- How the robber acquires the land for the purchaser – based on הנאה he gets from buyer’s trust
Rav had ruled that if a robber bought property after “selling” it to someone, we assume he bought it for the purchaser, and cannot retain it. Rami bar Chama asks, how did the purchaser acquire this land, since the original bill of sale was ineffective? Rava answered: תהא במאמינו – let this ruling be where [the purchaser] tells the robber he trusts him to obtain the land. In exchange for the benefit the robber receives that the purchaser did not confront him for the fraudulent sale but trusts him to work to obtain the land for him, the robber commits to transfer its ownership to him. The Ran explains that this benefit is tantamount to receiving money. Rav Sheishess challenged this from a Baraisa that if one says: מה שאירש מאבא מכור לך – “That which I inherit from my father is sold to you,” or “That which my net catches is sold to you,” the sale is ineffective!? Rava rejected the question: הכא סמכא דעתיה – here, [the purchaser] is confident the robber will obtain the land for him (so he should not be called a robber). In the Baraisa’s case, he is not confident there will be an inheritance.
- שדה שאני לוקח לכשאקחנה קנויה לך מעכשיו re: a specific field
Rav said that if one says: שדה שאני לוקח – the field which I am going to purchase, לכשאקחנה קנויה לך מעכשיו –is transferred to you when I purchase it, retroactively, the recipient acquires it when the giver purchases it. Rava said this is logical בשדה סתם – with an unspecified field, because the recipient is confident he will find a field to purchase, but בשדה זו – with “this specific field,” it would not logically apply, because the recipient lacks confidence the giver will obtain it: מי יימר דמזבין לה ניהליה – who says [its owner] will sell it to him? However, Rava swore that Rav applied his ruling even regarding a specific field. He proves this, because Rav’s ruling is based on Rebbe Meir’s opinion that אדם מקנה דבר שלא בא לעולם – a person can transfer something which has not yet come into the world, and holds if someone is mekadesh a woman, to take effect after her husband dies, or a slavewoman after she is freed, the kiddushin is effective, although these events are outside her control (and thus similar to a specific field).
- Machlokes if we are concerned for פרעון of a lost שטר
Shmuel said: המוצא שטר הקנאה בשוק – if one finds a document of acquisition in the street (i.e., a שטר which creates a debt even if a loan is never issued), יחזירו לבעלים – he should return it to its owner. There is no concern the loan was not issued, since he obligated himself regardless. Although he may have paid the debt, Shmuel holds לא חיישינן לפרעון – we are not concerned about possible payment, because if he had paid, מקרע הוה קרע ליה – he would have torn [the שטר], and it would not have been found intact. A Mishnah stating that a שטר recording an “act of Beis Din” is returned may not support Shmuel, because it may refer to documents certifying a creditor’s right to collect, which cannot be paid. Rava objected that these, too, can be “paid,” because seized property is returned if the debt is subsequently paid. Instead, he explains that if the debtor paid, איהו הוא דאפסיד אנפשיה – he brought the loss upon himself by not ripping the collection certificate, or at least demanding a document certifying the land was returned to him, which is tantamount to a resale. In Shmuel’s case, the creditor may have withheld the שטר, despite its being paid. Rebbe Yochanan holds a certified שטר of debt is not returned to the creditor, because we are concerned that it was paid.
