[16a - 51 lines; 16b - 53 lines]
1)[line 2]בהדי בניBAHADEI BANEI- with regard to the sons [of the purchaser]
2)[line 8]קרו לבניהKARU LI'VNEI- others will call his sons
3)[line 9]דיהבה במתנהD'YAHAVAH B'MATANAH- he [had not sold it, but rather] had given it as a present
4)[line 13]פשיטאPESHITA- [the following] is clear
5a)[line 13]זבנהZAVNAH- if [(a) before (RASHI); (b) either before or after (RAMBAM Hilchos Gezeilah 9:11 cited by the HAGAHOS HA'GRA) purchasing it from the original owner, the thief] sold [the field to one other than the purchaser]
b)[line 13]אורתהURTAH- if [(a) before (RASHI); (b) either before or after (RAMBAM Hilchos Gezeilah 9:11 cited by the HAGAHOS HA'GRA) purchasing it from the original owner, the thief] bequeathed [the field to one of his heirs]
c)[line 13]יהבה במתנהYAHAVAH B'MATANAH- if [(a) before (RASHI); (b) either before or after (RAMBAM Hilchos Gezeilah 9:11 cited by the HAGAHOS HA'GRA) purchasing it from the original owner, the thief] gave [the field] as a present [to one other than the purchaser]
6)[line 14]נפלה ליה בירושהNAFLAH LEI B'YERUSHAH- if it fell to him as an inheritance (as he had stolen it from one whom he was in line to inherit)
7)[line 15]ולאו איהו קא טרח אבתרהV'LAV IHU KA TARACH A'BASRAH- it was not he who had toiled after it [such that we would assume that he did so since he did not wish to be known as a thief or that he wished to maintain his reputation as a trustworthy individual]
8)[line 16]גבי איהו בחובוGAVEI IHU B'CHOVO- if he collected it as his due (as the original owner owed him money)
9)[line 16](חזינא) [חזינן](CHAZINA) [CHAZINAN]- we look into the matter
10)[line 16]אי אית ליה ארעא אחריתי ואמר, "האי בעינא"IY IS LEI AR'A ACHRITI V'AMAR, "HAI BA'INA"- if [the victim/debtor] had other fields and [the thief/creditor] said, "I want this one"
11)[line 18]זוזי הוא דבעי אפרועיZUZEI HU D'VA'I AFRU'I- he merely wished to collect his money
12)[line 19]יהבה נהליה במתנהYAHAVAH NIHALEI B'MATANAH- if [the original owner] gave it to [the thief] as a present
13)[line 22]ארצי קמיהARTZI KAMEI- and plead before him
14)[line 24]ועד אימת ניחא ליה דליקום בהמנותיה?V'AD EIMAS NEICHA LEI D'LEIKUM B'HEMNUSEI?- until what point do [we assume that that which he pays the original owner for the field is due to that which] he wishes to maintain his reputation as a trustworthy individual?
15)[line 26]עד דמטא אדרכתא לידיהAD D'MATA ADRACHTA L'YADEI- until [the purchaser] receives the document issued by Beis Din that allows him to seize property belonging to the thief/seller. The Gemara in Bava Kama (112b) explains that this is ninety days after the claim is filed.
16)[line 27]עד דמתחלן יומי אכרזתאAD D'MASCHELEI YOMEI ACHREZASA - until the days of publicizing the sale begin (HACHRAZAH)
(a)Before the Gizbar (treasurer) of Hekdesh sells land belonging to Hekdesh, and before Beis Din sells property of a debtor (or his orphans) to pay off a debt, they first publicize the sale through twice-daily announcements. This is to insure that the best possible price is received for the property.
(b)Land belonging to Hekdesh is publicized for sixty days, and that belonging to orphans for either thirty consecutive days or on Mondays and Thursdays for a period of sixty days. The sale is proclaimed both in the morning when workers are on their way to the fields, and in the evening when they are on their way back. The morning announcement gives a prospective buyer the opportunity to send his workers to evaluate the property on their way to work; the evening announcement reminds him to ask his workers about their observations.
(c)The proclamation includes a description of the plot of land, the identification of its boundaries, how much the field produces annually, and the asking price. In addition, if the land is being sold to pay off the debt incurred by the father of orphans, the reason for the sale is announced. This is because some prefer to pay a creditor, who is happy enough to receive his money that he will accept imperfect coins as payment, whereas others prefer to pay a widow (the money owed to her due to her Kesuvah; see Background to 46:32) who is happy to receive her money in small installments.
