Bava Batra 40a — the Talmud in English

And it is not necessary to say

to them

“Write”

a document of protest; rather, even though he did not instruct them to do so, they may write a document in which they testify that he lodged a protest in their presence, so that he will have testimony to present before the court that he indeed lodged a protest. b. One whom they force to sell or give something that he does not wish to sell or give as a gift conveys a declaration of duress before witnesses and says: “Know that this sale or this gift of this field that I am about to make to so-and-so, I am making against my will, because he is coercing me and compelling me against my will. The document that I am about to execute shall have no validity, and today or tomorrow I will bring the buyer or recipient to court and weaken the force of the document of sale or gift that will be in his possession by means of this declaration of duress that I am conveying before you” — Rabbeinu Gershom explained that the reason is that “one may acquire a benefit for a person even in his absence and without his authorization,” as presumably he is pleased with it. And the Nimukei Yosef further explained: “A protest before two witnesses does not require him to instruct them to write him a document of protest as testimony that he protested within the three years; this writing is a benefit for him, and one may acquire a benefit for a person [in his absence]. Since he protested in their presence, it is as though he said to them, ‘Write,’ and it is as though he appointed them as agents; the later authorities, of blessed memory, wrote that they must write in the language of agency: ‘So-and-so appointed us to write concerning him that he protested.’ But if they wrote, ‘We heard so-and-so protest,’ this is not testimony, as the Torah said: ‘From their mouths, and not from their writing; and although generally, with regard to every document, we require the instruction of the transferor, analogous to ‘the document of acquisition,’ that is only with regard to something between him and another person. But with regard to a protest and a declaration of duress, where the matter depends solely upon him, it is sufficient that they write it in the language of agency, as we have written. So wrote Rabbi Nissim ben Reuven in his novellae.” And the wording of Rabbeinu Yona is: Since it is to his benefit, it is as though he said to them, “Write,” and the verse “from their mouths and not from their writing” does not apply. We derive this from “the document of acquisition”: Every act that a person performs in the presence of two witnesses, they sign on it at the instruction of the person performing the act so that the document will serve as proof, such as a document of sale, and likewise a protest and a declaration of duress. Since the protester and the one conveying the declaration of duress are the parties performing the act, the witnesses write it as their agents so that it will remain in their possession as proof and to their benefit. Witnesses to a betrothal write and give the document to the man so that it will remain in his possession as proof of the acquisition he has made with regard to the woman; but if witnesses saw someone eat forbidden fat or carrion, they may not testify about it in writing, as we derive: “From their mouths, and not from their writing”; and later in his discussion [40a, s.v. “declaration of duress”] he wrote: “The general rule of the matter is: Anything that is to his benefit, such as a protest or declaration of duress, although he did not say, ‘Write,’ they may write it and give it to him. But anything from which he derives no benefit, they may not write until they consult with him, except for an acquisition.” But Tosafot found it difficult why this document is effective, since it was not made with the consent of the obligor i.e., the possessor; it is therefore not a “document,” while as testimony, the established rule is: “From their mouths [the mouths of the witnesses] and not from their writing”! They explained this in two ways: a. It is a rabbinic enactment that it should be considered testimony, in order to invalidate the presumption of ownership through any testimony whatsoever, since the presumption can be invalidated by a minor matter—as even if it were clarified to us that the possessor did not hear the protest, it would nevertheless be effective to invalidate the presumption. b. According to Rabbeinu Tam’s method, written testimony is also testimony, and the statement “from their mouths and not from their writing” was said only to exclude one who cannot deliver testimony except through his writing, like a mute. Tosafot further wrote that the Gemara did not need to teach that it is not necessary for him to say, “Write,” since it is to his benefit. The essential novelty is that even if they wrote in the language, “So-and-so instructed us to write,” it is valid, as presumably he protested or conveyed a declaration of duress in their presence for the purpose of having them write.

And

this declaration of duress

is stated

before two

witnesses,

and it is not necessary to say

to them

“Write,”

but they write a document concerning this declaration of duress on their own initiative and deliver it to him.

c.

An admission

that a person makes to his own detriment

before two

and he must say

to them

“Write,”

but if he did not instruct them to write, they may not write a document on their own initiative concerning the admission that he made in their presence. d.

An acquisition

with a cloth, which is performed to effect every act of acquisition, is performed

before two witnesses,

в Знак для запоминания сказанного выше: М-М-П-А-П [ П ротест, З аявление о недействительности сделки, П ризнание,

and he need not say

to them

“Write.”

e.

And validation of documents requires three

Anyone who has a document against another person, and is concerned that when he comes to claim on the basis of this document the debtor will assert that it is forged, requiring him to validate the document through the witnesses signed on it, who will testify to the authenticity of their signatures, and he sees that his witnesses are leaving for overseas and will not be able to find them when he needs them, brings the witnesses before they leave. They testify to the authenticity of their signatures before three judges, and the judges sign at the bottom of the document that the document was validated in their presence

a mnemonic

for what was stated above should be in your hand:

Mema

k

M

protest,

M

odaa,

h

admission,

K

acquisition and

K

validation]:

Rava said: If there is a difficulty for me

with regard to any one of all these laws that Rav Naḥman stated,

it is this—

the acquisition before two, for which one need not say, “Write”—

that is what is difficult for me!

This

writing that the witnesses write concerning the

acquisition

which is to the detriment of the transferor—

what are the circumstances?

That is, in either event, there is a difficulty.

If it is like

an act of court

it is

and because they resemble judges who take money from one person and give it to another, and for this reason Rav Naḥman said that they need not say to them, “Write,” even though writing the acquisition is to the detriment of the transferor and enhances the purchaser’s rights, because every act of court is written by the court. The power of the court is substantial, and it renders property ownerless, enabling it to write everything performed in its presence—

If so,

three should be required

[three should be required, as in any other court]!?

And

if it is not like

an act of court

it is

and therefore two witnesses suffice, then

why does he not need to say

to them

“Write,”

when the acquisition is to his detriment!?

After Rava raised the difficulty,

Rava

ultimately resolved it

That is, after he found the matter difficult, Rav Naḥman’s words became clear to him:

Actually, it is not like an act of court

and therefore it need not take place before three,

but here, what is the reason that he does not need to say

to them

“Write,”

because

an ordinary acquisition stands to be written,

that is, in an ordinary acquisition the transferor agrees that they should write it.

Here the Gemara returns to the law of a declaration of duress:

Rabba and Rav Yosef both say:

We write a declaration of duress only concerning one who does not obey the law.

[We write a declaration of duress only when the coercer is a person who does not submit to Torah law.] But if the person whom the seller says coerced him is a person who obeys the court, we do not write a declaration of duress, because we say to him: “You are not coerced! For if you are coerced, why do you not summon him to court?”

Whereas

Abaye and Rava both say:

We write a declaration of duress

even concerning me and you,

who are people who obey Torah law, because sometimes the court is not available for him to summon the other person to judgment.