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Gitin, 51

GITIN 51 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.

1) COLLECTING "PEROS" FROM "NECHASIM MESHU'ABADIM"

QUESTIONS: The Mishnah (48b) says that "Ein Motzi'in l'Achilas Peros... mi'Nechasim Meshu'abadim." When a person purchases a field with Achrayos (a guarantee from the seller) and it turns out that the field was stolen, the purchaser may collect the value of the field from other fields that the seller owned, which other buyers (Lekuchos) have already bought from him ("Nechasim Meshu'abadim"). However, he may not collect the value of the Peros (the fruit that his labor on the field produced) from the Lekuchos. Ula (50b) says that the reason is because the value of the Peros was not written in the original Shtar (they are not "Kesuvim") that contained the Achrayos, since there were no Peros at that time. Since Achrayos for the Peros was not written in the original Shtar, there was no way for the Lekuchos to know about it and to be forewarned. Rebbi Chanina says that the reason the purchaser may not collect the value of the Peros from the Nechasim Meshu'abadim is because there is no limit to the value of the Peros (they are not "Ketzuvin"); we do not know how much the value of the Peros will be, and therefore we cannot collect from Nechasim Meshu'abadim because of "Tikun ha'Olam."

The Gemara asks whether Rebbi Chanina means that there must be *two* conditions, or just one, in order to collect from Lekuchos. Is Rebbi Chanina merely adding to what Ula said, that besides the fact that the Achrayos of the Peros was not written in the original Shtar, we also do not know how much the value of the Peros will be, or is he arguing with Ula and saying that it does not make a difference whether or not the Peros were written in the original Shtar; Achrayos takes effect on anything that has a set amount (even when not written in the Shtar). RASHI explains that according to this second option, even an unwritten loan, a Milveh Al Peh, should be collected from Nechasim Meshu'abadim, since it has a set amount (i.e. the amount of the loan).

The Gemara cites a Beraisa of Rebbi Nasan, who says that when the buyer bought a field from the person who stole it and sold it with Achrayos *after* there were already some Peros in the field, then those Peros do have Achrayos and the second buyer (of another field of the seller) will have to pay for the value of the Peros that were in the field at the time of the first buyer's purchase. He is only exempt from paying for Peros that grew in the field *after* the first buyer purchased the field (for example, in a case where the field is found to be stolen only long after the second buyer bought the second piece of property). RASHI explains that this is a question both on Rebbi Chanina and on Ula, because Rebbi Nasan permits collecting the Achrayos for the Peros in certain circumstances -- when the Peros were there before the Lekuchos bought the second field from the thief, while Rebbi Chanina and Ula both say that the Peros can *never* be collected from the Lekuchos (either because they are not "Kesuvim" or because they are not "Ketzuvin"). We see that Rebbi Nasan permits collecting Achrayos for Peros from the Lekuchos, even though the Achrayos for the Peros was not written in the original Shtar (since at the time that the Shtar was written, there were no Peros in the field), and even though the Peros are something that has no set amount, since at the time the Shtar was written we have no idea how much the value of the Peros will be.

The Gemara answers that Rebbi Nasan's ruling is a Machlokes Tana'im ("Tena'i Hi"), as we find in another Beraisa. The Gemara quotes a Beraisa in which the Tana Kama says explicitly that we do not collect Peros from Nechasim Meshu'abadim because of "Tikun ha'Olam," since the Achrayos for the Peros is not written in the original Shtar. Rebbi Yosi in the Beraisa argues and says that this is not a Takanah of "Tikun ha'Olam," but rather the reason is because the Peros have no set amount and therefore one cannot collect Peros from Nechasim Meshu'abadim.

Rashi explains that Rebbi Yosi means that it is such an obvious fact that Peros cannot be collected from Nechasim Meshu'abadim because they have no set amount (they are not "Ketzuvin") that it is not even necessary for the Rabanan to make a Takanah of "Tikun ha'Olam;" even without a Takanah of "Tikun ha'Olam," the person who bought the field with Achrayos cannot collect the value of the Peros when it was impossible for the Lekuchos to have been cautious and to avoid buying the field because of the Achrayos, since they had no idea how much the value of the Achrayos would be (i.e. how much Peros the field would produce).

