To what kind of a Shtar is Rav Huna referring? He cannot be referring to a
Shtar that was drafted as a proof of sale before the sale actually took
place, because such a Shtar should be void because it is a "Shtar Mukdam" (a
predated Shtar). This seems clear from the Gemara in Bava Metzia (13a) which
questions a second Halachah recorded in the Mishnah in Bava Basra, that a
borrower may write a Shtar even through the lender is not with him. The
Gemara in Bava Metzia asks that such a Shtar should not be valid because it
is "Mukdam!" That is, if such a Shtar is permitted, then perhaps the
borrower will decide not to borrow money with it for another six months or
so, and when, later, he does borrow money based on the Shtar and he gives
the Shtar to the lender at that time, the lender will be able to collect the
debt from Lekuchos who bought fields from the borrower during the past six
months, by causing them to think that his loan preceded their purchase when
it really did not! The same concern exists in the case of a Shtar Mecher, a
bill of sale; perhaps the seller will not sale his field with this Shtar for
another six months, and in the interim he will sell it with a normal bill of
sale to a second person. When the person bearing the first Shtar shows his
Shtar to Beis Din, he will be able to trick them into thinking that he
purchased the land before the second person. By using such a strategy, the
seller and buyer will conspire to wrongfully extort money from others!
It must be that the Shtar can be written for the seller only under the
circumstances which prevent it from being a "Shtar Mukdam," which are the
same circumstances which prevent a Shtar Halva'ah (deed of debt), written
for the borrower in the absence of the lender, from being "Mukdam,"
according to the Gemara in Bava Metzia (13a). The first of these
circumstances is that the seller made a Kinyan (in order to give possession
to the buyer) at the time that the Shtar was written. Since he actually did
give the field to the buyer at that time, the person who receives the Shtar
can rightfully claim precedence over anyone who purchases the field at a
later time. The second of these circumstances is that even if the seller
makes no formal act of Kinyan to give the field to the buyer, according to
Abaye the signatures on the Shtar itself, which make the Shtar valid,
automatically accomplish the transfer of any possessions mentioned in the
Shtar. Therefore, the buyer can rightfully claim precedence over anyone who
purchases the field at a later date.
Presumably, this is also the case which the Gemara is discussing here, in
which the Shtar can be acquired through Kinyan Agav of a Chazakah made on
the field. If this, however, is the case, then how can the Shtar be
transferred through Kinyan Agav when the buyer makes a Chazakah on the
field? The buyer *already owns* the field from before the Chazakah was made
on it (either because the owner was Makneh it to him when he wrote the
Shtar, or because the signatures on the Shtar were Makneh it to him)! How
can a Chazakah on a previously owned field acquire the Shtar through Kinyan
Agav? (RAMBAN and other Rishonim)
(a) The MAGID MISHNAH (Hilchos Malveh v'Loveh 24:1) and the RAN (Bava Basra
167b; see also Chidushei ha'Ran, Bava Metzia, end of 19b) infer from the
wording of the RAMBAM that we are concerned with the problem of "Shtar
Mukdam" only when a Shtar Halva'ah (loan) is written without the lender, but
not when a Shtar Mecher (sale) is written without the buyer. However, the
Magid Mishnah himself writes that such a distinction seems to be lacking
support in logic. Why should we not be concerned with a conspiracy between
the seller and buyer in the case of a predated Shtar Mecher?
Perhaps we are not concerned that the seller will sell a field to a second
person after writing a Shtar for the first person, because once he writes a
Shtar Mecher word gets out that the field was sold and no one else will
attempt to purchase it from him. In contrast, when a borrower writes a Shtar
Halva'ah, even though word gets out that he has borrowed money and people
will avoid buying his fields so that the fields not be taken from them by
the creditor as collection for the debt, nevertheless if someone does buy a
field from the borrower (perhaps at a lower price due to the chance that it
will be collected for the debt), there is no reason to allow the lender to
collect from those fields, since the debt came into effect only after the
field was sold.
Whatever the reason is for not being concerned with the problem of "Shtar
Mukdam" in the case of a Shtar Mecher, it is clear that according to the
Rambam, since our Gemara is discussing a deed of sale and not a deed of
debt, it does not have to be discussing a field that was already
transferred. When the purchaser makes a Chazakah, he takes possession of the
field and the Shtar as well (through Agav).
