Siman 205

It is a known and agreed-upon matter that any action a person performs under duress, his action is nothing. For even a transgression, when performed under duress, he is not punished for it, as it is written: "And to the girl you shall do nothing," for the Merciful One exempted one under duress. This is all the more so regarding a voluntary matter. Therefore, if one coerced a person to give his land or his movable property, even though he performed a kinyan and signed a deed, it is nothing. And even if the coercer threatens to strike him or kill him, nevertheless, he does not transfer ownership to him with a whole heart, for he says in his heart: "I will sue him later in a beit din or in the courts." And even if the coercer is a violent man, are not those with strong arms destined to fall? And that which the sages, of blessed memory, said—that at the time of the Destruction, due to their duress, they resolved and transferred ownership of their fields [Gittin 55b] without payment—that is different there, for it was a time of war and they were abandoned to slaughter, and they transferred ownership with a whole heart in order to be saved from the decree of slaughter. But in all other times, this law does not apply [Beit Yosef].

And specifically when they coerce him to give without payment, but if they coerced him to sell for its value and gave him the money and he received it of his own will, or even if they gave him the money against his will and he said "I am willing," his sale is a sale [the Gra]. And thus our sages, of blessed memory, said [Bava Batra 48a]: If they hang him and he sells, his sale is a sale, for it is logical that since they coerce him and give him money in a manner where he loses nothing [Rashbam], he resolves and transfers ownership with a whole heart. But if they coerce him to give for less than its value, it is as if they coerced him to give a gift [Tur], for what difference is there to me between a large loss or a small one? And even though regarding the details of a moda'a there is a distinction between them, as I wrote in section 15, there is no distinction in this between land and movable property regarding the essence of the matter; only regarding the matter of less than its value in land, it will be explained there that its law is not equal to movable property.

The opinion of the Rambam, of blessed memory, in chapter 10 of Laws of Sales is that even if he did not take the money in the presence of witnesses, but rather admitted in the presence of witnesses that he received the funds, and now the seller claims that he did not receive them at all but rather they coerced him to admit, we do not listen to him; for if the truth were so, he should have submitted a moda'a [Sma]. And there are those who disagree and hold that we require that they see the giving of the money, and an admission is nothing, for just as they coerced him regarding the sale, so too they coerced him regarding the admission. And so it appears is the opinion of our teacher, the Rema, and see what I wrote in section 21. And some say further that we require specifically the giving of money, but if the coercer gave him a note for the money, he does not acquire even if he is secure in his money, for since he did not give cash, he did not resolve to transfer ownership [ibid.]. And there are those who disagree on this, for since he is secure in his money, he resolved to transfer ownership. And there is one who says that if the coercer gave a promissory note for the money, even the first opinion admits that it is like cash and he resolved to transfer ownership, and they only disagreed on this when the seller gave him a deed of sale and at that time the coercer did not give him money, and now the coercer wants to give him the money; for the first opinion holds that he did not resolve to transfer ownership with the deed alone, and those who disagree hold that since he wrote a deed of sale he resolved to transfer ownership since he did not submit a moda'a, and he shall now receive his money [Shach]. And when he wrote a deed with a guarantee, it is possible that all agree it is effective, and it requires further study for the law.

And all this is when the seller did not deliver a moda'a, but if he delivered a moda'a prior to the sale and said to two witnesses, "Know that regarding this object, or this house, or this field that I am selling to so-and-so, I am under duress," behold the sale is void in any case. And even if the extortionist held it for several years, we remove it from his hand and he returns the money to the extortionist. And he also does not need to make a mecha'ah during all three years, for since he initially descended into it through robbery and this is known to the witnesses, why should he need to make a mecha'ah? And even if the witnesses did not write the moda'a, it is a moda'a, for since they testify that he delivered the moda'a in their presence, the writing is not a hindrance. And if the extortionist made some improvement to it, we judge him like one who descends not with permission, which will be explained in siman 375 [it appears to me]. And a moda'a must be before two qualified witnesses [it appears to me], and before one witness it is nothing. And even though it is merely a disclosure of the matter, nevertheless, since without the moda'a we say that he resolved and transferred ownership, therefore when he delivers the moda'a and based on it we void the sale, it must be before two and they must be qualified. And specifically when he delivered the moda'a prior to the writing of the deed of sale, but afterwards the moda'a is nothing, for if not so, with all the deeds in the world, when he regrets it afterwards he will come to disqualify them [Rashbam]. And similarly with metaltelin after the meshikhah, a moda'a is not effective; and similarly with land after he performed some act of chazakah, a moda'a is not effective [it appears to me]. And even though the witnesses must know of the duress, and if so we should accept the moda'a even afterwards since they know of the duress, nevertheless, since he did not deliver the moda'a beforehand, we say that he consented beforehand and now he wishes to retract.

