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Shabbat Sukkot | 5770

Hemdat HaDaf HaYomi: Cancelling a Sale or a Present

Rav Ofer Livnat

Tishrei 9 – Tishrei 15, Baba Batra 37-43




This week in the Daf Hayomi, the Gemara (40) deals with the issue of a person who wishes to preemptively  nullify the validity of a sale or a gift that he is about to give. The way this is done is by stating before witnesses that the sale or present one is doing is not being done willingly but rather out of coercion. The witnesses then write down this declaration. This is termed moda'ah by the Gemara.

The Gemara distinguishes between a moda'ah on a sale and a moda'ah on a present. For a sale, the witnesses must know that the seller was indeed coerced into selling and must write this in the moda'ah. Otherwise the moda'ah is not valid. However, for a present, the witnesses need not know that the giver was indeed coerced. The question arises, what is the reason for this distinction between a sale and a present?

The Rashbam (40b d"h gilui) explains that for a present, like a sale, the moda'ah is valid only if the giver was indeed coerced. The difference is that, for a present, we believe the giver when he states that he is being coerced into giving, since if he wasn't being coerced, why would he give a present that he doesn't want to?  However, for a sale, we are concerned that the seller is lying when he states that he is being coerced, since it is possible that he wants to sell because he needs money, and he wants the moda'ah so that he will have the option of cancelling the sale if he ends up receiving money from somewhere else. Thus, for a sale, we have to be sure that he is indeed being coerced.

The Rosh (3, 32) and the Rambam (Mechira 10, 3) disagree with the Rashbam. They claim that, for a present, it doesn't matter if the giver is really being coerced or not. The Rosh explains the reasoning as follows: for a present, it is enough that the giver is not really interested in giving for the present to be cancelled. However, for a sale, we are concerned that the seller is really interested in selling, due to a need for money, and he is only stating that he is being coerced so that he will be able to cancel the sale at a later point in time, when he has money. Thus, we must know that he is really being coerced into selling.

The Rambam, as stated above, agrees with the Rosh. However, his line of reasoning appears to be slightly different. A present is a one-sided act by the giver. Thus, a present is totally dependent on the giver's wish, and if he is not really intent on giving, then the present is not valid. However, a sale is a bilateral act done by both the buyer and the seller. The seller cannot cancel the sale on his own. Thus, only if he is really being coerced is the moda'ah valid.

The Shulchan Aruch (242, 1) rules like the Rambam and Rosh; that anytime a moda'ah is done before the giving of a present, it voids the gift, even if the giver was not coerced.  



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