(d)If the property was sold without a Hachrazah, the sale is invalid. There are certain situations, however, in which money is so urgently required that the land is indeed sold without a Hachrazah. These are:
1.The creditor is charging interest;
2.The land is being sold to pay the head-tax of the orphans;
3.Money is necessary to purchase food for the widow or orphans;
4.Money is necessary to pay for the burial of the father or orphans. (Erchin 21b-22a, Kesuvos 87a)
(e)According to Rav Papa, if the thief pays for the land that he stole before Beis Din announces that it is for sale, even though he did not do so when the true owner had the right to appropriate his land, we still assume that he is doing so on behalf of the purchaser.
17)[line 28]מכדיMICHDI- let us see [how the mechanics of this ruling of Rav work]
18)[line 30]האי שטרא חספא בעלמא הוא!HAI SHETARA CHASPA B'ALMA HU!- that document is [akin to] a [worthless] pottery shard [since it records the sale of a field that did not belong to the seller at the time of the sale]!
19)[line 31]תהא במאמינוTEHEI B'MA'AMINO- let [the ruling of Rav] be [referring to a case] in which [the purchaser] trusted [and relied upon the thief to acquire it on his behalf]
20)[line 31]דלא קאמר ליה מידיD'LO KA'AMAR LEI MIDI- that [the purchaser] said nothing to [the thief]
21)[line 32]גמר ומקני ליהGAMAR U'MAKNI LEI- he decided to transfer it to [the purchaser (a) now when he acquires it from the original owner, and he acquires it on his behalf] (RASHI); (b) at the time of the original sale, and it is as if he had said then "This field will be yours when I purchase it" (TOSFOS DH b'Ha'hi)]
22)[line 33]מה שאירשMAH SHE'IRASH- what I inherit
23)[line 34]מה שתעלה מצודתיMAH SHE'TA'ALEH MI'TZUDASI- what I will entrap in my snare
24)[line 37]הא גברא, והא תיובתא!HA GAVRA, V'HA TEYUVTA!- here is a [great] man, and here is [an equally great] disproof [since it is clear from this Tosefta that one cannot sell that which he does not yet own]!
25)[line 39]הכא סמכא דעתיהHACHA SAMCHA DAITEI- here [in the case of one who purchased a stolen field] he has confidence [in the seller]
26)[line 42]הכא לא סמכא דעתיהHACHA LO SAMCHA DAITEI- here [in the case of one who purchases that which the seller will later inherit or trap] he does not have confidence [that the seller will indeed inherit or entrap anything]
27)[line 43]זו אינה צריכה לפניםZO EINA TZERICHAH LIFNIM- this [question] need not be brought in[to the Beis ha'Midrash, since (a) it is such a good question that I am sure that none will be able to answer it (first explanation of RASHI); (b) the answer is so obvious that it need not be posed to the Talmidei Chachamim there (second explanation of RASHI in the name of the TESHUVAS HA'GE'ONIM)]
28)[line 44]זו צריכה לפנים ולפני לפנים!ZO TZERICHAH LI'FNIM V'LIFNAI LIFNIM!- this [question] certainly must be brought in[to the Beis ha'Midrash, since a) there is certainly an answer (first explanation of RASHI); b) although there is an answer, it is not obvious (second explanation of RASHI in the name of the TESHUVAS HA'GE'ONIM)]!
29a)[line 46]הוה עובדא בפומבדיתאHAVAH UVDA B'PUMBEDISA- there was a case in Pumbedisa (lit. Mouth of Bedisa, which was a canal of the Euphrates river, this Babylonian city was the location of a great Yeshiva) [in which a thief stole and then sold a field, then subsequently paid the original owner. They ruled according to Rav, that the thief paid on behalf of the purchaser]
b)[line 46]ואותביהV'OSVEI- and they attempted to disprove [the ruling from the Tosefta quoted above]
30)[line 50](ו)מאי שנא רישא ומאי שנא סיפא?(U')MAI SHNA REISHA U'MAI SHNA SEIFA?- what is the difference between the first case [of the Tosefta in which one cannot sell that which he has not yet inherited or trapped] and the second case [of the Tosefta in which one is able to sell that which he will inherit or trap later that same day]?
