{"id":13001,"date":"2010-02-04T19:58:08","date_gmt":"2010-02-04T19:58:08","guid":{"rendered":"http:\/\/production.ou.org\/life\/other\/masechet_bava_batra_168a174b\/"},"modified":"2016-11-29T07:18:45","modified_gmt":"2016-11-29T12:18:45","slug":"masechet_bava_batra_168a174b","status":"publish","type":"post","link":"https:\/\/www.ou.org\/life\/torah\/masechet_bava_batra_168a174b\/","title":{"rendered":"Masechet Bava Batra 168a-174b"},"content":{"rendered":"

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz<\/em><\/p>\n

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.<\/em><\/p>\n

Bava Batra 168a-b<\/u><\/strong><\/p>\n

When is a business agreement so outlandish that the halacha<\/a><\/em> steps in to limit the possibility of such a deal taking place?<\/p>\n

The Mishna<\/a>\u00a0on today’s daf<\/em> describes a case where a borrower pays back part of a loan that he owes, and the lender hands the promissory note to a third party in order to assure the borrower that he will not try to collect the full loan with this note. What will happen if the borrower then tells the third party that if he does not pay off the rest of the loan by a specific date, then the note should be returned to the lender so that he can collect the full value? The Mishna relates that in the event that the loan is not paid in full, Rabbi Yossi<\/a> rules that the third party should turn the note over to the lender; Rabbi Yehuda<\/a> holds that he should not.<\/p>\n

The Gemara<\/a> explains that this difference of opinion is a question of whether asmachta kanya<\/em> or not.<\/p>\n

An asmachta <\/em>is a promise or agreement obligating the individual at some point in the future, should a specific event occur. As opposed to ordinary situations of a tenai<\/em> – a standard agreement, that certainly takes effect – an asmachta <\/em>usually is an agreement based on the assumption that the condition will never actually take place. We rule like Rabbi Yehuda, who holds that asmachta lo<\/em> kanya<\/em> — that it does not take effect.<\/p>\n

Why does the halacha<\/em> keep an asmachta<\/em> from taking effect?<\/p>\n

Rav Saadiah Gaon<\/a> explains that an asmachta <\/em>is when the person making the agreement makes an exaggerated offer that goes well beyond what the other party deserves by right, like in our case. Alternatively, an asmachta<\/em> is a situation where the promise is based on factors that are out of his control entirely (e.g. gambling). In cases like these the halacha<\/em> determines that the person could not possibly mean to accept the stated terms, so there is no gemirut da’at<\/em> — no knowledgeable agreement — which is necessary for the transfer of property to take effect.<\/p>\n

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Bava Batra 169a-b<\/u><\/strong><\/p>\n

How much legal significance does a document delineating a gift have?<\/p>\n

According to the baraita<\/a><\/em> quoted by our Gemara<\/a>, Rabban Shimon ben Gamliel<\/a> rules that if someone gave a present to his friend by means of a shetar matana<\/em> – a document that delineates the gift – if the document is returned to the first person, the gift is returned to him, as well. The Chachamim<\/a><\/em> say that the gift remains the property of the recipient.<\/p>\n

Rabbah<\/a> explains this difference of opinion as being based on the question of whether or not otiyot niknot be-mesira<\/em> – literally whether “letters are purchased by transferring them.” Essentially the question is whether transferring a note or contract is sufficient to effect a transaction or if there is a need for a kinyan<\/em> – a formal act of ownership to take place. According to Rabban Shimon ben Gamliel, otiyot niknot be-mesira<\/em>, so the gift will be given or returned with the transference of the shetar matana.<\/em> The Chachamim<\/em> who disagree believe that once the gift is given and the recipient takes possession of it, transferring the shetar matana<\/em> to another has no meaning.<\/p>\n

The R”i mi-Gash<\/a> believes that this question only applies to cases where the transfer of the gift was effected solely by means of the shetar matana<\/em>, with no other kinyan<\/em> having been done. If, however, there was an associated kinyan<\/em> that took place, then the role of the shetar<\/em> was merely to serve as a proof of the transaction, and even Rabban Shimon ben Gamliel would agree that returning the shetar<\/em> would have no effect on the gift. The Ramah<\/a> disagrees, arguing that according to Rabban Shimon ben Gamliel the shetar<\/em> becomes a powerful proof of ownership for the person who is holding it, to the extent that it is possible to suggest that transferring the shetar<\/em> would be equivalent to transferring the property that it represents.<\/p>\n

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Bava Batra 170a-b<\/u><\/strong><\/p>\n

The Mishna<\/a>\u00a0teaches that when someone pays back part of a loan we must find ways to allow him to prove that he no longer owes the full amount. Rabbi Yehuda<\/a> says that a new note must be written; Rabbi Yossi<\/a> says that the lender should write a receipt. Rabbi Yehuda objects to Rabbi Yossi’s suggestion because that places the onus of responsibility on the borrower to guard his receipt “from mice” — lest they eat it, or should he lose it in some other way. The Mishna records that Rabbi Yossi responds by saying that it is appropriate for him to have to guard his receipt, so that the other’s rights will not be infringed upon.<\/p>\n

All agree that Rabbi Yossi’s statement refers to the fact that having to write a new promissory note with a smaller loan obligation will be to the detriment of the lender. Several possibilities are suggested to explain this.<\/p>\n