1) A FORCED SALE, GIFT, AND DIVORCE

QUESTION: Rav Huna rules that when a person sells his property under coercion, the sale is valid. The seller resolves to sell the object with full intent due to the coercion. The Gemara questions Rav Huna's ruling from the Mishnah in Gitin (88b) which teaches that when Jews force a Jew to give a Get to his wife, the Get is valid, but when Nochrim force a Jew to give a Get to his wife, the Get is not valid, unless the Nochrim force the man by telling him to do what the Jews tell him to do. According to Rav Huna, even when Nochrim force a Jew to give a Get, the Get should be valid, just as when Nochrim force a Jew to sell his field.

Why is forcing a man to give a Get comparable to forcing a man to sell his property? When a man divorces his wife, he receives nothing in return, and thus forcing a man to give a Get should be comparable to forcing a person to give a gift, in which case the Kinyan is not valid since the giver receives nothing in return!

ANSWERS:

(a) The RASHBAM writes that the Kinyan takes effect according to Rav Huna not because the seller receives something in return, but because the seller does not lose anything by selling (since he has been reimbursed). Therefore, in a case where the seller does not lose by giving away the object (such as when he would have had to give it away even without being forced), the Kinyan is valid even though the seller receives nothing in return.

In the case of a divorce, since the wife hates her husband, he will gain nothing by holding back the Get (since she is not going to live with him anyway). Therefore, when he gives a Get under coercion, he loses nothing and the Kinyan should be valid.

The KOVETZ SHI'URIM (#202) questions the Rashbam's explanation from the Gemara in Gitin (88b, as cited by Tosfos here, DH Ileima). The Gemara there teaches that when a Nochri forces a Jew to give a Get, the Get is not valid, but the Get nevertheless causes the woman to become Pesulah to a Kohen after her husband dies. However, when a Nochri forces a Jew to give a Get unlawfully (that is, when the law does not require him to give a Get), the Get is not valid and the woman may even marry a Kohen after her husband dies. It is evident from the Gemara there that Rav Huna's ruling that a forced sale is valid applies to a divorce only when the husband divorced his wife under force when the law required him to divorce her. The Rishonim here explain that when the man is not required to divorce his wife, it is comparable to giving a gift under coercion and not to a sale under coercion (see Tosfos, DH Ileima). According to the Rashbam's explanation, even when the man is not required by law to divorce his wife, a Get given under coercion should be comparable to a sale executed under coercion and it should prohibit her from marrying a Kohen!

Some Acharonim answer that according to the Rashbam, the Gemara here (which follows the opinion of Rav Mesharshiya in Gitin 88b; see Tosfos DH Devar Torah) argues with the Gemara in Gitin and maintains that even when the man is not required to divorce his wife by law, the Get will invalidate her from marrying a Kohen because of Rav Huna's ruling that a sale under coercion is valid. The Get is valid, but the Rabanan invalidated it (lest the woman go and have a Nochri force her husband to divorce her, as the Gemara here says). See ONEG YOM TOV (#168).

(b) TOSFOS (DH Ileima) answers that the giving of the Get is considered a sale, because the husband is required to divorce his wife by law. When a person accomplishes -- through the coerced sale -- something that he is required to accomplish, it is considered a gain.

The intention of Tosfos might be similar to the explanation of the Rashbam: even though the husband does not gain anything, he also does not lose, since he would have had to divorce his wife anyway (had he not been coerced). However, it seems more likely that Tosfos is presenting a different logic. Tosfos maintains that even when the seller receives in return a benefit that is minor in comparison to his loss, it is considered a sale and the Kinyan is valid. (The seller's gain is measured by the actual gain (gross revenue) and not at the net gain.) The BI'UR HA'GRA (CM 42:2) proves this from the words of Tosfos later (48b, DH Kadish) who seems to accept the suggestion that a forced Kidushin (i.e. when a woman was forced to accept Kidushin) is comparable to a forced sale (and it takes effect), since she receives a Perutah in return, even though she is losing much more (such as her ability to marry any other man). This is also the opinion of RABEINU YONAH, who proves this from the Gemara here that says that Rav Bibi argues with Rav Huna because he says that a coerced sale is not valid. If Rav Huna agrees that a coerced sale is not valid unless the seller is reimbursed in full, then how does the Gemara know that Rav Bibi argues with Rav Huna? Perhaps Rav Bibi agrees that a coerced sale is valid, but only when the seller is reimbursed in full! It must be that Rav Huna considers the sale valid even when only a minimal amount is paid to the seller.

