The gemara says that even if the father made this field that he is claiming was stolen from him a border for the sale of another field and signed as a witness on the contract, after he dies the caretaker of the yeosmim can claim that at the time that the father signed the contract the field did not belong to him, but he went afterwards and purchased it from its owner. Abayei admits that the caretaker of the yesomim is believed to make such a claim, the question is: WHY? There are 3 approaches.
1.Rashi says that there is a 'peh sheasar huh hapeh shehitir", meaning since the yesomim have witnesses that the field did previously belong to their father, just that making it a siman b'achar causes him to loose his claim, he is believed with a migu to say that he later purchased it from the muchzak.
2.Tosafos asks that this would not qualify as a migu since at the time he is claiming to have bought it, it was too late to retract on the making it a siman b'achar. Tosafos says that he is believed with a migu he could claim that the contract that he is signed in as a witness is forged (and therefore is only believed if that contract is not mekuyam).
3. Tosafos Ri"d says that to negate the concern of making it a siman b'achar which would constitute admitting that he is not the owner, any claim is believed to counteract that concern even without a migu. Since he has witnesses that it originally belonged to him and is able to counteract the concern of asa'ah siman b'achar by claiming that he later purchased it, he is believed.
No comments:
Post a Comment