What other actions require the presence of two people and which require three? In the context of this discussion, the Gemara elaborates on the laws of moda’a, a preemptive declaration. Rav Yehuda ruled that a document gift that is “hidden” is not effective. Why? Can it be used as a preemptive declaration?
Bava Batra 40
August 04, 2024 | כ״ט בתמוז תשפ״ד
Share this shiur:
Bava Batra
Masechet Bava Batra is sponsored by Lori Stark in loving memory of her mother in law, Sara Shapiro z”l and her father Nehemiah Sosewitz z”l.
This month’s learning is dedicated for a refuah shleima for Pesha Etel bat Sarah
Want to dedicate learning? Get started here:
0:00
0:00
Today’s daily daf tools:
Bava Batra
Masechet Bava Batra is sponsored by Lori Stark in loving memory of her mother in law, Sara Shapiro z”l and her father Nehemiah Sosewitz z”l.
This month’s learning is dedicated for a refuah shleima for Pesha Etel bat Sarah
Bava Batra 40
וְאֵין צָרִיךְ לוֹמַר ״כְּתוֹבוּ״; מוֹדָעָא – בִּפְנֵי שְׁנַיִם, וְאֵין צָרִיךְ לוֹמַר ״כְּתוֹבוּ״;
and the prior owner does not need to say to the witnesses: Write a document detailing the protest; they can write one even absent a directive. Similarly, one who desires to state a declaration, preemptively invalidating a bill of sale by notifying the court that it was executed under duress, needs to state the declaration in the presence of two witnesses, and he does not need to say to them: Write a document detailing the declaration; they can write one even absent a directive.
הוֹדָאָה – בִּפְנֵי שְׁנַיִם, וְצָרִיךְ לוֹמַר ״כְּתוֹבוּ״; קִנְיָן – בִּפְנֵי שְׁנַיִם, וְאֵינוֹ צָרִיךְ לוֹמַר ״כְּתוֹבוּ״; וְקִיּוּם שְׁטָרוֹת בִּשְׁלֹשָׁה;
The Gemara continues with the statement of Rava: An admission of a monetary obligation needs to be stated in the presence of two witnesses, and in this case, the one stating the admission needs to say to the witnesses: Write a document detailing the admission, as this document is to his detriment; they may not write one absent a directive. Acquisition by means of a symbolic act utilizing a cloth needs to be done in the presence of two witnesses, and the parties do not need to say to the witnesses: Write a document detailing the acquisition; they can write one even absent a directive. And ratification of legal documents needs to be done by means of three people.
סִימָן – ממה״ק.
The Gemara presents a mnemonic for the cases discussed above: Mem, protest [meḥa’a]; mem, declaration [moda’a]; heh, admission [hoda’a]; kuf, acquisition [kinyan].
אָמַר רָבָא: אִי קַשְׁיָא לִי, הָא קַשְׁיָא לִי – הַאי קִנְיָן, הֵיכִי דָמֵי? אִי כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי, לִיבְעֵי תְּלָתָא! אִי לָא כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי, אַמַּאי אֵינוֹ צָרִיךְ לוֹמַר ״כְּתוֹבוּ״?
Rava now discusses the statement of Rav Naḥman that he quoted. Rava said: If any part of this statement is difficult to me, this is what is difficult to me. This acquisition, what is it like? If it is like an act of the court, it should require three witnesses for it to take effect, as a court must consist of at least three men. If it is not like an act of the court, why does he not have to say to the witnesses that they should write the document detailing the acquisition? Isn’t transferring an item to another tantamount to admitting a monetary obligation?
בָּתַר דְּבָעֵי, הֲדַר פַּשְׁטַאּ: לְעוֹלָם לָאו כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי; וְהָכָא, טַעְמָא מַאי דְּאֵינוֹ צָרִיךְ לוֹמַר ״כְּתוֹבוּ״ – מִשּׁוּם דִּסְתַם קִנְיָן לִכְתִיבָה עוֹמֵד.
