Explanation: He does not mean that it is mid'Oraisa, for Rav Nachman himself holds below (147b) that it is not like Torah, and they made it like Torah law. Rather, he means that it is a mere Asmachta;

Implied question: [If it is only an Asmachta,] why does it say 'why didn't he say that he learns from "v'Ha'avartem"?'

Answer: It means 'why didn't he base his Asmachta on "v'Ha'avartem"?'

Support: We find like this in Mo'ed Katan (5a) regarding Tziyun (marking off graves), which is mid'Rabanan. It asks "we need [the verse] like a Beraisa teaches...!"

You are forced to say that Tziyun is mid'Rabanan, like it says in Nidah (57a).

Reference: In Yoma (21b) we question this from the Mishnah that the wind never overcame the smoke rising from the Ma'arachah (rather, it went straight up), and answers properly. (It bent to one direction, but then went straight up and did not scatter.)

Explanation #1 (Rashbam): The east wind inhibits rain.

Question: It says above (25b) "v'Rochav Mayim b'Mutzak" is the east wind. This connotes that it brings water!

Explanation #2: It brings water, but in Eretz Yisrael this is good, and in Bavel it is bad, for the land is wet and full of water.

Explanation #1 (Rashbam): If it leans to the west, everyone is sad, because the east wind inhibits rain.

Rebuttal (and Explanation #2): He should not have explained so. Rather, [everyone is sad] because it brings too much water.

Explanation: [If it was hot on Rosh Hashanah, he should pray on Yom Kipur that the year not be] too hot, and if it was cold, [he prays] that it not be too cold.

Explanation (Rashbam): According to the opinion that obligates for Dina d'Garmi (causing damage. It is more direct and sure to result in damage than Gerama, a seller who) pardons must return to the buyer what he gave to him [for the document].

Explanation (Ri): He needs to return only the money that the buyer paid, but not the entire [amount of the] document.

Proof #1: It says in Bava Kama (89b) "a Beraisa teaches that if a woman wounded her husband, she did not lose her Kesuvah. What is the reason? She should sell her Kesuvah to her husband for Tovas Hana'ah (what one would pay for the right to collect it if she will be widowed or divorced), to pay for the wounding! If she pardons to her husband, there is no concern." We establish the Beraisa like R. Meir;

Inference: She can sell only to her husband. She cannot sell to others like this (Tovas Hana'ah), lest she pardon it to her husband.

Question: How could she pardon it to her husband according to R. Meir, who obligates for Dina d'Garmi (Bava Kama 100a)?! (Maharam - surely she would not pardon if this will obligate her to pay when she gets money (after she is widowed or divorced) more (her entire Kesuvah) than if she did not sell and pardon (she would owe only for the wounding). Mishmeres Kehunah - R. Meir does not allow a man to keep a wife without a Kesuvah. He will write another Kesuvah after she pardons. If she owes all of it to the buyer, she and her husband do not gain anything. Based on the Rashash below, perhaps Tosfos asks according to the opinion that Shibud is mid'Oraisa. When she damages the buyer through pardoning, he gets a lien on her husband's property, and her pardon does not take effect, for it harms the buyer. However, if she owes only what he paid, her pardon helps for the excess of the Kesuvah above what he paid.)

Answer: Even the one who obligates for Dina d'Garmi, she needs to return only what the buyer paid, but not the entire amount of the Kesuvah that she caused him to lose.

Implied question: It says in Bava Kama (98b) that the one who obligates for Dina d'Garmi [says that the victim] collects a proper document (i.e. the full value) regarding one who burned another's documents, and similarly Kesuvos (86a) regarding this law of Shmuel (about one who pardoned)!

Answer: "A proper document" is not precise. She returns only what the buyer paid;

Because above it said "I merely burned your paper", it says afterwards "a proper document."

Proof #2: Rav Nachman obligates in Bava Kama (116b) for Dina d'Garmi, regarding one who showed another's stack [of wheat to extortionists]. Rav Nachman obligated him to pay;

In Kesuvos (85b), it says that Rav Nachman's relative sold her Kesuvah for Tovas Hana'ah. She was divorced, and died. The buyer came and claimed from her daughter...

Rav Nachman said, who will counsel her to pardon the Kesuvah to her father, and then she inherits him!

Question: How does she gain from this? Rav Nachman himself obligates in Bava Kama for Dina d'Garmi. If so, she must return to [the buyer] all the money. What will she gain from this?!

Answer: She will gain, for she needs to return only what [the buyer] paid.

Question: In any case, she caused a big loss [to the buyer], for [her mother] was divorced, and the buyer should have collected [her entire] Kesuvah from the divorcee!

Answer (Tosfos' Rebbi): Perhaps [the daughter] was a minor, and [the buyer] could not have collected anything from her then;

Even though [she was a minor], her pardon is valid, once she reached the age of Pa'utos (mature children; this is between six and 10, depending on the child's sharpness), like it says in Gitin (59a) that the gift [of Pa'utos] is valid.

Question: How did Rav Nachman give her counsel to pardon her mother's Kesuvah? It says above (22b) that Gerama (causing) damage is forbidden. I.e. even though he is exempt, there is an Isur to do so;

All the more so according to the opinion that obligates for Dina d'Garmi, like Rav Nachman, there is a bigger Isur when he instructs her to pardon. [Rashash - and even if Rav Nachman did not obligate for Dina d'Garmi,] even Gerama of damage, which is totally exempt, is forbidden, and all the more so Dina d'Garmi, which some obligate for, is forbidden!

Answer (Ri): Since she had a loss, it is permitted. Also, the buyer does not lose at all, since she returns to him what he paid for it.

