BAVA BASRA 150 - A week of learning has been dedicated towards meriting a Refu'ah Sheleimah for Eliezer Lipa ben Yetta, by Mr. and Mrs. Kornfeld of Yerushalayim.


QUESTION: The Gemara says that when a person gives away his property (either a Shechiv Mera, through his verbal instructions, or a healthy person, with a Kinyan (RASHBAM)) by saying, "My Metaltelin shall be given to so-and-so," all of his movable possessions are included in his statement and are given away as a gift.

Throughout the Gemara there is a rule called "Mi'ut Rabim Shenayim." This rule means that whenever a word is expressed in the plural form, the minimum (and maximum) number of items to which that word refers is two, unless otherwise specified. This is similar to the rule of "Tafasta Merubah Lo Tafasta" (see Sukah 5a). Why, then, does the Gemara assume that the person intends to give away all of his movable property, and not just two items? Why does it not invoke the rule of "Mi'ut Rabim Shenayim"?


(a) The RITVA answers that when a person speaks about his own belongings, such as in this case, in which he says, "Metaltela'i" ("my movable possessions"), it is not assumed that he means only two, but rather that he means all of his property. The rule of "Mi'ut Rabim Shenayim" applies only to general, unmodified plural nouns, such as "Metaltelin l'Ploni" ("give movable possessions to so-and-so").

The reasoning behind this seems to be that the addition of the word "my" (in the phrase "my Metaltelin") is a description of which possessions he wants to give. All of the possessions that he owns (and not just two of them) fit that description. (Had he wanted to give away only two possessions, he would have said merely "Metaltelin," without adding "my.")

(b) The BA'AL HA'ME'OR explains that the rule of "Mi'ut Rabim Shenayim" applies only when a person refers to a specific type of object (for example, houses, orchards, or fields). In contrast, when a person generalizes, such as in this case, and refers to many different types of objects with one word, "Metaltelin," it is assumed that he means everything, because the word itself is not a "Mi'ut," but rather it includes many items. (Y. MONTROSE)


OPINIONS: The Gemara asks whether Avadim, slaves, have the status of land (Karka) or movable objects (Metaltelin). The RASHBAM and TOSFOS point out that it is clear from the Gemara elsewhere that Avadim have the status of land with regard to Torah law (based on a Hekesh, as described in Kidushin 22b and Shevuos 42b). Tosfos says that the Gemara's question here is whether Avadim have the status of land with regard to laws that are mid'Rabanan. The Rashbam says that the Gemara's question is whether people, in their normal speech, refer to Avadim as "Metaltelin" (in which case Avadim would be included in a gift or sale of "Metaltelin"). The Gemara attempts to determine the status of Avadim but it comes to no definite conclusion. What is the Halachah?

(a) The RIF says that Avadim are considered movable objects, as Rav Nachman rules earlier (128a) when he states that a lender may not collect an Eved from the borrower's heirs as repayment for his loan. The reason is obviously that an Eved is considered a movable object, and a lender is not permitted to collect movable objects from the borrowers' heirs. The Gemara there says that the Halachah follows the view of Rav Nachman, and thus the Halachah is that Avadim have the status of Metaltelin.

(b) The SHITAH MEKUBETZES cites an opinion that argues that the Rif's proof cannot be correct, for if it is correct, then the Gemara itself should cite it here. He explains that the case of Rav Nachman cannot be used as an answer to the Gemara's question here. In the Gemara there, Rav Nachman states that an Eved is considered Metaltelin with regard to collecting a debt from the borrower's heirs. The Gemara here asks a different question: does a person, in his normal speech, refer to Avadim as Karka or as Metaltelin, as the Rashbam explains.

Since the Gemara does not answer its question here, when a person gives away or sells his "Metaltelin" or his "Karka" it is unclear whether his Avadim are included. Since this is a doubt regarding a monetary matter, the rule of "ha'Motzi me'Chaveiro" applies and the Avadim remain in the possession of their present owner.

