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Bava Basra, 77

1) CONSENT TO WRITE A "SHTAR"

QUESTION: The Gemara teaches that when a person sells a field and tells a Shali'ach to make a Kinyan on the field on behalf of the buyer and to write a Shtar, with witnesses, for the purchase, the seller cannot retract from the sale because the Shali'ach already made the Kinyan. However, he *can* retract from his command to write a Shtar. He may tell the Shali'ach not to give the Shtar as long as the Shtar has not yet reached the hands of the buyer.

How can the seller prohibit the buyer from writing a Shtar with the signatures of witnesses to attest to the sale? If the witnesses saw the sale take place, then they should be able to testify to that effect and sign a Shtar without the consent of the seller! This seems to be clear from the Gemara later in Bava Basra (171a), which teaches that if a buyer loses a Shtar, he may tell the witnesses to write him another Shtar, without the consent of the seller, as long as the Shtar does not involve being Mesha'abed the Nechasim of the seller. Here, too, the witnesses should be permitted to write a Shtar that does not include Achrayus Nechasim! Perhaps our Gemara means that the Shtar *may* be written, but *Achrayus* cannot be written in the Shtar when the seller retracts his consent to write a Shtar. However, TOSFOS points out that this does not seem to be what the Gemara means, because the Shtar is not necessary to create a Chiyuv of Achrayus in this case, since the Gemara (41b) teaches that when someone sells a field in front of witnesses, the Chiyuv of Achrayus is automatically created. Hence, the Shtar is necessary only as proof of the sale, and as such it should be permitted to write the Shtar even without the consent of the seller. (TOSFOS DH Chozer)

ANSWERS:

(a) The PISKEI RID and the RA'AVAD cited by the Shitah Mekubetzes explain that the Gemara indeed is prohibiting the writing of the Shtar without the permission of the seller only when the Shtar includes Achrayus Nechasim. For example, if the seller specified at the time of the sale that he does *not* want to obligate himself with a Chiyuv of Achrayus unless he later writes a Shtar obligating himself, the seller may change his mind about writing that Shtar.

How can the Gemara be discussing such a limited and specific case, when it does not specify such circumstances? These Rishonim explain that the Gemara (on 41b) does not mean that every sale without a Shtar includes a Chiyuv of Achrayus. Rather, the Gemara means that if the seller specifies that he is obligating himself with Achrayus, then the buyer may collect not only from Nechasim Benei Chorin, but even from Nechasim Meshu'abadim. They infer this from the Gemara in Bava Metzia (14a) which says that "Achrayus Ta'us Sofer," meaning that (according to the Rabanan who argue with Rebbi Meir) if a Shtar written for a sale does not specify a Chiyuv of Achrayus, then we assume that there is a Chiyuv of Achrayus anyway and that the scribe merely forget to write it in the Shtar. These words imply that only with a written Shtar do we say that he must have meant to obligate himself with Achrayus even if it is not written in the Shtar, since he went through the trouble of writing a Shtar. In contrast, when the field is sold without a Shtar, it is assumed that the seller is not Chayav for Achrayus unless he explicitly says that he accepts Achrayus.

(b) The RABEINU YEHONASAN cited by the Shitah Mekubetzes writes that the Shtar can be written even without the seller's permission. When the Gemara says that the seller may change his mind, it means that if he originally offered to pay for the writing of the Shtar, he can change his mind and the buyer will have to pay on his own to have the Shtar written.

(c) TOSFOS answers that a Shtar that was lost can be rewritten since the seller has nothing to lose if the Shtar is rewritten. In our case, however, the seller will lose if a Shtar is written, because there never was a Shtar until now. When a Shtar is written it publicizes that the person has sold his land, and thus people will not want to extend loans to him since he does not have as much real estate to be Mesha'abed as collateral for the loan. The RASHBA adds that the value of his real estate will decrease when word gets out that he needs to sell his property. (Although when one sells his property without writing a Shtar, his property becomes Meshu'abad because of the rumor (Kol), nevertheless when a Shtar is written it becomes publicized even more (Rashba).)

RABEINU TAM cited by Tosfos suggests a similar answer. Our Gemara is discussing land that was given as a gift without a Shi'abud on the giver's Nechasim. If the recipient writes a Shtar, then those who hear about the Shtar might mistakenly assume that the Shtar was either a Shtar Mecher (a bill of sale) or a Shtar Chov (a bill of debt, in which the land mentioned in the Shtar was a Mashkon for the debt), and that the owner was Mesha'abed himself. Since it is to the detriment of the giver to have a Shtar written, it may not be written without his consent. (In the case in which a person lost the original Shtar, the giver does not lose by having another Shtar written, because Rabeinu Tam holds that people will realize that both Shtaros were written for the same field, and it will not look like he is giving an additional field, or that he is giving a Shtar Chov.

(d) RABEINU YONAH explains that even though there already exists a Shi'abud, the witnesses may not sign a Shtar which can also be used to prove that there is a Shi'abud without the consent of the seller, since this Shtar might be used in court to prove the Shi'abud. A Shtar written without the consent of the seller is not valid to prove the Shi'abud, since testimony must be given in front of the court and in front of the seller whom the Shi'abud obligates. Therefore, if the witnesses sign a Shtar without the consent of the seller, the entire Shtar is invalid, even as a proof to the transaction, since the witnesses were presenting testimony that will obligate the seller to pay as a result of the Shi'abud when not in the presence of the seller.

