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Bava Metzia, 15

1) WRITING IN A CONTRACT THE "SHUFRA," "SHEVACH," AND "PEROS"

QUESTION: Shmuel (14b) maintains that when one buys a stolen field from a thief and the original owner comes to reclaim it, the purchaser is entitled to receive in return the purchase price that he paid to the thief (the seller), but he is not entitled to receive the value of the Shevach that he put into the field. The Gemara here questions this view of Shmuel from another ruling of Shmuel, in which Shmuel states that when a scribe writes a contract of transfer of ownership of land, he must specifically ask the seller whether he wants to include in the contract the rights for the buyer to collect from him the "Shufra," "Shevach," and "Peros" in the event that the land is taken away from him. The Gemara says that Shmuel cannot be referring to a case of a Ba'al Chov who comes to collect a field that a buyer purchased from the borrower, because Shmuel himself rules that a Ba'al Chov is not entitled to collect the Peros from the buyer. Rather, Shmuel must be referring to a contract written with the possibility that the original owner of a field will come to collect his field from the buyer who purchased it from the thief. How, then, can Shmuel say that the scribe should find out if the seller agrees to let the buyer collect the *Shevach* from him, if Shmuel himself maintains that the buyer is not entitled to collect the Shevach from the seller in such a case?

What is the Gemara's question on Shmuel? When a contract is written for a person buying land from a seller, the contract must take into account *both* possibilities -- perhaps the land will be taken away by the seller's Ba'al Chov, and perhaps the land is stolen and will be taken away by the original owner! Hence, the contract must include mention of "Shevach" in case the land is taken away by a Ba'al Chov (since a Ba'al Chov is entitled to collect the Shevach from the buyer), and it must include mention of "Peros" in case the land was stolen and is taken away by the Nigzal (since Shmuel only says that when the Nigzal takes back his land, the buyer may not collect the Shevach from the seller, implying that he may collect Peros)! (PNEI YEHOSHUA, TORAS CHAIM)

ANSWERS:

(a) The TORAS CHAIM answers that Shmuel's ruling that the scribe write the "Shufra," "Shevach, "*and* Peros" implies that the buyer will be able to collect *all three* of them if the land is taken away from him, and not that they are written in the Shtar so that the buyer can collect two out of the three.

(b) The PNEI YEHOSHUA cites the SHACH (CM 115) who answers simply that when Shmuel earlier rules that one who bought a stolen field from a thief may not collect the Shevach, the same applies to the Peros. The reason why he may not collect the Shevach, the Gemara earlier (14b) explains, is because it will be considered like Ribis, since he gave money to the seller, and now he is receiving more money in return (and since the sale never took effect because the land was stolen, the giving of the money was like a loan). The same applies to the Peros; if the seller has to compensate the buyer for the Peros that were confiscated, then it will look like Ribis.

QUESTION: Shmuel (14b) maintains that when one buys a stolen field from a thief and the original owner comes to reclaim it, the purchaser is entitled to receive in return the purchase price that he paid to the thief (the seller), but he is not entitled to receive the value of the Shevach that he put into the field. The Gemara here questions this view of Shmuel from another ruling of Shmuel, in which Shmuel states that when a scribe writes a contract of transfer of ownership of land, he must specifically ask the seller whether he wants to include in the contract the rights for the buyer to collect from him the "Shufra," "Shevach," and "Peros" in the event that the land is taken away from him. Shmuel cannot be referring to a case of a Ba'al Chov who comes to collect a field that a buyer purchased from the borrower, because Shmuel himself rules that a Ba'al Chov is not entitled to collect the Peros from the buyer. Shmuel must be ruling that the scribe ask if he should write these things in the contract for a case in which the original owner of a field comes to collect his field from the buyer who purchased it from the thief. How, then, can Shmuel say that the scribe should find out if the seller agrees to let the buyer collect the Shevach from him, if Shmuel himself maintains that the buyer is not entitled to collect the Shevach from the seller in such a case?

Why does the Gemara entertain the possibility, in the first place, that Shmuel's ruling that a scribe must ask the seller about writing in the Shtar the rights to collect "Shufra," "Shevach," and "Peros" was referring to one who buys land from a debtor who owes money? In such a case, Shmuel himself holds that the Ba'al Chov cannot collect anything unless Achrayus is written explicitly in the contract (for Shmuel maintains that "Achrayus Lav Ta'us Sofer"). If Shmuel was referring to the case of a Ba'al Chov in his ruling to the scribe, then he should have said that the scribe must ask the seller whether *Achrayus* should be written in the Shtar! If Achrayus is not written in the Shtar, then when the Ba'al Chov takes the land away from the buyer, the buyer cannot collect *anything* from the seller (the borrower)! (According to the Gemara's conclusion that Shmuel's ruling to the scribe indeed refers to a case of one who buys a field from a thief, there is no need to write Achrayus into the contract, because the buyer is certainly entitled to collect from the seller the money he paid for the field, since the sale itself was not valid.)

ANSWERS:

(a) The GILYON cited by the Shitah Mekubetzes, the MAHARAM SHIF, and the PNEI YEHOSHUA explain that the Gemara indeed could have asked this question to refute the suggestion that Shmuel's ruling to the scribe referred to a Ba'al Chov. However, it preferred to ask a better question and ask that a Ba'al Chov has no right to collect Peros from the buyer.

(b) The MAHARSHA explains that when the Gemara suggests that Shmuel's ruling to the scribe is referring to a Ba'al Chov, it does not mean that it is referring to a case of a Ba'al Chov who comes to collect from a buyer the land sold to him by his debtor, for, indeed, the contract would have to include mention of Achrayus. Rather, the Gemara means to suggest that Shmuel's ruling refers to the *Shtar Chov* itself written on behalf of a Ba'al Chov, giving him the right to collect from the borrower's property (from the borrower himself, before it is sold to anyone else). Such a Shtar does not need to mention Achrayus, since Shmuel agrees (14a) that for a loan, "Achrayus Ta'us Sofer" (since no one would lend his money to someone else without receiving anything in return and without having a guarantee).

The Maharam Shif rejects the Maharsha's answer, because if the Gemara is referring to a case of an actual Ba'al Chov collecting the "Shufra," "Shevach," and "Peros" from the borrower, then there is no need to mention those things, because the Ba'al Chov is certainly entitled to collect from the property of the borrower the value of the loan. Only when a buyer is collecting from the seller the value of the land that was confiscated from is there a question whether he may collect the additional value of the Shevach and the Peros.

(c) The IMREI MAHARSHACH answers that the Gemara assumed that when Shmuel told the scribe to ask the seller if he should write in the contract "Shufra, "Shevach," and "Peros," Shmuel took it for granted that the scribe also asked the seller about including the actual Achrayus itself in the contract. Shmuel told the scribe to ask about including the "Shufra, "Shevach," and "Peros" because the scribe might err and think that once Achrayus is written in the contract, it includes Achrayus for everything, even to collect from the "Shufra," and to collect the value of the Shevach and Peros.

(d) It could be that when the scribe writes the "Shufra, "Shevach," and "Peros" in the contract, that already includes Achrayus. "Shufra" means that the scribe writes in the contract that if the land is taken away from the buyer (such as by the seller's Ba'al Chov), the buyer go back to the seller and collect from him the highest quality land that the seller has. This itself is Achrayus. (Perhaps RASHI (DH Imlich) alludes to this when he adds the word "principle" when he explains that the scribe must ask the seller if he wants to give the buyer the right "to collect *the principle* from his highest quality land.") (Y. Shaw)

15b