1)

WHEN DOES GILUY DA'AS HELP? [Giluy Da'as]

(a)

Gemara

1.

Question: If a man sold land because he needed money, then found that he did not need the money, can he retract the sale?

2.

Answer: There was an inflation in Nehardai. Everyone sold his house. In the end, wheat came. Rav Nachman ruled that everyone gets his house back.

3.

Rejection: There, the sale was a mistake. Ships with wheat had already come.

4.

The Halachah is, if one sold and in the end he did not need the money, he may retract the sale.

5.

Kidushin 49b: A man sold his property, intending to settle in Eretz Yisrael; he did not say this at the time of the sale.

6.

(Rava): Devarim sheb'Lev (unspoken intents) have no bearing in law.

7.

50a: A man sold his property with intention to ascend to Eretz Yisrael. He went, but was unable to settle there.

8.

Version #1 (Rava): Anyone that goes intends to settle. Since he was not able, the sale is void.

9.

Version #2: He stipulated that he was going to Eretz Yisrael. He fulfilled this!

10.

A man sold his property with intention to ascend to Eretz Yisrael. He never went.

11.

Version #1 (Rav Ashi): He could have gone if he wanted. (The sale stands.)

12.

Version #2: Nothing stopped him from going! (The sale stands).

13.

The two versions argue about if there were (surmountable) problems on the way.

(b)

Rishonim

1.

Rif: The Halachah is, if one sold and in the end he did not need the money, he may retract if he was Megaleh Da'as (revealed his intent) that he sells because he needs money for a particular reason. If not, the buyer need not go back, for these are Devarim sheb'Lev, which are invalid. We learn from Kidushin.

2.

Rambam (Hilchos Mechirah 11:8): If Levi sold his Chatzer or field and specified that he sells in order to go to Ploni (a certain place), or there was a drought and he needs to buy wheat, this is like selling on condition. Therefore, if rain came after he sold or wheat came and the price lowered, or it became infeasible to go to Ploni, or he was unable to go or to buy wheat, Levi returns the money and gets back his land. This is because he specified that he sells only for this reason, and it was not done. The same applies to all similar cases.

i.

Magid Mishneh: We learn about one who was unable to go from the man who was unable to settle in Eretz Yisrael.

ii.

Question (Lechem Mishneh): These different cases! Perhaps the Magid Mishneh holds that the Rambam rules like Version #2, and wrote 'was unable to go' to teach that if he went the sale stands, even if he could not settle. I see no reason to explain this way.

iii.

Answer (Mishneh l'Melech): One might have thought that he can retract only if it became infeasible to go on the road, but not if an Ones due to the man himself stopped him. The Magid Mishneh learns from the man who could not settle that even an Ones due to the man is grounds to retract.

iv.

Magid Mishneh (9): The Rambam agrees with those who say that a Giluy Da'as beforehand does not help. He must specify at the time of the sale.

3.

Rosh (11:9): The Halachah is, if one sold and in the end he did not need the money, he may retract. This is if he gave a Giluy Da'as at the time of the sale that it is for this need. If he was quiet at the time of the sale, even if he gave a Giluy Da'as earlier, this is Devarim sheb'Lev. The sale stands, like it says in Kidushin.

i.

Ran (Kidushin 20b DH ha'Hu): The Gemara discusses one who was Megaleh Da'as at the beginning. If not, even if Devarim sheb'Lev counted, he would not be believed!

ii.

Note: Perhaps we teach about when the buyer trusts the seller!

4.

Rosh (ibid.): Some matters do not need even Giluy Da'as, for we can testify about his intent, e.g. a document to divert property from her husband, Matanas Shechiv me'Ra, vows of persuasion... However, if one sold and later he did not need the money, or he sold in order to go to Eretz Yisrael, even if he was Megaleh Da'as at the beginning and all know why he sells, he needs a Giluy Da'as at the time of the sale. We cannot testify about his intent. Often, people sell land and we do not know why. The sale is Batel only if he did not need the money due to a new development, e.g. he sold to buy wheat, and later, wheat came. Or, Levi sold to buy an item, and the owner decided not to sell it. If Levi retracted and does not want to buy, he cannot Mevatel his sale. We learn from one who sold with intent to go to Eretz Yisrael. Since he could have gone if he wanted, his sale stands.

5.

Rosh (Kidushin 2:15): Rashi explains that he sold land with intent to go to Eretz Yisrael. Normally, one sells the land from which he supports himself only if he intends to relocate. Had he sold Metaltelim, even had he specified at the time of the sale that he intends to go to Eretz Yisrael, his sale would stand unless he stipulated. Sometimes a person sells his Metaltelim even if he will stay here.

i.

