בבא בתרא דף מז ע"ב

[It is needed] for a woman who is “divorced and not divorced,”^[1] and in line with Rabbi Zeira.

מגורשת ואינה מגורשת - For example, where he threw her a get and it is doubtful whether it landed closer to her or closer to him, so that her husband is obligated to support her until he gives her a certain get, as Rabbi Zeira says. One might have said: since she is “divorced and not divorced,” she is still his wife and he is obligated to support her, and the husband left this land in her hands so that she should be fed from its produce, so it is no chazakah. [The beraisa] teaches us that it is a chazakah: since he has begun divorcing her and he hates her, he would not set aside land for her support; rather he would give her food grudgingly and sparingly, when the court compels him.

For Rabbi Zeira said in the name of Rabbi Yirmeyah bar Abba in the name of Shmuel: Wherever the Sages said “divorced and not divorced,” her husband is obligated to support her.

חייב במזונותיה - Because she is still bound to him.

Rav Nachman said: Huna told me: All of them who brought proof — their proof is proof, and we establish the field in their hands.^[2]

וכולן - The craftsman, the sharecropper and all those listed above, of whom we said that they have no chazakah.

ראיה - A deed of sale or witnesses to the sale.

ראייתן ראיה - This is obvious; he states it only for the sake of the next clause.

A robber who brought proof — his proof is not proof, and we do not establish the field in his hands.^[3]

גזלן שהביא ראיה - Witnesses to the sale or witnesses to [the owner’s] admission, but they did not see money being paid.

אין ראייתו ראיה - As Rav Kahana [says]: were it not that [the owner] admitted to him, or wrote him a deed of sale, [the robber] would have handed him and his donkey over to the Shachvar.^[4] But if the robber gave him money in front of witnesses, his proof is proof, as Rav Huna says further on: “If they hung him and he sold, his sale is a sale.” And although Rav Bibi further on explains this ruling as applying even where the robber gave money to the victim, and even so the robber did not acquire — we say later in our sugya that Rav Bibi’s is an Amora’s own statement, and Rav Huna does not hold of that statement; and in our sugya we hold like Rav Huna.

ואין מעמידין שדה בידו - Nor in the hands of anyone who comes on his strength, such as the robber’s son or one who bought from the robber.

What does he teach us? We have already learned it:

מאי קמ"ל - [What does] Rav Huna [teach us], that a robber and anyone who comes on his strength — their proof is not proof, and they do not acquire?

תנינא - In Tractate Gittin, in the chapter HaNizakin.

“If one bought from a sikarikon and then bought again from the owner, his purchase is void”?^[5]

לקח מסיקריקון - From a gentile robber who kills people over money matters, who says to him: “Give me this land and I will let you go.” Such a gift is no gift, for even according to the one who says “If they hung him and he sold, his sale is a sale,” if they hung him and he gave [it as a gift], it is no gift. The reason is explained in Gittin: three decrees were made. [The first: whoever did not kill shall be killed. The middle one: whoever kills must bring four zuz.] The last: whoever kills shall be killed. Under the first and the middle decrees, since gentiles would kill a Jew, because of his duress he made up his mind and transferred [the land]. Under the last decree, he says: “Let him take it now, and tomorrow I will sue him in court.” Therefore the sikarikon does not acquire, for he gave no money but robbed it for nothing. The one who buys from him also does not acquire, for land cannot be stolen, and it is still in the possession of its first owner. And even if he went back and bought from the owner, who wrote him a deed (as explained further on), whether as a gift or with a deed of sale without money — for if he gave money to the owner he does acquire, as Rav Huna holds, since even the sikarikon himself would acquire had he given money to the victim, as is proven further on in our sugya regarding Rav Huna’s statement, for he holds “If they hung him and he sold…” — even so the buyer does not acquire, for it was out of fear of the sikarikon that [the owner] transferred it to the buyer. And since the proof of one who bought from a robber is not proof even when he went back and bought from the owner, all the more so the robber’s own proof is not proof, for [the owner] wrote him the deed out of fear and never received payment from the robber, that we should say “his sale is a sale.”

[No; he comes] to exclude the view of Rav.

ומשני לאפוקי מדרב - [The Gemara] answers: to exclude the view of Rav — Rav Huna came [to teach this].

For Rav said: They taught this only where [the owner] said to him, “Go, take possession and acquire”;^[6]

דאמר רב - On that Mishnah.

but with a deed, he acquires.

לא שנו - That where he went back and bought from the owner, his purchase is void — only where [the owner] said to him before witnesses, “Take possession and acquire,” and did not receive money before witnesses, that we should say “his sale is a sale,” as below, and the owner also did not write the buyer a deed. But if he wrote him a deed, he certainly transferred it to him. And Rav Huna comes to say that a robber who brought proof, even with a deed, his proof is not proof, as Shmuel holds.

