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Kesuvos, 99


QUESTION: The Gemara earlier (99a) discusses a case where a person sends a Shali'ach to sell a "Kur" of his land, and the Shali'ach sells it in two installments, half a "Kur" at a time. In such a case, asks the Gemara, has the Shali'ach violated his mission (since the owner does not want to have so many Shetaros to deal with) and the sale is not valid, or is his action considered to be acceptable to the sender? The Gemara there does not reach a conclusion.

The Gemara here asks another question, seemingly beginning a new Sugya altogether. The Gemara says that it is clear that when a landowner tells a Shali'ach to sell a field "to one person but not to two," if the Shali'ach sells it to two, the sale is invalid. The Gemara asks whether the sale is valid or not in a case where the landowner tells a Shali'ach to sell a field "to one person" and he does not specifically state "but not to two." The Gemara cites a Machlokes among Amora'im whether the sale is valid or not when the Shali'ach sold the field to more than one person. The Gemara concludes that the sale is valid and the Shali'ach may sell the field to as many people as he wants.

Why is the Gemara here asking whether the Shali'ach may sell the field to more than one person? This should depend on the answer to the Gemara's previous question! If a landowner does not want the Shali'ach to sell his field in two parts so that he not have so many Shetaros to deal with, then for the same reason he does not want the Shali'ach to sell the field to more than one person! The previous question was left unresolved, yet now, when the Gemara seems to ask the same question again, suddenly a number of Amora'im express their opinions on the matter!


(a) TOSFOS (DH Amar) explains in the name of Rav HAI GAON that the second Gemara is actually a continuation of the first. It is as if the Gemara is saying, "Now that we have shown that no proof can be adduced from a Mishnah or Beraisa to resolve our question, what did the Amora'im decide was the Halachah based on their own logic?"

This answer is slightly problematic. Why does the Gemara later bring a proof from our Mishnah that the Shali'ach may sell the field to more than one buyer? The Gemara cited the same proof earlier and refuted it (the same way the Gemara here is going to refute it)! If this Sugya is a continuation of the previous Sugya, then there is no reason to repeat the proof (and the refutation)!

(b) Rashi seems to be explaining in a similar manner to Rav Hai Gaon, except that he explains that the first question of the Gemara involves a case where the landowner says to the Shali'ach, "Sell a Kur of the land," *without* specifying that he should sell it to only one person. Even though the question was not resolved, the Gemara assumes that the Shali'ach *may* sell the land to two people.

Now the Gemara asks what the Halachah is when the owner *specifies* to the Shali'ach that he should sell it to one person. Should the owner's specific instructions be interpreted to mean that he has an interest not to sell it to two people and not have too many Shetaros, or is he still not particular about how many people buy the land?

The Gemara adduces proof again from our Mishnah to the second question. Even though in the case of the Mishnah, the Yesomim did not say expressly to sell the land to one person, nevertheless since Beis Din looks out for the benefit of the Yesomim, if it is commonly considered beneficial not to have too many Shetaros, it is as if they specified to sell it to one person. (Rav Hai Gaon could not learn like this, because according to his Girsa, the second question was not when the owner specified to sell the field to one person, but when the owner told the Shali'ach to sell it *without* specifying to how many people it should be sold.)

(c) The BA'AL HA'ME'OR, too, explains that the second question of the Gemara is like an "Im Timtzi Lomar" to the first question. The Gemara is assuming -- with regard to the first question -- that a person normally *does not care* if his field is sold to *one* person in two separate purchases with two separate Shetaros. He is not concerned with the fact that when there are more Shetaros more people will hear that he is selling his fields (which will cause the price of his fields to drop). Nevertheless, the Gemara considers that perhaps the same person *does* care if his land is sold to *two* different people, because that raises a new consideration. When the land is sold to two people, the original owner will have to deal with two different court cases if the buyers find problems with the fields (for example, if the creditors of the seller appropriate the fields from them).

(d) TOSFOS, the RAMBAN (in Milchamos) and other Rishonim explain that the two questions of the Gemara need not be connected at all. The first question of the Gemara, like the Ba'al ha'Me'or explains, is referring to where the field is sold to *one* person in two different purchases and with *two* different Shetaros. The second question of the Gemara is not concerned with the extra Shetaros at all, but only with the fact that the field was sold to *two* people, and therefore the seller is concerned that he will have to be brought to court twice.