However, the RASHBA and RITVA disagree with Rabeinu Yonah, and it seems that the Rashbam disagrees as well. The Rashbam requires that the seller not lose anything as a result of the coerced sale. The Rashba refutes the proof from Rav Bibi by suggesting that the words of Rav Bibi imply that any sale under coercion is not valid, even when the seller is paid in full. The Rashba finds support for this view from the wording of the Mishnah in Gitin (55b) cited by the Gemara here, which says that if a person "bought" a field from its original owner after he bought it from a "Sikrikon" (a Nochri who kills Jews who do not give him their land) who stole it from the original owner, the sale is not valid if it was executed with a Shtar and not with the transfer of money. If the owner sold the field without receiving money in exchange for it, then why does the Mishnah refer to it as a "purchase"? It must be that the buyer did give some money, but since he did not pay the true value of the field, it is considered a gift through coercion and not a purchase through coercion.

(c) The RAMBAN and other Rishonim explain that at this point the Gemara understands that according to Rav Huna, even a gift given through coercion is valid. It is only later that the Gemara differentiates between a gift and a sale.

According to this opinion, a Get indeed is comparable to a gift. The only reason why it is valid when given under the coercion of another Jew is that even a gift given under coercion is valid when the giver fulfills the Mitzvah of listening to the Chachamim by giving the gift, as the Gemara originally suggests. In contrast, when a Nochri forces the Jew to give a Get, the Get is not valid because he is giving a gift through coercion and he is not fulfilling the Mitzvah of listening to the Chachamim by giving it. Therefore, according to the Gemara's conclusion, Rav Mesharshiya's teaching is not necessary (see TOSFOS RID).

This seems to be the opinion of the RAMBAM as well (Hilchos Gerushin 2:20). The Rambam writes that when a person is forced by Beis Din to give a Get, it is considered as though he agrees to give it of his own accord because it is a Mitzvah for him to divorce his wife in such a case, and every Jew really wants to do Mitzvos. His refusal to divorce was his Yetzer ha'Ra's decision and not his "real" decision. Therefore, as soon as he says "Rotzeh Ani" ("I agree to divorce her") even under coercion, the divorce is considered to be done with the husband's full consent. As the MAGID MISHNEH there points out, the Rambam cites the principle of "it is a Mitzvah to listen to the Chachamim" as the reason for why a forced Get is valid. (See NESIVOS HA'MISHPAT 201:1, ZECHER YITZCHAK 23:2.) Apparently, the Rambam does not consider a Get to be similar to a sale, but rather to a gift, and that is why it would not be valid if not for the Mitzvah to listen to the words of the Chachamim. (M. KORNFELD)

(This approach contradicts the words of the AVNEI MILU'IM (42:1) and KETZOS HA'CHOSHEN (9:11) who write that according to the Gemara's conclusion, the fulfillment of the Mitzvah of listening to the Chachamim is not a factor to take into consideration in a forced sale.)

48b----------------------------------------48b

2) A FORCED PURCHASE

OPINIONS: The Gemara says that the sale of one who is forced to sell his property is valid. What is the Halachah in a case in which one is forced to buy something?

Also, what is the Halachah in a case in which a man who is forced to be Mekadesh a woman, an act which is comparable to a purchase? Is the Kidushin valid in such a case?

(a) The RASHBA (Kidushin 2b) writes that when a person is forced to sell an object, the sale is valid, as the here Gemara says, and all the more so when a person is forced to buy an object, the purchase is valid.

Why is it logical that a forced purchase should be more valid than a forced sale? It seems that the Rashba's reasoning is that in a sale, the seller loses a personal possession which he valued (see Bava Kama 51, "Aval Mocher," and Berachos 5a, "Adam Mocher"). He might never be able to get back the same object or the same plot of land. In contrast, when a person is forced to buy an object, if he does not like what he receives he can sell it and receive money in return for it.