Hagahos Ashri (Kesuvos 11:9): It is a Safek whether or not Giluy Da'as helps for Metaltelim. Therefore, one cannot take from the buyer.

6.

Rosh (16): In the latter two cases, the Halachah follows Version #2. (In case 1, since he went to Eretz Yisrael, even though he was not able to settle, he cannot retract. In case 2, if he cannot go without difficulties, he can retract.)

i.

Beis Yosef (CM 207 DH v'Im Piresh and DH v'Im Ye'era): The Rif brought both versions of both cases. Also the Rambam did not specify which versions we follow. Tosfos explains 'if he wanted, he could not go' simply. We infer that if he had any way to go, even through hiring a guide, he cannot retract.

(c)

Poskim

1.

Shulchan Aruch (CM 207:3): If Levi sold his Chatzer or field and specified that he sells in order to go to Ploni, or there was a drought and he needs to buy wheat, this is like selling on condition. Therefore, if rain came after he sold or wheat came and the price lowered, or it became infeasible to go to Ploni, or he was unable to go or to buy wheat, Levi returns the money and gets back his land. This is because he specified that he sells only for this reason, and it was not done. The same applies to all similar cases.

i.

Question (Shach 4): The Tur says that if one sold 'in order to live in Ploni', since he went, even though he was not able to settle, he cannot retract. This cannot be! Surely, they argue only about one who sold 'to ascend!'

ii.

Answer (Taz): The text of the Tur should say 'to go to live', like he wrote in Piskei ha'Rosh. The Tnai was that he go, for the sake of living. Had he said 'to go and to live', it would depend also on settling. Even if he meant this when he said 'to go to live', this is Devarim sheb'Lev.

iii.

Question (Beis Yosef DH v'Chen): The Rosh says that we know that the sale is Batel only because he was Megaleh Da'as. In a Teshuvah (81:1), the Rosh says that one who sold and did not need the money is a case of a conclusive assessment in which even a Giluy Da'as is not needed!

iv.

Answer (Bach DH Hiksheh): The Teshuvah holds, like Rashi, that a Giluy Da'as at the beginning suffices, even if he did not mention it at the time of the sale. The Rosh later retracted. We follow his Pesakim, which came later.

v.

Beis Yosef (DH Kosav ha'Rashba): The Rashba says that whenever a proper Tnai would enable one to retract, a Giluy Da'as does also, even after years. The man who was unable to settle in Eretz Yisrael retracted after a long time.

vi.

R. Yerucham (Nesiv 10:1:33b, cited in Beis Yosef DH Kosav Rabbeinu): According to Rebbi, if an Ones occurred and he could not go immediately, even if he will be able to go with a caravan later, he can retract. He intended to go without hindrance. According to Rav Hai Gaon, even if he could have gone and an Ones occurred later, he can retract. I do not know for how long we say that an Ones allows him to retract.

vii.

Darchei Moshe (4): The Rivash (102) says that if one stipulated about something and later wrote a document Stam, it is based on the Tanai.

2.

Rema: This applies only to a sale of land. Giluy Da'as does not help for sale of Metaltelim. He must make a proper Tanai.

i.

Tur (230:5): R. Yonah says that if Levi bought wine, even if he specified that he wants to bring it to Ploni (to sell), and wine became cheaper before he arrived, the sale stands. If one sold with intent to ascend to Eretz Yisrael and was unable to, his sake is Batel. We say so only about a seller. The need for money forced him to sell. However, R. Chananel does not distinguish buying from selling. The Ramah agrees, but only if he specified not to pay for the wine until reaching Ploni, for surely he intended to find wine selling there for the usual high price. It is as if he made a Tanai.

ii.

Question: In Siman 207, the Tur cited Rashi and R. Chananel that Giluy Da'as helps only for land!

iii.

Answer #1 (Drishah 230:5): Giluy Da'as helps for land, because one sells his land only if he will relocate. Similarly, one buys (much) wine only in order to sell it for a profit elsewhere. Still, we distinguish, for a buyer was not forced. He chose to buy, hoping to profit; he knows that sometimes one loses.

iv.

Answer #2 (Drishah 207:7): One who buys Metaltelim is like one who sells land (surely, he buys only in order to sell it for a profit elsewhere).

OTHER D.A.F. RESOURCES
ON THIS DAF