1) REGISTERING A SALE IN A SECULAR COURT OF LAW
QUESTIONS: A Beraisa states that when a Jew sells a house to a Nochri, the Jew may not derive benefit from the money of the sale. RASHI (DH ha'Mocher) explains that the Beraisa refers specifically to the sale of property in Eretz Yisrael, where a Jew is prohibited from selling his property to a Nochri. The Gemara in Avodah Zarah (20a) derives this prohibition from the verse, "Lo Sechanem" (Devarim 7:2), which the Gemara interprets as a prohibition against allowing Nochrim to have a foothold in Eretz Yisrael.
If, however, a Nochri forcibly takes a house from a Jew, and the Jew is unable to recover it in Beis Din or through the laws of the Nochrim, he is permitted to receive (and benefit from) payment from the Nochri for his house. Moreover, he is permitted to write a deed of possession for the Nochri and present it to the courts of law of the Nochrim. Rashi (DH u'Ma'aleihu) explains that although Halachah normally forbids a Jew from litigation in a secular court (in order not to show respect to the Nochri judicial system), in this case he is permitted to plead his case in a secular court because he is merely recovering his money from the Nochri.
TOSFOS (DH v'Kosev) asks that it appears from Rashi's words that litigation in a Nochri court is prohibited because it shows respect to the Nochri judicial system, which in turn shows respect to their deities (see MAHARAM). However, the Mishnah earlier (10b) states that any document which has been examined and validated by a Nochri court is valid. If processing deeds in a Nochri court is prohibited just as litigation in a Nochri court is prohibited, why does the Mishnah not say that such a document is valid only b'Di'eved? The Mishnah implies that documents validated by a Nochri court are valid even l'Chatchilah and there is no concern that validating the documents in a Nochri court shows respect to their court and to their deities.
The CHASAM SOFER (Teshuvos CM 3) asks two more questions on Rashi's explanation. The Torah states, "And these are the laws which you (Moshe) shall place before them" (Shemos 21:1). This verse teaches that a Jew may not present his case before a Nochri court when he is able to bring the case to Beis Din (Gitin 85a). This prohibition applies only to actual litigation; it does not apply to the mere registration of a sale.
Moreover, Rashi here appears to contradict what he writes in Avodah Zarah (13a). The Gemara there rules that during a market fair one may visit a Nochri court and compose deeds of sale for property he purchased during the fair, because without such deeds he will have no proof of purchase and he may lose the property. Rashi there (DH u'Ma'aleh) writes that although the Nochrim feel honored from the Jew's recognition of their courts, and as a result the Nochri may go and give thanks to his deity, the Jew still is permitted to use the services of the Nochri court to save himself from a loss. Apparently, Rashi there understands that only on the Nochri's festival is there a potential problem with visiting the Nochri court to sign a deed of sale, since on that day the Nochri might give thanks to his deity. On ordinary days there is no such concern, and thus there is no prohibition against signing a deed in a Nochri court, even when the Jew will suffer no loss if he does not go to their courts. Why, then, does Rashi here write that a Jew is permitted to have a deed signed in a Nochri court only when doing so will prevent a loss?
ANSWER: The CHASAM SOFER answers that Rashi does not consider the possibility that registering a sale in a Nochri court should be prohibited the same way that litigation in a Nochri court is prohibited. Rather, Rashi here refers specifically to selling a house in Eretz Yisrael to a Nochri. Although the house was already taken by the Nochri by force, it is still inappropriate to empower the Nochri court to verify the deed of sale, as if the court has some type of authority in Eretz Yisrael. The "importance" which one may not attribute to their courts is not "importance" of their judicial system, but rather their apparent sovereignty over Eretz Yisrael which one shows by having his property transactions validated in their courts. If not for the fact that the Jew otherwise would lose the value of his house, attributing such importance to the Nochri courts would be forbidden.
This approach explains why Rashi in Avodah Zarah does not mention the reason that validating a contract in a Nochri court is similar to litigating in a Nochri court, but he explains instead that the prohibition applies only to the day of the Nochri's fair. Since the Gemara there does not refer to the sale of property in Eretz Yisrael, the reasoning of Rashi here does not apply there. (D.Bloom)
2) THE OWNERSHIP OF PROPERTY BROUGHT BY THE WOMAN INTO THE MARRIAGE
QUESTION: The Mishnah (43b) states that when one who owns a slave in Eretz Yisrael sells him to one who lives in Chutz la'Aretz, the buyer must set the slave free. RASHI (DH Yetzei l'Cheirus) explains that the Rabanan imposed a fine on the buyer for causing the slave to leave Eretz Yisrael.
