Summation of question: Land is acquired through money, a document or Chazakah. Even without handing over a loan document, he should acquire!

Answer: Just like he cannot be Makdish it, like is proven in Pesachim (31a), since the lands are not in his Reshus, also he cannot be Makneh them mid'Oraisa. (R. Akiva Eiger and the Ketzos ha'Choshen ask, if Tosfos discusses Hakna'ah of the document itself, what is the source that he cannot be Makdish it? If he discusses Hakna'ah of a lien on the land without the document, where do we find that Chachamim enacted this for people, which Tosfos' next question assumes?)

Implied question: Why didn't Rabanan enact that one can be Makdish it, just like they enacted that one can be Makneh it?

Answer: This is because Hekdesh does not need this so much.

Rebuttal (R. Tam): We can reject the proof from below (147b). The Gemara asked that granted, if you will say that Matanas Shechiv Mera is mid'Oraisa, [the heir] cannot pardon, for he is not an heir, for the recipient of the gift is the heir;

We expound Matanas Shechiv Mera below (147a) from verses of inheritance, from "v'Ha'avartem" - there is another transfer like this.

Really, we can say that sale of a document is mid'Oraisa.

Question: [If the sale is mid'Oraisa,] in any case, we need a proper reason why it is not an absolute Kinyan, and [if the seller pardoned it,] the borrower can say [to the buyer] "you have no case with me"!

[Rather, we should say that the buyer] totally acquires, so [the seller] can no longer pardon, since he was Makneh to him the lien on the land in the document!

Pesak (Rav Yehudai Gaon): Osiyos are not acquired through Chalipin.

Assertion (R. Tam and Ri): His text said "Osiyos are not acquired through Mesirah", like Rabanan, for this is the Halachah.

Proof #1 - Citation (Sanhedrin 31a): A woman was holding a document. She said "I know that this document was paid." Rav Nachman believed her;

Rava asked him "is this like Rebbi, who says that Osiyos are acquired through Mesirah? He answered "no. It is because if she wanted, she could have burned it."

If the Halachah follows Rebbi, what was Rava's challenge? And why didn't Rav Nachman answer him that surely, she is believed because Osiyos are acquired through Mesirah?

Proof #2: Another version there says that Rav Nachman did not believe her;

Rava asked "if she wanted, she could have burned it!" [Rav Nachman] answered "since it was established (seen) in Beis Din, we do not say (believe due to a Migo) "if she wanted, she could have burned it!"

Inference: If the Halachah follows Rebbi, why didn't Rava ask "like whom is this? Is it unlike Rebbi?!"

Also, why didn't Rav Nachman believe her? Granted, we do not say "if she wanted, she could have burned it", since it was established in Beis Din. In any case, he should believe her because Osiyos are acquired through Mesirah!

Conclusion: This connotes that the Halachah does not follow Rebbi.

Implied question: It says below (151a) that the mother of Rav Amram Chasida had a sack of documents. She said [before she died] "it should be to my son Amram." [His brothers] came in front of Rav Nachman, and said "he did not do Meshichah!"

Inference: Had he done Meshichah, he would have acquired!

Answer: That is only regarding Matanas Shechiv Mera, who does not need to write, for the words of a Shechiv Mera, it is as if they are written and handed over;

They thought that Meshichah is needed, since normally Mesirah is needed, and a document is unlike other matters of a Shechiv Mera.

Implied question: In Kesuvos (85a), regarding the woman with whom were deposited a sack of documents, it connotes that had she seized them in [the depositor's] lifetime, she would have acquired, even though there was no writing [to be Makneh them to her]!

Answer (Ri): She did not want to acquire the loan. Rather, there she wanted to pressure the orphans to pay her, through keeping the documents in her hand so they cannot collect the debt.

Implied question: It says below (173a) that Osiyos are acquired through Mesirah. Abaye said that he must bring a proof, and Rava said that he need not bring a proof. (This connotes that Rava holds that Osiyos are acquired through Mesirah!)

Answer: This is not because Rava holds that Osiyos are acquired through Mesirah, for in Sanhedrin (31a) it connotes that he holds that Osiyos are not acquired through Mesirah, like I explained!

Rather, he [explains] according to those there (the Tana of the Mishnah and of the Beraisa).