When he makes his protest known to the witnesses, the witnesses must know for themselves that he is selling due to duress and that he is certainly under duress, and they must know what his duress is, and not rely on his word; for there are many forms of duress that according to the law are not considered duress, as will be explained. Therefore, any mada'a that does not have written in it, "We, the witnesses, knew that this person was under duress," is not a mada'a. When it is written thus, we say that they certainly knew he was under duress with such duress that nullifies the sale according to the law. And when the witnesses testify before a beit din regarding the mada'a, the beit din shall investigate them regarding the nature of the duress, for whatever can be clarified, we clarify, and perhaps there was no duress at all according to the law [so it appears to me]. To what does this apply? To a sale. But regarding a gift or the forgiveness of a debt, the witnesses do not need to recognize his duress, and the reason for this will be explained ahead. And in a sale, if they do not recognize his duress, they shall not write a mada'a for him. There is one who says that even if he says to the witnesses, "Write for me plainly that I delivered a mada'a before you, and when my duress becomes known, your testimony shall be joined to nullify the purchase," they do not listen to him, because we fear a mistaken beit din; when they see this document from the witnesses in his hand, they will not investigate further to clarify the duress. However, if such a mada'a was already written, and he later brought proof through witnesses that he was under duress, the sale is nullified, for this is only a mere concern.

What is called anes? Both physical duress and monetary duress, whether at the hands of gentiles or at the hands of an Israelite. And we do not say, "Behold, this is not an anes at all, for he can sue him in a beit din," for sometimes a beit din is not prepared before him [Rashbam] or for another reason he cannot sue him in a beit din; and all the more so if he is a violent person who does not obey the law. And so too one who coerces his fellow with beatings or hung him until he sold to him, or intimidated him with something that it is possible for him to be coerced to do. However, some say that intimidation is not considered anes, for a person is prone to threaten and not act. Therefore, this matter depends on the context and according to the perception of the beit din or the witnesses. And sometimes there is a type of monetary duress where the witnesses are unable to recognize the anes before the moda'ah, but rather afterwards they will contemplate and see and write the moda'ah, like the incident brought in the Gemara regarding one who rented an orchard from his fellow for ten years, and the lessor did not have in his hand a document from the lessee stating that the orchard is with him only through rental. And after the lessee consumed its fruit for three years—which is the period of chazakah, and he can claim "it is purchased in my hand" as has been explained in siman 140—he said to the lessor between themselves: "If you do not sell this orchard to me, I will suppress the rental document that I have from you and I will claim that it is purchased in my hand." And so he said before a beit din when he sued him. What did the lessor do? He related the matters before witnesses and designated them in a hidden place so that the lessee would not see them and they would hear what they spoke. And they heard that he said to the lessee: "Behold, I am forced to sell to you since it is not your will to admit before witnesses that it is rented in your hand." And he wrote him a bill of sale. And afterwards he sued him in a beit din, and he showed the bill of sale, and the lessor produced the witnesses who heard that he was coerced into the sale. And now he cannot claim that it was sold to him from before, since he himself showed the bill of sale that he wrote for him now, and on this there are witnesses that he was coerced. And the sages said: since he delivered a moda'ah and his duress was revealed, the sale is nothing, for behold he has witnesses that he is coerced and there are witnesses that he denied it in beit din, and they themselves are the witnesses of the moda'ah. And so too anything similar to this [Ateret Tzevi].