He teaches us [the law] like Shmuel, who said: Even with a deed he does not acquire, until [the owner] writes a guarantee on his property.^[7]

אף בשטר לא קנה - For he wrote it for him out of fear of the sikarikon.

And Rav Bibi concludes it in the name of Rav Nachman: [The robber] has no [claim to the] land, but he does have [a claim to his] money.

ורב ביבי מסיים - [Concludes] this statement that Rav Nachman said, “Huna told me.”

משמיה דרב נחמן - That Rav Nachman would add this point on his own. But Rav Huna does not hold of this addition, as [we see] further on in our sugya, for wherever money was paid, Rav Huna holds that it is a valid sale. And [Rav Bibi] is not referring to Rav and Shmuel, for in Tractate Gittin, in HaNizakin, where their dispute appears, Rav Bibi is not mentioned there at all.

קרקע אין לו - The robber [has no land], as we said: we do not establish the field in his hands.

אבל מעות - That the robber gave the victim as payment for this land — he has [a claim to] them, so that the victim must return them to him; we do not penalize the robber by making him lose his money. And we learn from here that Rav Bibi holds that if they hung him and he sold, his sale is not a sale. That is what we say further on, that Rav Huna does not hold of Rav Bibi’s [ruling].

When was this said? When witnesses said, “In our presence he counted out [the money] to him.” But if witnesses said, “In our presence he admitted to him” — no.

בד"א - [When was it said] that he has [his] money? For example, where witnesses said, “In our presence the robber counted out [the money] to the victim and gave him the money,” or they wrote in the deed, “We saw that he gave him the money” — for out of fear of the sikarikon-robber, witnesses would not testify and write a falsehood.

אבל אמרו עדים בפנינו הודה לו - [That is, the victim admitted] to the robber that he had received the payment from him, or they wrote in the deed of sale: “And thus he said to us: Be my witnesses that I received the payment from him and sold to him” — he does not return money to the robber.

In line with Rav Kahana, who said: Were it not that he admitted to him, he would have handed him and his donkey over to the Shachvar.

כדרב כהנא כו' - And this is the conclusion of Rav Bibi’s statement.

Rav Huna said: If they hung him and he sold, his sale is a sale.^[8]

תליוהו וזבין - One whom they hung up, or on whom they inflicted suffering, until he sold and received the payment, and he says, “I am willing.”

זביניה זביני - And he cannot retract; the Gemara goes on to explain the reason. Some read תלוה, and Rabbeinu Chananel^[9] wrote תליוהו. And this is specifically a sale; but a gift is no gift, for since he receives nothing he does not make up his mind to transfer it, as is proven further on, where we say: “Shmuel concedes where he gave money.”

What is the reason?

Whatever a person sells — were he not compelled, he would not sell; and even so, his sale is a sale.

דכל דמזבין איניש - Most objects, the furnishings of his house and his cloak, that a person sells — were he not under pressure and short of money, he would not sell them; and even so his sale is a sale against his will, even though he did not wholeheartedly transfer them. For the Torah made no distinction in buying and selling between things he needs and sold and things he does not need; in every case the buyer acquires. So too here: although the seller is coerced, the buyer acquires, since [the seller] received payment, even though he did not wholeheartedly transfer it.

But perhaps duress of one’s own [circumstances] is different from duress imposed by others?

שאני אונס דנפשיה - That he needs money, and therefore sells his objects of his own will; there one can say he made up his mind and transferred them.

מאונסא דאחריני - Where they force him to sell; there he did not make up his mind to transfer it.

Rather, [the source is] as was taught in a beraisa:^[10]

Tosfos

מגורשת ואינה מגורשת בעלה חייב במזונותיה - That is, where he set aside a different field for her [support]. For otherwise she has no chazakah: since she is entitled to support, it is as support that she ate [the produce], as we say further on.

ראייתן ראיה ומעמידין שדה בידן - It seems to the Rashba that he states both [clauses] because he wants to teach regarding a robber, “his proof is not proof, and we do not establish the field in his hands,” where both were needed. For had he taught only “his proof is not proof,” I would have said that his proof is not proof [only] in that we do not establish the field in his hands, but he does have [his] money. For I would not have given the reason “were it not that he admitted to him, he would have handed him and his donkey over to the Shachvar”; rather we would have explained the reason as being that if they hung him and he sold, his sale is not a sale, even if he counted out money to him. Therefore he states both, [to teach] that his proof is no proof at all, so that he does not even have [a claim to his] money, the reason being “were it not that he admitted to him…” And this “all of them,” it seems to the Rashba, refers also to a son who did not divide [the estate] and a wife who was not divorced. And although it says further on [regarding a wife in her husband’s property] that she wanted to reveal [hidden] money, since we have set the case in an admission, revealing money does not apply to it. Moreover, it is implied further on that Rav Huna and Rav Nachman hold that we do not say she wanted to reveal money.

