דף 169

Rav Pappa or Rav Ashi said to them: Do not draw this conclusion. It is possible that the tanna of the baraita holds that generally the court writes a receipt when a creditor has lost his promissory note. And here, this is the reason that it does not write a receipt: As, perhaps the creditor, i.e., the one from whom the property was stolen, will go and repossess property from the purchaser who bought the stolen land, and the purchaser, seeking reimbursement in accordance with the guarantee, will go and repossess property from other purchasers who had later bought property from the same seller. And the receipt will not help, because it is not with the purchasers who bought property from the seller, but is in the possession of the seller himself. The purchasers, who are the ones who will suffer from the double collection, have no protection; they will in fact not even be aware that they are the victims of a double collection.

The Gemara asks: Ultimately, don’t these purchasers go back to the owner, i.e., the seller, of the land to demand reimbursement? At that point the seller will produce the receipt, exposing the double collection, and the entire process will be reversed, so that ultimately the purchaser who suffered from the unjust collection will obtain possession of his property.

The Gemara answers: While it is true that ultimately the deception will be discovered, in the interim, between the time the land was unjustly repossessed from the purchaser and the time when the injustice is reversed, the one who repossessed the land seizes the land and consumes its produce, i.e., he enjoys the profits produced by the land, and it will be difficult to receive full reimbursement for this stolen produce.

Alternatively, the reason the option of writing a receipt for the seller of the land is not pursued here is that there is a concern about one who purchases land without a guarantee. As such a purchaser knows that he has no recourse to be reimbursed from the seller if the land he bought is repossessed, he will never contact the seller and discover that the seller has a receipt and that he has been the victim of an unjust double collection.

The Gemara asks: If so, the same concern should be taken into consideration in the case of promissory notes as well. And yet Rav Pappa, or Rav Ashi, said that the tanna of the baraita concedes that a receipt may be written for the debtor to enable the collection of a debt in the event of the loss of the promissory note. Why are the aforementioned concerns not applicable to the case of debt collection?

The Gemara answers: There, where the debtor owes money, when the creditor seeks to repossess sold land, the purchaser of that land will say to himself: There is a possibility that the debtor appeased the creditor by paying him money, since debts are usually settled with money. I will therefore investigate the matter with the debtor before allowing the creditor to repossess my land. At that point the receipt, held by the debtor, will be discovered, and double collection will be prevented. Here, where he owes land, as the issue is that the claim is based on reimbursement for having bought stolen land, the purchaser knows that it is not common for one who is owed land to be appeased with money in such cases. The purchaser will therefore allow his land to be repossessed and will seek reimbursement at a later time.

§ The Gemara returns to the baraita and analyzes one of its statements. The Master says in the baraita: With regard to deeds of buying and selling land, the court may write a replacement document, excluding the guarantee that was in the first document that if the field is repossessed the seller will compensate the purchaser for his loss. How do we write a bill of sale in such a way that it does not include this guarantee? Rav Naḥman said that the case is one in which the court writes as follows: Our deed is not intended to enable the collection of reimbursement in event of repossession, neither collection from liened property that has been sold nor collection from unsold property; rather, it is intended merely to ensure that the land is established in the possession of the purchaser.

Rafram says: This statement of Rav Naḥman serves to say that the omission of the guarantee of the sale from a document is a scribal error. That is, it is assumed that when one purchases land he expects to have his purchase guaranteed, and that if such a clause is not stated in the document it is presumed to be a mere scribal oversight, and a guarantee is in effect. Rav Naḥman said, in explaining the baraita, that the only reason a land purchase would not have a guarantee is that the scribe wrote this for him, i.e., he wrote that there is no guarantee, explicitly in the deed; this indicates that if the scribe did not write this explicitly for the purchaser, but left out the subject of the guarantee altogether, the purchaser would nevertheless have the guarantee and would be able to collect reimbursement from the seller in the event of repossession.

Rav Ashi disagrees and says: The omission of the guarantee of the sale from a document is not a scribal error. Accordingly, if mention of a guarantee is omitted from a bill of sale, there is in fact no guarantee. And what does the baraita mean when it says: Excluding the guarantee that was in the first document? It means simply that in this case there was no clause about a guarantee written in it at all.

The Gemara relates: There was a certain woman who gave money to a certain man to act as her agent and purchase land for her. The agent went and purchased land for her, but he conducted the purchase in such a way that it was without a guarantee. The woman wanted to take action against the agent and came before Rav Naḥman to ask what recourse she had.

Rav Naḥman said to the agent: The principle with regard to an agent is that if he acts to the detriment of the one who appointed him, the one who appointed him can say: I sent you to act for my benefit and not to my detriment. Therefore, the entire agency is null and void, thereby negating the purchase. Nevertheless, you agreed to purchase the land without a guarantee. Therefore, go yourself and purchase the land from him without a guarantee, and then sell it to this woman with a guarantee that you will reimburse her in the event the land is repossessed.

§ The baraita teaches that Rabban Shimon ben Gamliel says: In the case of one who gives a gift of land to another, and the recipient returned the deed to him, his gift of land returns to him as well. But the Rabbis say: His gift of land remains in the possession of the recipient. The Gemara asks: What is the reason for the opinion of Rabban Shimon ben Gamliel? Rav Asi says: It becomes as if the giver said to the recipient: This field is given to you only as long as the deed remains in your possession. Therefore, by returning the deed to the giver, the recipient is canceling the gift.

Rabba objects to this: If that is so that these are the conditions of the gift, then when the deed is stolen from or lost by the recipient, the gift should also be canceled.

Rather, Rabba said a different explanation: Rabban Shimon ben Gamliel and the Rabbis disagree about whether or not the letters, i.e., the contents of a promissory note, are acquired by merely transferring the document from one holder of the document to another. Rabban Shimon ben Gamliel holds that the letters are acquired by transferring the document. Therefore, if the recipient returns the bill of sale to the giver, the land returns to the giver as well. And the Rabbis hold that the letters are not acquired by transferring the document.

The Sages taught in a baraita: With regard to one who comes to court to be judged over a claim that land that is in his possession belongs to another, if he claims ownership based on a deed, i.e., a bill of sale, and claims further that he is the owner based on presumptive ownership of the land, as it was in his uncontested possession for three years, and he therefore does not need the deed as proof, his claim is judged based on the deed. This is the statement of Rabbi Yehuda HaNasi. Rabban Shimon ben Gamliel says: His claim is judged based on his presumptive ownership.

The Gemara analyzes the baraita: With regard to what do Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel disagree? When Rav Dimi came from Eretz Yisrael to Babylonia he said: They disagree about whether or not letters are acquired by transferring the document from one holder of the document to another.