Regarding which duress did they speak? Regarding duress that comes to him from the buyer himself or from his agents; but regarding duress that comes to him from himself, such as one who sells because of his pressing need for money and the like, this is not duress, for the sale itself is with desire, as otherwise most sellers are under duress. And even regarding duress that comes to him from others, specifically where they coerced him to sell; but if the duress is regarding another matter, such as where they coerced him to give money and because of this he was forced to sell one of his properties to another and redeem himself from the hand of the coercer, this is not duress and his sale is a sale, since from the side of the buyer there was no duress upon him. Therefore, if the buyer himself is the coercer, even though he did not coerce him regarding this sale, behold, this is duress and his sale is nothing [Shach]. And similarly, if the duress was not upon him at all but upon another person, where they coerced the other with afflictions until this one would sell him his properties, this is not duress since the duress was not upon himself. And if they coerced the father so that the son would sell the properties, or coerced the son so that the father would sell the properties, there is a dispute among the poskim regarding this, whether it is called duress of himself or not, as is explained in Even HaEzer siman 134. And if they coerced his wife, it is certainly like duress of himself, for she is considered like his own body [it appears to me].

Therefore, the sages required that the duress be known to the witnesses, because they were concerned that perhaps it was a duress that came upon him of his own accord—such as needing money and now delivering a moda'a, and when his situation improves, he will cancel the sale by means of this moda'a—or perhaps it was a duress not against his person. But when they know of his duress, they shall not accept his moda'a until they know that according to the law he is considered under duress. And also, even regarding a gift, there are times when he is under duress but according to the law he is not considered under duress, such as when his situation is dire and he sees that when he gives a gift to this person his situation will improve through the cause of this man; therefore, even though he gives the gift due to the necessity of the matter he faces, nevertheless the gift is given with will. And so too in matters of gittin, for if not so, behold many gifts would be as if under duress and many gittin—such as one whose wife hates him and he loves her, and he is forced to divorce her because of her hatred for him—shall we say that the get is under duress? Rather, certainly since he gives the essence of the get with will, even though he is under duress regarding its cause, nevertheless we are only to judge the act of the get itself, and so too regarding gifts.

The Rambam and the Shulchan Aruch wrote: In what case does it apply that they must know he is under duress? Regarding a seller or one making a compromise. But regarding a gift or a waiver, if he submitted a moda'ah beforehand, even though he is not under duress, the gift is void; for regarding a gift, we follow only the disclosure of the giver's intent, for if he does not desire to transfer ownership with all his heart, the recipient of the gift does not acquire it, and a waiver is a gift. Thus far their words. We have learned from this that even though they know he is not under duress, nevertheless, since he does not desire to give with a whole heart, this person does not acquire the gift and the waiver is not a waiver. Many of the poskim agreed likewise. There are some of our teachers who say that we certainly write a moda'ah regarding a gift and a waiver even if they do not know of his duress, but the reason is that we say he is presumably under duress, for if not so, why did he submit the moda'ah? But if it is known to us that he is not under duress, his moda'ah is nothing [Rashbam and Ramban, cited in the Beit Yosef]. And one should not raise a difficulty that if so, we should be concerned that perhaps he is under duress in a manner that according to the law is not considered duress; for it can be said that regarding a gift and a get, any type of duress is considered duress when he submits a moda'ah, but when he does not submit a moda'ah, it is not considered duress in such a case. In the Shulchan Aruch, this opinion was not cited.

According to what has been explained regarding a sale, even though we know clearly that he is under duress, if he did not deliver a moda'ah, his sale is a valid sale, because due to the receipt of the money he transfers ownership with a whole heart. And when he delivers a moda'ah, they must recognize his duress—what constitutes duress according to the law—and if they did not know of his duress, they shall not accept his moda'ah, and certainly they shall not write the moda'ah for him. However, regarding a get, a gift, or a waiver, when he delivers a moda'ah, they write it for him always, even if we did not know of his duress, and even if it is known that he is not under duress according to most poskim, as I wrote in the previous section. And if we knew that he is under duress, even if he did not deliver a moda'ah at all, the get, the gift, and the waiver are void, for "they suspended him and he gave" is not a gift. And this is specifically when they coerced him regarding the gift itself, but if he was coerced for another matter and gave the gift to be rid of the other duress and did not deliver a moda'ah, his gift stands. But when he delivered a moda'ah, the gift is void, and so too regarding a waiver; and also regarding a sale in such a case, when he delivered a moda'ah, the sale is void. And if they coerced him to give a promissory note, it has no substance even when he did not deliver a moda'ah, for it is not relevant in this case to say he resolved and transferred ownership, since he has not yet given money [ibid. and all that I wrote in this section was also written by the Netivot HaMishpat, and what the Ketzot HaChoshen wrote requires further study; and delve into this].