TOSFOS (DH O, DH Alma, and DH v'Chi) asks a number of very strong questions on Rashi's explanation. First, Tosfos asks why does the Gemara say that Rebbi Nasan's opinion is a Machlokes Tana'im? According to Rashi's explanation, Rebbi Nasan holds neither the reason that Peros are not written in the original Shtar, nor the reason that Peros have no set amount. He does not require either "Kesuvim" or "Ketzuvin;" he says that one may collect the Peros from the Lekuchos even when the Peros were not written in the original Shtar and even when there is no set limit to the amount of Peros. Since this is the opinion of Rebbi Nasan, Rebbi Nasan will agree with *neither* of the opinions expressed in the Beraisa cited afterwards! The Tana Kama definitely holds that the Peros must be written down in order to collect them from the Lekuchos, and Rebbi Yosi, who argues with the Tana Kama, says that it depends on whether the Peros are "Ketzuvin" or not; there must be a set amount in order to be able to collect from the Lekuchos. Neither of these two opinions holds like Rebbi Nasan! "Tena'i Hi" usually means that this opinion that the Gemara just mentioned is one of two opinions in a Beraisa that the Gemara will now cite. If the Gemara means to say not that Rebbi Nasan's view is the subject to a Machlokes Tana'im, but that the views of Ula and Rebbi Chanina are represented by Tana'im in another Beraisa, then the Gemara should have said, "Inhu d'Amri k'Hani Tena'i," that "they hold like these other Tana'im!" In fact, since the Gemara seems to be saying that Ula and Rebbi Chanina are arguing the same point as the Tana'im in the second Beraisa, the Gemara should have said the usual expression for such a situation: "k'Tena'i," that is, it is the same as a Machlokes Tana'im. Why does it say "Tena'i Hi?"

Second, Tosfos asks how can Rebbi Chanina be saying like the second Tana of the second Beraisa (Rebbi Yosi)? Rebbi Yosi, although he says, "Mipnei she'Ein Ketzuvin," says that this is *not* related in any way to a Takanah of "Tikun ha'Olam." He says that since the value of Peros is not a set amount, it is not necessary to make a Takanah of "Tikun ha'Olam" in order to prevent collecting from the Lekuchos. Rebbi Chanina, though, says clearly that the Mishnah which says that we do not collect from the Lekuchos "because of Tikun ha'Olam" means that we do not collect because the Peros are not a set amount! How, then, can Rebbi Chanina be saying the same thing as Rebbi Yosi? The Gemara should say that the Beraisa of Rebbi Yosi is a contradiction to the view of Rebbi Chanina, and it should say, "Tiyuvta d'Rebbi Chanina!"

Third, how can Rashi even suggest that Rebbi Chanina might be saying that a Milveh Al Peh, which has a set amount and is "Katzuv" is able to collect from Nechasim Meshu'abadim? The Mishnah explicitly says in Bava Basra (175a) that a Milveh Al Peh may *not* collect from Nechasim Meshu'abadim. No one argues with this; it is the universally accepted opinion that a Milveh Al Peh cannot be collected from Nechasim Meshu'abadim (the logic being that since no Shtar was written, word of the loan does not spread and thus the Lekuchos were unaware of it and had no way of knowing to be cautious about buying the land)! How can Rashi say that, according to Rebbi Chanina, our Mishnah maintains that a Milveh Al Peh *could* collect from Lekuchos, and that the only reason why the Peros cannot be collected from Lekuchos is because they have no set amount. Where did Rebbi Chanina find such an opinion?

ANSWERS: It could be that these questions answer each other. RASHI maintains that there are two different types of "Nechasim she'Einam Ketzuvin," items with values that have no set limit. The first type is items with values that are not known at the time that the Shtar was written (such as the Peros, whose value was not known at the time of the purchase of the land, since there were no Peros at the time of the purchase), or at the time that the loan was granted. This is the type of "Einam Ketzuvin" that Rebbi Chanina is discussing. There is another type of "Ketzuvin," though, and this second type is the one that Rebbi Nasan and Rebbi Yosi are discussing: when the value of the Peros was not known at the time that the *Lekuchos* purchased the *second field* from the seller. That is, if the second buyer, who bought a field from the one who sold a field b'Achrayos to the first buyer, bought the field before there were any Peros on the field that was sold first to the first buyer, then certainly it is impossible for the second buyer to be obligated to pay for the Achrayos of the first field, since he had no idea how much Peros would grow on the field. This is a second type of "Einam Ketzuvin."