After Rava raised the dilemma, he then resolves it. Actually, it is not considered like an act of the court. And here, what is the reason that he does not have to say to the witnesses that they should write? It is due to the fact that a record of an unspecified acquisition is ready to be written. A symbolic act of acquisition indicates one’s intention to do everything possible to finalize the transaction as soon as possible without waiting for the actual transfer of the item. Therefore, it is assumed that the parties would desire that a document be written, and no explicit authorization is necessary.
רַבָּה וְרַב יוֹסֵף דְּאָמְרִי תַּרְוַיְיהוּ: לָא כָּתְבִינַן מוֹדָעָא, אֶלָּא אַמַּאן דְּלָא צָיֵית דִּינָא. אַבָּיֵי וְרָבָא דְּאָמְרִי תַּרְוַיְיהוּ: אֲפִילּוּ עָלַי וְעָלֶיךָ. אָמְרִי נְהַרְדָּעֵי: כֹּל מוֹדָעָא
§ The Gemara discusses the halakhot of a preemptive declaration. Rabba and Rav Yosef both say: We write a preemptive declaration only concerning one who does not generally listen to and implement the judgment of the court. In such a case, there is no recourse other than to write a preemptive declaration on behalf of the seller nullifying the transaction. If the buyer would be willing to listen to the court, the seller is expected to deal with the matter in court, rather than participating in the sale and writing a preemptive declaration. Abaye and Rava both say: A preemptive declaration may be written even concerning someone who is law abiding, such as for me and for you, as not every issue can be settled through the courts. The Sages of Neharde’a say: Any preemptive declaration
דְּלָא כְּתִיב בָּהּ: ״אֲנַן יָדְעִינַן בֵּיהּ בְּאוּנְסָא דִפְלָנְיָא״ – לָאו מוֹדָעָא הִיא.
that does not have written in it the formulation: We are aware of so-and-so’s duress, i.e., we are aware of the nature of the coercion that forced him to enter this arrangement against his will, is not a valid preemptive declaration.
מוֹדָעָא דְמַאי? אִי דְּגִיטָּא וּדְמַתַּנְתָּא – גַּלּוֹיֵי מִילְּתָא בְּעָלְמָא הִיא! וְאִי דִּזְבִינֵי, וְהָאָמַר רָבָא: לָא כָּתְבִינַן מוֹדָעָא אַזְּבִינֵי!
For what type of transaction is the preemptive declaration being stated? If one were to say that it is a preemptive declaration for a bill of divorce or for a gift, the preemptive declaration is merely revealing the matter. Since these actions can’t take place unless he desires it, it is sufficient that he stated that he does not desire them, and he need not specify a particular reason for nullifying them. And if it is for a sale, but doesn’t Rava say: We do not write a preemptive declaration for a sale?
לְעוֹלָם דִּזְבִינֵי; מוֹדֵי רָבָא הֵיכָא דַּאֲנִיס – וּכְמַעֲשֶׂה דְּפַרְדֵּיסָא; דְּהָהוּא גַּבְרָא דְּמַשְׁכֵּין פַּרְדֵּיסָא לְחַבְרֵיהּ לִתְלָת שְׁנִין. בָּתַר דְּאַכְלַהּ תְּלָת שְׁנֵי חֲזָקָה, אֲמַר: אִי מְזַבְּנַתְּ לִי – מוּטָב, וְאִי לָא – כָּבֵישְׁנָא לִשְׁטַר מַשְׁכַּנְתָּא, וְאָמֵינָא: ״לְקוּחָה הִיא בְּיָדִי״. כְּהַאי גַּוְונָא כָּתְבִינַן מוֹדָעָא.
The Gemara answers: Actually, it is referring to a preemptive declaration for a sale, as Rava concedes in a case where one was compelled to act due to a threat of monetary loss, as with the incident of the orchard, as there was a certain man who mortgaged his orchard to another for three years. After he worked and profited from it for the three years necessary for establishing the presumption of ownership, he said: If you sell the orchard to me, it is well. And if not, then I will hide the mortgage document and I will say that this land is purchased and that is why it is in my possession, and you will receive no payment for the orchard. In a case like this, we write a preemptive declaration. The declaration states that he does not actually desire to sell his property but was forced to do so.