31)[last line]משום כבוד אביוMISHUM KEVOD AVIV- [the Chachamim decreed that one may sell] for the honor of his father [so that he be able to pay for his burial expenses immediately after his death and not leave him unburied for any length of time]
32)[line 1]משום כדי חייוMISHUM KEDEI CHAYAV- [the Chachamim decreed that one may sell] so that he has what he needs in order to live (i.e., to purchase food for that day)
33)[line 3]לכשאקחנה, קנויה לך מעכשיוLICHSHE'EKACHENA, KENUYAH LACH ME'ACHSHAV- when I purchase it, it will belong to you from now; i.e., I cannot back out of this promise
34)[line 4]ב"שדה סתם"B"SADEH STAM"- in [a case in which the purchaser has referred to] a generic field
35)[line 5]מי יימר דמזבין לה ניהליה?MI YEIMAR D'MAZBIN LAH NIHALEI?- who is to say that [the current owner] will sell it to him?
36)[line 6]והאלהים!VEHA'ELOKIM!- this is an oath, signifying the depth of feeling with which a statement is expressed
37)[line 7]אדם מקנה דבר שלא בא לעולםADAM MAKNEH DAVAR SHE'LO BA LA'OLAM - one may sell that which does not yet exist (ADAM MAKNEH / EIN ADAM MAKNEH DAVAR SHE'LO BA LA'OLAM)
(a)Tana'im disagree as to whether or not "Adam Makneh Davar she'Lo Ba la'Olam" - "one is able to transfer the possession of that which does not yet exist. Examples of such an acquisition include one who wishes to purchase the following year's fruit harvest, or goods which one's wife will produce in the future. The Chachamim maintain that such transactions do not take effect, whereas Rebbi Meir is of the opinion that they do (Kidushin 63a). Even according to Rebbi Meir, the acquisition does not actually take effect until the item does come into existence.
(b)This Machlokes does not apply only to monetary transactions. If one attempts to betroth a woman, stipulating that it should take effect only when either his status or hers changes such that it is possible, the Chachamim rule that it does not take effect and Rebbi Meir maintains that it does. An example of this type of betrothal is one in which either he or she is not yet Jewish, and the betrothal is to take effect after their conversion (ibid.). Furthermore, the same Machlokes applies to one who wishes to consecrate to Hekdesh or forbid upon himself through a Neder (vow) that which does not yet exist (Nedarim 85a).
38)[line 9]התקדשי ליHISKADSHI LI - be betrothed to me (KIDUSHIN /ERUSIN)
(a)The first stage of Halachic marriage is called Kidushin (betrothal). Kidushin can be accomplished in one of three ways:
1.Kesef - A man can be Mekadesh a woman through giving her money or anything equal in value to a Perutah (a very small coin). Upon doing so, he must proclaim, "Harei At Mekudeshes Li b'(-----) Zeh" - "Behold you are betrothed to me through this (-----)."
2.Shtar - A man can be Mekadesh a woman through giving her a marriage document. This may be written upon any surface, and need not be of any specific value. The words "Harei At Mekudeshes Li bi'Shtar Zeh" must be written upon the Shtar.
3.Bi'ah - A man can be Mekadesh a woman through having relations with her. At that time, he must proclaim, "Harei At Mekudeshes Li b'Bi'ah Zo". Because Kidushin requires witnesses, the Chachamim strongly condemned anyone who uses this method of Kidushin.
(b)The Torah refers to this stage of marriage as "Erusin" (Devarim 22:23). The term "Kidushin" is used by the Rabanan in order to connote that just as everyone is prohibited to benefit from Hekdesh (an object sanctified to the service of Hash-m), through Kidushin a woman becomes prohibited to everyone in the world save her husband (Kidushin 2b; see also Tosfos 7a DH v'Nifshetu). Although a man and woman are married after Kidushin, they may not yet live together as man and wife.
(c)The second stage of Halachic marriage - the completion of the marriage - is termed Nisu'in. This is accomplished through Chupah. Chupah is never clearly described in the Gemara, and various opinions are offered by the Rishonim as to what exactly it entails (see Insights to Kesuvos 57:1). The general idea behind Chupah is that the groom brings his wife into his house. After the Chupah is performed, the marriage is complete.