The first type of "Einam Ketzuvin" is an item for which, theoretically, there could be Achrayos and the Lekuchos could be obligated to pay, but because of "Tikun ha'Olam," the Rabanan did not apply this Chiyuv and obligate the Lekuchos, because at the time that the Achrayos was originally stated, the amount of the Achrayos was not known. In contrast, the second type of "Einam Ketzuvin" is when the amount is not known at the time that the second Lekuchos bought their field (i.e. at the time that the field from which we are going to collect was bought). In such a case it is certainly not possible to collect the Achrayos from the Lekuchos, and the reason is not related at all to "Tikun ha'Olam." That is what Rebbi Nasan and Rebbi Yosi are discussing.

Now we can answer all of the questions on Rashi. The first question that Tosfos asks is that Rebbi Yosi in the second Beraisa does not seem to be holding like Rebbi Nasan, because he seems to be holding the logic of "Mipnei she'Einam Ketzuvin" and that it definitely depends on whether the Peros have a set amount or not, while Rebbi Nasan, according to Rashi's explanation, holds that it has nothing to do with having a set amount or not. This is no longer a question, because when Rebbi Yosi says that it must have a set amount in order to collect it from the Nechasim Meshu'abadim, he means that it must be "Katzuv" at the time of the purchase of the *second* field by the *second* buyer. Rebbi Nasan agrees with this; it certainly must be "Katzuv" by that point in time in order to collect it from the Lekuchos! When Rashi writes that Rebbi Nasan says that it does not depend on whether or not the value of the item is "Katzuv," he means that it does not depend on whether or not the value is known at the time of the purchase of the *first* field, at the time that the field was sold with Achrayos, in contradistinction to the opinion of Rebbi Chanina (who requires that the value of the Peros be known at the time of the purchase of the first field in order to collect it from Lekuchos). Rebbi Nasan is certainly not saying like the opinion of Rebbi Chanina, and neither is Rebbi Yosi. That is why the Gemara says that Rebbi Nasan's opinion is a Machlokes Tana'im ("Tena'i Hi"); Rebbi Nasan holds like Rebbi Yosi.

The second question was why does Rebbi Chanina say that the reason of "Einam Ketzuvin" is related to "Tikun ha'Olam," when Rebbi Yosi says that the reason of "Einam Ketzuvin" is not related to "Tikun ha'Olam;" it is a stronger reason than a Takanah of "Tikun ha'Olam" and has nothing to do with "Tikun ha'Olam." We see now that the answer is that Rebbi Yosi is not talking about the same "Einam Ketzuvin" as Rebbi Chanina! Rebbi Yosi's reason of "Einam Ketzuvin" indeed has nothing to do with "Tikun ha'Olam," for it is obvious that the value of the item of the Achrayos must certainly be a set amount at the time that the *second* Lekuchos purchased their field, because, otherwise, how can we make them pay for whatever grows *after* their purchase? In contrast, the reason of "Einam Ketzuvin" of Rebbi Chanina is certainly related to "Tikun ha'Olam;" since there was no set amount at the time of the purchase of the first field, even though a known amount of fruits grew afterwards *before* the second Lekuchos bought their field, nevertheless because of "Tikun ha'Olam" the Rabanan instituted that the Lekuchos do not have to pay for that Achrayos.

