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Bava Basra 40
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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.
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1) [line 1] V'EIN TZARICH LOMAR "KESOVU!" - and he (the Me'ar'er) does not
have to tell them (the witnesses), "Write [a document recording my
protest]!"
2) [line 1] MODA'A
Moda'a is a legal declaration, made in front of witnesses, that a sale or
Get that a person is about to enact is going to be made under duress, and
should not take legal effect.
3) [line 2] HODA'AH
Hoda'ah is a legal declaration, made in front of witnesses, in which a
person admits that he owes a debt to a creditor.
4) [line 3] KINYAN (KINYAN SUDAR)
(a) When a person acquires an object, he must make a Ma'aseh Kinyan, a
formal Halachically-binding act denoting his acquisition of the object, in
order for the acquisition to be irrevocably binding.
(b) One of the forms of Kinyan that may be used for the acquisition of
Metaltelin (mobile items) or Mekarke'in (real estate) is Kinyan Chalipin
(exchange or barter), i.e. taking another object to demonstrate one's
consent for the Kinyan (or for an agreement). In our Sugya, Rava quotes Rav
Nachman who rules that witnesses to the Kiyan write a record of the
transaction whether they are so instructed or not.
(c) The source for Kinyan Chalipin is the verse in Ruth 4:7-8, in which this
Kinyan is used by Bo'az. Although Kinyan Chalipin may be accomplished
through the barter of two equally-valued items, it is normally no more than
a symbolic act in which an object of little value is exchanged in order to
represent the acquisition of an object of value. For example, Chalipin may
be accomplished by taking possession momentarily of a scarf or piece of
cloth (Sudar) that belongs to the other party in order to make a Kinyan on
another object that is being transferred. For this reason, Chalipin is also
known as "Kinyan Sudar." (The other object is not simply handed over to the
buyer to make the Kinyan with Meshichah either because it is not present or
because it is too large or it is unfeasible to hand it over, for example in
the case of the transfer of land.)
(d) The Gemara records a Machlokes among the Amora'im as to whether the
Sudar used in the symbolic Kinyan is given by the buyer (in *exchange* for
the object that is being acquired) or by the seller (*along with* the object
that is being acquired). The Halachic ruling is that the buyer gives the
Sudar, and in return he acquires the object that is being transferred (Bava
Metzi'a 47b).
5) [line 4] KIYUM SHETAROS
(a) Mid'Oraisa, a Shtar (contract) or Get which was written legally and
signed by witnesses is considered absolute proof. The Chachamim, out of fear
of forgeries, required that every Shtar be validated ("Kiyum") in one of the
following manners:
- The witnesses themselves attest to the validity of their signatures.
- Two other witnesses who recognize the signatures attest to their validity.
- The signatures are matched to those on a previously validated Shtar or Get.
(b) In our Sugya, Rava quotes Rav Nachman who rules that the three judges of
the Beis Din who witness the Kiyum write a record of it at the bottom of the
Shtar, whether they are so instructed or not.
6) [line 5] (SIMAN MaMHa"K) - this is a mnemonic device for remembering the
*previous* four subjects of the Gemara, said by Rava in the name of Rav
Nachman, that described words said or actions performed in front of
witnesses, and whether a direct command is necessary to have the subject
matter written down:
- *M* (Mem) refers to *M*echa'ah bi'Fnei Shenayim (last line, Daf 39b)
- *M* (Mem) refers to *M*oda'a bi'Fnei Shenayim (line 1)
- *H* (Heh) refers to *H*oda'ah bi'Fnei Shenayim (line 2)
- *K* (Kuf) refers to *K*inyan bi'Fnei Shenayim (line 3)
7) [line 6] MA'ASEH BEIS DIN - a verdict passed by Beis Din
8) [line 12] LO CHASVINAN MODA'A ELA A'MAN D'LO TZAYIS DINA - Beis Din only
writes a Moda'a (see above, entry #2) with regard to a person who does not
listen to the rulings of Beis Din
40b---------------------------------------40b
9) [line 6] PARDEISA - a vineyard
10) [line 8] TELAS SHENEI CHAZAKAH
A person who claims to have bought a piece of land from another person, but
has no proof of purchase may, nevertheless, support his claim with a
"Chazakah." A Chezkas Shalosh Shanim (a "Chazakah of three years") means
that he has proof (witnesses) that he has been living and working on the
land for three years as an owner normally would, and his opponent has no
witnesses to attest to the fact that he voiced any Mecha'ah (objection)
during those three years. This Chazakah serves as proof to the claim that he
bought the land (see Bava Basra 28a et seq.).
10) [line 9] KEVISHNA LI'SHTAR MASHKANTA, V'AMINA LEKUCHAH HI B'YADI - I
will hide the document of the security and I will claim that [I am the true
owner of the field and that] I bought it from you
11) [line 11] MATNASA TEMIRTA - the hidden gift [of a field or the like]
12) [line 14] ZILU ITMORU V'CHISVU LEI - [he says to the witnesses,] "Go
hide yourselves and write it (the document)."
13) [line 15] TEISVU B'SHUKA UV'VARYESA V'TICHTEVU LEI - [he says to the
witnesses,] "Sit in the marketplace in the open and write it (the
document)."
14) [line 17] V'HAVYA MODA'A L'CHAVERTAH - however, it can be used as a
Moda'a for a subsequent Shtar Matanah (a gift) or Mechirah (a sale) [to
prove that the later gift or sale is invalid, having been made under duress]
15) [line 17] LAV B'FEIRUSH ITMAR, ELA MI'KELALA ITMAR - it was not said
explicitly by Rava, rather it was derived through something else he said
[and the deduction is mistaken]
16) [line 19] HAVINA LACH [L'ITESA] - I will become your [wife]
17) [line 20] ASA BREI KESHISHA - his eldest son came [to him to complain]
18) [line 21] ITMORU B'EVER YEMINA - Hide yourselves in the place named Ever
Yemina
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