אָמַר רַב יְהוּדָה: הַאי מַתַּנְתָּא טְמִירְתָּא – לָא מַגְבֵּינַן בַּהּ. הֵיכִי דָּמֵי מַתַּנְתָּא טְמִירְתָּא? אָמַר רַב יוֹסֵף, דְּאָמַר לְהוּ לְסָהֲדִי: ״זִילוּ אִטַּמּוּרוּ וְכִתְבוּ לֵיהּ״. וְאִיכָּא דְּאָמְרִי: אָמַר רַב יוֹסֵף, דְּלָא אָמַר לְהוּ: ״תִּיתְּבוּ בְּשׁוּקָא וּבְבָרָיָתָא וְתִכְתְּבוּ לֵיהּ״. מַאי בֵּינַיְיהוּ? אִיכָּא בֵּינַיְיהוּ סְתָמָא.
§ Rav Yehuda says: With regard to this document detailing a concealed gift, we do not collect with it. The Gemara clarifies: What are the circumstances of a concealed gift? Rav Yosef said: It is referring to a case in which the giver said to witnesses: Go and hide and write a document for the recipient of this gift. And there are those who say that Rav Yosef said: It is referring to a case in which the giver did not say to witnesses: Sit outdoors in the marketplace and write it for him. The Gemara asks: What is the difference between the two versions of Rav Yosef’s statement? The Gemara answers: The difference between the two versions is in a case where his instructions were without specification, i.e., he did not tell them to write the document in private or in public.
אָמַר רָבָא: וְהָוְיָא מוֹדָעָא לַחֲבֶרְתַּהּ. אָמַר רַב פָּפָּא: הָא דְּרָבָא – לָאו בְּפֵירוּשׁ אִיתְּמַר, אֶלָּא מִכְּלָלָא אִיתְּמַר.
Rava said: But a concealed gift is effective as a preemptive declaration for another gift. In other words, if he first gave an item as a concealed gift to one person, and then he gave this item as a gift to someone else, the second gift is null and void. Rav Pappa said: This ruling of Rava was not stated explicitly; rather, it was stated by inference, and he did not, in fact, hold accordingly.
דְּהָהוּא גַּבְרָא דַּאֲזַל לְקַדּוֹשֵׁי אִתְּתָא, אֲמַרָה לֵיהּ: ״אִי כָּתְבַתְּ לִי כּוּלְּהוּ נִכְסָיךְ – הָוֵינָא לָךְ, וְאִי לָא – לָא הָוֵינָא לָךְ״. אֲזַל כַּתְבֵיהּ לַהּ לְכוּלְּהוּ נִכְסֵי. אֲתָא בְּרֵיהּ קַשִּׁישָׁא, אֲמַר לֵיהּ: ״וְהָהוּא גַּבְרָא – מָה תִּהְוֵי עֲלֵיהּ?״ אֲמַר לְהוּ לְסָהֲדֵי: ״זִילוּ אִטַּמּוּרוּ בַּעֲבַר יַמִּינָא, וְכִתְבוּ לֵיהּ״. אֲתוֹ לְקַמֵּיהּ דְּרָבָא, אֲמַר לְהוּ: לָא מָר קְנָה, וְלָא מָר קְנָה.
Rav Pappa explains the inference: As there was a certain man who went to betroth a woman. She said to him: If you write a document signing over all of your property to me, then I will be your wife, and if not, I will not be your wife. He went and wrote a document signing over all of his property to her. His eldest son came and said to him: And that man, i.e., me, what will become of him if you give all of your property to this woman? The father said to two witnesses: Go hide in Avar Yemina and write a document for the son, giving him the father’s property as a gift. Later, the witnesses came before Rava. He said to them: This Master, i.e., the son, did not acquire the property and that Master, i.e., the wife, did not acquire it either. The son did not acquire the property because it was a concealed gift.
מַאן דַּחֲזָא, סָבַר – מִשּׁוּם דְּהָוְיָא מוֹדָעָא לַחֲבֶרְתַּהּ. וְלָא הִיא; הָתָם – מוֹכְחָא מִילְּתָא דְּמֵחֲמַת אוּנְסָא הוּא דִּכְתַב לַהּ; אֲבָל הָכָא – מָר נִיחָא לֵיהּ דְּלִיקְנֵי, וּמָר לָא נִיחָא לֵיהּ דְּלִיקְנֵי.
