Siman 147

One who contests a field that Reuven sold to Shimon with the claim that Reuven stole it from him, and the contestant himself is signed on the deed of sale as one of the witnesses of the deed, his contestation is nothing. This is true even if Reuven has no witnesses that it is his, for the witnesses of the deed of sale testified that it belongs to Reuven, and consequently, we no longer pay attention to any proofs the contestant may bring. This is not similar to what was written in siman 146, section 19, that when one consults with the contestant whether to buy it and he advised him to buy it, he did not lose his right; for there it is a mere statement, but here where he signed on the deed or testified orally in beit din, which is like an action [Sma], he can no longer contest. And it appears to me that this is specifically when he is signed as a witness to the sale, but if the seller sold it to him with a deed in his own handwriting and the witnesses only came to verify his signature and not the matter itself, he can contest afterward, because he can say that he did not testify regarding the matter at all. His law is then like a judge who is signed on the verification of the deed, which will be explained in section 4. And even when signed as a witness to the sale, it is only in such a case, but a creditor who signed himself as a witness when the debtor sold to another may return and seize it from him, as written in siman 111, for he only has a lien and the debtor sold legally, and it was permitted for him to sign on the testimony.

And even if he is not signed upon this bill of sale itself, but rather one man sold a certain field to another man, and when he demarcated the boundaries for him, he wrote that this field belonging to Reuven is the boundary on the eastern side, and the claimant is signed as a witness on this bill of sale—since the seller made this field a landmark for the buyer and he is signed as a witness, it is as if he testified that it is the field of Reuven, and he has lost his right and can no longer claim against it. And all the more so if the claimant himself sold a certain field and wrote to the buyer "the field of Reuven" as a boundary, or when the possessor sold a certain field and wrote this field that the claimant is arguing over as a boundary and the claimant is signed as a witness, that he can no longer claim. But when the possessor sold a certain field to the claimant and wrote this field as a boundary, the claimant has not lost his right, for he can say: I was afraid to protest, for if I had protested, he would not have sold it to me, and I was forced to buy it; and as for delivering a moda'ah, I was also afraid lest it become known and the purchase be voided [Ketubot 109b].

If the witness claims, "It is true that I admitted it belongs to the possessor, but my intention was not for the entire field, but only for one furrow at the boundary, and the rest of the entire field is mine, and only that furrow adjacent to the boundary alone belongs to Reuven," this is a claim that is heard, and he may contest the entire field except for that furrow. This is specifically when the furrow contains nine kabin, which is the measure of a field, when it is written in the deed "the field of Reuven is the eastern boundary," for there is no field less than this measure, as has been explained in siman 171. And if "field" is not written, but rather "the land of Reuven is the eastern boundary," he has only a small furrow. And even regarding this furrow, if he later returns and further claims, "I subsequently bought back from him the furrow that I admitted to," if his signature is not produced from another place, and had he not admitted it was his signature they would not recognize at all that it is his signature, he is believed with a migo that he could have said "it is not my signature." However, when the language of "field" is written, he is not believed with this migo to say that his intention was for less than nine kabin, for it is a migo in the place of witnesses, as we are witnesses that it is not called a "field" if it is less than this measure [Sma]. And likewise, if the furrow is in his possession and he held it afterwards, he is believed to say, "I subsequently bought it from him." And it appears to me that specifically regarding a furrow can he claim thus, "I subsequently bought it from him after I made it a boundary marker," but regarding the entire field he cannot claim, "It is true that I made it a boundary marker but afterwards I bought it from him," for initially when he contested, perforce he either said it belonged to his ancestors forever or that he bought it from him prior to the writing of this deed, for if not so, what sort of proof is it that he is signed as a witness? Since this is so, he cannot return and claim. But regarding a furrow he can claim thus, for what he claimed initially was regarding the entire field, and concerning the furrow he did not speak at all [see there in Ketubot 109b in Rashi and Ran, and examine this carefully]. And the claim of "he subsequently bought it," the beit din claims on behalf of the orphans of the contestant [Shach]. And likewise, if the contestant claims that his making this field a boundary marker for another was not because it belongs to him, but rather it is called so because in the past it was his and it remained with its previous name, his claim is a valid claim, unless it explicitly stated that they are his, such as if it is written "the field which is Reuven's" or "which belongs to Reuven." But when it is written simply "the field of Reuven," he can say that it is merely a name, as has been explained.

This matter of losing his right when signed as a witness applies specifically when there is another witness with him, but if he is signed alone, he has not lost his right, for he can say that the reason he signed was because he knew that the signature of a single witness is nothing. And similarly, if he did not sign as a witness but only for honor, in a case where there are witnesses without him, he has not lost his right, for since he was not truly among the witnesses of the deed, he did not know what was written there. And similarly, a judge signed on the authentication of the deed may protest, because he can say "I did not know what was written in the deed," because the judges may authenticate the deed even though they did not read it, as they only authenticate the signatures of the witnesses. But if he was a judge and he collected this land for him for a debt that the possessor owed him, he has lost his right, for this is even worse than a witness who is signed, as an act of beit din, even if the beit din did not sign, is a significant act. And similarly, if the protester rented the land from the possessor, it is like signing on it as a witness and he has lost his right, as I wrote in siman 142, for regarding rental we do not say "a person is prone to buy his own judgment," and it is like an admission.

Our teacher, the Rema, wrote in section 2: An apotropas or a beit din who sold the property of orphans in such a case did not lose the right they have over the field. Thus far his words. And the explanation of the matters: for example, where Shimon contested that Reuven stole a field from him, and Shimon has another field beside this field, and Shimon died, and the beit din and the apotropasim sold that field to another and made the stolen field a boundary marker, and wrote "the field of Reuven is the eastern boundary," the orphans did not lose their right, because the admission of the beit din and the apotropas does not obligate them. And similarly, an apotropas who sold a field of orphans to a gazlan who stole a field from him, and the field is on the boundary of the orphans, and he wrote it as a boundary marker in the deed that it is the field of the gazlan, the apotropas did not lose his right of contest, for he was forced to act for the benefit of the orphans, and if he had not written it for him, he would not have purchased from him and the orphans were in need of the money [Urim VeTumim and see Sma, and according to what I wrote it is simple and correct, and examine it closely].