The VILNA GA'ON (Bi'ur ha'Gra to EH 42:1) adds that the Rashba and many Rishonim maintain that even if the seller is paid a minimum amount for what he was forced to sell, the sale is valid. The compensation he receives does not need to be commensurate with the value of the object. Accordingly, when a person purchases an object against his will, even if he pays more than its value, the Kinyan should be valid since he has received something in exchange for his money.

This also seems to be the view of the RAMBAM (Hilchos Ishus 4:1). The Rambam writes that if a man is forced to be Mekadesh a woman, the Kidushin is valid. It is not the manner of the Rambam to record laws that are not discussed explicitly in the Gemara. What is his source for this ruling?

The S'MAG explains that when Ameimar here says that a forced Kidushin is valid, he refers to a Kidushin that is forced upon the man and not to a Kidushin forced upon the woman. Accordingly, the Gemara here is the source for the Rambam's ruling. However, the S'mag asks that Mar bar Rav Ashi argues with Ameimar's ruling, and the Ge'onim and Rishonim accept Mar bar Rav Ashi's opinion. Moreover, the HAGAHOS MAIMONIYOS asks, how can the Rambam explain that it is the man who is being forced? It is clear from Mar bar Rav Ashi's words that it is the man who is the one forcing the woman and doing an improper act, and that is why the Rabanan invalidate the Kidushin! If it is the man who was forced, he can simply divorce his wife later and it would not be necessary for the Rabanan to invalidate the Kidushin!

It seems that the Rambam understands that although Ameimar refers to a man who is forced to be Mekadesh a woman, Mar bar Rav Ashi addresses the case of a woman who is forced to accept Kidushin and he does not argue with Ameimar. That is why Mar bar Rav Ashi adds the word, "b'Ishah"; Ameimar was not discussing the woman, but the man. (The S'mag, who does not explain the Gemara in this way, might have had the Girsa mentioned in the DIKDUKEI SOFRIM in which Mar bar Rav Ashi does not say the word, "b'Ishah," and thus he clearly argues with Ameimar.) According to the Rambam, just as a forced Kidushin is valid, a forced purchase is also valid.

(b) The SEFER HA'ITUR (Erech Moda'a, p. 41) writes that when a man is forced to be Mekadesh a woman the Kidushin is not valid. The Gemara says that a forced sale is valid, implying that a forced purchase is not valid, and a man's act of Kidushin is similar to a purchase.

The AVNEI MILU'IM (42:1) questions the view of the Ba'al ha'Itur from the Halachah that a man who rapes a woman is required by the Torah to marry her, and if he refuses, Beis Din may force him to marry her (Tosefta, Kesuvos 3:9). According to the Ba'al ha'Itur, how can Beis Din force the man to marry her?

According to the Rishonim (see previous Insight) who explain that even according to the Gemara's conclusion, when a man is forced by Beis Din to divorce his wife the divorce is valid because the man accepts to give the divorce because of the Mitzvah to listen to the Chachamim, the same can be said with regard to Kidushin. A forced Kidushin in the case of a man who raped a woman will be valid even according to the Ba'al ha'Itur, because the man thereby fulfills the Mitzvah to listen to the Chachamim.

Alternatively, the Ba'al ha'Itur admits that when a person is forced to accept a gift, he acquires the gift (see CHOCHMAS SHLOMO, end of CM 205, and NESIVOS HA'MISHPAT 205:8). Accordingly, a man can be forced to be Mekadesh a woman with a Shtar, since he does not lose anything. (Even though he becomes obligated to support his wife later, that is not taken into account with regard to the validity of the Kidushin. See Rashba here.)

(c) The ME'IRI in Kidushin (2b) writes that although Kidushin which a man is forced to make is valid, as the Rambam writes, nevertheless a purchase that a person is forced to make is not valid. He explains that since Kidushin is made by giving a Perutah, the man loses only a minimal amount. However, when a person is forced to purchase an item for its full value, the purchase is not valid. (The Me'iri also does not take into account the obligations that the husband will have later, as mentioned above.)

It is important to note that the VILNA GA'ON (EH 42:2) suggests that the opposite is true. If a forced Kidushin is valid, then certainly a forced purchase is valid, because people are more selective about whom they marry than about what they buy, as the Gemara says in Yevamos (63a).

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