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Bava Basra, 51

1) A GIFT GIVEN WITH A GUARANTEE

QUESTION: Rav Ashi states that a huisband who gives a field to his wife as a gift may include in the Shtar wording that indicates that the field was sold, in addition to wording that says that he gave it to her as a gift. This double formula will grant his wife certain advantages. Writing that the field was sold to her will give her the rights of compensation if someone comes and confiscates it from her (such as the creditor of the husband); the husband will be required to reimburse the woman for the lost field. Writing that the field was given to her as a gift, the RASHBAM explains, will give her the rights to keep the land even against the protest of a "Bar Metzra." Normally, when a land-owner wants to sell his field, the immediate neighbors have priority status and are entitled to buy the field before any other potential buyers. However, if the field is given as a gift to someone else, the neighbors do not have the right to protest and insist that they be allowed to buy the land.

TOSFOS (DH v'Lamah) questions this explanation of the advantage of writing in the Shtar that the field was given as a gift. The Gemara in Bava Metzia (108b) states that when a person gives a field as a gift with "Achrayus," with a guarantee that the benefactor will replace the field if it is legally confiscated from the recipient, it is considered a sale with regard to the law of "Bar Metzra." Consequently, the neighbors maintain the right to purchase the field before it is given away! In Rav Ashi's case, in which the field was given to the wife with "Achrayus," the law of "Bar Metzra" should still apply! Why, then, does the Rashbam say that it does not apply?

ANSWER: The RITVA answers that the reason why the Gemara in Bava Metzia states that when a gift is given with "Achrayus," the law of "Bar Metzra" still applies, is because we suspect that the original owner is actually selling his field (and that is why the recipient demands a guarantee). However, he fictitiously writes in the Shtar that the transaction is a gift in order to prevent his neighbors from having the first rights to purchase the field. In Rav Ashi's case, though, we are certain that the husband is giving the field to his wife as a genuine gift, even if a clause of "Achrayus" is written in the Shtar. Hence, the law of "Bar Metzra" does not apply.

The Ritva points out that this explains why Rav Ashi states, "He wanted to give it to her as a gift." Rav Ashi is implying that we are certain that the husband's intentions were genuine and he sincerely meant to give the field as a gift. (Y. Marcus)

51b

QUESTION: The Gemara states that one may not accept an item as a deposit from a woman, slave, or minor, because of the fear that they might have stolen the item. The RASHBAM (DH Lo) explains that the reason one may not accept a deposit from a minor is because he might have stolen it from the owner of the house in which he lives.

The Gemara continues and says that if, b'Di'eved, a deposit was receive by mistake from a minor, then the person holding the item may not return it to the minor, because the minor is not considered to be mature and responsible enough to take care of the item. Instead, the person holding the item should invest the money on behalf of the child. If the child died before reaching adulthood, the deposit must be returned to his heirs.

Why does the Rashbam not explain that the minor stole from *his father*? In addition why does the Gemara not say that if a deposit was accepted from a minor and the minor died, the deposit should be returned to *his father*?

ANSWER: The PNEI SHLOMO cites TOSFOS (52a, DH Kibel) who explains that the reason why the value of the item deposited must be invested for the minor is because it may be assumed -- once the deposit has already been accepted -- that the minor found the item in the street and it legitimately belonged to him (we do not make this assumption l'Chatchilah and permit a person to accept a deposit from a minor, because of the possibility that it might be stolen). We can infer from Tosfos that it is unlikely that someone gave the item to the minor as a gift. This is because it is uncommon to give a gift of value to a child, since it is probable that he will lose it. Therefore, there are two possible sources for the origin of an item in the possession of a child: either he stole it from the house in which he lives, or he found a lost article. Consequently, if the Gemara would be referring to a minor who is living in his father's home, then any articles in his possession would belong to his father -- either because he stole it from his father, or because of the law that states that any lost article that a minor finds automatically belongs to his father (see Bava Metzia 12a). The Gemara cannot be discussing a minor who lives in the home of his father, because the law, then, would always require the item to be returned to the minor's father, regardless of whether or not the minor is still living. This is also why the Rashbam explains that the minor have stolen the item "from the house in which he lives," and does not explain that he may have stolen it from his father. (Y. Marcus)