When a mesirat moda'ah comes before a beit din, the beit din must investigate and inquire into this, what manner of coercion existed, for most people are not experts in what constitutes coercion that is effective according to the law. And even though they write "and we recognized his coercion," it is possible that it is not coercion according to the law. And when the witnesses testify to the coercion and it is found that it is not coercion according to the law, they are not called "returning and testifying," for they are prone to err in such a case [Alshich].

When one submitted a moda'a and the witnesses knew of his duress, even if the sale was afterward and they do not know that the duress was not removed, it is a valid moda'a if according to their estimation there was no reason for the duress to have been removed at the time of the sale. But if according to their estimation the duress was removed at the time of the sale, it is not a moda'a until the matter is clarified whether the duress was removed or not [Imrei Noam].

Reuven owed money to Shimon and he was unable to collect them, and he sold land to Reuven; and prior to the sale, Shimon delivered a moda'ah before witnesses and said to them: "I will sell him my land because Reuven wants to smuggle away his assets, therefore I will sell him the land so that I will be able to seize it for my debt," and the witnesses know that it is so, it is a moda'ah [Ketubot 110a]. And there is reason to doubt whether the sale is void or not [Shach and Netivot HaMishpat]. And it appears to me from the Yerushalmi there that the sale is void, as it is stated there that he may collect specifically from this land even though Reuven has another like it; and if the sale is valid, why can he compel him in this? [And that which is written there: "Consider yourself, if he had good land, he could say 'I want my own' etc.," it means to say that this is the question: whether the sale is valid and he collects what he wishes, or the sale is void and he collects his own; and with this it is well-settled that the Rosh does not contradict the Yerushalmi, and the answer of the Rosh is necessary, and the commentators were pressed there; and delve into this.]

An Israelite who owed money to a non-Jew without interest and did not have the means to pay, and the non-Jew coerced him until he was forced to give him interest so that he would wait for him, and afterwards he sold the debt to an Israelite—the Israelite cannot collect the interest from him. The reason is that the interest is like a gift, since he did not stipulate the interest at the time of the loan, and he is coerced regarding the interest; and regarding a gift, coercion suffices even without a formal protest, as I have written. This is unless at the time the Israelite gave the document to the non-Jew for the interest it was with good will, such as if the non-Jew did him some favor, or if at the time of the loan he obligated himself to the interest; then, when he sold the debt to the Israelite, he must pay him also the interest that he owed to the non-Jew [Netivot HaMishpat].

There is one who says that this which we say, that when he did not deliver a moda'ah his sale is a sale, if it is regarding land, it is so even if he did not give him all its value, because there is no ona'ah for land. However, regarding movable property, since there is enough for ona'ah or enough for the cancellation of the sale, the law of a sale does not apply here. And these words apply when he only coerces him regarding the sale, but regarding the sum of money there was no coercion. But if he coerced him to give it to him for less than its value, even regarding land the law of a sale does not apply here, and it is like one who was coerced to give, which is not a gift. Therefore, if it is only known that he was coerced regarding the sum of money, his sale is void even when he did not deliver a moda'ah, as in the case of a gift. However, regarding this matter it is like a sale, for if he delivered a moda'ah, the witnesses must know of his coercion, since because he received some money, one could say perhaps he resolved and then transferred ownership with a whole heart. And this which we said regarding movable property, that when there is enough for ona'ah it is like a gift, even if he knew at the time of the sale of the ona'ah and also delayed long enough to show it to a merchant, nevertheless his sale is not a sale, as in the case of a gift, for he did not resolve and transfer ownership, and even if he did not deliver a moda'ah. And if he delivered a moda'ah, they must know his coercion as has been written.