39a)[line 9]לאחר שאתגיירL'ACHAR SHE'ISGAYAR- to take effect after I convert
b)[line 9]לאחר שתתגייריL'ACHAR SHE'TISGAIRI- to take effect after you convert
40)[line 10]לאחר שאשתחררL'ACHAR SHE'ISHTACHRAR- to take effect after I am freed [from my status as a Nochri slave, which has the same effect as a conversion]
41)[line 11]לאחר שיחלוץ לך יבמיךL'ACHAR SHE'YACHALOTZ LACH YEVAMICH (YIBUM)
(a)Should a married man die without children, his widow is not then free to marry whomever she pleases. The brothers of her deceased husband have a Mitzvah to perform Yibum (levirate marriage); that is, they are obligated to marry her (Devarim 25:5-10). If the deceased has more than one brother, the oldest brother is offered the Mitzvah of Yibum first (Yevamos 24a).
(b)If the brother(s) does not wish to carry out this Mitzvah, he must perform Chalitzah. This is a procedure in Beis Din which dissolves the ties binding the widow to her brother(s)-in-law (known as "Zikah"), thus allowing her to marry anyone else. One of the brothers must appear together with his widowed sister-in-law before a Beis Din of three and state, "I do not wish to marry her." His sister-in-law then approaches him, removes his right sandal, and spits on the ground in front of him. She then declares, "This is what shall be done to the man who will not build his brother's family." After this she is free to marry whomever she wants.
(c)The case in the Mishnah cited by our Gemara is one in which one betroths (another man's) Yevamah, stipulating that it should take place only after her Yavam performs Chalitzah with her.
42)[line 12]לאחר שתמות אחותיךL'ACHAR SHE'TAMUS ACHOSECH- to take effect after your sister dies (since one may marry the sister of his former or current wife only after the sister to whom he was wed has died; Vayikra 18:18)
43)[line 13]והא אשה כ"שדה זו" דמיאV'HA ISHAH K'"SADEH ZO" DAMYA- and [the case of one who attempts to marry] a [specific] woman [with one of these stipulations] is similar to [that of one who sells] a specific field [that he has not yet purchased]
44)[line 15]שטר הקנאהSHTAR HAKNA'AH - A Document in which One Commits to Pay a Sum of Money Whether or Not he Actually Receives it as a Loan
(a)A Shtar Hakna'ah is a bill of debt. Unlike a regular bill of debt, however, the debtor agrees that a Shibud (lien) be created upon his property from the date that the document was written, and not that upon which he actually received the money. As this is the case, he is responsible for repaying the sum specified in the document whether or not he actually receives it.
(b)The reason why a borrower would agree to have such a document written, is so that he may have a bill of debt written when the lender is not present. It is forbidden to use a Shtar Mukdam (a predated document), since this may lead to the unlawful removal of property from the possession of those who purchased it after the date in the document but before the loan actually took place. Therefore, a scribe and witnesses are not allowed to write or sign a bill of debt unless they witness the loan. If the borrower trusts the lender, however, he may have a Shtar Hakna'ah written, thereby removing the need for the scribe and witnesses to witness the loan.
45a)[line 15]דאי משום דכתב ללות ולא לוהD'IY MISHUM D'CHASAV LI'LVOS V'LO LAVAH- if [one would suggest that it nor be returned] for [fear] that he wrote [the document with intent] to borrow and he did not borrow [and returning the document to the lender will allow him to collect money that he is not owed]
b)[line 16]הא שעבד נפשיה!HA SHIBED NAFSHEI!- [this is not a concern, for] he has indebted himself [regardless of whether he actually took the loan]!
