered his, but not a Mashkon of Karka 'be'Asra de'Mesalki'), which stands to be returned and which the creditor does not therefore acquire.
(d) And the reason that Rav Papa and Rav Huna B'rei de'Rav Yehoshua then rule that in the case of a Mashkon be'Asra de'Lo Mesalki, the creditor's Ba'al-Chov can claim the Mashkon from the creditor's heirs, the Bechor receives double and Sh'mitah does not cancel the debt is - because such a Mashkon is akin to a sale, which consequently belongs entirely to the creditor.
(a) Mar Zutra quoting Rav Papa rules that regarding a Mashkon of date-palms in an Asra de'Mesalki, the debtor can even reclaim mi'Tamri de'Abudya - dates that the creditor picked from the tree and dropped into mats that he had spread out in the field below.

(b) He could no longer claim them however - if the creditor had picked them up and placed them into baskets (because the latter would then have acquired them with Hagbahah).

(c) And according to those who maintain that the vessels of the purchaser acquire for him even in the domain of the seller, he would no longer be able to claim even before the creditor picked them up - because his mats would have acquired the dates on his behalf.

(a) If, be'Asra de'Mesalki, the debtor undertakes not to 'redeem' the land by paying, no Kinyan is required to clinch the stipulation. If it were, it would take place - in the form of Kinyan Kesef, which would have taken effect when the creditor lent him the money (see also Hagahos ha'G'ra).

(b) The point of the Kinyan would have been - to strengthen the creditor's rights, because all aspects of Karka are acquired with money, even as regards clinching stipulations.

(c) If, be'Asra de'Lo Mesalki, the creditor undertakes to allow the debtor to pay and 'redeem' his land, Rav Papa does not require a Kinyan to clinch the stipulation. Rav Shisha B'rei de'Rav Idi - like whom we rule, does.

(d) In this case, the point of the Kinyan (which does not acquire anything) is to reinforce the creditor's undertaking, which otherwise, would consist of words only, from which he could retract at any time (in order to follow the local custom).

(a) If, be'Asra de'Mesalki, the debtor informs the creditor that he is going to fetch the money to pay him - the latter must stop eating the Peiros immediately.

(b) Ravina says that the creditor may eat and Mar Zutra B'rei de'Rav Mari say that he may not - in a case where the debtor informs the creditor that he is going to look for the money to pay him.

(c) The Halachah is like Mar Zutra B'rei de'Rav Mari.

(a) Rav Kahana, Rav Papa and Rav Ashi did not eat the fruit of a Mashkon 'be'Nachyasa' (as we learned above). When Mar Zutra asked Ravina why he did, he replied that it was no different than S'dei Achuzah - where the owner may eat the Peiros after paying Hekdesh a Sela and a Pundiyon per annum per Chomer (thirty Sa'ah) of barley.

(b) What Ravina meant by that comparison to Mashkanta is - that just as by S'dei Achuzah, the owner eats the fruit, even if it is far in excess of the money that he pays (and is not considered Ribis), so too, is the creditor permitted to eat the fruit of the Mashkanta under the same circumstances. Note, that although Hekdesh from Hedyot is not subject to Ribis, Hedyot from Hekdesh is (see Ritva).

(c) Ravina's colleagues disagreed with him, however. According to them - S'dei Achuzah belongs to Hekdesh, until the owner redeems it, when it becomes his, immediately, and unlike Mashkanta, has nothing to do with a loan.

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