1) A GIFT GIVEN WITH A GUARANTEE

QUESTION: Rav Ashi states that a husband who gives a field to his wife as a gift may include in the Shtar wording that indicates that the field was sold, in addition to wording that indicates that he gave it to her as a gift. This double formula grants his wife certain advantages. Writing that the field was sold to her gives her the rights of compensation if a third party comes and confiscates it from her (such as the creditor of the husband). The husband will be required to reimburse the woman for the lost field, just as a seller must reimburse a buyer. The RASHBAM explains that writing that the field was given to her as a gift gives her the rights to keep the land even against the protest of a "Bar Metzra." Normally, when a land-owner wants to sell his field, the immediate neighbor ("Bar Metzra") has priority status and is entitled to buy the field before any other potential buyer. However, if the field is given as a gift to someone else, the neighbor does not have the right to protest and insist that he be allowed to buy the land.

TOSFOS (DH v'Lamah) questions this explanation of the advantage of writing in the Shtar that the field was given as a gift. The Gemara in Bava Metzia (108b) states that when a person gives a field as a gift with "Achrayus," a guarantee that the benefactor will replace the field if it is legally confiscated from the recipient, it is considered a sale with regard to the law of "Bar Metzra." Consequently, the neighbor maintains the right to purchase the field before it is given away! In Rav Ashi's case, the field was given to the wife with "Achrayus," and thus law of "Bar Metzra" still should apply. Why does the Rashbam say that it does not apply?

ANSWER: The RITVA answers that the reason why the law of "Bar Metzra" still applies when land is given as a gift with "Achrayus" is that Beis Din suspects that the original owner actually intends to sell the field (and that is why the recipient demands a guarantee). However, he fictitiously writes in the Shtar that the transaction is a gift in order to prevent his neighbor from claiming entitlement as the "Bar Metzra." In Rav Ashi's case, however, Beis Din is certain that the husband is giving the field to his wife as a genuine gift, even though a clause of "Achrayus" is written in the Shtar. Hence, the law of "Bar Metzra" does not apply.

The Ritva points out that this answer explains why Rav Ashi states, "He wanted to give it to her as a gift." Rav Ashi implies that the husband's intentions were genuine and he sincerely meant to give the field as a gift. (Y. MARCUS)

51b----------------------------------------51b

2) A DEPOSIT DELIVERED BY A MINOR

QUESTION: The Gemara states that one may not accept an item as a deposit from a woman, slave, or minor, because of the fear that he or she might have stolen the item. The RASHBAM (DH Lo) explains that the reason one may not accept a deposit from a minor is because he might have stolen it from the owner of the house in which he lives.

The Gemara continues and says that if, b'Di'eved, one accepted a deposit by mistake from a minor, the recipient who is holding the item may not return it to the minor, because the minor is not considered mature and responsible enough to take care of the item. Instead, the recipient should invest the money on behalf of the minor. If the minor dies before he reaches adulthood, the deposit must be returned to his heirs.

Why does the Rashbam not explain that the minor stole from his father? Similarly, why does the Gemara not say that if a deposit was accepted from a minor and the minor died, the deposit should be returned to his father?

ANSWER: The PNEI SHLOMO cites TOSFOS (52a, DH Kibel) who explains that the reason why the value of the item deposited must be invested for the minor is because it may be assumed -- once the deposit has already been accepted -- that the minor found the item in the street and it legitimately belonged to him (we do not make this assumption l'Chatchilah and permit a person to accept a deposit from a minor, because of the possibility that it might be stolen). We can infer from Tosfos that it is unlikely that someone gave the item to the minor as a gift. This is because it is uncommon to give a gift of value to a child, since it is probable that he will lose it. Therefore, there are two possible sources for the origin of an item in the possession of a child: either he stole it from the house in which he lives, or he found a lost article. Consequently, if the Gemara would be referring to a minor who is living in his father's home, then any articles in his possession would belong to his father -- either because he stole it from his father, or because of the law that states that any lost article that a minor finds automatically belongs to his father (see Bava Metzia 12a). The Gemara cannot be discussing a minor who lives in the home of his father, because the law, then, would always require the item to be returned to the minor's father, regardless of whether or not the minor is still living. This is also why the Rashbam explains that the minor have stolen the item "from the house in which he lives," and does not explain that he may have stolen it from his father. (Y. MARCUS)

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