QUESTIONS: The Mishnah (48b) states, "Ein Motzi'in l'Achilas Peros... mi'Nechasim Meshubadim." When a person purchases a field with Achrayus (a guarantee from the seller) and discovers that the field was stolen, the purchaser may collect the value of the field from other fields that the seller owned, which other buyers (Lekuchos) have already bought from him ("Nechasim Meshubadim"). However, he may not collect the value of the Peros (the fruit that his labor on the field produced) from the Lekuchos.

Ula (50b) explains that the reason he may not collect the value of the Peros is that the value of the Peros was not written in the original Shtar (they are not "Kesuvim") in which the Achrayus was stipulated, since there were no Peros at that time. Since Achrayus for the Peros was not written in the original Shtar, there was no way for the Lekuchos to know about it and to be forewarned. Rebbi Chanina explains that the reason the purchaser may not collect the value of the Peros from the Nechasim Meshubadim is that there is no limit to the value of the Peros (they are not "Ketzuvin"); one cannot know how much the value of the Peros will be, and therefore that value may not be collected from Nechasim Meshubadim because of "Tikun ha'Olam."

The Gemara asks whether Rebbi Chanina means that there must be two conditions, and not just one, in order to collect from Lekuchos. Does Rebbi Chanina intend to add to what Ula says, that besides the fact that the Achrayus of the Peros was not written in the original Shtar, it is not known how much the value of the Peros will be, or does he argue with Ula and say that it does not make a difference whether or not the Peros were written in the original Shtar; Achrayus takes effect on anything that has a set amount (even when not written in the Shtar)? RASHI explains that according to the second possibility, even an unwritten loan (Milveh Al Peh) should be collected from Nechasim Meshubadim since it has a set amount (i.e. the amount of the loan).

The Gemara cites a Beraisa in which Rebbi Nasan says that when a thief sells a field with Achrayus after some Peros had already grown in the field, those Peros are included in the Achrayus of the sale and the second buyer (of another field of the seller) will be obligated to pay for the value of the Peros that were in the field at the time of the first buyer's purchase. He is exempt only from paying for Peros that grew in the field after the first buyer purchased the field (for example, in a case where the field was found to be stolen only long after the second buyer bought the second piece of property).

RASHI explains that this Beraisa poses a question on both the opinion of Rebbi Chanina and on the opinion of Ula, because Rebbi Nasan permits one to collect the value of the Peros, with Achrayus, in certain circumstances -- when the Peros were there before the second buyer bought the second field from the thief, while both Rebbi Chanina and Ula maintain that Peros are never collected from the Lekuchos (either because they are not "Kesuvim" or because they are not "Ketzuvin"). Rebbi Nasan permits collecting Peros from the Lekuchos even though the Achrayus for the Peros was not written in the original Shtar (as there were no Peros in the field at the time the Shtar was written) and even though the Peros have no set amount, since at the time the Shtar was written no one knows how much the value of the Peros will be.

The Gemara answers that Rebbi Nasan's ruling is a Machlokes Tana'im ("Tena'i Hi"). The Gemara quotes a different Beraisa in which the Tana Kama explicitly states that Peros may not be collected from Nechasim Meshubadim because of "Tikun ha'Olam," since the Achrayus for the Peros is not written in the original Shtar. Rebbi Yosi in the Beraisa disagrees and says that this is not a Takanah of "Tikun ha'Olam," but rather the reason why Peros may not be collected from Nechasim Meshubadim is that the Peros have no set amount.

Rashi explains that Rebbi Yosi means that it is such an obvious fact that Peros cannot be collected from Nechasim Meshubadim because they have no set amount (they are not "Ketzuvin") that it is not even necessary for the Rabanan to make a Takanah of "Tikun ha'Olam" to prevent their collection. Even without a Takanah of "Tikun ha'Olam," the person who bought the field with Achrayus cannot collect the value of the Peros since the Lekuchos could not have been expected to be cautious and to avoid buying the field, as they had no idea how much the value of the Achrayus would be (i.e. how much Peros the field would produce).

