Bava Metzia - Daf 66
- פטומי מילי בעלמא
The Gemara relates an incident of a man who sold a property without אחריות – guarantee of reimbursement if it is collected by the seller’s creditor. The seller saw the buyer was unhappy and pledged to reimburse the land (and its improvements and produce) with high-quality land if it was taken. Ameimar said: פטומי מילי בעלמא הוא – it is merely [words of] comfort, and not a binding commitment. Since the stipulation should be made by the buyer (since it is for his benefit), and the seller made the offer himself, it is not effective. In another incident, a שכיב מרע – someone deathly ill wrote a get to his wife (so she should not be a יבמה if he dies), and he bemoaned losing his wife in the event that he recovers. His wife told him: אמאי קא מתנחת – Why are you sighing? אי קיימת דידך אנא – If you survive, I am yours, i.e., she pledged to remain his wife. Rav Zevid said these words were פטומי מילי בעלמא, and the get remains without conditions. Although the wife can never insert conditions in a get, one might have though that the husband made the get conditional on the terms she dictated.
- אסמכתא: a borrower’s commitment that if he fails to pay, the lender keeps his field
The Mishnah taught, where a lender said that if the borrower does not pay on time, he can keep his field (which was a security), the stipulation is effective. Rav Huna says: בשעת מתן מעות – if the agreement was made at the time the money of the loan was given, קנה הכל – he acquires the whole field (even greater than the loan amount). לאחר מתן מעות – If the agreement was made after the money was given, לא קנה אלא כנגד מעותיו – he only acquires if he stipulated to keep a portion of the field equal to his loaned money. Rav Nachman said that in either case, the lender acquires the entire field. Later, Rav Nachman retracted, and ruled that even if the agreement was made at the time of the loan, לא קנה ולא כלום – he does not acquire anything. The agreement is an אסמכתא, a commitment made without thinking he would have to keep it, which Rav Nachman ruled ineffective. Rava challenged him from our Mishnah, which rules such an agreement valid. The Gemara answers that it is Rebbe Yose’s opinion, that אסמכתא קניא – an asmachta is binding, and Rav Nachman rules like an opposing Tanna. Alternatively, our Mishnah’s case is where the borrower said to acquire the field "מעכשיו" – from now, which is not considered an אסמכתא.
- מחילה בטעות
Rav Nachman said, once the Rabbis ruled that an אסמכתא is not binding, הדר ארעא והדרי פירי – the field returns to the borrower, and all the produce taken by the lender also returns (and is repaid if consumed). This implies that Rav Nachman holds מחילה בטעות לא הויא מחילה – a mistaken waiver is not an effective waiver, which is contradicted by another ruling of Rav Nachman’s: If one sells his tree’s future dates, Rav Huna says that he cannot retract after they grow, but Rav Nachman says he can (he holds one cannot transfer a דבר שלא בא לעולם – something which has not yet come into existence). He added: מודינא דאי שמיט ואכיל – I concede that if he carried off the produce and ate it before the retraction, לא מפקינן מיניה – we do not take it away from him, because the seller waives his right to the produce until he retracts, based on his (mistaken) presumption that the sale is valid. This proves that Rav Nachman hold a מחילה בטעות is a valid מחילה!? The Gemara answers that in the case of a loan, the lender must nevertheless return the produce to avoid the appearance of ribbis.
