Shtar Moda'a (Cancellation of a Mekhira)

          The gemara in the third perek of Babba Batra examines the concept of 'macha'a' - a protest lodged by the owner of a land which is being squatted upon by someone else.  If this squatting is not rebuffed or addressed within three years the squatter is awarded the land.  This is known as 'chezkat gimmel shanim'.  Only by registering a 'protest' - a macha'a can the owner maintain his rights to the field.  The gemara (40a) raises a related declaration known as 'moda'a'.  If an owner is being forced to sell his possession (he is being intimidated, threatened, or even tortured) he can issue a annulment of the sale prior to its event.  He must gather two witnesses and declare his lack of intention to sell the item.  The witnesses in turn issue a shtar 'moda'a' and deliver it to the victim.  Even though the sale is ultimately executed the victim can produce the shtar in Beit Din and claim that he never intended to implement then sale but merely 'cooperated' to avoid further abuse.  As proof he produces his shtar 'moda'a'.  This article will examine the mechanism by which the shtar moda'a undermines the actual sale.

          Ostensibly , this case should be quite simple. One of the vital 'ingredients' of a halakhic transaction is the intent of the two parties - da'at or gemirut da'at.  Lacking this intent, no transaction can transpire despite the performance of a ma'ase kinyan.  A katan cannot perform a kinyan because he lacks the maturity to arrive at this necessary state of mind.  Apparently moda'a indicates lack of the necessary da'at.  The shtar is merely the vehicle by which the victim can discreetly express his lack of consent.  Were he to actually publicize this lack of interest, either at the time of the actual 'sale' or otherwise, he would not accomplish his goal.  His tormentor would perceive his lack of consent and continue his persecution. Shtar moda'a represents the only effective manner of specifying lack of intent - lack of da'at kinyan - in an indiscernible manner.  Quite simply, the shtar expresses and records the lack of da'at on the part of seller.  Handicapped by lack of da'at, no kinyan can succeed.

          Indeed, several Rishonim took this path - it is the most intuitive one.  Some, however, chose an alternate and their decision was taken, in part , due to 'pressure' exerted by a different sugya which addresses 'coerced sales'.  One might even refer to this gemara as addressing a more basic and fundamental issue than the discussion of moda'a.  The gemara (Babba Batra 47b-48b) questions whether such a 'coerced sale' should be valid even if no moda'a were issued.  The gemara concludes that, 'standing alone', such a transaction is valid based upon the principle of "agav zuzi gamar u-makneh" - we can assume that the combination of pressure (physical, mental) and the monetary incentive (after all, he is being offered monetary compensation) 'persuaded' the victim that this sale is actually in his best interest.  These factors combine to 'convince' the victim and bring him to the point of actual consent.  Indeed, initially he did not choose this sale and such consent is not optimal da'at.  However, the unfortunate circumstances of the persistent torture as well as the cash incentive, have made him see things from a different perspective.  He now has arrived at full consent.  If we are to take the gemara's conclusion at face value the issuing of shtar moda'a would be ineffective.  Though a shtar moda'a expresses lack of consent today, it is proven ineffective by tomorrow's events.  The gemara apparently declares, that despite his initial misgivings - EVEN when these misgivings were expressed in a shtar - he ultimately consents to the sale.  How can we reconcile the two discrepant gemarot?        This reconciliation forms the nucleus of a machloket between Ramban and the Ba'al Hama'or.  The latter qualifies our gemara (40b) with the one in Babba Batra (47b).  Since ultimate capitulation is assumed,   the scope of cases in which an actual moda'a will be issued is extremely limited.  In most cases the victim is persuaded and his previous moda'a is meaningless.  There does exist one specific case of extreme 'ones' in which moda'a will be effective.  Our gemara expresses such a case where the victim is left with absolutely no choice.  In a standard case of  coercion the victim is left with a decision - not a desirable one - but a decision nonetheless.  He can choose to maintain ownership over his property and continue to endure the pressure or the torture.  The criminal is not threatening to STEAL his property - after all that would be immoral.  He merely attempts to force the sale - and for a fair price at that.  Given this 'choice' the gemara (47b) assumes that if he implemented the mekhira and accepted the cash incentive he probably arrived at some sort of agreement.  Hence, even though a moda'a was issued it remains invalid.  An exceptional case exists, however, where the tormentor threatens to appropriate the land through some other means, unless the victim agrees to sell it to him.  The bully has some alternate halakhic means at his disposal by which he can (deceptively) seize the land.  Given this 'lack of choice' we cannot read into the victim's compliance any agreement.  In such a case, where a moda'a has been issued we can assume lack of da'at and lack of halakhic kinyan.  In standard cases, however, in which the victim has some sort of choice, we must assume consent and invalidate the moda'a.  According to the Ba'al Hama'or, the shtar moda'a of Babba Batra (40b) is severely circumscribed by the conclusion of the gemara in Babba Batra (47b-48b).

          The Ramban charts a different path.  The ensuing gemara which discusses the validity of the sale based upon ultimate consent, was only referring to cases in which moda'a WAS NOT issued.  If the moda'a had been issued the sale is invalid.  Defending his position entails facing the central question mentioned earlier.  Doesn't the gemara (47b) depict the gradual persuasion of the victim.  What good does the issue of moda'a do?

          Quite possibly, the Ramban reinterpreted moda'a so that it would be effective despite the victim's ultimate consent.  If moda'a's entire role were to relate and reflect the lack of consent on the part of the victim it is indeed severely undermined by the gemara's assessment of the victim's ultimate da'at.  If, however, moda'a operated independently to nullify a transaction it might annul this mekhira independent and regardless of the victim's ultimate consent.  Tosafot (Babba Batra 40a) define moda'a as a takanat Chakhamim geared toward annulling coerced sales.  Clearly, they view the moda'a not merely as a vehicle to express lack of da'at kinyan; if this were true there would be no need for a separate takanat Chakhamim - the sale is voided for internal fundamental reasons.  Tosafot felt instead that moda'a operates as an independent nullification and cancellation of an otherwise valid sale.  Apparently, the Ramban agreed and moda'a has relevance despite the ultimate persuasion of the victim.  As long as the victim was in a declared state of 'ones' during the moment in which the moda'a was issued and recorded - AT THAT MOMENT - and a legitimate moda'a was issued, we are not concerned with his ultimate consent as a result of the cumulative effect of the torture and the cash incentive.  He issued a 'cancellation of the mekhira' during a state of 'ones' and this mekhira has been nullified.

SUMMARY:

---------------

          We have located two different views regarding the mechanism of moda'a.  Either it subverts a mekhira INTERNALLY by conveying lack of consent.  If so, it is subject to the gemara's evaluations about the victim's ultimate state of mind during the mekhira.  Alternatively, moda'a can operate independently as an objective, formal cancellation of a mekhira - based upon an independent takanat Chakhamim.  As a formal cancellation, the victim's ultimate change of heart and compliance would have no impact.  The Ba'al Hama'or and Ramban debate these two stances.

          The central nafka mina to this issue would be the degree to which we must prove the existence of 'ones'.  The gemara (40b) states the position of Nahardai  that the ones must be absolutely verified for the moda'a to be issued.  The Ramban objects that this statement is too obvious.  Obviously we cannot issue a moda'a unless some verification of torture or pressure is presented.  Otherwise, every seller would exploit moda'a, willfully selling his property and issuing a moda'a to help recover this sold property.  Instead, the Ramban reinterprets Nahardai as requiring ABSOLUTE AND COMPREHENSIVE verification that the victim was coerced from the beginning to the very end of the mekhira and had absolutely no ESCAPE or ALTERNATIVE.  Reading the gemara in this fashion, the Ramban questions why such comprehensive knowledge is necessary.  After all, who cares about the victim's state at the time of the sale - whether he did or did not have an escape?  If at the time in which the moda'a was issued he was an 'ones' and issued a legal moda'a, the sale should be canceled, regardless of his ultimate consent?  (Ramban actually reads this question into the debate of the gemara).  By voicing this position (through the gemara), the Ramban corroborates his position that moda'a operates independently, as that which negates the sale.  Though the moda'a can only be issued in cases of 'ones' we do not require a comprehensive knowledge.  Verification of his state of mind at the time of the moda'a's issue is sufficient.  He has already created the mechanism for outright nullification of the impending sale.