In the Gemara later (44b), Rebbi Yirmeyah asks the following question: When a man from Chutz la'Aretz marries a woman in Eretz Yisrael who brings her slaves and maidservants into the marriage, is the woman considered to have sold her slaves to Chutz la'Aretz since her husband intends to return to Chutz la'Aretz with her? RASHI (DH Mahu) explains that the Gemara in Kesuvos (95b) states that when a man marries a woman, he becomes the owner of her property as though he bought it. Perhaps, therefore, she is considered to have sold her slaves to Chutz la'Aretz and must let them go free.
The Gemara analyzes Rebbi Yirmeyah's question in light of a dispute recorded in Yevamos (66a-b). The Gemara there discusses a case in which a woman brought into the marriage "Nichsei Tzon Barzel," the value of which was assessed before the marriage. ("Nichsei Tzon Barzel" refers to possessions the wife owned before marriage, the values of which were assesses and recorded in the Kesuvah, to be returned to her in full upon divorce or upon the husband's death. These possessions are called "Nichsei Tzon Barzel" -- literally, "iron flock properties," because their value does not change between the time of marriage and the time of divorce or the husband's death.) The marriage ended in divorce. The woman demanded that her former husband return to her the exact items that she brought into the marriage, while the husband claimed that he was entitled to keep those items and merely pay their monetary value according to the original assessment. Rav Yehudah rules that her claim is justified and she is entitled to receive her possessions in return. Rebbi Ami rules that his claim is justified and he is entitled to keep the items and pay her for their value.
The Gemara here explains that Rebbi Yirmeyah's question applies to both opinions. Rav Yehudah, who rules that she may demand the return of her items, maintains that those items always remain in her possession. Accordingly, when a man attempts to sell his wife's slaves to Chutz la'Aretz, perhaps the sale is not valid without her consent and thus the slaves do not go free. On the other hand, perhaps since the husband has control over the slaves during the marriage (see RASHI DH l'Peira} they are considered his and the sale is valid, and thus he is penalized and must let the slaves go free.
According to Rebbi Ami, who rules that the husband is not required to return the actual items to his former wife but only pay her for them, during the marriage the slaves apparently belong to the husband and thus perhaps his sale should be valid and he should be penalized. On the other hand, perhaps the husband's right to use the slaves does not give him actual ownership over them. RASHI (DH d'Lo) explains that proof that the husband does not really acquire the slaves is the fact that if he dies or divorces her, the slaves return to her. Consequently, since they are still his wife's possessions they cannot be sold to Chutz la'Aretz without her consent.
The MAHARSHA asks that Rashi's proof seems to contradict the Gemara's logic. The dispute in the Gemara in Yevamos (66b) involves whether or not the husband may insist on keeping his wife's possessions in the event of divorce. The Gemara here addresses the opinion of Rebbi Ami that he may keep those possessions (and give her monetary compensation instead). Why, then, does Rashi write that even when he divorces her the slaves automatically return to her? Rebbi Ami rules that the slaves do not return to her (unless her husband chooses to give them back instead of compensating her for them)! (Rashi himself (DH Tiba'i) explains that this is the point of the dispute.)
ANSWER: The RAMBAN explains that Rashi here means that although the husband may keep his former wife's possessions and give her monetary compensation in their place (according to Rebbi Ami), in most cases the wife indeed collects her possessions. The Ramban writes that this is the reason why these possessions are called "Nichsei Tzon Barzel" -- their value is permanently fixed, and thus the husband must return the same items to her, or replace them or their value even if they were destroyed by unavoidable circumstances (Ones). Similarly, he is obligated to compensate her if their value decreases (see Bava Metzia 70b).
The Ramban enumerates other reasons why the possessions presumably return to her. He concludes that since the Gemara here discusses a penalty imposed by the Rabanan upon one who sells slaves to Chutz la'Aretz, the Gemara certainly does not consider the slaves as totally in the ownership of the husband when they are almost always destined to return to the wife (in the event of divorce or the husband's death). This is why Rashi explains, even according to the opinion of Rebbi Ami, that the property returns to the wife (and thus there are grounds not to apply the penalty in this case). (D. BLOOM)