ומעמידין שדה בידן - Regarding a craftsman too, [mention of a] field applies, for example if he is a builder.

אבל בשטר קנה - This refers also to one who bought from the husband and then bought from the wife, as is evident in the Mishnah in HaNizakin (Gittin 58b, see there). It is difficult, for it is taught at the end of [the chapter] Mi Shehayah Nasui (Kesubos 95a, see there, Tosfos s.v. Vechasvah): “If she wrote to the first and did not sign for him, [and wrote] to the second and signed for him, she has lost her kesubah” — specifically because she did not sign for the first; but had she signed for the first she would not have lost her kesubah, as is evident there, even though she wrote a deed. And it seems to the Ri that Rav’s statement “with a deed he acquires” can be set in a deed of proof written after the kinyan: since after the kinyan she made a deed, she has strengthened his position so much that he acquires. And that [case] in Kesubos speaks of a deed of gift with no other kinyan but the deed. Alternatively, “she signed” there is an expression of finality, like “they sealed” regarding the essential part of gittin, and like “the Torah was given sealed” in HaNizakin (Gittin 60a) — meaning that she finalized the sale and agreed orally; or else she literally signed, on the husband’s deed. And Rav’s statement “with a deed he acquires” means that she made a deed of sale in her own name. And it stands to reason that Rav’s reason is like Shmuel’s reason, who says in HaNizakin (ibid. 58a, see there, Tosfos s.v. Aval): “Even with a deed he does not acquire, until she writes him a guarantee”; and Shmuel follows his own view, as he said in the first chapter of Bava Metzia (14a, see there) that “[an omitted] guarantee is not a scribal error”^[11] in deeds of buying and selling, whereas Rav holds that [an omitted] guarantee is a scribal error. But it is somewhat difficult, for further on [the Gemara] challenges Rav Huna, who said “If they hung him and he sold, his sale is a sale,” from Shmuel’s statement “even with a deed he does not acquire”; and if the matter depends on the guarantee, why is Shmuel more difficult for him than Rav?

ורב ביבי מסיים בה כו' - The wording is somewhat difficult, for Rav Bibi disagrees [with Rav Huna], as we say further on; and Rav Huna does not speak of this case but of [where the owner] admitted, not of [where the robber] counted out [money].

Notes

1. 1. This continues from 47a. A chazakah is proof of ownership through three years of undisputed use of a field. A beraisa there taught that a divorced woman is like anyone else, so her use of her former husband’s field does count. The Gemara asked why that needs saying, and answers: it speaks of a woman whose divorce is in doubt, whom her husband must still support.
2. 2. “All of them” are those listed in the Mishnah (42a) and the beraisa — craftsmen, sharecroppers, guardians, partners, husband and wife — whose use of a field gives no chazakah. Their use proves nothing, but a deed or witnesses to a sale do prove their purchase.
3. 3. A robber here is one known to have seized this field by force, or one of a family that kills over money (47a). Even a deed or witnesses do not help him, since the owner may have sold or admitted only out of fear.
4. 4. The Shachvar, as it is generally explained, was a gentile official to whom a violent robber could hand the owner over. Rav Kahana’s point: the owner’s admission that he sold was made only out of fear, so it proves nothing.
5. 5. The Mishnah in Gittin [Gittin 55b]. A sikarikon is a gentile who seized land under threat of death. One who bought the land from him and then bought it again from the owner has a void purchase, since the owner sold it only out of fear.
6. 6. Rav’s statement on that Mishnah [Gittin 58a]: the purchase is void only where the owner merely said, “Go, take possession and acquire”; if he wrote the buyer a deed, the buyer acquires.
7. 7. A guarantee on property (achrayus nechasim): the seller pledges his own lands, so that if the field is taken from the buyer he can collect from them. One who sells only out of fear would not take on such a guarantee, so writing it shows a true sale (Shmuel, Gittin 58a).
8. 8. “If they hung him and he sold”: one who was hung up or tortured until he agreed to sell. Since he received payment, the sale stands. This applies only to a sale; a gift given under such duress is no gift (Rashbam).
9. 9. Rabbeinu Chananel ben Chushiel of Kairouan, North Africa, one of the earliest commentators on the Talmud; the Rishonim often cite his readings.
10. 10. The beraisa is quoted at the start of the next amud [Bava Basra 48a]: from “he shall offer it … of his own will” (Vayikra 1:3) we learn that one who owes an offering is coerced until he says, “I am willing.” Consent obtained under pressure still counts as consent.
11. 11. Rav and Shmuel [Bava Metzia 14a] dispute a deed of sale that lacks the guarantee clause: Rav holds the omission is a scribal error and the guarantee applies anyway; Shmuel holds it is no error, and the buyer has no guarantee.