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BAVA METZIA 15

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1) WRITING IN A CONTRACT THE "SHUFRA," "SHEVACH," AND "PEROS"
QUESTION: Shmuel (14b) maintains that when one buys a stolen field from a thief and the original owner comes to reclaim it, the purchaser is entitled to receive in return the purchase price that he paid to the thief (the seller), but he is not entitled to receive the value of the Shevach that he produced in the field. The Gemara here questions this ruling of Shmuel from another ruling of Shmuel. Shmuel rules that when a scribe writes a contract that transfers the ownership of land, he must ask the seller whether he specifically wants to include in the contract a clause to allow the buyer to collect from him the "Shufra," "Shevach," and "Peros" in the event that the land is confiscated from him. The Gemara says that this clause cannot be intended for the case of a Ba'al Chov who comes to collect a field that was purchased from the borrower, because Shmuel himself rules that a Ba'al Chov is not entitled to collect the Peros from the buyer. Rather, this clause must be a provision for a case in which the field turns out to be stolen and the original owner comes to collect it from the buyer. The Gemara asks, how can Shmuel suggest that the seller may let the buyer collect the Shevach from him, if Shmuel himself maintains that the buyer is not entitled to collect the Shevach from the seller in such a case?

What is the Gemara's question on Shmuel? When a contract is written for a purchaser who buys land from a seller, the contract must take into account both possibilities: that the land may be taken away by the seller's Ba'al Chov, and that the land may have been stolen and will be taken away by the original owner. Hence, the contract must include mention of "Shevach" in case the land is taken away by a Ba'al Chov (since a Ba'al Chov is entitled to collect the Shevach from the buyer), and it must include mention of "Peros" in case the land was stolen and is taken away by the original owner (since Shmuel says only that when the original owner takes back his land, the buyer may not collect the Shevach from the seller, which implies that he may collect Peros). (PNEI YEHOSHUA, TORAS CHAIM)

ANSWERS:
(a) The TORAS CHAIM answers that Shmuel's statement that the scribe may write the "Shufra, Shevach, and Peros" implies that the buyer will be able to collect all three of them if the land is taken away from him, and not that they are written in the Shtar so that the buyer can collect two out of the three.

(b) The PNEI YEHOSHUA cites the SHACH (CM 115) who answers as follows. Shmuel's earlier ruling -- that one who bought a stolen field from a thief may not collect the Shevach -- applies to the Peros as well. The Gemara (14b) explains that he may not collect the Shevach because it will be considered like Ribis, since he gave money to the seller and now is receiving more money in return (and since the sale never took effect because the land was stolen, the giving of the money was like a loan). The same applies to the Peros; if the seller is required to compensate the buyer for the Peros that were confiscated, then it will look like Ribis.

2) WHAT A SCRIBE WHO WRITES A CONTRACT MUST ASK THE SELLER
QUESTION: Shmuel (14b) maintains that when one buys a stolen field from a thief and the original owner comes to reclaim it, the purchaser is entitled to receive in return the purchase price that he paid to the thief (the seller), but he is not entitled to receive the value of the Shevach that he produced in the field. The Gemara here questions this ruling of Shmuel from another ruling of Shmuel. Shmuel rules that when a scribe writes a contract that transfers the ownership of land, he must ask the seller whether he specifically wants to include in the contract a clause to allow the buyer to collect from him the "Shufra," "Shevach," and "Peros" in the event that the land is confiscated from him. The Gemara says that this clause cannot be intended for the case of a Ba'al Chov who comes to collect a field that was purchased from the borrower, because Shmuel himself rules that a Ba'al Chov is not entitled to collect the Peros from the buyer. Rather, this clause must be a provision for a case in which the field turns out to be stolen and the original owner comes to collect it from the buyer. The Gemara asks, how can Shmuel suggest that the seller may let the buyer collect the Shevach from him, if Shmuel himself maintains that the buyer is not entitled to collect the Shevach from the seller in such a case?

The Gemara's initial interpretation of Shmuel's statement is difficult to understand. Why does the Gemara entertain the possibility that Shmuel would suggest that a scribe could include "Shufra, Shevach, and Peros" in the Shtar in case the land was bought from a debtor who owes money? In such a case, Shmuel himself rules that the Ba'al Chov cannot collect anything unless Achrayus is written explicitly in the contract (for Shmuel maintains that "Achrayus Lav Ta'us Sofer"). If Shmuel's directive to the scribe is out of concern for a case of a Ba'al Chov's collection, he should say instead that the scribe must ask the seller whether he wants Achrayus to be written in the Shtar. If Achrayus is not written in the Shtar, then when the Ba'al Chov takes the land away from the buyer, the buyer cannot collect anything from the seller (the borrower). (According to the Gemara's conclusion -- that Shmuel's directive to the scribe indeed refers to a case of one who buys a field from a thief -- there is no need to write Achrayus in the contract, because the buyer certainly is entitled to collect the money he paid for the field, since the sale itself was not valid.)

ANSWERS:
(a) The GILYON cited by the Shitah Mekubetzes, the MAHARAM SHIF, and the PNEI YEHOSHUA answer that the Gemara indeed could have asked this question to prove that Shmuel's directive to the scribe does not refer to the contract of a Ba'al Chov. However, the Gemara preferred to ask a better question from the fact that a Ba'al Chov has no right to collect Peros from the buyer.

(b) The MAHARSHA answers that the Gemara never meant to suggest that Shmuel would include "Shufra, Shevach, and Peros" in a Shtar out of concern that a Ba'al Chov may collect the land. In such a case, the contract indeed must include mention of Achrayus. Rather, the Gemara means to suggest that Shmuel's ruling refers to the Shtar Chov itself written on behalf of a Ba'al Chov, which gives him the right to collect from the borrower's property (from the borrower himself, before it is sold to anyone else). Such a Shtar does not need to mention Achrayus, since Shmuel agrees (14a) that for a loan, "Achrayus Ta'us Sofer" (since no one would lend money without receiving anything in return and without any guarantee).

The Maharam Shif rejects the Maharsha's answer. He argues that if the Gemara refers to the right of an actual Ba'al Chov to collect the "Shufra," "Shevach," and "Peros" from the borrower, then there is no need to mention those things because the Ba'al Chov certainly is entitled to collect the value of the loan from the property of the borrower. Only when a buyer collects from a seller the value of land that was confiscated from him is there a question of whether he may collect the additional value of the Shevach and the Peros.

(c) The IMREI MAHARSHACH answers that the Gemara assumes that when Shmuel instructs the scribe to ask the seller if he should write in the contract "Shufra, "Shevach," and "Peros," Shmuel takes it for granted that the scribe also asks the seller about including the actual Achrayus itself in the contract. Shmuel tells the scribe to ask about including the "Shufra, "Shevach," and "Peros" because the scribe might err and think that once Achrayus is written in the contract, it includes Achrayus for everything, even to collect from the "Shufra" and to collect the value of the Shevach and Peros.

(d) Perhaps when the scribe writes the "Shufra, "Shevach," and "Peros" in the contract, that already includes Achrayus. "Shufra" means that the scribe writes in the contract that if the land is taken away from the buyer (such as by the seller's Ba'al Chov), the buyer may go back to the seller and collect the highest quality land that the seller has. This itself is Achrayus. (Perhaps RASHI (DH Imlich) alludes to this when he adds the word "principal" and explains that the scribe must ask the seller if he wants to give the buyer the right "to collect the principal from his highest quality land.") (Y. Shaw)

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