The Gemara explains why the wife does not acquire it as well. One who observed this incident assumed that Rava invalidated the wife’s acquisition because the concealed gift to his son was a preemptive declaration to the other gift, but that is not so. There, in the case of the woman and the son, the matter is self-evident that he wrote a document signing over his property to her because of duress, as she had told him that she would not marry him otherwise; but here, in a typical case of giving one person a concealed gift and then giving a public gift to another, that is not the case. It is possible that it is simply amenable to him that this Master, i.e., the one to whom he gave it publicly, should acquire the gift, and it is not amenable to him that this Master, i.e., the one to whom he gave it privately, should acquire the gift. Consequently, an incorrect inference was drawn concerning Rava’s opinion.
אִיבַּעְיָא לְהוּ:
A dilemma was raised before the Sages:
Follow 
Today’s daily daf tools:
Delve Deeper
Broaden your understanding of the topics on this daf with classes and podcasts from top women Talmud scholars.
New to Talmud?
Check out our resources designed to help you navigate a page of Talmud – and study at the pace, level and style that fits you.
The Hadran Women’s Tapestry
Meet the diverse women learning Gemara at Hadran and hear their stories.
Hearing and reading about the siyumim at the completion of the 13 th cycle Daf Yomi asked our shul rabbi about starting the Daf – he directed me to another shiur in town he thought would allow a woman to join, and so I did! Love seeing the sources for the Divrei Torah I’ve been hearing for the past decades of living an observant life and raising 5 children .
Jill Felder
Pittsburgh, Pennsylvania, United States
A beautiful world of Talmudic sages now fill my daily life with discussion and debate.
bringing alive our traditions and texts that has brought new meaning to my life.
I am a מגילת אסתר reader for women . the words in the Mishna of מסכת megillah 17a
הקורא את המגילה למפרע לא יצא were powerful to me.
I hope to have the zchut to complete the cycle for my 70th birthday.
Sheila Hauser
Jerusalem, Israel
Last cycle, I listened to parts of various מסכתות. When the הדרן סיום was advertised, I listened to Michelle on נידה. I knew that בע”ה with the next cycle I was in (ב”נ). As I entered the סיום (early), I saw the signs and was overcome with emotion. I was randomly seated in the front row, and I cried many times that night. My choice to learn דף יומי was affirmed. It is one of the best I have made!
Miriam Tannenbaum
אפרת, Israel
I started learning Daf Yomi because my sister, Ruth Leah Kahan, attended Michelle’s class in person and suggested I listen remotely. She always sat near Michelle and spoke up during class so that I could hear her voice. Our mom had just died unexpectedly and it made me feel connected to hear Ruth Leah’s voice, and now to know we are both listening to the same thing daily, continents apart.
Jessica Shklar
Philadelphia, United States
It has been a pleasure keeping pace with this wonderful and scholarly group of women.
Janice Block
Beit Shemesh, Israel
I started learning at the beginning of this cycle more than 2 years ago, and I have not missed a day or a daf. It’s been challenging and enlightening and even mind-numbing at times, but the learning and the shared experience have all been worth it. If you are open to it, there’s no telling what might come into your life.
Patti Evans
Phoenix, Arizona, United States
Geri Goldstein got me started learning daf yomi when I was in Israel 2 years ago. It’s been a challenge and I’ve learned a lot though I’m sure I miss a lot. I quilt as I listen and I want to share what I’ve been working on.
Rebecca Stulberg
Ottawa, Canada
I started learning Jan 2020 when I heard the new cycle was starting. I had tried during the last cycle and didn’t make it past a few weeks. Learning online from old men didn’t speak to my soul and I knew Talmud had to be a soul journey for me. Enter Hadran! Talmud from Rabbanit Michelle Farber from a woman’s perspective, a mother’s perspective and a modern perspective. Motivated to continue!
