Bava Batra 40b — the Talmud in English

The scholars of Nehardea said: Every declaration ![](pamud.bmp "

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

We know of the coercion of so-and-so [we know what coercion he is under, and that it is complete coercion]," but the witnesses wrote only: So-and-so told them that he was under coercion,

it is not a declaration,

and it is not effective to annul [the act].

And we raise an objection to this:

A declaration concerning what [with regard to the following declaration, what are we discussing]!?

If it is

a declaration

concerning a divorce document or a gift,

in which he delivers a declaration to annul the divorce document or the gift that he is about to give—

if so, why do I need the witnesses to know of his coercion? The delivery of the declaration is

merely a disclosure of the matter!?

That is to say: It is enough for us that he reveals his view that he is under coercion, for many people will be able to know that he is under coercion. For if he is not under coercion in this matter and gives them of his own will, then why is he annulling it?

And if it is

a declaration

concerning a sale [concerning a sale], one can say that although he is not under coercion, nevertheless, since he is compelled to sell only because at this time he needs money, he therefore contrives to sell and receive money, while at the same time delivering a declaration, so that when the time comes when he has money, he will produce the declaration and retroactively annul the sale. In this case, indeed, one can say that they should not write him a declaration document unless they know that he is in fact under complete coercion—

It is likewise impossible to say this, because:

For Rava said: We do not write

at all

a declaration concerning a sale [we do not prepare and write a declaration concerning the annulment of a sale]—and [how can this be reconciled]!?

And we answer:

In fact,

it is a declaration

concerning a sale,

but

Rava agrees

that we write a declaration

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

That is to say: Although with ordinary coercion Rava holds that we do not write a declaration, nevertheless there is coercion—similar to the coercion in the incident of the orchard, which is explained shortly—in which Rava agrees that we write a declaration. It is with regard to a declaration of this kind that the scholars of Nehardea said that it must contain: "We know of the coercion of so-and-so."

An

incident involving

a certain man who mortgaged an orchard to his fellow for three years. After he had eaten [the produce] for three years of possession, he said

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

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

you sell it to me,

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

It is purchased property in my possession [a matter involving an orchard that was given to the lender to consume for three years by way of a mortgage. After three years, the lender came to the borrower and said to him: If you sell me the orchard, all the better; and if not, I will conceal the mortgage document and rely on the presumption of the three years during which I sat in the orchard without your protesting, and I will claim, 'It is purchased property in my possession']"—

[случай, когда виноградник был передан заимодавцу по залогу, чтобы тот пользовался им три года: после трех лет заимодавец пришел к должнику и сказал ему: «Если ты продашь мне виноградник — хорошо; а если нет, я спрячу документ о залоге, сошлюсь на трехлетнее владение виноградником без возражений с твоей стороны и заявлю: “Он приобретен мною”] —

Under coercion

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

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

we do not collect

by it, that is to say, we do not place the thing given in the recipient's possession!

And we explain:

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

He said

explained

Rav Yosef:

That he said to them

the giver

to the witnesses: "

Go, hide yourselves, and write it for him [go and write a deed of gift secretly]." The reason that we do not collect by it is that one may assume that he told them to perform their actions secretly because he had already given it to someone else and regretted it, and this gift is entirely nothing; or perhaps he is coerced into giving this gift to another, and for that reason he writes this person a deed of gift, so that he can claim against the other recipients of the gift that it has already been given to this one. It follows that he did not intend at all to transfer the gift to this one.

And some say

this is how he

said

explained

Rav Yosef

what is a "concealed gift":

That

he instructed them in general to write him a gift and

did not

add and

say to them

to the witnesses: "

You shall 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 before everyone.

And the Gemara explains:

What is the practical difference between them [what legal difference follows between the two formulations of Rav Yosef]?

There is a difference between them:

A deed of gift concerning which the giver said to the witnesses

in general,

that is, he did not say to them, "Hide yourselves," nor did he tell them to write it openly. According to Rav Yosef's latter formulation, this too is a "concealed gift," by which we do not collect.

Rava said: And a

"concealed gift," although we do not carry out what is stated in it,

is

that gift like

a declaration concerning its fellow gift.

If, after the "concealed gift," he wrote a deed of gift to another, even the other gift that he wrote is annulled, because he made this "concealed gift" only because he was coerced to give a gift to the second person, and so that the second person would not sue him to fulfill the gift, he wrote another gift beforehand, so that he could claim, "I already gave it to someone else." For this reason he initially made this deed.

Rav Pappa said: That which

we say in the name of

Rava

that it is a moda'a for its fellow,

was not stated explicitly, but was stated by implication [

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

That

there was an incident involving

a certain man who went to betroth a woman; 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 yours

as a wife,

but if not

you write it to me—

I will not be yours

as a wife."

He went

the betrother, and indeed

wrote it to her

to that woman

for all his property

as she had requested.

His elder son came

of the betrother, before he wrote and delivered the deed 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 deed for all my property." [

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 came]

before Rava, he said to them

Rava:

Neither the master

the son

acquired

because it is a concealed gift

; and

also

neither the master

the woman

acquired,

as he explains the reason and proceeds.

And from this incident, one who learned that “it is a moda'a for its fellow” learned that

the one who saw [

the one who saw this incident]

thought:

therefore even the woman did not acquire,

because it is

this concealed gift that he wrote to his son—

a moda'a

with regard to

its fellow [

the deed that he wrote for the woman].

But

in fact

it is not so,

but a concealed gift is like something that is not his [unclear: the Aramaic phrase is elliptical].

And this applies

there

the woman did not acquire, because

it is evident that he wrote it for her because of coercion [

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 an ordinary concealed gift, it does not invalidate a complete gift deed that he wrote to another after it, because one may say:

one

the second, to whom he wrote a gift deed openly—

he wants

the giver

that he should acquire

the gift,

and one

the recipient of the “concealed gift”—

he does not want

the giver

that he should acquire

the gift.

They raised a question before them

the scholars of the academy: