דף ק"ג
Buying property under a fictitious name
The ברייתא says we do not force him to sell unless the buyer stipulates on the condition that he will sell
רב ששת – He explains that the fictitious buyer in the גמרא the ריש גלותא does not have to write a document to the true owner. The ריש גלותא has the right to protect his reputation as one who does not sell land.
אביי – He understands that the buyer cannot force him to provide an additional deed indicating him as the true owner unless he stipulated this at the time of the purchase. The seller has the right to protect his financial stability. His property will devalue if he sells too much. However if the buyer said to the witnesses in the presence of the seller I need another document the seller cannot say I thought he meant from the ריש גלותא.
Advancing money to a middleman to provide merchandise over a period of time for a fixed price
רב כהנא advanced money to a middleman to purchase flax for a fixed price to be delivered at a later point in time so the money is like a loan because he has the use of the money until he makes the purchase. The middleman purchased it at a lower price and sold it for more. רב held that רב כהנא could receive the merchandise but not the proceeds of the sale unless the buyer knew that the profit would be to רב כהנא. He then transfers the money directly to him resembling a sale and not a loan. If he did not know he transfers the money to the middleman who then would repay the loan with the proceeds.
משנה
ויקרא פרק ה
(כא) נֶפֶשׁ כִּי תֶחֱטָא וּמָעֲלָה מַעַל בַּיקֹוָק וְכִחֵשׁ בַּעֲמִיתוֹ בְּפִקָּדוֹן אוֹ בִתְשׂוּמֶת יָד אוֹ בְגָזֵל אוֹ עָשַׁק אֶת עֲמִיתוֹ:
(כג) וְהָיָה כִּי יֶחֱטָא וְאָשֵׁם וְהֵשִׁיב אֶת הַגְּזֵלָה אֲשֶׁר גָּזָל אוֹ אֶת הָעֹשֶׁק אֲשֶׁר עָשָׁק אוֹ אֶת הַפִּקָּדוֹן אֲשֶׁר הָפְקַד אִתּוֹ אוֹ אֶת הָאֲבֵדָה אֲשֶׁר מָצָא:
(כד) אוֹ מִכֹּל אֲשֶׁר יִשָּׁבַע עָלָיו לַשֶּׁקֶר וְשִׁלַּם אֹתוֹ בְּרֹאשׁוֹ וַחֲמִשִׁתָיו יֹסֵף עָלָיו לַאֲשֶׁר הוּא לוֹ יִתְּנֶנּוּ בְּיוֹם אַשְׁמָתוֹ:
(כה) וְאֶת אֲשָׁמוֹ יָבִיא לַיקֹוָק אַיִל תָּמִים מִן הַצֹּאן בְּעֶרְכְּךָ לְאָשָׁם אֶל הַכֹּהֵן
Returning a stolen object to its owner
The Mishnah states that he has to return it to the victim wherever he is as verse כ"ד says. However he may return it to his agent or an agent of the court to hold for him until he returns. This was a תקנת חכמים to encourage the thief to return the stolen item. If he would have to invest a large amount of money to travel to the victim it would discourage him.
הגוזל את חבירו שוה פרוטה ונשבע לו
From the משנה it appears the obligation to return it to the victim is only where he took a false oath.
1. The גמרא explains the משנה according to רבי עקיבא who holds if one stole and he does know who he stole from amongst five people he has to return it to all five if he swore falsely based on the verse ביום אשמתו. Although רבי אלעזר ברבי צדוק instituted a תקנה where the expenses of the thief are more than the principle amount of the theft he can return it to the court רבי עקיבא held the תקנה is only where he knows who the thief is but he is in a distant land.
רבי טרפון holds that even where he swore falsely he can in the case where he does not know who he stole from he can place the stolen item in front of them to determine the victim.
There is a ברייתא that states they do not argue in a case of a purchase. Even רבי עקיבא holds he places the item in front of them to determine the victim. If he swore falsely what is the difference! The verse includes תשומת יד.
2. The משנה is רבי טרפון. He agrees where the thief swore falsely. רבי עקיבא holds the רבנן fined him even where he did not swear falsely.
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