Keren Carter
Brentwood, California, United States
I went to day school in Toronto but really began to learn when I attended Brovenders back in the early 1980’s. Last year after talking to my sister who was learning Daf Yomi, inspired, I looked on the computer and the Hadran site came up. I have been listening to each days shiur in the morning as I work. I emphasis listening since I am not sitting with a Gamara. I listen while I work in my studio.
Rachel Rotenberg
Tekoa, Israel
After all the hype on the 2020 siyum I became inspired by a friend to begin learning as the new cycle began.with no background in studying Talmud it was a bit daunting in the beginning. my husband began at the same time so we decided to study on shabbat together. The reaction from my 3 daughters has been fantastic. They are very proud. It’s been a great challenge for my brain which is so healthy!
Stacey Goodstein Ashtamker
Modi’in, Israel
See video
Susan Fisher
Raanana, Israel
I learned Talmud as a student in Yeshivat Ramaz and felt at the time that Talmud wasn’t for me. After reading Ilana Kurshan’s book I was intrigued and after watching the great siyum in Yerushalayim it ignited the spark to begin this journey. It has been a transformative life experience for me as a wife, mother, Savta and member of Klal Yisrael.
Elana Storch
Phoenix, Arizona, United States
I started at the beginning of this cycle. No 1 reason, but here’s 5.
In 2019 I read about the upcoming siyum hashas.
There was a sermon at shul about how anyone can learn Talmud.
Talmud references come up when I am studying. I wanted to know more.
Yentl was on telly. Not a great movie but it’s about studying Talmud.
I went to the Hadran website: A new cycle is starting. I’m gonna do this
Denise Neapolitan
Cambridge, United Kingdom
I was inspired to start learning after attending the 2020 siyum in Binyanei Hauma. It has been a great experience for me. It’s amazing to see the origins of stories I’ve heard and rituals I’ve participated in my whole life. Even when I don’t understand the daf itself, I believe that the commitment to learning every day is valuable and has multiple benefits. And there will be another daf tomorrow!
Khaya Eisenberg
Jerusalem, Israel
I saw an elderly man at the shul kiddush in early March 2020, celebrating the siyyum of masechet brachot which he had been learning with a young yeshiva student. I thought, if he can do it, I can do it! I began to learn masechet Shabbat the next day, Making up masechet brachot myself, which I had missed. I haven’t missed a day since, thanks to the ease of listening to Hadran’s podcast!
Judith Shapiro
Minnesota, United States
I started learning after the siyum hashas for women and my daily learning has been a constant over the last two years. It grounded me during the chaos of Corona while providing me with a community of fellow learners. The Daf can be challenging but it’s filled with life’s lessons, struggles and hope for a better world. It’s not about the destination but rather about the journey. Thank you Hadran!
Dena Lehrman
אפרת, Israel
I LOVE learning the Daf. I started with Shabbat. I join the morning Zoom with Reb Michelle and it totally grounds my day. When Corona hit us in Israel, I decided that I would use the Daf to keep myself sane, especially during the days when we could not venture out more than 300 m from our home. Now my husband and I have so much new material to talk about! It really is the best part of my day!
Batsheva Pava
Hashmonaim, Israel
Having never learned Talmud before, I started Daf Yomi in hopes of connecting to the Rabbinic tradition, sharing a daily idea on Instagram (@dafyomiadventures). With Hadran and Sefaria, I slowly gained confidence in my skills and understanding. Now, part of the Pardes Jewish Educators Program, I can’t wait to bring this love of learning with me as I continue to pass it on to my future students.
Hannah Greenberg
Pennsylvania, United States
The first month I learned Daf Yomi by myself in secret, because I wasn’t sure how my husband would react, but after the siyyum on Masechet Brachot I discovered Hadran and now sometimes my husband listens to the daf with me. He and I also learn mishnayot together and are constantly finding connections between the different masechtot.
Laura Warshawsky
Silver Spring, Maryland, United States
I tried Daf Yomi in the middle of the last cycle after realizing I could listen to Michelle’s shiurim online. It lasted all of 2 days! Then the new cycle started just days before my father’s first yahrzeit and my youngest daughter’s bat mitzvah. It seemed the right time for a new beginning. My family, friends, colleagues are immensely supportive!