HALACHAH: The SHULCHAN ARUCH (CM 248:10) seems to rule that Avadim are included in a person's statement when he sells "all of his Metaltelin" because that is the way people speak. The BE'ER HA'GOLAH and BI'UR HA'GRA state that the Shulchan Aruch's ruling is in accordance with the RIF. The S'MA says that the reason for the Shulchan Aruch's ruling is that people refer to Avadim as "Metaltelin" in their normal speech. (Y. MONTROSE)



QUESTION: The Gemara states that there are five types of gifts which have a different status when the owner gives away all of his possessions (in contrast to when he gives away only some of his possessions). The Gemara explains that in all of these cases, even Metaltelin, movable objects, must be given away to attain that status (of a gift of all of his possessions), except for the case of Kesuvah. The reason the Gemara gives is that movable objects were never considered by the Chachamim to be a valid monetary security for the collection of a woman's Kesuvah; only land is considered to have that status.

It follows logically that even if a husband has movable possessions, they cannot be collected against his will for the woman's Kesuvah since they were never included as part of this transaction. Why, though, may she not collect Metaltelin for her Kesuvah? In general, a borrower's movable objects can be collected by a lender. Why is a Kesuvah different?


(a) The RASHBA (Teshuvos 4:152) first explains why, in general, a lender cannot collect his loan from movable objects which the borrower bequeathed to his children. He explains that a lender never expects to be paid back from an inheritance of movable objects. The children never received any favor from the lender, and they therefore would not hesitate to hide those objects so that the lender will not know about them, or so that he will think that they were sold and the money already spent. However, the lender does not expect such behavior from the borrower himself while he is alive, because the borrower certainly appreciates the favor that the lender did for him and he would not try to deceive the lender. The lender therefore expects the borrower to pay him back in any way possible. Furthermore, the borrower would not want to be called an evildoer, as in the verse, "The evil person borrows and does not repay" (Tehilim 37:21). His children, in contrast, would not feel indebted to the lender, and they would not consider themselves evil if they do not pay back, since they did not personally take the loan (AYELES HA'SHACHAR, in his explanation of the Rashba).

Based on this explanation, the Rashba writes that a Kesuvah similarly cannot be collected from movable objects even during the husband's lifetime. A divorce usually is filled with animosity between the couple. As such, a woman would never expect that her husband would eagerly want to pay her the Kesuvah, just as a lender would never expect the heirs of his debtor to want to pay back the loan. Just as a borrower's children would hide any movable objects, so would a woman's husband. A woman therefore never has in mind to collect her husband's movable possessions for her Kesuvah.

(b) The KOVETZ SHI'URIM questions the Rashba's explanation, because it explains only why a woman cannot forcibly collect from her husband's children, as they have an obligation only to pay back the specific objects owed to the woman. Since the movable objects were not involved in the Kesuvah transaction, the heirs are not obligated to give them to her. A living ex-husband, however, is subject to a personal obligation ("Shibud ha'Guf") to pay back his debt in any way possible, just as a lender may collect any property of the borrower ("even the cloak upon his back"). This Shibud should obligate the husband to pay his debt of the Kesuvah in any way possible, even if he must pay with movable objects.

The AYELES HA'SHACHAR asks a similar question. If a borrower specifies that the lender may collect only from a certain item and the lender agrees, then the borrower does not have to pay back from anything else (this is called an "Apotiki"). The same question applies in that case. Why is there no "Shibud ha'Guf"? A borrower has an obligation to pay his debt in any way that he can! The Ayeles ha'Shachar answers that the Rashba's reasoning must be that a woman can also negate her husband's actual debt to her with regard to those items. However, he continues, the Rashba cannot mean that if a husband does not own property, then he has no obligation to pay his wife's Kesuvah. Since he must attempt to buy land in order to pay her the Kesuvah, he must sell his movable possessions for that purpose (in order to buy land) and, thus, essentially he must use his movable possessions to pay her the Kesuvah. Rather, the Rashba must mean that she does not have these movable objects in mind to the extent that Beis Din can force him to pay her with them because of his "Shibud ha'Guf." Nevertheless, the husband's movable possessions are still connected to his "Shibud ha'Guf" according to Torah law, and this obligates him to pay his wife with them in order to pay his debt according to the Torah. The same is applicable to the case of "Apotiki," where a lender is able to collect only from a certain item. This limited ability to collect applies only with regard to Beis Din's ability to force him to pay. His Torah obligation to pay, however, remains unchanged. (Y. MONTROSE)