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Bava Basra, 51
BAVA BASRA 51 - dedicated anonymously towards a Refu'ah Sheleimah for Esther
Basha bas Malka Faiga.
1) A GIFT GIVEN WITH A GUARANTEE
QUESTION: Rav Ashi states that a huisband who gives a field to his wife as a
gift may include in the Shtar wording that indicates that the field was
sold, in addition to wording that says that he gave it to her as a gift.
This double formula will grant his wife certain advantages. Writing that the
field was sold to her will give her the rights of compensation if someone
comes and confiscates it from her (such as the creditor of the husband); the
husband will be required to reimburse the woman for the lost field. Writing
that the field was given to her as a gift, the RASHBAM explains, will give
her the rights to keep the land even against the protest of a "Bar Metzra."
Normally, when a land-owner wants to sell his field, the immediate neighbors
have priority status and are entitled to buy the field before any other
potential buyers. However, if the field is given as a gift to someone else,
the neighbors do not have the right to protest and insist that they be
allowed to buy the land.
TOSFOS (DH v'Lamah) questions this explanation of the advantage of writing
in the Shtar that the field was given as a gift. The Gemara in Bava Metzia
(108b) states that when a person gives a field as a gift with "Achrayus,"
with a guarantee that the benefactor will replace the field if it is legally
confiscated from the recipient, it is considered a sale with regard to the
law of "Bar Metzra." Consequently, the neighbors maintain the right to
purchase the field before it is given away! In Rav Ashi's case, in which the
field was given to the wife with "Achrayus," the law of "Bar Metzra" should
still apply! Why, then, does the Rashbam say that it does not apply?
ANSWER: The RITVA answers that the reason why the Gemara in Bava Metzia
states that when a gift is given with "Achrayus," the law of "Bar Metzra"
still applies, is because we suspect that the original owner is actually
selling his field (and that is why the recipient demands a guarantee).
However, he fictitiously writes in the Shtar that the transaction is a gift
in order to prevent his neighbors from having the first rights to purchase
the field. In Rav Ashi's case, though, we are certain that the husband is
giving the field to his wife as a genuine gift, even if a clause of
"Achrayus" is written in the Shtar. Hence, the law of "Bar Metzra" does not
The Ritva points out that this explains why Rav Ashi states, "He wanted to
give it to her as a gift." Rav Ashi is implying that we are certain that the
husband's intentions were genuine and he sincerely meant to give the field
as a gift. (Y. Marcus)
2) A DEPOSIT DELIVERED BY A MINOR
QUESTION: The Gemara states that one may not accept an item as a deposit
from a woman, slave, or minor, because of the fear that they might have
stolen the item. The RASHBAM (DH Lo) explains that the reason one may not
accept a deposit from a minor is because he might have stolen it from the
owner of the house in which he lives.
The Gemara continues and says that if, b'Di'eved, a deposit was receive by
mistake from a minor, then the person holding the item may not return it to
the minor, because the minor is not considered to be mature and responsible
enough to take care of the item. Instead, the person holding the item should
invest the money on behalf of the child. If the child died before reaching
adulthood, the deposit must be returned to his heirs.
Why does the Rashbam not explain that the minor stole from *his father*? In
addition why does the Gemara not say that if a deposit was accepted from a
minor and the minor died, the deposit should be returned to *his father*?
ANSWER: The PNEI SHLOMO cites TOSFOS (52a, DH Kibel) who explains that the
reason why the value of the item deposited must be invested for the minor is
because it may be assumed -- once the deposit has already been accepted --
that the minor found the item in the street and it legitimately belonged to
him (we do not make this assumption l'Chatchilah and permit a person to
accept a deposit from a minor, because of the possibility that it might be
stolen). We can infer from Tosfos that it is unlikely that someone gave the
item to the minor as a gift. This is because it is uncommon to give a gift
of value to a child, since it is probable that he will lose it. Therefore,
there are two possible sources for the origin of an item in the possession
of a child: either he stole it from the house in which he lives, or he found
a lost article. Consequently, if the Gemara would be referring to a minor
who is living in his father's home, then any articles in his possession
would belong to his father -- either because he stole it from his father, or
because of the law that states that any lost article that a minor finds
automatically belongs to his father (see Bava Metzia 12a). The Gemara cannot
be discussing a minor who lives in the home of his father, because the law,
then, would always require the item to be returned to the minor's father,
regardless of whether or not the minor is still living. This is also why the
Rashbam explains that the minor have stolen the item "from the house in
which he lives," and does not explain that he may have stolen it from his
father. (Y. Marcus)