It is now clear that the second Beraisa is not a contradiction to the opinion of Rebbi Chanina at all. Rebbi Chanina, and Ula, certainly argue with Rebbi Yosi and they both hold like the Tana Kama of that Beraisa. Ula says exactly like the Tana Kama, that the "Tikun ha'Olam" is because the Peros are not *written* in the Shtar. As far as Rebbi Chanina is concerned, the Gemara is answering its original inquiry and is concluding that Rebbi Chanina requires both "Kesuvim" and "Ketzuvin," meaning that in addition to the fact that it must be written in the Shtar, there also must be a set amount of a known value for the Achrayos at the time that the Shtar is written, at which time word goes out about the Shi'abud on the land. Otherwise, the Rabanan would not obligate the Lekuchos to be responsible for the Achrayos if there is no set amount and it could end up being even a large amount. Rebbi Chanina is saying that in addition to what the Tana Kama in the Beraisa says (the reason of "Mipnei she'Einam Kesuvim"), it is logical to suggest that the Rabanan's Takanah of "Tikun ha'Olam" was also "Mipnei she'Einam Ketzuvin," because we do not know how much the value of the Peros (or Shevach) will be, since it could end up being an astronomical sum.

This also answers the third question: how could Rashi suggest that according to Rebbi Chanina there is a possibility that a Milveh Al Peh can be collected from Nechasim Meshu'abadim, when there is an explicit Mishnah that states that a Milveh Al Peh cannot be collected from Meshu'abadim? The answer is that Rashi only suggests that a Milveh Al Peh which is *Katzuv* can be collected from the Meshu'abadim, meaning a Milveh Al Peh where the amount is known at the time of the loan. Such a loan should be collected from Meshu'abadim according to Rebbi Chanina. This is to say that it is obvious that even if a Milveh Al Peh, according to Rebbi Chanina, can be collected from Nechasim Meshu'abadim, it is only a Milveh Al Peh which is borrowed in front of two witnesses, because Rebbi Chanina holds that two witnesses can spread the word about the loan even though it is not written in a Shtar. What, though, does the Mishnah in Bava Basra mean when it says that a Milveh Al Peh cannot be collected from Nechasim Meshu'abadim?

The Mishnah in Bava Basra means that in a case of a Milveh Al Peh *which has no set limit* cannot be collected from Meshu'abadim. An example of a Milveh Al Peh with no set limit is a case of an uncapped credit facility, where a person says to his friend in front of witnesses, "I want to borrow money from you. Right now I will borrow 100 Zuz, but I will continue to borrow from you later, and any additional amount that I continue to borrow from you shall make my property Meshu'abad, and you may collect your loan to me from that property." Later, when the witnesses are no longer present, the borrower continues to borrow more money from the lender. This is a case of a Milveh Al Peh that is not "Katzuv," that has no set amount. In such a case, even if the borrower admits in front of witnesses that he owes the lender a large sum of money and that he borrowed more money before the Lekuchos purchased the field from him (and therefore at the time of the purchase, the Lekuchos knew that there was a large Shi'abud on his property), nevertheless Rebbi Chanina holds that the lender will *not* be able to collect from Nechasim Meshu'abadim, because the Rabanan did not allow a person to create a Shi'abud that is potentially unlimited at the time that the Shi'abud is created. Witnesses who spread the word about the loan at the time that the Shi'abud is created are only spreading the word for whatever set amount already exists. Any future amount will be difficult to determine, and therefore the Shi'abud that was created cannot apply to the property for an amount that was not known at the time the Shi'abud was made.

This, then, would be the meaning of the Mishnah in Bava Basra, according to the way Rashi explains our Gemara. The Mishnah says that a Milveh *b'Shtar* can be collected from Nechasim Meshu'abadim, because the Shtar already has an amount written in it upon which the witnesses signed. When the Mishnah there discusses a Milveh Al Peh, it is referring to any loan in which the full amount of the loan is not yet known when the witnesses are present because the borrower stipulated that he will continue to borrow more money from the lender. Since there is no set amount stipulated, such a loan cannot be collected from Nechasim Meshu'abadim, because at the time of the creation of the Shi'abud, it is not known how much the Shi'abud will be.

In any case, as we explained, the conclusion of the Gemara here is that Rebbi Chanina requires both "Kesuvim" and Ketzuvin." Consequently, no Milveh Al Peh can be collected from Nechasim Meshu'abadim, even according to Rebbi Chanina, according to the Maskana of the Gemara.


51b

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