The Rambam and the Shulchan Aruch wrote that this which has been explained—that a seller who did not submit a moda’a, his sale is valid—to what do these words apply? To an othes who coerced him now, and he is a robber who forces the seller to sell against his will; for in this case we say that since he sold to him now and received money and handed over the field to him and did not submit a moda’a, it is close to the matter that he consented. But one who stole a field from his fellow and was established in the theft, and afterwards coerced the victim of the theft and took this field from him, the sale is void even without a moda’a. Since he was already established in thievery over the field and the seller did not perform an act now to remove the field from his possession, the thievery remains as it was. It has already been explained in siman 151 that there are those who disagree on this, and some say that in this case even those who disagree admit, for there it deals with a case where previously the field left the possession of the thief, and when it came now into the hand of the thief, it came through coercion as with all coercions of a sale and not through thievery [Sma]. And there are those who disagree on this and there is no distinction in this [Taz]. And there is one who disagrees with the essence of this law and holds that even when it did not leave the possession of the thief, but afterwards when he coerced him, he did not coerce him regarding the sale of this field but rather another coercion, and he consented to him in the sale of that field, his sale is a sale when he did not submit a moda’a [Ramban]. And according to the first opinion, there is no distinction whether the coercion was over the field itself or another coercion, since the coercion was from the thief himself, and its law is not like a sale [it appears to me].

A peshara has the status of a sale, for every peshara is by way of the claims of the plaintiff who says that the defendant owes him such and such, and the defendant says that he owes him nothing at all; it turns out that the peshara is that each one waives a portion of his claims, like a sale where this one waives his purchase and that one waives his money [Sma]. And some say that specifically when the peshara is due to a legal doubt, then it is similar to a sale and requires duress and a moda'a to nullify it; but when the law is clear according to one of them, only the second one coerces him to settle with him, it is similar to a gift which is nullified by reason of duress alone, but a moda'a without duress does not nullify it since it is not truly a gift. And when the peshara is made because there was a denial between them, if it is clarified afterwards by witnesses that the truth is according to the words of one, the peshara is nullified even without duress and without a moda'a, for it is a peshara in error, as is written in siman 12. And so too when one of them admitted afterwards of his own accord that the truth is with the second, the peshara is nullified [Netivot HaMishpat]. And when he admitted to the sum that he settled with him—for example, he claimed a maneh from him and he denied everything, and he settled with him for fifty, and afterwards he admitted to those fifty—he cannot administer an oath to him regarding the fifty that he denied, since according to his words, in any event, the peshara was according to the law and was not nullified. And that which we said, that a peshara has the status of a sale such that it requires duress and a moda'a, this is specifically when he coerced him generally to settle with him; but if he coerced him regarding the sum, that he should settle with him for such and such, this duress itself nullifies the peshara even without the delivery of a moda'a [ibid.]. And there is one who says that this matter of a peshara having the status of a sale is only regarding the matter that we must know that he is under duress, but if we know of his duress, even if he did not deliver a moda'a, the peshara is nullified, for it is like they coerced him to give [Rashba]. However, in a case where one has a lawsuit against his fellow and he himself does not know if he will prevail in the law, such a peshara certainly has the status of a sale regarding the matter of duress [Bach].

A gift in which a guarantee of property is written has the status of a sale, for it was certainly a sale, as otherwise he would not have obligated himself with a guarantee. Therefore, a moda’ah without duress does not nullify it. However, duress without a moda’ah nullifies it, even though in a sale this is not so, because we say that the guarantee was also under duress and there was no sale here at all [Taz]. Unless it is known that the writing of the guarantee was without duress, and then even a moda’ah is not effective, for we see that he consented, and in this it is inferior to a sale [ibid.].