          What about the possibility of canceling your moda'a?  Can a person issue an annulment of his moda'a?  The gemara in Erekhin (21b) insinuates that such a cancellation is acceptable and the original transaction is therefore validated.  Our understanding of the mechanism of moda'a would greatly influence the manner in which we understand the cancellation of moda'a.  If moda'a were merely a vehicle to express  lack of consent, the cancellation would not actually be a FORMAL cancellation; it would merely express the change of heart  and subsequent consent/da'at.  If, however, moda'a operates as a formal act,  voiding a mekhira, its cancellation too would take the form of a FORMAL rescission of the cancellation order.  Rescinding the cancellation order would in turn validate the sale.  This difference of interpretations is not merely semantic.  What would happen if the rescinding of the moda'a were executed AFTER the sale had already transpired?  If the purpose of this rescinding is to express the ultimate consent of the victim it occurs too late.  The transaction has already occurred without any consent (for 'moda'a unchecked', has informed us as much) and the subsequent da'at is meaningless unless a new kinyan is enacted.  If, however, moda'a operates as an objective external disruption of the mekhira - indeed the mekhira per se is a sound one - once this disruption is removed the mekhira can be validated.  The mekhira is only suspended as long as the cancellation is in effect.  Once this cancellation is revoked the mekhira takes effect retroactively.  The Yad Rama (Babba Batra 47b Siman 185) suggests such  a situation. Would a moda'a automatically nullify a sale or merely present the victim with the right of retrieving his land.  What would happen if, after the coerced sale, the price of the land dropped precipitously and the victim now prefers to retain the money he was paid?  If moda'a expressed absolute lack of intent, the mekhira (sans da'at) never occurred and he doesn't have the right to hold onto the money.  If, however, moda'a cancels a valid mekhira, one might question the terms of the cancellation.  Moda'a might preprogram an absolute cancellation or it might authorize the victim the reclaim his land - IF HE WANTS TO.  The point is: if moda'a conveys lack of da'at there is no possibility for the victim to insist upon the sale.  If moda'a is an independent cancellation - ONE WHICH ASSUMES THE MEKHIRA'S INTRINSIC VALIDITY BUT CANCELS ITS EFFECTIVENESS - we might license the victim with the right to refuse this cancellation.  (See the  aforementioned Yad Rama for a hint to this possibility.)

          Finally, what about alternate forms of moda'a?  Is there a strict format of moda'a - a formal shtar written according to certain specification?  Can moda'a be conveyed through alternate media?  The gemara (40b) discusses a matana temirta - a grant which was secretly bestowed.  Rather than writing the shtar in public, the person performs it in a clandestine manner, imploring the eidim not to tell anyone.  The gemara decides that this kinyan is ineffective (his conduct raises suspicion).  Additionally the gemara decides this 'hidden matana' cancels any subsequent kinyan on the same article - it is a tacit moda'a.  Quite possibly, he issued this secret kinyan to  sabotage a subsequent sale/grant which he is being forced to effect.  If moda'a operates as a formal cancellation of the sale we might insist upon the issuing of a formal shtar conforming to a precise language and question the gemara's expansion.  If however, moda'a's role were merely to convey lack of da'at, any act which expresses this, overtly or by allusion , would be sufficient.

SUMMARY:

----------------

          These two positions regarding the effectiveness of moda'a might influence the scope, application and potential for nullification of moda'a.

METHODOLOGICAL POINTS:

------------------------------

1.  Very often, two gemarot will appear to contradict one another.  The first step is to determine whether they are actually referring to the same case and the same halakha.  Generally there is some discrepancy in their metziut (the exact scenario) or the techum (the precise halakha each is addressing).  If this differentiation is not possible, often, one gemara will be qualified by the other.  Ramban and Ba'al Hama'or debate which of these two conflicting gemarot about coerced sales is qualified by its counterpart.

2.  Whenever something fails, it can fail for one of two reasons: externally or internally.  Moda'a, representing the failure of coerced sales, might reflect an internal flaw - the expressed lack of da'at.  Alternatively, the internal engine of mekhira might be stable, but the overall sale is canceled EXTERNALLY by the issue of moda'a - a special tool (possibly based upon a takanat Chakhamim) designed specifically to cancel a coerced mekhira.

Copyright (c) 1995 Yeshivat Har Etzion.  All rights reserved.