The Gemara that allows a Shtar that was lost to be rewritten without the consent of the seller only allows the Shtar to be written without Achrayus. Such a Shtar -- which only pertains to what already happened (i.e. the field was already sold or given), but which does not obligate the seller in any future obligations (such as a Shi'abud) -- may be written even when not in the presence of the seller. In our Gemara, it would be permitted for the buyer to write a Shtar which does *not* include Achrayus, without the consent of the seller.

(e) The RAMBAN, RASHBA, and RAN go one step further than Rabeinu Yonah. They write that even a Shtar Ra'ayah (a Shtar used only as proof), which does not involve Achrayus, cannot be written without the consent of the seller. The reason for this is because the Torah teaches that written evidence is not accepted in court ("mi'Pihem v'Lo mi'Pi Kesavam," Kesuvos 20a). Indeed, for this reason *no* Shtar should be valid as proof in court! However, when the person whom the Shtar is obligating requests that a Shtar be written and signed by witnesses, the signed Shtar serves as a form of Hoda'as Ba'al Din in court. The signatures simply confirm that the person admitted to his obligation by requesting that the Shtar be written. Accordingly, when the seller does not request that a Shtar be written, any testimony in the Shtar is not valid because of the rule of "mi'Pihem v'Lo mi'Pi Kesavam."

The Gemara later (171a) allows witnesses to rewrite a Shtar that was lost because the witnesses are able to testify that they were asked by the seller (or giver) to sign on a Shtar. In our case, in which the giver tells the witnesses not to sign on a Shtar, their signatures on the Shtar are not valid testimony.

TOSFOS (39b, DH Macha'ah) presents the same approach to explaining the validity of a Shtar. Why, then, does Tosfos here allow a Shtar to be written without the consent of the seller, if the seller suffers no harm from it? Perhaps it is because in the case in our Gemara, the seller allowed the Shtar to be written at the time that the buyer acquired the field. The Gemara (40a) tells us that a Kinyan made in front of witnesses is meant to be written down in a Shtar ("Stam Kinyan l'Kesivah Omed"), and the giver does not need to request from witnesses to write it down, as the Rashbam here cites. Because the Kinyan was already made with the seller's permission to commit it to writing, the seller may no longer retract his permission.

Although the Rashbam disagrees with this and writes that a Kinyan includes only *implied* consent, but if the seller later specifies that he does not consent to having a Shtar written he may retract his original implied consent, the RAMBAN (in Kidushin 27a) argues and writes that the Gemara means to say more than this. The Gemara means to say that a Kinyan gives the buyer permission to write the Shtar, and the seller cannot change his mind once the Kinyan was already made. That is why Tosfos maintains that in the case of our Gemara, it would have been permitted to write the Shtar even after the seller retracts his consent if not for the fact that the Shtar could harm the seller, and therefore the Kinyan -- from the start -- was not meant to be committed to writing.

77b

QUESTION: The Gemara proves that it is possible to transfer the ownership of a Shtar with "Mili," with just words, from the ruling of Rav Huna who says that when a landowner wrote a Shtar for a sale before the sale took place, later when the buyer acquires the field, he acquires the Shtar as well, even though it was not yet handed over to him. From this, the Gemara tries to prove that it is not necessary to make a strong act of Kinyan on a Shtar. even a weak act of Kinyan (what the Gemara calls "Mili") also suffices.

The Rishonim (see TOSFOS DH Nikneh) ask what comparison is there between the transfer of ownership of a Shtar Mecher (a bill of sale), and the transfer of ownership of a Shtar Chov (a bill of debt)? When transferring a Shtar Chov, the buyer must acquire not only the proof that is written on the paper, but the debt (the Shi'abud) itself as well. Because the Shi'abud is not a tangible object, a stronger Kinyan must be made on the Shtar! The case that the Gemara is discussing is that of a bill of sale, where no Shi'abud is being transferred, but where the Shtar merely is testifying that a sale occurred, and therefore it does not require a strong Kinyan!

ANSWERS:

(a) TOSFOS answers that the Gemara is discussing even a Shtar Mecher that *does* create a Shi'abud, such as when the property was originally sold with a stipulation that there is no Shi'abud on the seller's property, and now a Shtar has been written which is creating a Shi'abud.

Alternatively, the Shtar has new conditions in it that are obligating the seller, which he was not obligated to fulfill until now. (RAN)

(b) The RAN suggests further that even if the Shtar does not obligate the seller in any new obligations, it still will require a strong Kinyan, because it is not just the paper and signatures that are being transferred, but it is the permission of the seller to use the Shtar as proof of purchase that is also being transferred. The reason for this is because, as we wrote above, testimony that is written is not valid in court (because of "mi'Pihem v'Lo mi'Pi Kesavam"). The Shtar becomes valid only because of the permission given to write it by the one whom the Shtar obligates (which makes the Shtar like Hoda'as Ba'al Din).

The Ran holds that it does not suffice to have the permission at the time that the Shtar is written; permission must be given at the time that the Shtar is handed to the bearer (the one who will use it as proof). Therefore, a strong Kinyan is required to transfer the Shtar in order to show that the permission of the giver was given along with the Shtar. The paper alone will not suffice.