TOSFOS (DH O, DH Alma, and DH v'Chi) asks a number of very strong questions on Rashi's explanation.

1. Why does the Gemara say that Rebbi Nasan's opinion is a Machlokes Tana'im? According to Rashi's explanation, Rebbi Nasan agrees with neither reason of the Tana'im (that Peros are not written in the original Shtar, or that Peros have no set amount). He requires neither "Kesuvim" or "Ketzuvin"; he says that one may collect the Peros from the Lekuchos even when the Peros were not written in the original Shtar and even when there is no set limit to the amount of Peros. Accordingly, Rebbi Nasan agrees with neither of the opinions expressed in the Beraisa cited afterwards. The Tana Kama in the Beraisa clearly maintains that the value of the Peros must be written in the Shtar in order to collect from the Lekuchos. Rebbi Yosi, who argues with the Tana Kama, says that it depends on whether the Peros are "Ketzuvin" or not; there must be a set amount in order to be able to collect from the Lekuchos.

The phrase "Tena'i Hi" usually means that the opinion under discussion is one of two opinions in a Beraisa or Mishnah which the Gemara will now cite. If the Gemara means to say not that Rebbi Nasan's view is the subject of a Machlokes Tana'im, but that the views of Ula and Rebbi Chanina are represented by Tana'im in another Beraisa, the Gemara should say instead, "Inhu d'Amri k'Hani Tena'i" -- "they say like the Tana'im." In fact, since the Gemara seems to say that Ula and Rebbi Chanina are arguing about the same point as the Tana'im in the second Beraisa, the Gemara should have said the usual expression for such a situation: "k'Tena'i," that is, their argument is the same as an argument among Tana'im. Why does the Gemara say "Tena'i Hi"?

2. How is Rebbi Chanina's view consistent with the second Tana (Rebbi Yosi) in the second Beraisa? Although Rebbi Yosi says, "Mipnei she'Ein Ketzuvin," he maintains that this is not related in any way to a Takanah of "Tikun ha'Olam." He says that since the value of Peros is not a set amount, it is not necessary to make a Takanah of "Tikun ha'Olam" in order to prevent their collection from the Lekuchos. Rebbi Chanina, however, clearly says that the Mishnah -- which states that Peros may not be collected from the Lekuchos "because of Tikun ha'Olam" -- means that the Peros are not a set amount. Accordingly, Rebbi Chanina does not share the opinion of Rebbi Yosi. The Gemara should say that the Beraisa of Rebbi Yosi contradicts the view of Rebbi Chanina and it should say, "Tiyuvta d'Rebbi Chanina."

3. Why does Rashi even suggest that Rebbi Chanina might be saying that one may collect a Milveh Al Peh, which has a set amount and is "Katzuv," from Nechasim Meshubadim? The Mishnah in Bava Basra (175a) explicitly states that a Milveh Al Peh may not be collected from Nechasim Meshubadim, and this is the universally accepted opinion. (The logic behind this ruling is that since no Shtar was written, word of the loan does not spread and thus the Lekuchos were unaware that they needed to be cautious about buying the land). Why, then, does Rashi say that according to Rebbi Chanina, the Mishnah maintains that a Milveh Al Peh may be collected from Lekuchos, and that the only reason why the Peros may not be collected from Lekuchos is that they have no set amount?

ANSWERS: Perhaps these questions answer each other. RASHI maintains that there are two different types of "Nechasim she'Einam Ketzuvin," items with values that have no set limit. The first type is items with values that are not known at the time the Shtar was written (such as Peros, whose value was not known at the time of the purchase of the land, since there were no Peros at the time of the purchase), or at the time that the loan was granted. This is the type of "Einam Ketzuvin" which Rebbi Chanina discusses. There is a second type of "Ketzuvin," however, and this is the type which Rebbi Nasan and Rebbi Yosi discuss: when the value of the Peros was not known at the time the Lekuchos purchased the second field from the seller. That is, if the second buyer, who purchased a field from the one who sold a field with Achrayus to the first buyer, purchased the field before there were any Peros on the first field that was sold to the first buyer, certainly it is impossible for the second buyer to be obligated to pay for the Achrayus of the first field since he had no idea how much Peros would grow on the field. This is a second type of "Einam Ketzuvin."

