וְאֵין צָרִיךְ לוֹמַר כְּתוֹבוּ מוֹדָעָא בִּפְנֵי שְׁנַיִם וְאֵין צָרִיךְ לוֹמַר כְּתוֹבוּ and the prior owner does not need to say to the witnesses: Write a document detailing the protest; they can write one even absent a directive. Similarly, one who desires to state a declaration, preemptively invalidating a bill of sale by notifying the court that it was executed under duress, needs to state the declaration in the presence of two witnesses, and he does not need to say to them: Write a document detailing the declaration; they can write one even absent a directive.
הוֹדָאָה בִּפְנֵי שְׁנַיִם וְצָרִיךְ לוֹמַר כְּתוֹבוּ קִנְיָן בִּפְנֵי שְׁנַיִם וְאֵינוֹ צָרִיךְ לוֹמַר כְּתוֹבוּ וְקִיּוּם שְׁטָרוֹת בִּשְׁלֹשָׁה The Gemara continues with the statement of Rava: An admission of a monetary obligation needs to be stated in the presence of two witnesses, and in this case, the one stating the admission needs to say to the witnesses: Write a document detailing the admission, as this document is to his detriment; they may not write one absent a directive. Acquisition by means of a symbolic act utilizing a cloth needs to be done in the presence of two witnesses, and the parties do not need to say to the witnesses: Write a document detailing the acquisition; they can write one even absent a directive. And ratification of legal documents needs to be done by means of three people.
סִימָן ממה״ק The Gemara presents a mnemonic for the cases discussed above: Mem, protest [meḥa’a]; mem, declaration [moda’a]; heh, admission [hoda’a]; kuf, acquisition [kinyan].
אָמַר רָבָא אִי קַשְׁיָא לִי הָא קַשְׁיָא לִי הַאי קִנְיָן הֵיכִי דָמֵי אִי כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי לִיבְעֵי תְּלָתָא אִי לָא כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי אַמַּאי אֵינוֹ צָרִיךְ לוֹמַר כְּתוֹבוּ Rava now discusses the statement of Rav Naḥman that he quoted. Rava said: If any part of this statement is difficult to me, this is what is difficult to me. This acquisition, what is it like? If it is like an act of the court, it should require three witnesses for it to take effect, as a court must consist of at least three men. If it is not like an act of the court, why does he not have to say to the witnesses that they should write the document detailing the acquisition? Isn’t transferring an item to another tantamount to admitting a monetary obligation?
בָּתַר דְּבָעֵי הֲדַר פַּשְׁטַאּ לְעוֹלָם לָאו כְּמַעֲשֵׂה בֵּית דִּין דָּמֵי וְהָכָא טַעְמָא מַאי דְּאֵינוֹ צָרִיךְ לוֹמַר כְּתוֹבוּ מִשּׁוּם דִּסְתַם קִנְיָן לִכְתִיבָה עוֹמֵד After Rava raised the dilemma, he then resolves it. Actually, it is not considered like an act of the court. And here, what is the reason that he does not have to say to the witnesses that they should write? It is due to the fact that a record of an unspecified acquisition is ready to be written. A symbolic act of acquisition indicates one’s intention to do everything possible to finalize the transaction as soon as possible without waiting for the actual transfer of the item. Therefore, it is assumed that the parties would desire that a document be written, and no explicit authorization is necessary.
רַבָּה וְרַב יוֹסֵף דְּאָמְרִי תַּרְוַיְיהוּ לָא כָּתְבִינַן מוֹדָעָא אֶלָּא אַמַּאן דְּלָא צָיֵית דִּינָא אַבָּיֵי וְרָבָא דְּאָמְרִי תַּרְוַיְיהוּ אֲפִילּוּ עָלַי וְעָלֶיךָ אָמְרִי נְהַרְדָּעֵי כֹּל מוֹדָעָא § The Gemara discusses the halakhot of a preemptive declaration. Rabba and Rav Yosef both say: We write a preemptive declaration only concerning one who does not generally listen to and implement the judgment of the court. In such a case, there is no recourse other than to write a preemptive declaration on behalf of the seller nullifying the transaction. If the buyer would be willing to listen to the court, the seller is expected to deal with the matter in court, rather than participating in the sale and writing a preemptive declaration. Abaye and Rava both say: A preemptive declaration may be written even concerning someone who is law abiding, such as for me and for you, as not every issue can be settled through the courts. The Sages of Neharde’a say: Any preemptive declaration