Our teacher, the Rema, wrote that all this applies when they coerced him to sell, where we say that due to the pressure he resolves and transfers ownership, but if they coerced him to buy, it is not a kinyan. Thus far his words. And there are those who disagree with this, as is written in Even HaEzer siman 42; on the contrary, a person acquires more willingly than he sells. Furthermore, according to the opinion of the Rema, if the coerced party desires to uphold the transaction, the coercer cannot nullify it [Netivot HaMishpat]. And if they coerced him to sell for the value of money, this is like money and the transaction is established. And when they coerced him to exchange, if the exchange is of equal value, the transaction is established according to those who disagree. And if it is not of equal value, its law is as in section 15. And in a case where they coerced him to sell and the coercer gave him a collateral for the payment, some say that he acquires [ibid.], for it is like money, but a promissory note is not like money. And in section 3 it was explained, see there. And regarding a partnership dealing and hiring, it appears to me that their law is like a sale.

The witnesses of the moda'ah may themselves also sign the deed of sale regarding which the moda'ah was delivered to them by the seller, and we do not say that it appears as a falsehood that they sign the deed of sale while they themselves know that it is not a sale. For on the contrary, they are performing a mitzvah to rescue the oppressed from the hand of his oppressor. And that which we wrote in siman 46, that there are those who say that witnesses signed on a deed who say "our words were a moda'ah" are not believed, this is when they are not signed on a deed of moda'ah written prior to the sale. But when they are signed on the moda'ah prior to the sale, it is simple that it nullifies the sale, and all the more so if others are signed on the moda'ah.

Even if the seller says before the witnesses in the presence of the extortionist, "I am selling of my own will without duress," nevertheless, the moda'ah remains valid; for just as he coerced him regarding the sale, so too he coerced him until he would say that he sells of his own will. And likewise, if he admitted before them after he delivered the moda'ah that he received the money, this admission is nothing such that he would be obligated by means of this admission to return the money to the extortionist, for we say that the extortionist coerced him regarding the admission as well, and behold the witnesses know at the time of his admission that he is under duress. Therefore, even according to the opinion of the Rambam that was explained in section 3, that an admission regarding the giving of the money is a valid admission, this is only when he did not previously deliver a moda'ah; but when he delivered one, his admission is nothing. However, if the witnesses saw the giving of the money, he is certainly obligated to return it when the sale is voided.

A document of moda'ah that comes before us and has no date, and the witnesses are not here and we do not know if it was made before the sale or after it, the moda'ah is valid and voids the purchase. For since we know by way of the witnesses signed on the moda'ah that he was under duress, presumably he issued the moda'ah beforehand, for if not so, the witnesses would not have signed themselves on the moda'ah, and there is a presumption that they acted according to the law. Furthermore, since we have a moda'ah before us, the presumption of the buyer is not a presumption, and we establish the object in the presumption of the original owners until the matter is clarified. And for this reason, in a compromise, if the claimant produced such a moda'ah before us, establish the money in the presumption of the defendant [Ketzot HaChoshen]. But according to the first reason, even in a compromise the law is as in a sale. And the main point is according to the first reason, for the presumption of the witnesses that they acted according to the law is a complete presumption, and in the Shas we find this presumption several times [it appears to me].

If the witnesses of the sale testified about him that he canceled the mada'a, the mada'a is canceled. Even though in this case as well he is perhaps under duress, nevertheless we say that due to his duress and his receiving of money, he resolved and transferred ownership, just as in a case where he did not deliver a mada'a where we know of his duress, he resolved and transferred ownership, as has been explained. So too in a case where he delivered a mada'a and canceled it. And it is not similar to one who says "I am selling of my own will," for his statement is nothing, as I wrote in section 21, because he did not mention the cancellation of a mada'a. But when he mentions the cancellation of a mada'a, it is as if he did not deliver a mada'a. There are some of our teachers who disagree on this and hold that since he is certainly under duress regarding the cancellation of the mada'a, the cancellation is nothing. It is specifically when he did not deliver a mada'a at all that we say that because he received money, he resolved and transferred ownership due to his duress. But when he delivered a mada'a that he does not wish to transfer ownership, what does his cancellation avail? For just as he is under duress regarding the sale, so too he is under duress regarding the cancellation of the mada'a. There is no remedy for this unless the witnesses write that they know that at the time of the sale the duress was removed. Our teachers, the authors of the Shulchan Aruch, stated the first opinion without qualification. Even according to the first opinion, if he said to the witnesses of the mada'a: "Be aware that every kinyan that I undertake to cancel the mada'a is entirely void, and I only say so because of the duress that you know of," the sale is void even if they performed a kinyan with him to cancel the mada'a. However, even in this case, some say that if he went back and canceled all the mada'ot regarding the cancellations that he performed at first, even though all of this was done under duress, nevertheless it avails to uphold the purchase. For ultimately we estimate his intent that since he receives money, due to his duress, he resolves and transfers ownership now with a whole heart after his cancellation, even though he said explicitly beforehand that his cancellation would not avail. Therefore, it is customary to write in deeds "every mada'a that issues from a mada'a forever," for if he did not write "that issues from a mada'a," even if it is written "forever," it does not avail, for this does not include the cancellation of the delivery of a mada'a that he delivered first regarding the cancellation of the mada'a that follows [Sma].

