Tuesday, January 05, 2010

Baba Basra 138a - Zachin She'lo B'fanav

The gemara says that if Reuven tries to give a gift to Shimon directly, and Shimon starts screaming that he doesn't want it, he doesn't acquire it against his will. The Rashbam explains:
לא קנה שאין מזכין לו לאדם בעל כרחו דחוב הוא לו דכתיב שונא מתנות יחיה
The Rashash points out that the Rashbam is difficult to understand. Why does he have to justify and give a rationale to explains Shimon's refusal to accept? Even if we had no understanding as to why Shimon would refuse the gift, his refusal would still prevent him from acquiring since a person cannot acquire against his will? I would suggest that the Rashbam is saying this in order to explain the next case where Reuven gifts it to Shimon through someone else being zocheh in it for Shimon. There too we say that if Shimon is screaming that he doesn't want it, then no one can be zocheh it for him. The Rashbam is bothered why don't we say "זכין לאדם שלא בפניו", and receiving a gift is a zechus. He answers that it is not an absolute zechus, rather just an assumed zechus. Therefore, if Shimon is quiet the assumption is that he want this person to be zocheh for him, but if he protests then he reveals to us that it is chov for him, and we cannot apply the concept of זכין לאדם שלא בפניו. The Rashbam would seem to hold that Shimon can't do a ma'aseh kinyan against his will, but if someone else is doing it for him, even if Shimon is protesting we should apply the concept of זכין לאדם שלא בפניו. That is why the Rashbam is compelled to say that by protesting he is revealing to us that it is not a zechus for him, rather a chov, so the concept doesn't apply. The difficulty with this approach is that if we assume that זכיה works through the mechanism of shlichus, which most rishonim (tosafos kesubos 11a) hold, even if it were an absolute zechus, Shimon should be able to prevent the person being zocheh from serving as his shliach by protesting. Even if we couldn't justify why it may be a chov for Shimon, he should be able to prevent the zocheh from being his shli'ach. Why then does the Rashbam have to say the sevara of שונא מתנות יחיה to explain why it may really be a chov for Shimon?
It is possible that the Rashbam is coming to explain that even in a case where Shimon wouldn't be there at the time that the person is zocheh it for him [although the rashbam writes explicitly that we are speaking about when someone else is zocheh in it for Shimon "בפניו", that is to explain the continuation of the gemara that makes this dependent on the machlokes tanna kama and rashbag], and we would assume that it is a zechus, but when shimon finds out he immediately starts to scream, he would retroactively not be zocheh because he revealed that it is a chov for him. The Ramban (quoted in magid mishna hilchos zechiya perek 4) says exactly this. Even something which is technically a zechus, but the receiver protests when he hears about it, he is not zocheh against his will.
The Machaneh Ephraim (Zechiya U'matana #6) explains that the logic of this Ramban would be that a gift is not an absolute zechus since some people don't want gifts, as the Rashbam writes - שונא מתנות יחיה. Clearly, the Machaneh Ephraim is using this Rashbam to explain why Shimon would even be able to protest after the person is zocheh in the gift for him (so long as it is as soon as Shimon finds out about it).
The Machaneh Ephraim then goes on to explain that this ability to protest only applies to something which has a tzad chov, but something which chazal decide is an absolute zechus, the receiver would have no ability to back out of when he finds out. He deduces this from the Ran in Kiddushin (2nd perek) that something which is a "zechus gamur" would be binding even if the receiver would protest when he finds out [he points out that Tosafos in kesubos 11a seems to contradict this and holds that one can protest even a zechus gamur].

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