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Shabbat Parashat Balak 5774

Ein Ayah: Unspoken Mechila

(based around Shut HaMaharit 45)

[This piece does not seem to be related to a specific din Torah. On the other hand, it is the main source upon which one of the most famous pieces in the K’tzot Hachoshen (12:1) is based.]

 

[The rabbi who asked the question wanted to prove from the gemara’s discussion regarding chezkat habatim (the assumed ownership of one who has occupied a property for three years) that unspoken mechila is valid. Rava explains (Bava Batra 29a) that up to but not including three years, we may assume that the owner was mochel use of his field and eating of its produce. The gemara asks that this assumption is contradicted by the halacha that if the owner protests within three years, he receives back the produce that was harvested. While the gemara rejects the involvement of mechila in chezkat habatim, it seems to accept the possibility that mechila could have been effective, even though there was no spoken mechila. (A technical analysis of the sugya in Bava Batra ensues.)]

In any case, it is clear from several sugyot that unspoken mechila is effective [and we will mention a few.] If one blocks the light entering someone’s house and he does not protest, we assume he was mochel, even without a claim that there had been an agreement on the matter (Bava Batra 60a). If one could have made claims of mispricing and a certain amount of time went by during which he did not protest, he is assumed to have been mochel (Bava Metzia 49b). If a widow did not ask for payment of her ketuba over 25 years but received support, she is assumed to have been mochelet the ketuba.

It is worthwhile to investigate whether in a case where one cannot assume mechila but the recipient of the obligation knows he had intention to be mochel, the thought of mechila is effective and morally prevents him from demanding payment. The broad rule that matters of the heart are not significant (Kiddushin 49b) seems to indicate that such thought is not relevant. For example, if one stipulated that his kiddushin is conditional on some factor for his wife’s benefit and the conditions were not fulfilled, the kiddushin is not valid even if she knows that she personally was mochelet the conditions. Similarly one who sold property upon preparing to move to Eretz Yisrael and then ended up not going, who may back out of the sale, may do so even if he did not originally intend to back out. [The Maharit brings several other examples.]

The rule is as follows. When the mechila is something that the average person would be able to assume with confidence, then the mechila is as if it was verbalized even if it was not. Regarding the original example of chezkat habatim, originally the gemara assumed that the reason that the owner did not say anything was mechila, but the gemara eventually says that it is entirely possible that he figured he could leave the person to work and harvest the field and later demand back the produce. Once that is how a beit din would analyze matters, then even if the owner admits that he was mochel the produce, he can demand it back later anyway.

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