There is one who says that there is another counsel according to all opinions to nullify a claim of duress even when he has submitted a moda’a and even regarding the nullifications he will perform, such as by saying, "Behold, I disqualify any witnesses who say that I submitted a moda’a regarding this sale." Behold, he has rendered them as disqualified witnesses regarding himself, and their statement and testimony are nothing, for a person is believed regarding himself more than a hundred witnesses. However, if he submitted a moda’a regarding this itself beforehand and said, "Know that whatever witnesses I disqualify, it is all due to the duress, and my intention is not to disqualify them, but I will be forced to say so with my mouth because of the duress," then there is no benefit even in this remedy [Beit Yosef in the name of the Rashba]. And it appears that if he did not submit a moda’a regarding this specific detail, and afterwards he disqualified the witnesses, even though we knew that in the general matter he was under duress and presumably he was under duress regarding this as well, nevertheless, the admission of a litigant is equivalent to a hundred witnesses; and since he did not submit a moda’a regarding this, the sale is valid. And one should deliberate on this.

And all this is regarding a sale, but regarding a gift, as long as we know of his duress, even though the cancellation of the moda'ot is nothing, it is not a gift; for a gift, when we know of his duress, even without the delivery of a moda'a, his gift is void, as has been explained. If so, what does his cancellation avail, since we know of his duress? And it only avails if the witnesses write that they know the duress has departed and he cancels the moda'ot, for without cancellation, even the departure of the duress does not avail according to most of the poskim, as was explained in section 9. However, even regarding a gift, all this is when we know of his duress, but if we do not know of his duress at all, the cancellation of a moda'a avails even regarding a gift. Therefore, they are accustomed to cancel moda'ot regarding a get, for since we do not know of his duress, it will not avail even if he delivered a moda'a, since he cancelled it. And in Even HaEzer siman 134 it was explained at length, for even in this there are many specific laws. And our teacher, the Rema, wrote that the same law applies if he admitted to something for which he is not liable, it is like a gift in every respect; and even if he said before witnesses, "Be witnesses for me that I am liable to so-and-so for such-and-such," nevertheless, when it is clarified that he was not liable to him but is now making himself liable, as is written in siman 40, its law is like a gift for all matters of moda'ot.

Just as the submission of a moda'a is effective for a sale or a gift, so too it is effective regarding an oath; for if one swore to give a gift to someone, and prior to the oath he submitted a moda'a that he is under duress regarding the oath, even if we do not know of his duress, nevertheless it is like the gift itself, where a moda'a is effective even though we do not know of his duress, as has been explained. And this law is like an oath of duress that was explained in Yoreh De'ah siman 232, and we do not require recognition of his duress as in a sale, for since it is regarding a gift, its law is like a gift [this is the intention of the Shach in subsection 5 and in the Nekudot HaKesef; and what the Netivot HaMishpat wrote requires further study, for how can we permit an inquiry into that which is for the benefit of his fellow? And also what he wrote regarding whether an oath is called duress in a gift requires further study: if he swore of his own will, what does it avail that he regrets it? And if under duress, it is certainly nothing; and the primary point is as I have written, and examine this closely].