Catriella Freedman
Zichron Yaakov, Israel
Bava Batra 40
וְאֵין צָרִיךְ לוֹמַר ״כְּתוֹבוּ״; מוֹדָעָא – בִּפְנֵי שְׁנַיִם, וְאֵין צָרִיךְ לוֹמַר ״כְּתוֹבוּ״;
and the prior owner does not need to say to the witnesses: Write a document detailing the protest; they can write one even absent a directive. Similarly, one who desires to state a declaration, preemptively invalidating a bill of sale by notifying the court that it was executed under duress, needs to state the declaration in the presence of two witnesses, and he does not need to say to them: Write a document detailing the declaration; they can write one even absent a directive.
הוֹדָאָה – בִּפְנֵי שְׁנַיִם, וְצָרִיךְ לוֹמַר ״כְּתוֹבוּ״; קִנְיָן – בִּפְנֵי שְׁנַיִם, וְאֵינוֹ צָרִיךְ לוֹמַר ״כְּתוֹבוּ״; וְקִיּוּם שְׁטָרוֹת בִּשְׁלֹשָׁה;
The Gemara continues with the statement of Rava: An admission of a monetary obligation needs to be stated in the presence of two witnesses, and in this case, the one stating the admission needs to say to the witnesses: Write a document detailing the admission, as this document is to his detriment; they may not write one absent a directive. Acquisition by means of a symbolic act utilizing a cloth needs to be done in the presence of two witnesses, and the parties do not need to say to the witnesses: Write a document detailing the acquisition; they can write one even absent a directive. And ratification of legal documents needs to be done by means of three people.
סִימָן – ממה״ק.
The Gemara presents a mnemonic for the cases discussed above: Mem, protest [meḥa’a]; mem, declaration [moda’a]; heh, admission [hoda’a]; kuf, acquisition [kinyan].
אָמַר רָבָא: אִי קַשְׁיָא לִי, הָא קַשְׁיָא לִי – הַאי קִנְיָן, הֵיכִי דָמֵי? אִי כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי, לִיבְעֵי תְּלָתָא! אִי לָא כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי, אַמַּאי אֵינוֹ צָרִיךְ לוֹמַר ״כְּתוֹבוּ״?
Rava now discusses the statement of Rav Naḥman that he quoted. Rava said: If any part of this statement is difficult to me, this is what is difficult to me. This acquisition, what is it like? If it is like an act of the court, it should require three witnesses for it to take effect, as a court must consist of at least three men. If it is not like an act of the court, why does he not have to say to the witnesses that they should write the document detailing the acquisition? Isn’t transferring an item to another tantamount to admitting a monetary obligation?
בָּתַר דְּבָעֵי, הֲדַר פַּשְׁטַאּ: לְעוֹלָם לָאו כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי; וְהָכָא, טַעְמָא מַאי דְּאֵינוֹ צָרִיךְ לוֹמַר ״כְּתוֹבוּ״ – מִשּׁוּם דִּסְתַם קִנְיָן לִכְתִיבָה עוֹמֵד.
After Rava raised the dilemma, he then resolves it. Actually, it is not considered like an act of the court. And here, what is the reason that he does not have to say to the witnesses that they should write? It is due to the fact that a record of an unspecified acquisition is ready to be written. A symbolic act of acquisition indicates one’s intention to do everything possible to finalize the transaction as soon as possible without waiting for the actual transfer of the item. Therefore, it is assumed that the parties would desire that a document be written, and no explicit authorization is necessary.
רַבָּה וְרַב יוֹסֵף דְּאָמְרִי תַּרְוַיְיהוּ: לָא כָּתְבִינַן מוֹדָעָא, אֶלָּא אַמַּאן דְּלָא צָיֵית דִּינָא. אַבָּיֵי וְרָבָא דְּאָמְרִי תַּרְוַיְיהוּ: אֲפִילּוּ עָלַי וְעָלֶיךָ. אָמְרִי נְהַרְדָּעֵי: כֹּל מוֹדָעָא
§ The Gemara discusses the halakhot of a preemptive declaration. Rabba and Rav Yosef both say: We write a preemptive declaration only concerning one who does not generally listen to and implement the judgment of the court. In such a case, there is no recourse other than to write a preemptive declaration on behalf of the seller nullifying the transaction. If the buyer would be willing to listen to the court, the seller is expected to deal with the matter in court, rather than participating in the sale and writing a preemptive declaration. Abaye and Rava both say: A preemptive declaration may be written even concerning someone who is law abiding, such as for me and for you, as not every issue can be settled through the courts. The Sages of Neharde’a say: Any preemptive declaration
דְּלָא כְּתִיב בָּהּ: ״אֲנַן יָדְעִינַן בֵּיהּ בְּאוּנְסָא דִפְלָנְיָא״ – לָאו מוֹדָעָא הִיא.