The first type of "Einam Ketzuvin" is an item for which, theoretically, there could be Achrayus and the Lekuchos could be obligated to pay, but because of "Tikun ha'Olam" the Rabanan did not apply this Chiyuv and obligate the Lekuchos, because at the time that the Achrayus was originally stated the amount of the Achrayus was unknown. In contrast, the second type of "Einam Ketzuvin" is when the amount is unknown at the time that the second Lekuchos purchased their field (i.e. at the time of the purchase of the field from which the Peros will be collected). In such a case it certainly is not possible to collect the Achrayus from the Lekuchos, and the reason is not related at all to "Tikun ha'Olam." This is the case which Rebbi Nasan and Rebbi Yosi discuss.

According to this approach, all of the questions on Rashi may be answered. The first question that Tosfos asks is that Rebbi Yosi in the second Beraisa does not seem express the same view as Rebbi Nasan, because he seems to follow the logic of "Mipnei she'Einam Ketzuvin" and that the ability to collect Peros from Lekuchos definitely depends on whether the Peros have a set amount or not. Rebbi Nasan, in contrast, maintains (according to Rashi) that the ability to collect Peros from Lekuchos is unrelated to whether they have a set amount or not. This is no longer a question; when Rebbi Yosi says that the Peros must have a set amount in order to collect them from the Nechasim Meshubadim, he means that their value must be "Katzuv" at the time of the purchase of the second field by the second buyer. Rebbi Nasan agrees with this; their value certainly must be "Katzuv" by that point in time in order to collect from the Lekuchos. When Rashi writes that Rebbi Nasan says that it does not depend on whether or not the value of the item is "Katzuv," he means that it does not depend on whether or not the value is known at the time of the purchase of the first field, at the time that the field was sold with Achrayus, in contradistinction to the opinion of Rebbi Chanina (who requires that the value of the Peros be known at the time of the purchase of the first field in order to collect it from Lekuchos). Rebbi Nasan certainly does not agree with the opinion of Rebbi Chanina, and neither does Rebbi Yosi. This is why the Gemara says that Rebbi Nasan's opinion is a Machlokes Tana'im ("Tena'i Hi"); Rebbi Nasan follows the view of Rebbi Yosi.

Why does Rebbi Chanina say that the reason of "Einam Ketzuvin" is related to "Tikun ha'Olam," when Rebbi Yosi says that the reason of "Einam Ketzuvin" is not related to "Tikun ha'Olam" but rather "Einam Ketzuvin" is a stronger reason than a Takanah of "Tikun ha'Olam" and is unrelated to "Tikun ha'Olam"? The answer is that Rebbi Yosi is not discussing the same "Einam Ketzuvin" that Rebbi Chanina discusses! The "Einam Ketzuvin" which Rebbi Yosi discusses indeed is unrelated to "Tikun ha'Olam"; it is obvious that the value of the item of the Achrayus must have been established at the time the second Lekuchos purchased their field, because, otherwise, how can Beis Din force them to pay for whatever grows after their purchase? In contrast, the reason of "Einam Ketzuvin" of Rebbi Chanina certainly is related to "Tikun ha'Olam"; since there was no set amount at the time of the purchase of the first field, although a known amount of fruits grew afterwards before the second Lekuchos bought their field, nevertheless the Rabanan instituted that the Lekuchos do not have to pay for that Achrayus because of "Tikun ha'Olam."

