Bava Batra 40b (מ:) — the Talmud in English

The sages of Nehardea say: Any declaration of annulment

in which it is not written [a declaration in which it is not written] "

We know the nature of so-and-so's coercion [we know what coercion he is subject to, and that it is absolute coercion]," but the witnesses wrote only that so-and-so told them that he was under coercion,

it is not a declaration of annulment,

and it is ineffective for nullifying the transaction.

And we raise an objection to this:

A declaration of annulment of what [what declaration, intended to annul what, are we discussing here]!?

If

a declaration of annulment

of a bill of divorce or of a gift, in which he delivers a declaration of annulment in order to invalidate the bill of divorce or the gift that he is about to give -

if so, why do the witnesses need to know the nature of his coercion? Is the delivery of a declaration of annulment not

merely a disclosure of information!?

That is to say: It is enough for us that he reveals his position, that he is under coercion, since many people would be able to know that he is under coercion. For if he is not under coercion in this matter and is giving them of his own free will, why would he annul it?

And if

the declaration of annulment is

of a sale [of property], in which case it can be said that although he is not under coercion, nevertheless, since he is compelled to sell only because at that moment he needs money, he cleverly sells and receives money, while at the same time delivering a declaration of annulment, so that when the time comes and he has money, he can produce the declaration and retroactively annul the sale; in this case it can indeed be said that they should not write him a deed of declaration of annulment unless they know that he is truly subject to absolute coercion -

It is likewise impossible to say this, because:

Did Rava not say: We do not write

at all

a declaration of annulment concerning a sale [we neither prepare nor write a declaration of annulment to invalidate a sale]!?

And we answer:

Actually,

the declaration of annulment is

concerning a sale, but

nevertheless

Rava agrees

that we write a declaration of annulment

where he is coerced, as in the case of the orchard!

That is to say: Although Rava maintains that in the case of ordinary coercion we do not write a declaration of annulment, there is a type of coercion—like the coercion in the case of the orchard, which is explained shortly—in which Rava agrees that we write a declaration of annulment. It was with regard to such a declaration that the sages of Nehardea said that it must contain the words, "We know the nature of so-and-so's coercion."

A

case involving

a certain man who mortgaged an orchard to another for three years. After the latter had consumed its produce for the three years establishing presumptive ownership, he said

the lender said to the borrower, the owner of the orchard:

If you sell it to me, all the better; but if not,

you do not sell it to me,

I will conceal the mortgage deed, and I will say: "

It is purchased property in my possession," [the case concerns an orchard given to a lender to consume its produce for three years under a mortgage. After three years, the lender came to the borrower and said to him: If you sell me the orchard, all the better; if not, I will conceal the mortgage deed, rely on the three-year presumptive ownership established by my having occupied the orchard without your protesting, and claim, "It is purchased property in my possession"] -

Under such

coercion, we write a declaration of annulment even concerning a sale. It was concerning a case of this kind that they said: "Any declaration of annulment in which it is not written, 'We know the nature of so-and-so's coercion,' is not a declaration of annulment."

Rav Yehuda said: This concealed gift [a gift hidden away, and he proceeds to explain it]

we do not collect

by means of it, that is, we do not place the gifted property in the recipient's possession!

And we explain:

What are the circumstances of a concealed gift [what is meant by this]?

Said

explained

Rav Yosef:

That he said to

the witnesses

"Go, hide yourselves, and write him [go and write a deed of gift secretly]"; and the reason that we do not collect by means of it is that we should assume that he told them to perform their actions secretly because he had already given the property to someone else and regretted it, so this gift is entirely ineffective. Alternatively, he may have been coerced into giving this gift to someone else, and for this reason he writes a deed of gift to this recipient, so that he can claim against the other recipients of the gift that it had already been given to this person. It follows that he had no intention whatsoever of transferring the gift to this person.

And some say

this is what

said

explained

Rav Yosef

concerning a "concealed gift":

That

he instructed them without qualification to write a gift for him, and

did not

add and

say to them,

the witnesses: "

Sit in the marketplace and in the streets and write it for him [write the deed in the marketplaces and streets]," that is, write the deed openly, in full view of everyone.