46)[line 17]פרעוןPIRA'ON- [fear of] repayment
47)[line 18]מקרע הוה קרע ליהMAKRA HAVAH KARA LEI- he would have [immediately] ripped it up [so that it could not be used to collect against him in the future]
48)[line 19]אבא מן ספרי דייני דמר שמואל הוהABA MIN SAFREI DAYANEI D'MAR SHMUEL HAVAH- my father was from the court scribes of Mar Shmuel (Mar is a third-person term of respect)
49)[line 19]והוינא כבר שיתא כבר שבעV'HAVINA K'VAR SHIS K'VAR SHEVA- I was about six or seven years old
50)[line 20]ודכרנאV'DACHARNA- I remember
51)[line 20]דהוו מכרזיD'HAVU MACHREZEI- they would publicly announce
52)[line 21]הני שטרי אקנייתא דמשתכחי בשוקא, נהדרינהו למרייהוHANEI SHETAREI AKNAISA D'MISHTAKCHEI B'SHUKA, NEHADRINHU L'MARAIHU- Hakna'ah documents that are found in the marketplace should be returned to their owners (i.e., the lender)
53)[line 23]מעשה בית דיןMA'ASEH BEIS DIN- (at this point, the Gemara assumes that this refers to) a document ratified by Beis Din [with a Henpek (see below, entry #65), in which case there is no concern that it was not used for an actual loan]
54)[line 25]מתניתין בשטרי חלטאתא ואדרכתאMASNISIN BI'SHETAREI CHALTA'ASA V'ADRACHTA- our Mishnah [that rules that "Ma'aseh Beis Din" should be returned] refers to documents issued by Beis Din that certify that one may keep a specific property of he who owed him money (Chalta'asa) and those that allow one to seize property belonging to he who owes him money (Adrachta)
55)[line 27]אמרי נהרדעיAMREI NEHARDA'EI- The Talmidei Chachamim in [the Babylonian city of] Neharde'a said
56)[line 27]שומא הדר עד תריסר ירחי שתאSHUMA HADAR AD TEREISAR YARCHEI SHATA- [property] that has been evaluated [and seized by a creditor] returns [to the debtor against the will of the creditor when the debtor pays his debt] for up to twelve months [after it was seized]
57)[line 31]איהו הוא דאפסיד אנפשיהIHU HU D'AFSID A'NAFSHEI- he caused the loss to himself
58)[line 31]בעידנאB'IDNA- at the time
59)[line 33]למכתב שטרא אחרינא עילויהL'MICHTAV SHETARA ACHARINA ILAVEI- to write to write a new document of sale, for this land has in fact been newly purchased from the creditor
60)[line 33]דמדינא, ארעא לא בעיא למיהדרDMI'DINA, AR'A LO BE'AYA L'MEIHADAR- according to the letter of the law, land [that was seized by a creditor] need not be returned
61)[line 36]מרישא הוא דקא זביןME'REISHA HU D'KA ZAVIN- [that which the debtor paid his former debt and received his former land in return] is a new transaction
62)[line 39]אימור אשתמוטי קא משתמיט ליהEIMOR ISHTAMUTEI KA MISHTAMIT LEI- it is possible (lit. I might say) that he attempted to elude [the request of the debtor to hand over the Shtar Hakna'ah] (see Insights)
63)[line 41]ליתיה גבאיLEISEI GABA'I- it is not with me
64)[line 41]אפשיטי דספרא זייר ליהA'PESHITEI D'SAFRA ZAYAR LEI- he retained it [since the borrower had not yet reimbursed him] for the few small coins of the scribe's fee [for writing the document to begin with, which is incumbent upon the borrower to pay]
65)[line 43]הנפקHENPEK - the ratification of a legal document (KIYUM SHETAROS)
(a)By Torah law, any Shtar (contract) or Get (divorce document) properly written and signed by valid witnesses is unassailably valid. However, out of concern for forgeries, the Chachamim decreed that one affected by a document may insist that it be Mekuyam (validated). This can be accomplished in one of three ways:
1.The signed witnesses themselves attest to the validity of their signatures;
2.Each signature is validated by two others who recognize it;
3.The signatures are matched to those on previously validated documents.
(b)Once the three judges of Beis Din has determined the validity of a document, they make a notation on the document stating that they have determined its validity, and affix their signatures. This notation is known as a Henpek.
66)[line 44]לא מיבעיאLO MIBAYA- it is unnecessary [to teach this Halachah]
67)[line 46]ומאי ניהו? דמקויםU'MAI NIHU? D'MEKUYAM- and what is [a Henpek]? That [notation on the Shtar] which [states that] it has been ratified
68)[line 49]ירמיה בריYIRMEYAH BRI- Yirmeyah, my son
69)[line 50]שהוחזק כפרןSHEHUCHZAK KAFRAN- he has been established as a liar [whose claim is therefore no longer accepted in Beis Din]
70)[line 50]חדא זמנאCHADA ZIMNA- one time
71)[line 51]תו לא פרע כלל?SU LO PARA KLAL?- [do we therefore assume that] he never paid back [at any other time either]?
72)[line 52]וכדרבי זיראUKED'REBBI ZEIRA- like [the explanation of] Rebbi Zeira (above, line 24)
73)[line 52]הואיל ואתא לידן, נימא ביה מלתאHO'IL V'ASA L'YADAN, NEIMA BEI MILSA- since [the concept] has come to our attention (lit. to our hand), let us say something about it
74)[last line]אמרו לו, "צא תן לו"AMRU LO, "TZEI TEN LO"- if [the judges of Beis Din concluded their deliberation and] said to [one of the litigants], "Go give it to him"