It is now clear that the second Beraisa does not contradict the opinion of Rebbi Chanina at all. Rebbi Chanina and Ula certainly argue with Rebbi Yosi and follow the Tana Kama of that Beraisa. Ula says exactly like the Tana Kama, that the "Tikun ha'Olam" is because the Peros are not written in the Shtar. As far as Rebbi Chanina is concerned, the Gemara answers its original inquiry and concludes that Rebbi Chanina requires both "Kesuvim" and "Ketzuvin," meaning that in addition to the fact that the Peros must be written in the Shtar, there also must be an established, known value for the Achrayus at the time the Shtar is written, at which time word goes out about the Shibud on the land. Without both conditions, the Rabanan would not obligate the Lekuchos to be responsible for the Achrayus if there is no set amount and it could end up being a very large amount. Rebbi Chanina says that in addition to the reason given by the Tana Kama in the Beraisa (the reason of "Mipnei she'Einam Kesuvim"), it is logical to suggest that the Rabanan's Takanah of "Tikun ha'Olam" was also "Mipnei she'Einam Ketzuvin" because it is not known how much the value of the Peros (or Shevach) will be, as it could end up being an astronomical sum.

This also answers the third question. Why does Rashi suggest that according to Rebbi Chanina there is a possibility that a Milveh Al Peh can be collected from Nechasim Meshubadim, when an explicit Mishnah states that a Milveh Al Peh cannot be collected from Nechasim Meshubadim? The answer is that Rashi suggests only that a Milveh Al Peh which is Katzuv (a Milveh Al Peh whose amount is known at the time of the loan) can be collected from the Meshubadim. Such a loan should be collected from Meshubadim according to Rebbi Chanina. Rashi means that it is obvious that even if a Milveh Al Peh can be collected from Nechasim Meshubadim (according to Rebbi Chanina), only a Milveh Al Peh which is executed in front of two witnesses may be collected from Nechasim Meshubadim, because Rebbi Chanina maintains that two witnesses will spread the word about the loan even though it is not written in a Shtar. What, though, does the Mishnah in Bava Basra mean when it says that a Milveh Al Peh cannot be collected from Nechasim Meshubadim?

The Mishnah in Bava Basra means that a Milveh Al Peh which has no set limit cannot be collected from Meshubadim. An example of a Milveh Al Peh with no set limit is a case of an uncapped credit facility, whereby a person says to his friend in front of witnesses, "I want to borrow money from you. Right now I will borrow 100 Zuz, but I will continue to borrow from you later, and any additional amount that I continue to borrow from you shall make my property Meshubad, and you may collect your loan to me from that property." Later, when the witnesses are no longer present, the borrower continues to borrow more money from the lender. This is a case of a Milveh Al Peh that is not "Katzuv," that has no set amount. In such a case, even if the borrower admits in front of witnesses that he owes the lender a large sum of money and that he borrowed more money prior to date on which the Lekuchos purchased the field from him (and therefore at the time of the purchase, the Lekuchos knew that there was a large Shibud on his property), nevertheless Rebbi Chanina rules that the lender may not collect from Nechasim Meshubadim because the Rabanan did not allow a person to create a Shibud which is potentially unlimited at the time that of its creation. Witnesses who spread the word about the loan at the time the Shibud is created spread only the word for the specific amount that they saw. Any future amount will be difficult to determine, and therefore the Shibud that was created cannot apply to the property for any amount that was not known at the time the Shibud was created.

This is the intent of the Mishnah in Bava Basra, according to the way Rashi explains the Gemara here. The Mishnah says that a Milveh b'Shtar can be collected from Nechasim Meshubadim, because the Shtar already has an amount written in it upon which the witnesses signed. When the Mishnah there discusses a Milveh Al Peh, it refers to any loan in which the full amount of the loan is not yet known when the witnesses observe the loan, because the borrower stipulated that he will continue to borrow more money from the lender. Since there is no set amount stipulated, such a loan cannot be collected from Nechasim Meshubadim, because at the time of the creation of the Shibud the actual value of the Shibud is not known.

The Gemara here concludes that Rebbi Chanina requires both "Kesuvim" and Ketzuvin." Consequently, no Milveh Al Peh can be collected from Nechasim Meshubadim, even according to Rebbi Chanina.