(b) The RAMBAN and RASHBA suggest that although a Shtar cannot be written
for the seller unless he transfers possession of the field at the time the
Shtar is written (because of the problem of "Shtar Mukdam," and not like the
Rambam), our Sugya might be discussing a Shtar that was written *before* the
sale, given to a third party (such as the witnesses) to hold, and *not* left
in the hands of the seller or given to him. The seller tells the third
party, "I have not yet decided whether I will sell this field today. If I do
not sell it by the end of the day, destroy the Shtar (because it will be
Mukdam). But if I do decide to sell the Shtar before the end of the day,
then the Shtar will be valid." Since a third party is holding the Shtar, the
seller cannot make a conspiracy with it by not destroying it at the end of
the day and handing it over to the buyer six months later. In such a
situation, the words of the Gemara clearly apply: the purchaser may make a
Kinyan Chazakah to acquire the field before the end of the day, and when he
does so, he acquires the Shtar, which is in the hands of the third party,
with Kinyan Agav.
(c) The Rashba in the name of "others" explains that our Sugya might hold
like Abaye who says that the "witnesses signed in a Shtar make the Kinyan."
However, the Gemara in Bava Metzia points out that even according to Abaye,
the signature alone does not transfer the possessions mentioned in the
Shtar. It is only when the Shtar is later handed over to the recipient that
the possessions become transferred retroactively from the time that the
Shtar was signed. If the recipient makes a Chazakah on the field *before*
the Shtar was transferred, then he can acquire the Shtar through Kinyan
Agav, because he has not yet taken possession of the field. Once he acquires
the Shtar, then we will apply the principle of "witnesses signed in a Shtar
make the Kinyan," and then he will acquire the field retroactively from the
time that the Shtar was written.
The Ramban records the opinion of RABEINU CHANANEL, according to which the
same answer may be given even if Rav Huna does *not* hold like Abaye.
Rabeinu Chananel writes that even if the seller was Makneh the field at the
time the Shtar was written ("Shtar Aknayasa"), as the Gemara in Bava Metzia
says, nevertheless the transfer of the property takes effect retroactively
only *after* the Shtar is given over to the buyer. Rav Huna, therefore,
could still mean that before the Shtar is handed over, the buyer could make
a Chazakah on the field and acquire the Shtar through Agav, thus
retroactively taking possession of the field (from the time of the Kinyan of
the Shtar).
The SHITAH LO NODA L'MI suggests a similar answer without relying on the
Chidush of Rabeinu Chananel. He explains that Rav Huna is discussing a case
in which the seller was Makneh the field to the buyer at the time that he
wrote the Shtar, but only conditionally. He stipulated explicitly that the
Kinyan should take effect retroactively only from the time that the buyer
receives the Shtar.
According to this answer, we might ask, how can the Chazakah on the field
acquire the Shtar with Agav? If it acquires the Shtar, then retroactively
the field was his and the Chazakah was not a Kinyan since the field was
already his!
Apparently, these Rishonim learn that the field only becomes the possession
of the buyer "mi'Kan u'l'ha'Ba l'Mafrei'a." ("Mi'Kan u'l'ha'Ba l'Mafrei'a"
means that at the time that the condition is fulfilled, the Kinyan takes
effect from then on, and although until that point the Kinyan was not
actually in effect, it is viewed *from now on* as if -- back then (between
the time the Shtar was written and the time that the condition was
fulfilled) -- the Kinyan was in effect. See Insights to Nedarim 52a.)
The SEFER HA'MIKNAH avoids this last question by pointing out that the fact
that the "witnesses signed in a Shtar make the Kinyan" applies only at the
last moment of the day on which the Shtar was written, and not from the
exact time of its writing. Rav Huna, therefore, might be discussing a
situation in which the buyer makes a Kinyan Chazakah on the field *before*
the end of the day! (Even though he would acquire the field and Shtar at the
end of the day in either case, there might be a practical consequence from
his Kinyan in a case where the seller dies or re-sells the field to someone
else before the end of the day.)
We may add that even if Rav Huna does not hold like Abaye, he might be
discussing a case in which the seller gave over the field with a Kinyan at
the time the Shtar was written, and he stipulated that the Kinyan should
take effect only at the end of the day. The Shtar is not a "Shtar Mukdam,"
and yet the Chazakah of the buyer can be Koneh the field if he performs the
Chazakah before the end of the day. (It is not clear why the Rishonim do not
suggest these simple answers.)
(d) The RITVA here and in Bava Basra (77a) answers that the Shtar which is
being transferred is not the deed of sale for the transaction that is taking
place between the giver and the recipient. Rather, it is the bill of sale
with which the present owner purchased the field originally. At the time
that the present recipient makes a Chazakah on the field that is being given
to him, he acquires, through Kinyan Agav, the Shtar with which the *seller*
originally purchased the field! (This is done in order for the Achrayus of
the original sale to be effect for the new recipient as well). The reason
the Gemara mentions that a seller can write a Shtar when the buyer is not
present is to explain why the original bill of sale is still in the hands of
the original seller and not in the hands of the present seller.