More Discussions for this daf
1. Kinara tree 2. A valid sale with duress
DAF DISCUSSIONS - BAVA BASRA 48

Barry Epstein asked:

Rav Huna holds that a sale under duress is valid. The halachah in the gemara upholds it (although under some conditions). Given that in American law sales of duress are voided, how do I understand and teach my Gemara class how to understand a valid, forced sale?

Barry Epstein, Dallas, USA

The Kollel replies:

The ReM"A (CM 369:8) brings two opinions regarding the definition of Dina d'Malchusa Dina, and he sides with the second opinion which holds that Dina d'Malchusa Dina (heretofore abbreviated DD"D) applies to all areas of law and not just to taxes. In which case, seemingly, since the non-Jewish is that sale under duress is invalid, this would override the Torah law that it is valid.

The Rema, however, seems to contradict himself by quoting a Psak of the RAShB"A to the effect that if a man marries a woman, who brings a dowry into the wedding, and the woman dies, the woman's father cannot claim that the dowry should return since that is the law of the land, rather the dowry stays with the husband according to Torah law that a husband inherits his wife.

The Rashba in his Teshuvah is quite adamant that whenever Torah law contradicts the law of the land, that we don't employ the concept of DD"D. In fact, he goes so far as to say that it is forbidden for two Jews to make a financial agreement that would contavene Torah law (for instance, the husband and father making an agreement, before the marriage, that the dowry would return to the father) and that it falls under the prohibition of going to non-Jewish courts.

According to this second Din of the Rema it would appear that since the non-Jewish law contradicts the Torah law, we would rule according to the Torah law and the sale under duress would be valid.

The key to understanding the Psak of the Rema is in his own words that he adds: "we only say DD"D in things that benefit the king or in matters that are l'Takanas Bnei haMedinah".

The SM"A (CM 369:21) understands the Rema to be saying that DD"D only applies to the laws of the king, for example a law requiring army service, but not to the laws of the courts. According to this, all of our laws dealing with Kinyanim would not be effected by DD"D.

Rav Moshe Feinstein (CM II, 62), however, understands the words "l'Takanas Bnei haMedinah" to be referring to anything that facilitates commerce and financial interaction between people. He says explicitly that DD"D includes the laws of Kinyanim. According to this a sale under duress would be invalid.

Rav Moshe Sternbuch says that DD"D could effect certain aspects of Kinyanim, but that even Rav Feinstein would agree that DD"D does not effect the Torah Din of sale under duress because Rav Huna is simply making a statement about the Da'as of the seller. Rav Huna is telling us that a person has Gemiras Da'as (full intention) to sell even though he is being forced to. Therefore there is no way to circumvent this by applying DD"D.

Kol Tuv,

Yonasan Sigler