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Bava Basra, 40

BAVA BASRA 39 & 40 - dedicated by an admirer of the work of the Dafyomi Advancement Forum, l'Iluy Nishmas Mrs. Gisela (Golda bas Reb Chaim Yitzchak Ozer) Turkel, A"H.


QUESTION: The Gemara states that if Reuven admits to Shimon that he owes him money, his word is not legally binding until he makes his declaration in front of two witnesses. In addition, in order to draft a legal document of proof to the debt, Reuven must order that his admission of debt be written in a document testifying that he owes Shimon the money.

The RASHBAM (DH Hoda'a) says that now that Shimon is holding a bill of debt, Reuven is not believed to say that he returned the loan unless he brings two witnesses to Beis Din to testify that he repaid his debt. The Rashbam writes further that even if Shimon shows a handwritten note from Reuven that states that he owes money to Shimon, he may use the note to collect from Reuven's property and Reuven is not believed to say that he already repaid the debt.

What is the Rashbam's source for this ruling that a handwritten note is legally binding?

ANSWER: REBBI AKIVA EIGER explains that the Rashbam derives this Halachah from the Gemara in Kesuvos (21a). The Gemara there says that a person should be careful not to sign his signature on a piece of parchment, lest a dishonest person find it and write above the signature that the undersigned owes a large sum of money to him. The one who signed his name will be obligated to pay, because the Mishnah (Bava Basra 175b) states that if the claimant shows a note written with the defendant's handwriting, he may collect his debt from the defendant's property. From that Gemara the Rashbam infers that the defendant is not believed to claim that he paid back a debt when there is a note written in his own handwriting that states that he borrowed money.

(The Rashbam understood the Gemara in Kesuvos according to its simple interpretation -- when the creditor shows a note in the debtor's handwriting, the debtor is not believed to make any claim against it unless he has witnesses to support his claim. In contrast, TOSFOS in Kesuvos (21a, DH Hotzi) cites the RIF who maintains that the creditor may collect with a handwritten note of the debtor only when the debtor completely denies ever borrowing money. If he claims, however, that he borrowed money but that he paid it back, then he *is* believed.) (Y. Marcus)


QUESTION: The Gemara says that when a person gives a Get to his wife, or a document of ownership to his friend declaring that he is giving him a present, and he later decides to nullify the Get or the gift by stating that he gave the Get or the gift under duress, he is believed without witnesses. The RASHBAM (DH Giluy) explains that the reason for this is that since a Get or a gift is something that a person gives on his own accord, and he receives nothing in return for giving them, when he claims that he was forced to give them he is believed without additional proof.

The SHITAH MEKUBETZES challenges the Rashbam's explanation and says that it is possible that his wife's relatives are paying him money to divorce her, even though he actually wants to remain married. He should *not* be believed to say that he was forced to give the Get, since perhaps he gave it for a different reason, even though he did not want to give it!

ANSWER: The RIVASH (Teshuvos #127, DH v'Im Ken) writes that indeed in a case in which we know that the husband is receiving money to encourage him to divorce his wife, he may not nullify the Get without witnesses who testify that he issued a valid "Moda'a" and that he was genuinely coerced to give the Get.

It seems that the Rivash's argument is supported by the words of the Rashbam himself who writes that the husband is not receiving money for handing over the Get. We may infer from here that if he *is* receiving money for handing over the Get, then the witnesses on the "Moda'a" would indeed need to specify that they are aware of the coercion.

RAV ELCHANAN WASSERMAN (Kovetz Shi'urim #168) cites an alternative answer in the name of RABEINU YEHUDAH, the son of the Rosh (#73, DH Teshuvah Techilah), to the question of the Shitah Mekubetzes on the explanation of the Rashbam. There is an essential difference between a sale and a Get. The basic reason for why a person sells an object is because he needs the money (see later, 47b, where the Gemara states that every sale carries with it a certain degree of coercion, because if the seller would not have needed the money he would have retained his possessions. In contrast, when a man receives money to divorce his wife, the money is not the primary impetus for the giving of the Get. If the husband and wife truly cared for each other and were at peach with each other, then even if someone would give the man huge sums of money, he would refuse to divorce his wife. Hence, the real reason for the divorce must be coercion, and therefore the husband is believed even if he received money.

However, according to the answer of Rabeinu Yehudah, the son of the Rosh, why does the Rashbam write that the husband does not receive money for handing over the Get? He would be believed even if he *does* receive money! The answer is that the Rashbam's intention is not to say literally that he did not receive money, but rather to say that even if he did receive money, the money that a husband receives for a Get is not the reason he is giving the Get, as opposed to money a person receives for a sale, which *is* the reason for he is making the sale. (Y. Marcus)

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