Proof #3: It says in Kidushin (47b) that if one said "be Mekudeshes to me through my loan document", or if he had a loan with others and he authorized her over (i.e. to collect) it, R. Meir says that she is Mekudeshes, and Chachamim say that she is not Mekudeshes;

We conclude that they argue about Shmuel's law, that if one sold a loan document to his friend, and then pardoned, it is pardoned. The one who says that she is not Mekudeshes holds like Shmuel. She does not resolve [to be Mekudeshes], lest he pardon;

If he needs to return all the money [of the document], why will he pardon? She properly resolves!

Also, it says there afterwards that she resolves, for he will not abandon her and give to others (pardon). It should have said that he will be obligated to pay everything if he pardons!

Rebuttal: We can reject this proof. Perhaps she would be ashamed to come to Beis Din and claim from her husband what he pardoned. Therefore, she does not resolve more due to this.

Proof #4: It says in Bava Metzi'a (19b) regarding one who found a receipt [for a Kesuvah], when she admits [that she was paid], he returns it to her husband...

Citation (19b): We should be concerned lest she wrote [the receipt] to give it [to him] in Nisan, and she did not give it until Tishrei, and between Nisan and Tishrei she sold her Kesuvah for Tovas Hana'ah, and [her husband] will show the receipt written in Nisan, and take from the buyer (Maharshal - i.e. keep his property) fraudulently!

Citation (cont. - Rava): This shows that Shmuel's law is correct, that if one sold a loan document to his friend [and then pardoned, it is pardoned].

Explanation: If so [Shmuel is correct, her husband] does not take fraudulently, for she can pardon to her husband.

Question: According to the opinion that obligates for Dina d'Garmi, why is this not fraudulent? If she pardons to her husband, the buyer returns to her and collects the entire [Kesuvah] from her!

Note: The receipt "proves" that the "sale" was mere theft, for the Kesuvah was already paid, and she must return only the buyer's money. Right after this, Tosfos answers that also one who pardons only returns the money paid, so there is no fraud. (In any case, the buyer will not get the entire Kesuvah.) However, what is the Ri's question against this below? Maharam - now, Tosfos thinks that if the receipt shows that she sold her Kesuvah after it was paid, she is exempt; this is astounding. Maharsha - Tosfos did not err about this. Rather, if one who pardons returns only the buyer's money, it is plausible that she would pardon. There is no fraud, for either way the buyer gets back only what he paid. If one who pardons were liable for the entire debt, surely she would not pardon. If not for the receipt, the buyer would collect the entire Kesuvah. Therefore, her husband takes fraudulently. The Ri challenges this, for in every case, surely she would not pardon.

Answer: [Due to Dina d'Garmi] she needs to return only what the buyer paid for it.

Question (Ri): Still, her husband takes fraudulently from the buyer, for the buyer will take from her at least what he paid her!

Answer (Ri): For a small amount like this, we are not concerned, and this is not considered fraudulent collection.

Note: Rashi (Makos 3a) says that a buyer would not pay much for Tovas Hana'ah, for her husband eats the Peros (until she is widowed or divorced, which can be a long time from now), and is Muchzak. Seemingly, if her husband is very old, or they had serious quarrels and he is prone to divorce her soon, a buyer would pay a lot!

Question: There, we could have asked from a divorcee who wrote [a receipt] to give it in Nisan, and she did not give it until Tishrei, and between Nisan and Tishrei she sold her Kesuvah, and [her husband] will show the receipt written in Nisan, and take fraudulently from the buyer;

Since she was already divorced [when she sold her Kesuvah], she sells it for a high price (for the buyer is entitled to collect it immediately). If so, she caused a great loss to the buyer, and her husband collects fraudulently, for she cannot pardon what she made [the buyer] lose! (Rashash - according to the opinion that Shibud is mid'Oraisa, when she damages the buyer through pardoning, he gets a lien on her husband's property, and her pardon does not take effect, for it harms the buyer.)

Answer #1: If we would establish the Beraisa like the opinion that exempts for Garmi, it would be fine.

Consequence: However, then we cannot bring a proof [that one who pardons only returns the money paid according to the opinion that obligates for Garmi].

Answer #2: According to what I explained in Bava Metzi'a (20a), that regarding a divorcee we are not concerned for this, it is fine. (Since the buyer pays a lot, and she would need to return it all, we are not concerned lest she schemes.)

Support: That answer is primary, like I explained there, that we could not ask from a divorcee.

Question: Why does it say in Bava Metzi'a (20a) "this shows that Shmuel's law is correct, that if one sold a loan document [to his friend and then pardoned, it is pardoned]"?

We should be concerned lest she wrote to give it in Nisan, and she did not give it until Tishrei, and she went and [remarried] and entered [her Kesuvah] to her [new] husband. Then, she cannot pardon, for his hand (rights to her property) is like her hand, like it says in Kesuvos (85b)! (Maharsha - Tosfos asks against Answer #1.)

Answer: We must say that [those who found the receipt] know that she has no husband.

Reference: R. Tam explained that we cannot prove from here that sale of a document is not mid'Oraisa. We explained this above (76b DH Kani. Shmuel said "if one sold a loan document, the seller, and even the seller's heir, can pardon it, but if one gave a debt through Matanas Shechiv Mera, the giver cannot pardon it. We infer that because Matanas Shechiv Mera is mid'Oraisa, he cannot pardon. This implies that sale of a document is only mid'Rabanan! R. Tam rejected this. The Gemara asked that granted, if Matanas Shechiv Mera is mid'Oraisa, the heir cannot pardon, for the recipient of the gift is the heir. Really, sale of a document is mid'Oraisa.)

Inference: [These Hakna'os do not apply to a healthy person,] for he cannot be Makneh occupancy, for it is not tangible, and [regarding] fruits of a date tree, because Ein Adam Makneh Davar she'Lo Ba l'Olam.