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Nedarim, 27


OPINIONS: The Gemara discusses the Halachah in cases of "Ones," in which uncontrollable circumstances force a person to fulfill, or to fail to fulfill, a stipulation that he made. The Gemara opens its discussion with a case of a person who handed over his documents of proof to Beis Din and said, "If I do not return within thirty days [to finish the case], then all of these documents of proof shall be annulled." Circumstances beyond his control prevented him from coming back to Beis Din. Rav Huna rules that his documents of proof are annulled.

The Gemara asks that Rav Huna seems to contradict another ruling of his. We find that Rav Huna holds that "Asmachta Lo Kanya" -- an Asmachta is *not* binding (an Asmachta refers to a "reliance" upon a particular eventuality or condition taken without full commitment, because the person anticipates that the condition will not be fulfilled). Here, too, the person did not really intend for his proofs to be annulled, since he fully expected to return to Beis Din within thirty days!

The Gemara first answers that in this case, an Asmachta *is* binding because the person handed over his documents of proof to Beis Din. The Gemara rejects this answer because we find that in a case where a borrower pays back part of the debt and deposits the Shtar with a third party and says that if he does not pay the rest of the debt within thirty days, the Shtar should be returned to the lender (so that the borrower will have to pay back the full amount), the borrower's "commitment" is only an Asmachta and is not binding! This, even though he handed it over to a third party!

The Gemara says that the case of the documents of proof is different, because he said, "... my proof shall be annulled." What is the meaning of these words? How do these words make this case different from any other case of Asmachta?

(a) The RAMBAM cited by the Ran, and RABEINU TAM cited by the Rosh (Bava Metzia 5:29; see also Ran, DH v'hu d'Kanah), explain that the Gemara means that he did not just hand over his documents to a neutral third party, but he handed them over to the *Beis Din* judging his case. Once he gives them to Beis Din, it is not necessary for there to be any further action for the proofs to become annulled. Rather, the person simply foregoes (Mechilah) the right to use those proofs. Even though an Asmachta does not provide enough conclusive intention to make a full-fledged Kinyan, it *does* provide enough intention to relinquish one's rights to something that one has. (This also seems to be the way the MEFARESH explains the Sugya.)

(b) The RAN in the name of RASHI explains that in the case where one gives his documents to Beis Din, he is not creating a Kinyan at all through his Asmachta. Rather, he is being Modeh, admitting that his documents do not provide proper proof (that is, he says that if he does not return to Beis Din within the given amount of time, then that will show that his proofs are invalid).

The rules of Asmachta do not apply here, because the normal Kinyan of an Asmachta takes effect *retroactively* from the time that the person said his Tenai, and at that time he thought he was going to fulfill the Tenai. Hence, he did not have real intention to make the Kinyan. Hoda'ah, though, works differently. If the person does not fulfill the Tenai, then by not fulfilling the Tenai he is admititng that his proofs are invalid -- *not* retroactively, but at the time that he fails to fulfill the Tenai! At the time that he does not return, he knows that he is admitting that his proofs are invalid because of the very fact that he is not returning.

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