Observation: However, Abaye surely holds that [Osiyos] are acquired through Mesirah in Yevamos (115b) regarding Rava's proof (regarding a report that Yitzchak Reish Galusa died) that we are not concerned for two "Yitzchak"s, since Rabah bar Avuha collected with documents of Mechuza in which were written Nani bar Chavi and Chavi bar Nani, even though these are common names in Mechuza;

Abaye said [that this is not a proof, for] there, what is there to be concerned for? If [you will say that we should be concerned] for falling, people are careful [with documents];

If [you will say that we should be concerned lest] it was a deposit, since his name is like his name, he would not deposit with him!

What will you say - perhaps he handed over the document to him? Osiyos are acquired through Mesirah (so the bearer is entitled to collect)!

Inference: This proves that Rava holds that [Osiyos] are not acquired [through Mesirah], since he brings from there [a proof] that we are not concerned for two "Yitzchak"s. (If we were concerned, he could not collect, lest the other Yitzchak handed over the document to him, and this does not entitle him to collect);

If he held that [Osiyos] are acquired [through Mesirah], what is the proof from there? There, there is nothing to be concerned for, like Abaye said, for we are not concerned for falling or a deposit!

Proof: Rava holds below (173a) that one need not bring a proof, because he is not concerned for falling or a deposit!

Conclusion: Rather, surely it is not acquired. Therefore, we bring that just like we are not concerned lest he handed over to him, likewise we are not concerned for two "Yitzchak"s.

Suggestion: We can reject this. He brings a proof as follows. If it were true that we are concerned for two "Yitzchak"s, even though there are not Muchzak [to be two]...

If there were Muchzak [to be two], obviously we are concerned, like is proven there regarding these documents!

[If we were concerned for two "Yitzchak"s,] we should have been concerned for falling or a deposit, for there are many "Nani bar Chavi"s in Mechuza!

Rejection: Since it says "what will you say - perhaps he handed over the document to him? Osiyos are acquired through Mesirah!", this connotes that Rava inferred from this.

Question: Since Rava holds that [Osiyos] are not acquired [through Mesirah], what was Rava's inference in Gitin (24b? The Mishnah says that a Get written to divorce his older wife cannot be used to divorce the younger one. This implies that) it can be used to divorce the older wife. (Rava) inferred that if two "Yosef ben Shimon"s live in the same city, either may present a loan document and force the borrower to pay him. (The borrower cannot claim 'perhaps I owe your namesake.')

How could Rava infer this? Perhaps really, they cannot present [a loan document against others], lest one handed it over to the other to acquire it, and Osiyos are not acquired through Mesirah;

However, regarding Get there is no concern. Why would she hand it over to her friend? No Kinyan applies to handing it over to her friend!

Answer #1: The text says there says Rabah, since Abaye speaks after this. (Normally Rabah's opinion is brought before Abaye's, and Abaye's before Rava, for Rabah was Rosh Yeshivah before Abaye, and Abaye before Rava.)

Answer #2 (Rashba): Even if the text says Rava, it is a proper inference. Just like one can divorce a minor, and we are not concerned for a deposit, or lest [her husband] handed it over to her to wrap on her bottle...

Similarly, two "Yosef ben Shimon"s can present [a document and collect]. We are not concerned lest one handed it over to the other to acquire it, or lest he handed it over to him to wrap on his bottle...

They know that Mesirah does not help to collect the debt, for Osiyos are not acquired through Mesirah.

Explanation (Ri): Handing over the document is called Mili (words), for he says to him "acquire this document", which is mere words;

However, when he writes a document in his name for the lien, this is the ultimate action.

Question: Since [writing the document] does not harm him at all, both regarding a sale and a gift , we should write for him in any case, so he cannot deny it, since he does not lose through the writing, even regarding a sale!

Suggestion: Perhaps [the seller] does not want [this buyer] to take from Meshubadim (property that the seller sold to others, if creditors will take what this buyer bought).

Rejection: Even without a document, he collects from Meshubadim, like it says above (41b) "one who sells his field in front of witnesses, [if it is taken from the buyer], he collects from Meshubadim.

Answer #1: He loses, for through the document, there is publicity that he sold or gave, and people will not be so willing to lend to him, for he does not have so much land.

Implied question: Surely, the buyer can retract, for he can say "I did not buy with intent that you will not write a document for me!" (Why can the seller retract from writing it?)

