In the gemara, there are 2 different girsa'os in what ameimar says. The Rashbam is go'res that ameimar paskens that debts can be sold by giving them over (which tosafos 76a understands to be a supercharged meshicha, meaning that it requires both meshicah and handing over the contract by a da'as acheres makneh, unlike mesira by large animals which is a lower level kinyan than meshicha [according to R"I, but R"T holds mesira is better than meshicha]). Based on the girsa of the Rashbam, when the gemara offers the logic for ameimar: אותיות מילי נינהו ומילי במילי לא מיקנין, it is a justification for mesira working without writing a separate contract. The Rashbam explains that a contract is just words, "mili", and a contract cannot be used to acquire a contract, therefore the effective kinyan should be mesira alone. Tosafos on the other hand is go'reis in ameimar that mesira is insufficient and that there also must be a second contract written on the first. Tosafos goes lishitasam in explaining the sevara of the gemara that "mili" can't be used to acquire "mili", means that just the mesira of the debt contract is nothing more than mili, therefore another contract must be written on the first.
Tosafos 77b asks that the gemara tries to prove that mili can be acquired with mili from the case where a person acquires a field and automatically acquires the pre-written shtar of the field with it. What is the proof? In that case the buyers name is actually written in the contract, therefore he acquires the contract with the field, but how would this prove that when the buyers name isn't written in the contract he should also acquire the contract with just a mesira? It seems that this question is tosafos li'shitasam who understand that the mesira of the shtar is called mili, therefore they can ask that we can't compare a case where the buyer is named in the contract to a case where he isn't named. But according to the rashbam where the whole issue of mili is that a shtar can only be acquired by mesira, it is fair for the gemara to ask from this case where he is able to acquire the contract without a mesira, which avoids the question of tosafos.
Now, according to those who require kesiva and mesira, what is the rationale? Why is mesira alone not enough, and what does a second shtar add? The Nemukei Yosef quotes the rashba who says that one must first do the mesira of the shtar and only afterward would they write a second shtar. The rationale of the rashba is: משום דשעבוד לבדו אינו נקנה קודם שיזכה בשטר החוב כיון דהשבעוב לא מהניא לגוף הנייר. The Rashba seems to understand that the mesira is a kinyan on the paper of the shtar, and the second contract is a kinyan on the shi'bud to collect from the borrower, therefore the kinyan on the paper must come first because without that you can't transfer the shi'bud. The Rashba seems to hold that the problem with mesira alone is that it is only a kinyan on the paper, the problem with shtar alone is that paper can't be acquired with a shtar (but the shi'bud can), therefore we need both so that the buyer will own the paper and the shi'bud. However, it seems to me that the Rashbam understands differently. The rashbam (bottom 76a) seems to hold that if we only have mesira alone, the borrower can claim that the buyer only purchased the paper and nothing else. Based on his approach, the shtar doesn't act as a ma'aseh kinyan on the shi'bud, rather it is a giluy (reveals) that the ma'aseh kinyan of the mesira was not just for the paper, but rather for the actual shi'bud. In other words, the Rashba and Rashbam argue whether the "kesiva" of the second contract is an independent ma'aseh kinyan to acquire the shi'bud (rashba) or is not a ma'aseh kinyan at all, it is just a giluy that the ma'aseh kinyan of mesira was for the purpose of the shi'bud and not just the paper (rashbam).
No comments:
Post a Comment