Sunday, November 18, 2007

Kesubos 79a - Shtar Mavreches

The gemara says that a shtar mavreches, which is a contract that is not legally binding and it's entire purpose is to make it look like there was a gift or sale, is effective in "hiding" the property from a husband so that he will not be entitled to the produce of the field. Tosafos quotes Rabbeinu Chananel that the mechanics in why it can evade the produce from going to the husband even though it is not legally binding, is because we pasken like r' shimon that the husband has not rights to property he was unaware of at the time of the marriage, so here too at the time of the marriage he was under the impression that this property did not belong to her. Based on this, Tosafos quotes Rabbeinu Tam that this concept can only work when trying to evade the husbands rights to peiros, but it cannot work to evade a ba'al chov since his rights is not pending on his knowledge of whether this field belongs to the lender. Rather, the rights of a ba'al chov are dependent on whether the field actually belongs to the lender, so if the gift is valid then it belongs to the receiver, if it is invalid it goes to the lender. According to Tosafos the gift is binding, but according to the Rosh the ba'al chov collects.
Tosafos Rid argues on Rabbeinu Chananel and says that although we don't pasken like r' shimon, the shtar mavreches is effective to evade the husband from collecting since he has absolute yiush because he knows about the field and thinks it belongs so the receiver. Based on this approach, we should say that the shtar mavreches is also an effective way of preventing a ba'al chov from collecting even though the gift to the receiver is not binding, since the ba'al chov also has an absolute yiush from this field at the time that the lends the money because he assumes it belongs to the receiver.

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