Answer: In any case, the seller can retract from the document. If the buyer does not want to buy without a document, he will abandon [the sale].

Answer #2 (R. Tam): We discuss only a gift document. [The giver] does not want that there are many documents against him, for people do not know that it is a gift document;

Rather, they think that it is a loan document or a sale document, and he put a lien on his land. People will not be so willing to buy from to him, for they fear lest [creditors] take from them;

However, he cannot retract from a sale document. Presumably, [the buyer] bought it with intent that [the seller] will write a document for him.

Question: Below (168b), a Beraisa teaches that if one comes and says "I lost my loan document", even though witnesses say that they wrote, signed, and gave to him the document, we do not write and give another document for him, even without Achrayus;

We are concerned lest he paid him and he wants to collect a second time. However, a document of sale we write, but without Acharayus. Now, there is no concern lest he take [Meshubadim], and take again.

We are not concerned for additional documents, lest people not know that it was written twice on one field and they will think that he sold another field, or that it is a loan document.

Question: How is it proven from here that Mili are acquired through Mili? Here, [his words] did not acquire the lien of the document;

Even without [the document], he put a lien on his property, for one who sells his field in front of witnesses, [if it is taken from the buyer,] he collects from Meshubadim. [His words] help only to acquire the document itself!

Answer: It connotes to him in every case, whether he was Machazik in front of witnesses or not in front of witnesses, in which case there is no lien on his property. In every case it teaches that the document is acquired, wherever it is.

Question: Still, how is it proven from here that Mili are acquired through Mili? Here, we find that [words] acquire a sale document written in the name of the seller to the buyer;

Surely, in such a case Mesirah helps without writing, according to everyone!

However, one who sells or gives a [loan] document that he has against others, [perhaps] it is not acquired through Mili, i.e. through mere Mesirah, until he writes!

Answer: We ask as follows. Agav (acquiring Metaltelim along with land) is Mili, and it is an inferior Kinyan, and even so, it acquires without Mesirah, to acquire the lien in a document written in his name;

If so, even a document not written in his name, Mesirah should help without writing, since a lien is so easy to acquire!

Explanation #1: We answer that Agav is different. Agav is not an inferior Kinyan. Agav is powerful like a total Mesirah, for even something not acquired through Chalipin is acquired Agav land. It is considered like Mesirah, Meshichah and Hagbahah.

Explanation #2 (Rashbam): Now, we did not think about Kinyan Agav. One might have thought that he acquired through [the seller's] consent to him.

Question: If so, why did we need to say "since he was Machazik in the land, he acquired [the document], since he does not acquire through this (Agav)?

Answer: One might have thought that he did not consent until he was Machazik, but in any case it is Mili, since he acquired through consent.

Question #1: According to texts in Bava Kama (104b) that say that he was owed [a debt], this is difficult. How was he Makneh to [Rav Shmuel]?

Question #2: Also, how do we write a Harsha'ah (power of attorney) for a loan? It says below (152a) that a Matanas Shechiv Mera in which a Kinyan is written, [the giver] gave [the recipient] two powers...

It is like Matanas Shechiv Mera, that if he said "my loan (that is owed to me) is to Ploni", Ploni gets his loan.

Inference: A Bari (healthy person) cannot be Makneh a loan, even through a Kinyan, for there we discuss with a Kinyan!

Suggestion: There we discuss a loan of coins, which is not acquired through Chalipin.

Rejection: If so, there was no need to mention a loan! He should have said "my coins are to Ploni"!

Rejection #2: Also, it says below (148a) "this implies that Rav Nachman holds that a matter that applies to a Bari applies to a Shechiv Mera. What does not apply [to a Bari...]"

Citation (cont) Question: Rav Nachman said that if a Shechiv Mera said "my loan is to Ploni" [Ploni gets his loan]!

Answer #1: Since an heir inherits [a loan that was owed to the deceased, also a Shechiv Mera can be Makneh it].

Answer #2: [Even a Bari can be Makneh it] through Ma'amad Sheloshtan.

Summation of Rejection #2: The Gemara should have said that it applies to a Bari even regarding [being Makneh] a loan of coins Agav land!

Answer (R. Tam): It is an enactment mid'Rabanan regarding Harsha'ah, to enable one to make a Shali'ach even for a Harsha'ah of a loan, even though one cannot be Makneh it.