And the Gemara explains:

What is the practical difference between them [what legal difference results from the two versions of Rav Yosef]?

There is a difference between them:

a deed of gift concerning which the donor said to the witnesses

without qualification,

meaning that he did not tell them to hide, but neither did he tell them to write it openly. According to Rav Yosef's latter version, this too is a "concealed gift," and we do not collect by means of it.

Rava said: And a "concealed gift," although we do not enforce what is stated in it,

is

that gift equivalent to

a declaration of annulment of the other gift. If, after the "concealed gift," he wrote a deed of gift to someone else, the latter gift is also annulled, because he made the "concealed gift" only because he was coerced into giving a gift to the second recipient. In order to prevent the second recipient from demanding that he fulfill the gift, he first wrote another gift, so that he could claim, "I already gave it to someone else." That is why he initially made this deed.

Rav Pappa said: That which

we say in the name of

Rava

that it was a moda'a for the other document,

was not stated explicitly, but was inferred from an incident [It was not stated explicitly by Rava; rather, someone inferred this from an incident that occurred]:

Rava did not say this explicitly; rather, whoever understood, understood it from an incident that occurred]:

The

incident involved

a certain man who went to betroth a woman, and she said to him

the woman said to the betrother before he betrothed her: "

If you write all your property to me, I will be your wife

as a wife,

but if not

you write it to me,

I will not be

your wife."

He went

the betrother, and indeed

wrote it for her

that woman

all his property

as she had requested.

His eldest son came

of the betrother, before he wrote and delivered the document to the woman, and

said to him

to his father, the betrother: "

And what will become of that man

He said to them

the betrother

to the witnesses: "

Go hide in Ever Yamina and write him

a document for all my property." An incident occurred involving a man who went to betroth a woman, and the woman he was betrothing stipulated that he first write all his property to her. He indeed decided to do so, and when his eldest son heard this, he said to his father, "And what will become of me?" Therefore, the father instructed the witnesses to write secretly in a place called Ever Yamina—so that the woman would not know—a deed of gift to his eldest son.

There was an incident involving a man who went to betroth a woman, and the woman being betrothed stipulated with him that he should first write all his property to her, and indeed he decided to do so. When his elder son heard this, he said to his father, "And what will become of me"!? Therefore, the father ordered the witnesses to write secretly, in a place called Ever Yamina—in order that the woman should not know—a gift deed to his elder son].

They came [the heir and the woman]

the heir and the woman came]

before Rava, and he said to them

Rava:

The former

—the son—

did not acquire

because it was a concealed gift;

and

even

the latter

—the woman—

did not acquire,

as he proceeds to explain the reason.

From this incident, one who learned that “it was a moda'a for the other document” inferred that

one who saw [the incident]

this case

reasoned:

therefore even the woman did not acquire,

because it was

this concealed gift that he wrote to his son

a moda'a

with regard to

the other document [the document that he wrote for the woman].

the deed that he wrote for the woman].

But

nevertheless

this is not so,

rather, “a concealed gift” is treated as though it were not the same matter [unclear: the wording is elliptical].

This applies only

there

the woman did not acquire, because

it is evident that he wrote it for her because he was under duress [it is clear that he wrote this gift because of the coercion under which she forced him to write the deed of gift], and therefore this deed of gift is effective in place of a moda'a.

it is evident that he wrote this gift because of the coercion that forced him to write a gift deed for her], and therefore this gift deed is effective in place of a moda'a.

But here

in the ordinary case of a “concealed gift,” it is not effective to invalidate a valid deed of gift that he wrote afterward for another, because one may say:

the latter

the second person to whom he wrote a deed of gift openly

is agreeable to him

the giver

that he acquire

the gift,

whereas the former

the recipient of the concealed gift

is not agreeable

to the giver

that he acquire

the gift.

They raised a dilemma before them

the students of the yeshiva: