1) WRITING A SECOND SHTAR FOR THE ORIGINAL TRANSACTION

QUESTION: The Gemara discusses the dispute between Raban Shimon ben Gamliel and the Rabanan, who disagree about whether Beis Din may write a new Shtar for a person who claims that he lost his original Shtar. The Rabanan maintain that even if the lender brings witnesses who attest that the original Shtar existed and that they signed on it after the loan took place, Beis Din may not write another Shtar for the lender. One reason for the Rabanan's ruling is that Beis Din must suspect that the lender will find the first Shtar and use the second Shtar to collect his debt a second time.

However, the Rabanan do not rule this way in the case of a sale with a Shtar Mechirah: if witnesses testify that a person bought a field, Beis Din may write a second Shtar for him (without Achrayus). Raban Shimon ben Gamliel maintains that even in the case of a sale, Beis Din may not write a second Shtar. What is the reasoning behind this argument?

ANSWER: The RASHBAM (DH Aval) explains that because the field belongs to the purchaser, and he is worried that someone will try to take it away from him if he cannot produce a Shtar in Beis Din, Beis Din may write for him a "defensive" Shtar. Such a Shtar enables him to prove that the field belongs to him, but he cannot use it in case the field is appropriated by someone to whom the seller owed money. Raban Shimon ben Gamliel maintains that if a person gives back a Shtar which records a transaction (a gift or a sale), he effectively reverses the transaction (it is considered as though he has sold the object back to the seller, or he has given the gift back to the benefactor). Raban Shimon ben Gamliel rules this way because he maintains that "Osiyos Niknos b'Mesirah" -- a Shtar (and the property it represents) is acquired merely by being given over (see 169b). The mere giving of the Shtar effects the transaction, without having to do anything more. Beis Din therefore has reason to suspect that the buyer (or recipient) of the sale (or gift) gave it back to the original owner and no longer owns the field. It follows that Beis Din should not write a second Shtar for him.

The RITVA explains the argument in more detail. He explains that Raban Shimon ben Gamliel maintains that a person does not need to bring witnesses who saw the transaction (in this case, the giving of the Shtar) between the two parties; rather, he needs only to present a Shtar that says that this field is his. Accordingly, the writing of a second Shtar poses a risk, as the buyer might have sold the field back to the original seller by giving him back the original Shtar. If the original seller says that he bought the field back, the buyer may claim that there is no reason why he (the original buyer) should still have a Shtar in his possession. Furthermore, the only thing that the original seller has is the original Shtar which he gave to the buyer. The buyer may claim that the only reason why the Shtar is in the seller's possession is because he planned to sell the field to the buyer again, and the Halachah is that one may write a Shtar Mechirah even in the absence of the buyer. Since this is a winning claim, Raban Shimon ben Gamliel rules that Beis Din may not write another Shtar for the buyer. The Rabanan, in contrast, maintain that the content of a Shtar which is given back must be authenticated by witnesses. Since this is the case, the buyer would not have effected any transaction by merely giving the Shtar back to the original seller. The original seller must have witnesses who attest to the second transaction, and therefore he will not be affected by the new Shtar that Beis Din draws up for the alleged "owner" of the property.

The Ritva clarifies that according to Rebbi Shimon ben Gamliel, a problem exists only when the original buyer obtains a second Shtar. If he gives the Shtar back to the original seller (reversing the transaction), there is no reason to suspect that he will ask the witnesses of the original sale to testify that he is the true owner of the property. Since the seller is the only one with the Shtar, this claim is implausible. However, if he also has a Shtar, then Beis Din will believe the original buyer. This is why Raban Shimon ben Gamliel does not allow a copy of the Shtar to be given over in this case through Beis Din. (Y. MONTROSE)

169b----------------------------------------169b

2) A MESSENGER WHO BUYS A FIELD WITHOUT "ACHRAYUS"

OPINIONS: The Gemara discusses a case in which a woman sent a messenger to purchase a field for her. The Halachah is that when a person borrows money with a Shtar and fails to repay the loan, the lender may seize any fields that the borrower owned at the time of the loan, even if they were subsequently sold to others. Accordingly, one who purchases a field always attempts to secure "Achrayus," responsibility from the seller of the field who ensures that in the event that the field is seized by his creditor, the seller will compensate the buyer. In the Gemara's case, the messenger purchased the field with the explicit condition that there is no Achrayus. The woman was upset when she heard of the messenger's mistake, and she brought her predicament to Rav Nachman. Rav Nachman said that a messenger is supposed to benefit the person who sends him, and in this case the messenger did the opposite. He therefore ruled, "Go buy it from him without Achrayus, and then sell it to her with Achrayus." What did Rav Nachman mean?

(a) The NIMUKEI YOSEF explains that Rav Nachman ruled that the messenger should purchase the land for himself from the original seller without Achrayus, and then sell the field to the woman with Achrayus. The Nimukei Yosef apparently means that since the messenger did not act in the best interest of the woman, it is considered as though he acquired the land for himself. Since the messenger did not even state that he was a messenger, the seller has the right to refuse to return the money. The messenger therefore should write in the Shtar that he was the original purchaser, and he should then sell the land to the woman with Achrayus. This is also the opinion of the RAN in Kidushin (42b).

According to the Nimukei Yosef's understanding of Rav Nachman, the woman never bought the field because the messenger did not act in her best interest. According to this opinion, is the messenger entitled to say that he does not want to sell the field to the woman?

1. The RASHBA says that the messenger may elect to keep the field for himself and return the original sum of money to the woman.

2. The MAHARSHAL is in doubt about whether the messenger has the right to keep the field and give back the money to the woman.

(b) The ROSH understands that the messenger in fact did tell the seller that he was buying the field for the woman. Since it was clear that he was buying the field as the representative of the woman and he made a serious error, the sale is invalid. This is why Rav Nachman said that the messenger must repurchase the field -- the field was not yet bought from the seller. Assuming that the seller did not want to sell the field with Achrayus and that he did not want to give back the money when he heard that the transaction was invalid, Rav Nachman told the messenger that he should be the one to purchase the field from the seller without Achrayus, and he then should sell it to the woman with Achrayus. However, if the messenger wants, he may bring the seller to court and get the money back and give it to the woman, and he does not have to purchase the field without Achrayus. (Y. MONTROSE)

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