that does not have written in it the formulation: We are aware of so-and-so’s duress, i.e., we are aware of the nature of the coercion that forced him to enter this arrangement against his will, is not a valid preemptive declaration.
מוֹדָעָא דְמַאי? אִי דְּגִיטָּא וּדְמַתַּנְתָּא – גַּלּוֹיֵי מִילְּתָא בְּעָלְמָא הִיא! וְאִי דִּזְבִינֵי, וְהָאָמַר רָבָא: לָא כָּתְבִינַן מוֹדָעָא אַזְּבִינֵי!
For what type of transaction is the preemptive declaration being stated? If one were to say that it is a preemptive declaration for a bill of divorce or for a gift, the preemptive declaration is merely revealing the matter. Since these actions can’t take place unless he desires it, it is sufficient that he stated that he does not desire them, and he need not specify a particular reason for nullifying them. And if it is for a sale, but doesn’t Rava say: We do not write a preemptive declaration for a sale?
לְעוֹלָם דִּזְבִינֵי; מוֹדֵי רָבָא הֵיכָא דַּאֲנִיס – וּכְמַעֲשֶׂה דְּפַרְדֵּיסָא; דְּהָהוּא גַּבְרָא דְּמַשְׁכֵּין פַּרְדֵּיסָא לְחַבְרֵיהּ לִתְלָת שְׁנִין. בָּתַר דְּאַכְלַהּ תְּלָת שְׁנֵי חֲזָקָה, אֲמַר: אִי מְזַבְּנַתְּ לִי – מוּטָב, וְאִי לָא – כָּבֵישְׁנָא לִשְׁטַר מַשְׁכַּנְתָּא, וְאָמֵינָא: ״לְקוּחָה הִיא בְּיָדִי״. כְּהַאי גַּוְונָא כָּתְבִינַן מוֹדָעָא.
The Gemara answers: Actually, it is referring to a preemptive declaration for a sale, as Rava concedes in a case where one was compelled to act due to a threat of monetary loss, as with the incident of the orchard, as there was a certain man who mortgaged his orchard to another for three years. After he worked and profited from it for the three years necessary for establishing the presumption of ownership, he said: If you sell the orchard to me, it is well. And if not, then I will hide the mortgage document and I will say that this land is purchased and that is why it is in my possession, and you will receive no payment for the orchard. In a case like this, we write a preemptive declaration. The declaration states that he does not actually desire to sell his property but was forced to do so.
אָמַר רַב יְהוּדָה: הַאי מַתַּנְתָּא טְמִירְתָּא – לָא מַגְבֵּינַן בַּהּ. הֵיכִי דָּמֵי מַתַּנְתָּא טְמִירְתָּא? אָמַר רַב יוֹסֵף, דְּאָמַר לְהוּ לְסָהֲדִי: ״זִילוּ אִטַּמּוּרוּ וְכִתְבוּ לֵיהּ״. וְאִיכָּא דְּאָמְרִי: אָמַר רַב יוֹסֵף, דְּלָא אָמַר לְהוּ: ״תִּיתְּבוּ בְּשׁוּקָא וּבְבָרָיָתָא וְתִכְתְּבוּ לֵיהּ״. מַאי בֵּינַיְיהוּ? אִיכָּא בֵּינַיְיהוּ סְתָמָא.
