1) ONE WHO SELLS "NECHASI"

OPINIONS: The Gemara discusses various vague terms that a person might use in a sale and what they mean. One of the terms discussed is "Nechasi" -- "my property." When a person says, "I sell you Nechasi," he means that he is selling all of his possessions that are included in the category of land, including his houses and slaves. Movable objects (Metaltelin) are not included in the sale of "Nechasi," as the RASHBAM (DH v'Iy) explains.

TOSFOS (DH v'Iy) asks that this ruling seems to contradict the Gemara later (150b) which states that when a person says that "my property" should be given to another person, he includes even his shirt in this wording. A shirt clearly is Metaltelin, and yet the Gemara there says that it is included in the term "my property." How are the two Gemaras to be reconciled?

(a) TOSFOS answers that the exact term used in the Gemara there is not "Nechasi" (with one Yud) but "Nechasai" (with two Yuds). Although the two words mean the same thing, the word, "Nechasai" implies an inclusion of more possessions than the word "Nechasi."

The RASHBA gives a similar answer, but in his text of the Gemara later the word "Nechasai" is spelled not with two Yuds at the end, but with an Alef and a Yud at the end.

(b) In his second answer, Tosfos explains that the Gemara there is discussing a case of a present, while the Gemara here is discussing a sale. When one gives a present, he gives generously -- "ha'Nosen Matanah b'Ayin Yafah Hu Nosen." In contrast, when one sells an object, he does not sell generously -- "ha'Mocher b'Ayin Ra'ah Hu Mocher." Therefore, it is assumed that he did not mean to include his Metaltelin in the sale.

(c) The Rashba quotes another explanation. When the Gemara says that a seller includes even houses and slaves when he says "Nechasi," it merely intends to contrast this case with the previous case in which a person does not receive houses and slaves. The Gemara does not mean that "Nechasi" excludes Metaltelin. Rather, the Gemara simply wants to emphasize that houses and slaves are not included, in contrast to the previous case. Accordingly, the Gemara here agrees with the Gemara later (150b).

Although this is the explanation of the RAMBAM, the Rashba concludes that the first explanation is the correct one. (Y. MONTROSE)

62b----------------------------------------62b

2) A SPECIAL "SHUDA D'DAYANEI"

OPINIONS: The Gemara discusses a case in which a person draws three boundaries of the field that he is selling, but he does not include the fourth boundary. The Gemara presents two versions of Rava's position on the matter. According to both versions, if the fourth boundary is "Muvla" -- "absorbed" (see sketch in RASHBAM DH v'Lo Amaran) and there is no important piece of property in the area of the fourth boundary (meaning that there are no planted trees or an area of nine Kav), the area is included in the sale. In the opposite case, where the fourth boundary is not Muvla and the area is important, it is assumed that it is not included in the sale. The difference between the two versions is in a case in which only one of the two factors is present (it is Muvla but the area is important, or the area is not important but it is not Muvla). The Gemara concludes that the Halachah is "Shuda d'Dayanei."

The Rishonim explain that although "Shuda d'Dayanei" usually means that the judges of the Beis Din may do whatever they see fit without any reason or proof for their decision (according to RABEINU TAM; see TOSFOS to 35a, DH Shuda, for other explanations, and Background to the Daf there), the application of "Shuda d'Dayanei" in this case is different. The Rishonim quote a tradition, which some say dates from the RABANAN SAVORA'I, that although in such a case the Halachah should follow the second version of Rava, or the Halachah should be "ha'Motzi me'Chaveiro Alav ha'Re'ayah," the ruling of "Shuda d'Dayanei" here is "an logical decision" by the judges. What does this mean?

(a) The ROSH explains that Rava actually said both statements quoted in his name. How, though, could he have said two contradictory statements? The Rosh explains that Rava's two statements are not contradictory; the Halachah may differ depending on the details of the specific case (see KIKAYON D'YONAH who proves this at length). The judges should assess the mindset of the seller, the mindset of the buyer, the local custom, and the amount of money paid in the sale. Only then should they make a decision, which could follow either statement of Rava, depending on the details of the case.

(b) The NIMUKEI YOSEF similarly mentions that the mindset of the seller and the amount of money paid is a factor in the decision of the judges, although he does not mention the mindset of the buyer and the local custom. It is unclear whether his view differs from that of the Rosh.

The PILPULA CHARIFTA notes that the Rosh and Nimukei Yosef certainly take into account that the Halachah follows the Chachamim (76b) who do not apply, in most situations, the principle of "Damim Modi'im" to decide a case. However, in this case, in which the ruling is "Shuda d'Dayanei," the Chachamim directed the Beis Din to utilize all means possible to determine the correct verdict.

(b) The RASHBAM (DH Ika d'Amri) writes that the judges should assess the intentions of the seller, and based on that assessment they should decide what to do. The RAMBAM (Hilchos Mechirah 21:15) similarly states that the intention of the seller is the only factor taken into account, in contrast to the view of the Rosh and Nimukei Yosef who write that the amount of money paid should also be taken into account. (Y. MONTROSE)

OTHER D.A.F. RESOURCES ON THIS DAF