If the field was sold to two people, then why is there not the additional concern that the seller would have wanted to avoid multiple Shetaros? The answer is either that both sales were written in a single Shtar (Tosfos). Alternatively, the problem with having two Shetaros is not that it will become publicly known that he is selling his fields, but simply that the seller is lazy and does not want to have to look again for a scribe and witnesses to write a second Shtar. This is only a consideration when the Shali'ach who sold the field promised to the buyer that the *seller* (and not the Shali'ach) would write him a Shtar, in which case the seller is the one who will have to find the scribe and witnesses for the additional Shtar. The Gemara in its second question is not worried about the presence of the second Shtar, because it is discussing a case where the *Shali'ach* wrote the Shetaros himself, and thus the seller will not be have to worry about having to write more Shetaros (Rabeinu Tam in Tosfos).

QUESTION: The Mishnah states that if Beis Din, when evaluating the property of Yesomim in order to sell it, errs by a sixth (an "external" sixth, meaning twenty percent) in evaluating the value of the land, then the sale is revoked. This is a stringency unique to Beis Din, because we know that with regard to Metaltelin, when a seller overcharges by a sixth, or when a buyer underpays by a sixth, the sale is not revoked, but rather the seller (or buyer) has to return the extra money. And when a person sells land, even if he overcharges by more than a sixth, the sale remains valid and is not revoked (nor does any money need to be returned), because of the rule that "Ein Ona'ah l'Karka'os" ("there is no Ona'ah for land"). Even though our Mishnah is discussing the sale of land, nevertheless, since the property is being evaluated by Beis Din for the benefit of the Yesomim, the Chachamim were more stringent and said that the sale should be revoked if Beis Din under-evaluates and undersells the land by a sixth of its value.

However, the Mishnah also says that if Beis Din *overprices* the land and the Yesomim profit more than a sixth, then the sale is also revoked! Why is the sale revoked if the Yesomim *benefit* from the error of Beis Din?


(a) The ROSH, RAN and other Rishonim explain that since the Chachamim made a rule that when Beis Din under-evaluates the land of Yesomim the sale is revoked, they had to make a reciprocal rule that if Beis Din overprices the land, the sale is also revoked. Without such a reciprocal rule, nobody would buy the property of Yesomim because the downside to the buyer would be too great (that is, the sale might be revoked if Beis Din under-evaluates the land, and if they overpriced the land, then the buyers will lose out by being overcharged).

The Rosh says that this seems to be the opinion of RASHI, while the Ran cites this as the opinion of TOSFOS.

(b) The ROSH, in the name of RABEINU YONAH and the RA'AVAD (Hilchos Mechirah 13:9), writes that since it is Beis Din who is appraising the land, the buyers rely on Beis Din to make a proper appraisal. They trust Beis Din, and they do not make their own independent appraisal of the value of the land. Therefore, if Beis Din overprices the land, Beis Din is causing the buyer to lose, and therefore the Chachamim instituted that the sale is revoked in such a case as well.

A difference between these two approaches might be according to the view (100a, according to Rashi's explanation of the Gemara) that maintains that a Shali'ach who sells the property of Yesomim has the same status as Beis Din who sells the property of Yesomim. According to the first approach above, when the Shali'ach overestimates the value of the field and overcharges the buyer, the sale should be revoked, just like when he undercharges. According to the second approach, since it is the Shali'ach making the appraisal and not Beis Din (or the Shali'ach of Beis Din), the buyers do not trust his appraisal and they make their own independent appraisal of the field and do not rely on the Shali'ach, and thus if they overpay the sale should not be revoked.

(c) The RAMBAN explains that when the Mishnah says that when Beis Din overprices the field the sale is revoked, the Mishnah is not discussing a case where Beis Din sold the field of Yesomim in order to raise money to pay their debts. Rather, the Mishnah is discussing a case where Beis Din attempted to sell the fields of the Yesomim but was unsuccessful, and therefore Beis Din told *the creditor himself* that he must accept the fields as repayment of the debt for the value that Beis Din attributes to the fields. Since the creditor who receives the fields has no choice in the matter and must accept the fields at the value determined by Beis Din, if Beis Din mistakenly overprices the field, the transfer of the property is revoked.

The RAN questions this explanation. If this is what the Mishnah means, then why does the Mishnah conclude that if Beis Din makes an "Igeres Bikores" -- they announce that people should come and visit the field --then even if they overprice or underprice the field, the sale is valid? What difference does it make to the creditor if people visited and saw the field? Beis Din still decided on the price, and if Beis Din's price was exaggerated, then the transfer of property should still be revoked!

The Ramban must mean that if Beis Din had people visit the field, we assume that the appraisal Beis Din made was correct. Even if it now seems to be inaccurate, there must be an external reason causing the value to seem higher or lower, but at the time of Beis Din's appraisal the price they arrived at was accurate. (M. Kornfeld)

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