Babylonian Talmud: Tractate Baba Bathra

Folio 40a

, and they are at liberty to write it down without being definitely instructed by the protester to do so.¹  A moda'ah²  must be made in the presence of two persons, and they are at liberty to write it down without being definitely instructed to do so.³  An admission of a debt must be made in the presence of two persons, and they must not write it unless definitely instructed to do so.⁴  A transfer [by means of a cloth]⁵  must be carried out in the presence of two persons, and they may record it in writing without being definitely instructed to do so.⁶  For certifying [the signatures of witnesses to] documents⁷  [a Beth din of] three persons is required. (The mnemonic [for these is] Mamhak.)⁸  Said Raba: If I have any difficulty about any of these rulings, it is this: How are we to regard this legal transfer [by means of a cloth]? If it is on a par with a proceeding of the Beth din, then we should require three persons. If it is not on a par with the proceedings of the Beth din, why can it be recorded without the permission of the seller?⁹  — After posing the question, he himself resolved it. 'In fact a kinyan', he said, 'is not on the same footing as a proceeding of the Beth din, and the reason why the witnesses may record it in writing without definite instructions from the transferor is because a kinyan unless there are instructions to the contrary, is intended to be recorded in writing.'¹⁰

Both Rabbah and R. Joseph hold that a moda'ah¹¹  should not be issued save against a man who does not obey the decisions of the Beth din.¹²  [This is not the opinion of] Abaye and Raba, who said [to one another]: It can be issued even against me and against you.¹³

The Nehardeans say that a moda'ah

1. Lit., 'he need not say, write', because such a document is of advantage to him, and 'an advantage may be conferred on a man without his permission.'
2. Lit. 'notification': an affidavit made by a man that a sale or a gift which he is about to execute is being forced on him against his will, and that he intends when opportunity arises to take legal steps to annul it.
3. Because this also is to the advantage of the notifier.
4. Lit., 'he must say write', because it is a disadvantage to the debtor to have his debt recorded in writing, and 'a disadvantage may not be inflicted on a man without his consent.'
5. Heb. kinyan. V. p. 6, n. 2 and Glos.
6. The reason is discussed lower down.
7. If a document signed by witnesses is brought before a Beth din and the Beth din certifies that the signatures are genuine, no question can subsequently be raised about their genuineness. The Beth din's endorsement was called honpak.
8. M for mehaah (protest); M for moda'ah (notification); H for hoda'ah (admission); K for kinyan (transfer).
9. Seeing that it is a disadvantage to him, confirming as it does the title of the transferee. But the proceedings of the Beth Din are of course independent of this rule.
10. Because by using the kinyan the transferor shows that he is really anxious to make the transfer, since the exchange of the cloth in itself closes the transaction.
11. V. supra p. 173, n. 2.
12. Because otherwise the man who issues the moda'ah ought rather to sue him for trying to exercise constraint on him.
13. Because sometimes it is not easy to bring the matter at once before the Beth din.

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?¹  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?²  — [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 hazakah, 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].³

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.⁴  Said Raba: Such a deed can serve as a moda'ah in respect of another.⁵  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 Yamina⁶  and write out [an assignment of my property] to him.⁷  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.⁸  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,⁹  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.¹⁰

The question was asked [in the Beth Hamidrash]:

1. 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.
2. Where the sale, though compulsory, would not inflict real loss. V. infra 46a.
3. 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.
4. According to the first version such a deed is valid, according to the second it is not valid.
5. I.e., even though not enforceable itself, it can render a subsequent deed or gift of the same thing invalid.
6. ['The south side', a suburb of Mahoza, Obermeyer. p. 181].
7. Before he had made the assignment to the woman.
8. 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.
9. Where the second assignment is not made under constraint.
10. As is shown by the fact that the deed of gift is written in secret.