Shabbat Parashat Vayeira | 5770
Hemdat HaDaf HaYomi: Selling a Shtar (76-77)Rav Ofer Livnat
Cheshvan 14-20, Baba Batra 72-78
This week in the Daf Hayomi the Gemara deals with the question of how one can transfer ownership of a shtar chov (proof of debt, promissory note). As opposed to most objects that have intrinsic value, the shtar's value is not intrinsic, since it is only proof of an existing debt, and thus its value lies in the ability to collect a debt with it.
The Gemara (77a according to most Rishonim but not the Rashbam) rules that in order to transfer ownership of a shtar, ketiva and mesira are required. Mesira means to give the shtar to the new owner. Ketiva means to write an additional shtar which states that the shtar with the debt written in it is given over to the new owner. This additional shtar must also be given to the new owner.
The question is how do the ketiva and mesira join together to transfer the shtar. What is the role of each of these actions? The Ba'al Haterumot (sha'ar 51 chelek 3 se'if 4) quotes a dispute between the Ra'avad and the Ramban regarding this question.
According to the Ra'avad, when a shtar is being transferred, one needs to transfer the shtar itself, i.e. the paper it is written upon, and the lien created by the debt. The function of the mesira is to transfer the shtar itself, and is similar to a kinyan (act by which ownership is transferred) for a regular object. The function of the ketiva is to transfer the lien.
The Ramban disagrees with the Ra'avad. He claims that transferring a shtar is in no way similar to transferring a regular object, since the main function of the shtar is in what it represents, which is the debt. Therefore, the function of both the ketiva and the mesira is to transfer the lien on the debt. The reason that both ketiva and mesira are required is that, when a person receives both the shtar and an additional shtar stating that the shtar was transferred to him, he is sure that he attained ownership, and therefore this is considered a kinyan.
The ramification of this dispute is whether the mesira can be substituted with a different kinyan used for objects, such as chalifin.[i] According to the Ra'avad, the mesira can be substituted with chalifin or any other kinyan used for transferring objects, since the function of the mesira is to transfer the shtar itself. According to the Ramban, the mesira cannot be substituted with a different kinyan, since the function of the mesira, like the ketiva, is to transfer the lien on the debt, and the Sages instituted that this can be accomplished only by transferring the shtar itself.
Summary and Ruling:
The Shulchan Aruch (Choshen Mishpat 66, 4) rules like the Ramban that a shtar can be transferred only through ketiva and mesira, and chalifin cannot substitute the mesira. However, later on (ibid 20), the Shulchan Aruch quotes the opinion of the Ra'avad that the mesira can be substituted with a different kinyan. The commentators thus find difficulty explaining this apparent contradiction. The Shach (66, 70) rules like the opinion of the Ramban that mesira is required and cannot be substituted with other kinyanim.
[i] Chalifin is a kinyan based on the principle of exchanging one object for another. In order to purchase an object that is not present, another object (usually a piece of cloth or a pen) is transferred and, through this, the intended object is transferred.
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This edition of Hemdat Yamim is dedicated to the memory of
ben Yehudah Mayer
a lover of the Jewish Nation Torah and Land
R' Meir ben Yechezkel Shraga Brachfeld
and Louis and Lillian Klein, z”l.