§ Rav Yehuda says: With regard to this document detailing a concealed gift, we do not collect with it. The Gemara clarifies: What are the circumstances of a concealed gift? Rav Yosef said: It is referring to a case in which the giver said to witnesses: Go and hide and write a document for the recipient of this gift. And there are those who say that Rav Yosef said: It is referring to a case in which the giver did not say to witnesses: Sit outdoors in the marketplace and write it for him. The Gemara asks: What is the difference between the two versions of Rav Yosef’s statement? The Gemara answers: The difference between the two versions is in a case where his instructions were without specification, i.e., he did not tell them to write the document in private or in public.
אָמַר רָבָא: וְהָוְיָא מוֹדָעָא לַחֲבֶרְתַּהּ. אָמַר רַב פָּפָּא: הָא דְּרָבָא – לָאו בְּפֵירוּשׁ אִיתְּמַר, אֶלָּא מִכְּלָלָא אִיתְּמַר.
Rava said: But a concealed gift is effective as a preemptive declaration for another gift. In other words, if he first gave an item as a concealed gift to one person, and then he gave this item as a gift to someone else, the second gift is null and void. Rav Pappa said: This ruling of Rava was not stated explicitly; rather, it was stated by inference, and he did not, in fact, hold accordingly.
דְּהָהוּא גַּבְרָא דַּאֲזַל לְקַדּוֹשֵׁי אִתְּתָא, אֲמַרָה לֵיהּ: ״אִי כָּתְבַתְּ לִי כּוּלְּהוּ נִכְסָיךְ – הָוֵינָא לָךְ, וְאִי לָא – לָא הָוֵינָא לָךְ״. אֲזַל כַּתְבֵיהּ לַהּ לְכוּלְּהוּ נִכְסֵי. אֲתָא בְּרֵיהּ קַשִּׁישָׁא, אֲמַר לֵיהּ: ״וְהָהוּא גַּבְרָא – מָה תִּהְוֵי עֲלֵיהּ?״ אֲמַר לְהוּ לְסָהֲדֵי: ״זִילוּ אִטַּמּוּרוּ בַּעֲבַר יַמִּינָא, וְכִתְבוּ לֵיהּ״. אֲתוֹ לְקַמֵּיהּ דְּרָבָא, אֲמַר לְהוּ: לָא מָר קְנָה, וְלָא מָר קְנָה.
Rav Pappa explains the inference: As there was a certain man who went to betroth a woman. She said to him: If you write a document signing over all of your property to me, then I will be your wife, and if not, I will not be your wife. He went and wrote a document signing over all of his property to her. His eldest son came and said to him: And that man, i.e., me, what will become of him if you give all of your property to this woman? The father said to two witnesses: Go hide in Avar Yemina and write a document for the son, giving him the father’s property as a gift. Later, the witnesses came before Rava. He said to them: This Master, i.e., the son, did not acquire the property and that Master, i.e., the wife, did not acquire it either. The son did not acquire the property because it was a concealed gift.
מַאן דַּחֲזָא, סָבַר – מִשּׁוּם דְּהָוְיָא מוֹדָעָא לַחֲבֶרְתַּהּ. וְלָא הִיא; הָתָם – מוֹכְחָא מִילְּתָא דְּמֵחֲמַת אוּנְסָא הוּא דִּכְתַב לַהּ; אֲבָל הָכָא – מָר נִיחָא לֵיהּ דְּלִיקְנֵי, וּמָר לָא נִיחָא לֵיהּ דְּלִיקְנֵי.
The Gemara explains why the wife does not acquire it as well. One who observed this incident assumed that Rava invalidated the wife’s acquisition because the concealed gift to his son was a preemptive declaration to the other gift, but that is not so. There, in the case of the woman and the son, the matter is self-evident that he wrote a document signing over his property to her because of duress, as she had told him that she would not marry him otherwise; but here, in a typical case of giving one person a concealed gift and then giving a public gift to another, that is not the case. It is possible that it is simply amenable to him that this Master, i.e., the one to whom he gave it publicly, should acquire the gift, and it is not amenable to him that this Master, i.e., the one to whom he gave it privately, should acquire the gift. Consequently, an incorrect inference was drawn concerning Rava’s opinion.
אִיבַּעְיָא לְהוּ:
A dilemma was raised before the Sages:
Follow
