Bava Batra 80

that does not contain the words 'we, [the undersigned] are cognisant that so-and-so is acting under duress', is no moda'ah. Of what kind of moda'ah are we speaking? If of one relating to a get [bill of divorce] or a gift. [why should the witnesses have to make this declaration, seeing that] it [only states something which] is more or less self-evident?<span class="x" onmousemove="('comment',' In the case of a get or a gift, there is no motive for a man to say that he is acting under constraint unless this is actually the case; hence there is no reason why the witnesses should have independent knowledge of the fact. In the case of a sale, however, it may happen that a man sells something in order to raise money, but with the idea of buying it back as soon as possible, and he may therefore be tempted to issue a moda'ah falsely in order to facilitate this. ');">¹</span>

If again It is one relating to a sale, has not Raba laid down that we do not issue a moda'ah relating to a sale?<span class="x" onmousemove="('comment',' Where the sale, though compulsory, would not inflict real loss. V. infra 46a. ');">²</span>

— [We are] in fact [speaking here of one relating] to a sale, and Raba admits [that such a one may be issued] where the seller acts under [such] constraint as [is exemplified] in the following case. A man mortgaged an orchard to another man for three years. The latter, after he had had the use of the orchard for the three years necessary for <i>hazakah</i>, said to the owner: 'If you will sell it to me, well and good, and if not, I will suppress the mortgage deed and say that I purchased it outright.' In such a case a moda'ah may be issued [on the owner's behalf].<span class="x" onmousemove="('comment',' Because if he does not sell he will lose the whole. It may be asked here how in such a case can the witnesses obtain independent knowledge that the sale was made under constraint? R. Han. says it can happen in this way. Suppose the witnesses first hear the owner claim the field and the occupier assert that he has bought it. Then the owner tells the occupier that he is willing to sell the field to him, and the latter tells him to draw up a deed of sale, not in his presence. The owner then tells the witnesses, who are thus able to say in the moda'ah that they know that the owner is selling under constraint. ');">³</span>

Rab Judah said: A deed of gift drawn up in secret is not enforceable. What is meant by a deed of gift drawn up in secret? R. Joseph said: If the donor said to the witnesses, 'Go and write it in some hidden place.' Others report that what R. Joseph said was: If the donor did not say to the witnesses, 'Find a place in the street or in some public place and write it there.' What difference does it make which version we adopt? — It makes a difference where the donor simply told the witnesses to write, without saying where.<span class="x" onmousemove="('comment',' According to the first version such a deed is valid, according to the second it is not valid. ');">⁴</span>

Said Raba: Such a deed can serve as a moda'ah in respect of another.<span class="x" onmousemove="('comment',' I.e., even though not enforceable itself, it can render a subsequent deed or gift of the same thing invalid. ');">⁵</span>

R. Papa said: This statement attributed to Raba was not actually made by him but is inferred [wrongly] from the following ruling of his. A certain man wanted to betroth a woman, and she said to him, If you assign to me all your property I will become engaged to you, but otherwise not. He accordingly assigned to her all his property. Meanwhile, however, his eldest son had come to him and said, What is to become of me? He accordingly took witnesses and said to them, Go and hide yourselves in Eber Yamina<span class="x" onmousemove="('comment',' ['The south side', a suburb of Mahoza, Obermeyer. p. 181]. ');">⁶</span>

and write out [an assignment of my property] to him.<span class="x" onmousemove="('comment',' Before he had made the assignment to the woman. ');">⁷</span>

The case came before Raba, and he decided that neither party had acquired a title to the property. Those who witnessed this proceeding thought that Raba's reason was because the one deed was a moda'ah in respect of the other.<span class="x" onmousemove="('comment',' The deed of assignment to the son, being drawn up in secret, was not itself enforceable, but was able to render invalid the subsequent assignment to the woman. ');">⁸</span> This is not entirely correct. [The secret gift] in that case [did indeed annul the later assignment] because the circumstances showed that the assignment to the woman was made under constraint. Here,<span class="x" onmousemove="('comment',' Where the second assignment is not made under constraint. ');">⁹</span> however, it is [evidently] the giver's desire that the one [the latter assignee] should obtain possession and not that the other should obtain possession.<span class="x" onmousemove="('comment',' As is shown by the fact that the deed of gift is written in secret. ');">¹⁰</span> The question was asked [in the <i>Beth Hamidrash</i>]: