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1) THE BERAISA REFUTES SHMUEL

(a) Shmuel establishes the Mishnah as R. Elazar - the Beraisa refutes him as it refutes R. Elazar.
(b) Also - Shmuel said that one who finds a Hakna'ah document should return it, we are not concerned for repayment - but the Beraisa says that we do not return a document with Achrayus, even when both admit, implying that we are concerned.

1. All the more so, when the borrower does not admit, we are concerned!

(c) (Shmuel): Chachamim hold that every document should have Achrayus - if it is not mentioned in the document, we attribute this to a mistake of the scribe, and we consider it as if Achrayus is written in the document.
(d) Question (Rava bar Isi): This contradicts another teaching of Shmuel!

1. (Shmuel): A scribe must consult (with Reuven, the seller of a field) before writing the following provisions in the document (in case Reuven's creditor will take the field from the buyer (Shimon)):

i. Improvements (if Shimon improved the field and it was taken, Reuven compensates him);
ii. Idis (Shimon will be compensated from highest quality land);
iii. A lien (on Reuven's property to repay Shimon if the land is taken).

2. Suggestion: One of these was mistakenly said in Shmuel's name.

(e) Answer: No - by a loan, every document should have Achrayus - a person only lends money on condition to get it back;

1. By a sale, the scribe must consult - people sometimes buy land, even without assurance that they will keep it a long time.
2. Avuha bar Ihi bought an upper story from his sister. His sister's creditor took it.
3. Shmuel: Did she write for you Achrayus?
4. Avuha: No.
5. Shmuel: You receive no compensation.
6. Avuha: But you hold that if Achrayus is not mentioned in the document, this is a mistake of the scribe!
7. Shmuel: That is by a loan; by a sale, people sometimes buy land without assurance of keeping it a long time.

(a) [Version #1 (Abaye): Reuven sold a field to Shimon with Achrayus; Reuven's creditor (Levi) took it - Reuven can take Levi to Beis Din to contest this.

1. Levi cannot say 'You have no claim against me (since I did not take from you), because Reuven must compensate Shimon for what Levi took.]

(b) [Version #2 (Abaye): Even if Reuven sold without Achrayus, he can take Levi to Beis Din - (even though Reuven need not compensate Shimon,) he can say, I don't want Shimon to bear a grudge against me.]
(c) [Version #1 (Abaye): Reuven sold a field to Shimon without Achrayus; people protested (saying the field belonged to them). Before Shimon makes a Chazakah, he can withdraw from the sale; after making a Chazakah, he cannot.

1. Reuven can say - you knew you were taking a risk.
2. Question: When do we say that Shimon made a Chazakah?
3. Answer: When he walks around the borders.]

(d) [Version #2: Even if Reuven sold with Achrayus, Shimon cannot retract after making a Chazakah;

1. Reuven can say 'if and when Beis Din rules that it is theirs, I will compensate you'.

(a) (Rav): Reuven sold a field to Shimon; it was found that it was not Reuven's. Shimon receives what he paid, and is also compensated for improvements he made to the land.
(b) (Shmuel): Shimon receives what he paid, he is not compensated for improvements.
(c) Question: (According to Shmuel) - what if Reuven stipulated that he will compensate him for improvements if it is taken?

1. If Shmuel says that he is exempt from compensating for improvements because he did not stipulate - here, he stipulated (he is liable)!
2. Or - is Shmuel's reason because, since Shimon never truly received land, it is as if he lent Reuven the money, and if Reuven will compensate him it appears as usury - even if he stipulated, he does not pay?

(d) Rav Huna was unsure.
(e) (Rav Nachman citing Shmuel): Shimon receives what he paid, he is not compensated for improvement, even if Reuven stipulated;

1. Since Shimon never received land, it appears as usury.

(f) Question (Rava - Mishnah): It was enacted that the following are not paid from sold property: produce that was eaten (this will be explained), improvements on land, food for the widow and daughters.

1. They are not paid from sold property, but they are paid from unsold property!
2. Suggestion: Improvements on land refers to when it was found to be stolen.

(g) Answer: No - a creditor took it.
(h) Question: But the Mishnah teaches produce that was eaten- - if a creditor took the land, he does not take produce!

1. (Shmuel): A creditor takes improvements.

i. Inference: He only takes improvements, not produce!

2. We must say, this case (produce) is when the land was stolen; presumably, also the next case (improvements)!

(i) Answer: No - produce is when the land was stolen; improvements are when a creditor took it.