Bava Basra Daf 40
- Which activities in front of עדים need permission to record in a שטר
Rav quoted Rav Nachman saying: מחאה בפני שנים – a protest must be made before two witnesses, ואין צריך לומר כתובו – and he does not need to tell them, “Write a שטר recording the מחאה.” Since recording the מחאה only benefits him, they may write it on their own, based on the principle of זכין לאדם שלא בפניו. Similarly, a "מודעא" – notification of a transaction made under duress (whereby he informs עדים before a transaction that it is being made under coercion and should be void) is made before two עדים, and they may record it without his instruction. הודאה – admission of owing money must be before two עדים, and they cannot write a שטר without his instruction, because a שטר prevents him from later claiming he paid. A קנין – acquisition of חליפין via a סודר is made before two עדים, and they can record it without his instruction. Rava later explains: משום דסתם קנין לכתיבה עומד – because such a kinyan (made without hesitation) is ordinarily intended to be written.
- For whom is a מודעא written, and if עדים must record knowledge of the אונס
Rabbah and Rav Yosef said a מודעא is only written about מאן דלא ציית דינא – [a coercer] who does not listen to [Beis Din’s] rulings. Otherwise, the מודעא is disregarded, because the purported victim should have summoned him to Beis Din. Abaye and Rava said: אפילו עלי ועליך – it is even written about people such as me or you, because Beis Din may not have been available. The Nehardeans said that any מודעא which does not state: אנן ידעינן ביה באונסא דפלניא – “We the עדים know about Ploni’s coercion,” is not valid, because the victim simply informing the עדים about his coercion is insufficient. The Gemara asks that Rava said a מודעא is not written for sales, which the Rashbam explains is because if he was forced to sell a specific field (which Rava holds is not a valid sale), the עדים witnessing the sale knew about the coercion and will inform Beis Din. It answers that Rava agrees a מודעא is written where the coercion was done surreptitiously, such as “the incident of the orchard,” where a creditor used an orchard for three years to collect a debt, and secretly threatened to claim it was his, unless the owner sold it to him.
- מתנתא טמירתא – the secret gift document
Rav Yehudah said that a מתנתא טמירתא – secret gift document, meaning a document written secretly, cannot be used to collect the gift, because we suspect the gift is not genuine. There are two versions if Rav Yosef explained the case as where he instructed the witnesses to write the שטר in hiding, or where he did not instruct them to write it in public (the difference being if he said nothing). Rava was quoted as saying that this שטר still constitutes a מודעא to disqualify another שטר later conveying the property to someone else. However, Rav Pappa says that Rava did not actually say this, but it was inferred from another ruling: A woman only consented to marry someone if he would give her all his property. His oldest son objected, so the man instructed עדים to secretly write a שטר giving his property to his son, and then a write a שטר giving the property to the woman. Rava ruled that neither acquired the property, and it was assumed that he considered the first, secret שטר as a מודעא against the second. In truth, however, that case was known that he was compelled to give her the property, but ordinarily, a secret שטר does not indicate that a later gift is not genuine.
